Sentencing is the enforcement of punishment on a convicted offender for the purpose of acknowledging the offender’s wrongdoing particularly by reason of guilt. (Champion, 2007) The imposition of sentencing may be by the orders of a court judge. Typical form of punishment includes imprisonment at a correctional facility or jail, probation, or even in some case a mental hospital. You will see as the essay progresses that sentencing can be comprised due to the lack of discretion of the officers of the court irrespective of the severity of the crime or lack thereof.
Also, the definition of punishment sometimes can pose many issues with regard to sentencing because it is often defined in many different ways throughout the criminal justice system. Andrew Ashworth’s Sentencing and Criminal Justice book calls Section 142 of The Criminal Justice Act 2003 the worst of “pick-and-mix” sentencing, and one which invites inconsistency. He is basically saying that the Criminal Justice Act of 2003 determined that judges were given certain criteria or goals to adhere to with regard to sentencing and then they would have the authority to pick, choose and mix whichever and whatever punishment they wanted to impose. Ashworth, 2005)Purposes of Sentencing The most important aims and purposes of sentencing include “deterrence, rehabilitation, incapacitation, desert, social theories, and reparation or restoration. ” (Ashworth, 2005) Deterrence is the process by which a method is chosen in order to prevent a criminal from committing crime.
It seeks to focus on punishing because of the criminal activity rather than the actual offender. According to Nagin (1978), deterrence operates through the effect of invoking punishment on the criminal actions of the convicted offender.The purpose of special deterrence is to lower recidivism, that is, preventing offenders from re-offending. However, past evidence has revealed that this kind of deterrence has not necessarily affected recidivism rates when imposing punishment at discretionary limits. This fact is yet to be proven. (Nagin, 1978) The other type of deterrence is general deterrence, which is aimed at revealing principle in deterring criminal activity in addition to actually punishing them.
This theory seeks to expose the criminal activity of the offender to the public in order to be an example of what not to do in the sight of the law. General deterrence aids in the process of leading the offender as well as the public to make logical decisions before committing crime. Many criminology theorists have thought rehabilitation to be an implausible means by which to impose sentencing. Rehabilitation in the penology context, is defined as the concept of educating and reforming a criminal through therapy or the like in order to restore them to good condition back into society as law-abiding individuals.This theory is founded on the belief that severe punishment is not the answer is creating a path for an offender to make amends to society but in order to do so, they must be rehabilitated. For example, an offender who commits crime due to their abuse of cocaine may be sentenced to participate in drug treatment therapy.
Incapacitation is the most common purpose of sentencing.Zimring and Hawkins (1995) define incapacitation as “removing an offender from society and thereby physically preventing that offender from committing crimes in society as the primary reason for imprisonment. When an offender is incapacitated, he is unable to commit crimes that affect outside of the prison walls, which an effect carried out by means of incarceration. Incarceration keeps the offender in a surrounding where there is much restriction.
Often time, some criminals are even intimidated by other criminals within the compounds who have committed more dangerous crimes; therefore, this may cause the inferior criminals from committing future. Although this is not definite, it still occurs.Also, the treatment within the prison system allows the criminal to understand that he or she is not in charge. They are told what to eat, when to eat, restricted free time, etc. Criminals do not determine their own schedule.
Even the most dangerous criminals, if the violent behaviour has not changed in prison, they are often placed in solitary confinement where the offender is denied all contact except prison staff. Some criminologists view it as a form of torture while it still holds true to the concept of incapacitation.The offender is no longer able to harm others and they can meditate on their behaviour and at least to contemplate whether or not they would like to change their negative behaviour to positive. However, prolific criminologists Zimring and Hawkins (1995) believe that America is a society exclusively focused on punishment and that numerous offenders are incarcerated merely based on committing crime rather than the violent crimes, which they commit.
Also, they believe that the less violent criminals are incarcerated for a lengthy amount of time.Desert based sentencing assumes that it is more important to have proportionately ordered sanctions than to seek other objectives—say, incapacitating those deemed higher risks. ” (Blomberg and Cohen, 2003) Some believe that this concept is more likely to increase the likelihood of re-offenders. Also, in examination of this theory, it seems to be more punitive than many of the other purposes for sentencing. It ignores some of the essential goals needed to be achieved to prevent offenders from committing crime.
Rehabilitation in relation to the desert-based sentencing is insignificant in the fact that criminologists who support it would think of rehabilitation as a waste of time within the criminal justice system. They would say rehab is not looking to punish which is the aim of sentencing. Social theories are also very important in sentencing because they determine who or what is affected by the crime that has been committed.These theories such as the positivist theory refer to the investigation of standardization in crime and the criminal justice system.
Beirne and Messerschmidt, 2000) The utilitarian perspective in relation to sentencing focuses on the outcomes of punishment instead of concentrating on the past crime committed. By focusing on the crime, which has already past, the utilitarians believe that it is not beneficial in the progression of the criminal. Retributive perspective, which opposes utilitarianism, focuses solely on the punishment of the offender. This perspective is founded upon the thought that the only way a criminal can progress is through the administration of punishment.
The great philosopher Kant determined that “retribution is not just a necessary condition for punishment but also a sufficient one. Punishment is an end in itself. Retribution could also be said to be the 'natural' justification, in the sense that man thinks it quite natural and just that a bad person ought to be punished and a good person rewarded. (Bottoms and Preston, 1980) Social theories are derived from perspectives where they examine how, who, what, etc. is affected by sentencing and crime in this particular context.The final aim of sentencing is reparation or restoration which is basically making amends and giving back to the victim in an effort to establish accountability and be repentant for the wrongdoing against the victim(s).
The Journal of Social Justice Research says that restorative sentencing gives priority to reparation and resolution between victims and their offenders and focuses less on creating relevance between the gravity of the crime and the significance of the sentencing enforced on the offender. Roberts and Stalans, 2004) The primary focal point of restorative justice involves creating a way for the offender to take accountability for his or her actions.Many victims can obtain relief or solace in knowing that offender feels some sort of remorse for the crime. It may not completely erase the pain but it can provide many answers to a lot of unanswered questions.
Issues with Regard to Sentencing Sentencing is a process whereby a judge must use his or her discretion. I believe this is what Ashworth was speaking of in relation to “pick-and-mix” sentencing and also its inconsistency.It is essential for judges to know the legislative conditions of principle and the purposes of its existence in order to execute the discretionary process. Dimensions of Law book includes four cases pertaining to this issue of sentencing, one of which involve the appellate review of sentencing decisions made by a trial court judge. The first case is R v.
Hinch and Salanski, which details a case from British Columbia Canada where the defendant Hinch obtained contractual agreements in return for bribes to Mead.The defendants, Hinch and Salanski, schemed with Mead, who committed suicide prior to trial, to carry out a chargeable crime, that is, to acquire funds from BC Hydro by way of deception. The defendants pled guilty to charge of obtaining money under ‘false pretenses’ although they were businessmen, no previous criminal record, and good status in their community. The maximum sentence was 10 years. There was an appeal by from sentence imposed at trial level, which stated 1-month prison, $2000 in fines. The defendants also provided for full compensation of $21,000, which was stolen.
The criteria that the appeal was founded upon were: • “That due regard was not given to the seriousness of the offence,” • “That the sentence was inadequate having regard to the amounts received and period of time that the defendants were involved in conspiracy. ” The decision was that the majority determined that there was no reversible decision in the trial judge’s administration of law. The sentence was not extremely subtle and the trial judge was in a better place to adjudicate sufficiency of sentence.Court considered their previously flawless record, the fact that they were married, provided for their families, previously involved in a civil suit, and victims of the unparalleled expertise in trickery and bold. Also factored in was the fact that the defendants did not instigate the crime, and they did not benefit, had already served sentence, and hurt their status within the community.
(Pichard and Goldman, 2002) There are many issues in sentencing especially in modern society.Judges are often faced with the dilemma of making decisions and considering certain concerns such as: “(a) probation versus incarceration, (b) jail and prison overcrowding, (c) the conflict between the protection of the public, and the offender’s chance for rehabilitation and also being re-integrated into society, (d) selective incapacitation and the matter of false positives and negatives, (e) wrongful convictions, (f) abuses of discretionary on the part of judges and parole board officials, (g) individuals who are punished without being convicted, (h) and predicting offender risk. ” (Champion, 2007)
