Objectives and theories of sentencing

Introduction

The drive to sentence or punish an offender is to promote maintenance of a just, safe and peaceful society as well as respect for our laws and to execute this, a judge must consider several objectives and theories of sentencing. Such theories include and not limited to:

Denunciation

The philosophy behind denunciation as a theory of sentencing is just to express community’s disapproval of the committed crime or misconduct. The delinquencies under the Criminal Code replicate the behaviours which our society condemns and those behaviours that our society considers not in line with the value system.  Therefore, the theory focuses less one putting blame on the specific offender but emphasizes more on defining our values and moral conducts that we expect individuals in society to observe. This theory fit in the overall scheme of criminal justice system in the sense that it is likely the foundation on which mandatory minimum sentences are based for certain offences.  That is, for instance, the mandatory sentence associated with murder is simply life imprisonment.

Deterrence

The underlying hypothesis in deterrence theory is that the sentencing or punishment will discourage individuals from committing crime.  Normally the principle is considered to be that; increasing the severity of sentencing or punishment, will lessen the crime rate.  Nonetheless, there is now substantial research that refutes this idea, particularly with regards to the jail sentences.  Easton and Piper (2012) and the sentencing commission found no proof of deterrent effect as claimed to results from increasing the harshness of the sentence (127). However, they both accept that instead any deterrent effect hails from the whole process rather than the specific sentence imposed. The effectiveness of this theory, in criminal justice system, as far as sentencing is concerned, is therefore questionable.

Separation from Society

As the name alleges, this theory is anchored on the simple concept that a criminal who is in prison is powerless of committing crime within the community for the time the criminal is locked up in jail and away from the rest of society. This concept should only be applied to individuals who cannot be reformed or deterred in the community. The idea in this provision is that the theory should be adopted only when needed. This theory is mirrored in the provisions, under the Criminal Code, that allow some criminals to be labelled as Dangerous Criminals and to be punished to indeterminate the time span of incarceration. Death penalty is, in fact, the ultimate sentencing in this theory of separation from society, even though this ultimate sentence was eliminated from the provisions under the Criminal Code in some states, such as in Canada in 1976.  Nevertheless, it might be fascinating to learn that the rate of homicide those states, particularly in Canada, have gradually decreased ever since the sentence was abolition. This theory still fit well in the criminal justice system and may be referred to by most judges when determining what kind of sentence to give in criminal cases.

Retributivism

The spirit of retributivism as one theory of sentencing is bring out the concept of “just deserts” where punishment is imposed on the criminal because the punishment is “deserved” by that particular crime which the criminal has committed. The criminal “pays for” his or her misconduct by a way of punishment that “fit” the crime. In simple terms, the punishment ought not to be excessive; instead, it ought to be what is mandatory going by the gravity of the crime. One might argue, for instance, that if sentencing is just “paying for your crime” it can be a retrospective permit for the offence. Therefore, it’s fine to commit any crime provided you are ready to accept the sentence (“do the offence, do the time”). Sentencing as censure is suggesting: “you ought not to have committed this crime and the reality that you are sentenced in no way implies it was fine for the crime to have been committed by you” Nonetheless there is some sense that if one has suffered the punishment of sentencing then he or she is a full member of community again.

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In the retributive theory approach sentencing is therefore completely concerned with offender`s past behavior, and with the crime which the offender has done. It is the responsibility of criminals to make reparations or compensations for their criminal activities; not directly to victims of circumstances but indirectly to state or the penal system. Unlike the victim who might still feel grieved and thinking about extra revenge, the state is capable of imposing the correct proportional sentencing which correctly mirrors the gravity of the offence.

This part of the questions explore various theories put forward as being the bedrock of arguing cases in criminal justice system. The theories in question are:

Cesare Beccaria`s theory

According to Beccaria, every human being has three basic things: the ability of being rational, the free will capability, and self-interested thought as well as manipulability. Beccaria asserts that what causes individuals to commit crime can be attributed to the free choices that they make in their self-interests and at times those choices clash with those of the society at large. He further asserts that most of these criminal activities could be foreseen. Thus, it is be fitting for the society to manipulate people planning criminal activities by enacting sentences higher enough to prevent individuals from committing such delinquencies.

On his theoretical argument, Beccaria proposed various ideas to revolutionize and improve modern penal codes (Braithwaite and Pettit, 53). For instance, Beccaria argued that sentencing of criminals should be utilitarian. That is the sentencing should do more good than harm to the society. Retributive punishment, such as beating, was unwarranted and did more harm than good, to the society, if the sentenced individual ever returned back to the general population. He advocated that sentencing and punishment ought to focus on rehabilitating the offenders for eventual comeback to the society. Beccaria criticized the use of torture as well as secret judicial proceedings. Furthermore, he advocated for the eradication of death penalty. In as much as this theory is effective in today`s criminal justice system, death penalties and torturing have been abolished in most penal codes, it has one major weakness: it is not a guarantee that rehabilitative sentencing or punishment will discourage individuals from committing crime.

Jeremy Bentham`s theory

Just as Beccaria, Bentham was also known for utilitarianism. He claimed that individuals should balance the consequences that comes with their actions prior to acting so as to lessen the pain and maximize pleasure. Therefore, pleasure and pain ought to be considered whenever criminal legislation is to be considered.

Bentham hypothesized that legislators should use utilitarian argument to control criminal activities.   He believed that criminals have in mind the pain associated with sentencing against any pleasure obtain from committing such crime. As such, the pain of punishment ought to outweigh any pleasure.

Bentham did not support excessive severity used in sentencing the perpetrators. Some of Bentham’s concepts were implemented into contemporary laws. His teachings laid the foundation for considerable legal reforms that were spread by his followers.

Cesare Lombroso`s theory

Lombroso, on the contrary, believed that the real criminal can be known simply by observing certain physical qualities such as asymmetric cranium, long lower jaw and other traits like sensitivity to touch and pain, use of distinct criminal slang, weird expression of thoughts, unemployment and tattoos. Positivist used obtainable scientific methods during that time like anthropometric measuring, intuitive thinking, phrenological measuring, and retrospective interview of prison inmates or even asylum inhabitants among others. Cesare Lombroso coiled philosophy of born criminal, thanks to his own phrenological and anthropometric researches, which led him to false deductions. Even the present scientists in evaluating and constructing theories of crime can make mistakes just like Cesare Lombroso. His concepts are no longer useable today. However, credit may be given to him as being the pioneer in the encouragement of scientific approaches to criminology. Even though his anthropometric measurements were right, the causal relationship between human physical features and criminality was misleading.