2.2

• Retribution

  ·

  ·         Retribution literally means “paying back”

  ·         It involves inflicting punishment on an offender as vengeance for a wrong or criminal act

  ·         Retribution is based on the idea that criminals should get their “just desserts”

  ·         Offenders deserve to be punished and society is morally entitled to take its revenge

  ·         The offender should be made to suffer for having breached society’s moral code
• Expressing moral outrage  

  ·         Although retribution may have some good effects (such as deterring potential offenders) its main purpose is to allow society to express its moral outrage at the offender  

  ·         Punishment is morally good, regardless of whether it changes the offender’s future behaviour  

  ·         Retribution is justification for punishing crimes already committed, not a way of preventing future ones  
• 2-year uplift for hate crimes is an example of expressing moral outrage
• Proportionality  

  ·       This is the idea that punishment given should fit the crime 

  ·       It should be equal to or proportionate to the harm done 

  ·       This is why some people argue that murderers should suffer the death penalty  

  ·       The idea of proportionality leads to a “tariff” system or a fixed scale of compulsory penalties for different offences  
• Retribution Criticisms

  ·         Sometimes offenders deserve forgiveness, mercy or a chance to make amends – not just punishment

  ·         If there is a fixed tariff of penalties, punishment has to be inflicted, even where no good will come of it e.g. a remorseful offender who will commit no further crimes

  ·         People disagree about which crimes are serious and which aren’t, this makes proportionality hard.
• Retribution Theories

  Right Realism – Links to rational choice theory. The aim of retribution assumes that offenders are rational actors who consciously choose to commit crime and are fully responsible for their actions. They therefore must suffer the outrage of society for what they have chosen to do

  Functionalism – Durkheim suggests that the moral outrage that society expresses performs the function of boundary maintenance. Punishing the offender reminds everyone else of the difference between right and wrong
• Cognitive theories


  Favour cognitive behaviour therapies (CBT) to teach offenders to correct thinking errors and biases that lead to aggressive or criminal behaviour
• Eysenck


  • Favours the use of aversion therapy to deter offending behaviour
• Skinner

  • Supports the use of token economies to encourage prisoners to produce more acceptable behaviour
• Left realism


  • Favours rehabilitation as they see social factors such as unemployment, poverty and poor educational opportunities as causes of crime. Addressing these needs will reduce offending
• Rehabilitation Criticisms

  ·         Right realists argue that rehabilitation has limited success – many offenders go on to reoffend even after the programmes

  ·         Marxists criticise rehabilitation programmes for shifting the responsibility for offending on to the individual offender’s failings, rather than focusing on how capitalism leads some people to commit crime
• Rehabilitation requirements

  ·         Community sentences include requirements for offenders to participate in these programmes as part of their sentence

  ·         Rehabilitation programmes generally require offenders to actually want to change their lives

  ·         They often require considerable input of resources and professional support from therapists, probation officers or others to help achieve a change
• Rehabilitation policies

  Education and training programmes for prisoners so they can avoid unemployment and “earn an honest living” upon release

  Anger management courses for violent offenders, such as Aggression Replacement Training (ART) and other cognitive behavioural therapy programmes

  Drug treatment and testing orders and programmes to treat alcohol dependence
• rehabilitation

  ·         The idea that punishment can be used to reform or change offenders so they no longer offend and live a crime free life

  ·         Does not focus on punishing past offences, rather, it uses treatment programmes to change the offender’s future behaviour

  ·         Addresses issues that led to their offending
• Deterrence Theory

  Right Realism

  ·         Rational choice theory sees individuals as rational actors who weigh up the costs and benefits before deciding whether to offend

  ·         Situational crime prevention strategies such as target hardening make it harder to commit an offence successfully and therefore act as a deterrent

  Social learning theory – general deterrence

  ·         If would be offenders see a model (one of their peers) being punished for offending, they will be less likely to imitate that behaviour (vicarious reinforcement – learning through the consequences of others)
• Deterrence Criticisms

  ·         The fact that about half of all prisoners reoffend within a year of release suggests that prison is not an effective deterrent

  ·         Difficult to decide how severe a punishment needs to be for it to be a deterrent

  ·         Deterrence assumes that would be offenders know what the punishments are, but they may not

  ·         Deterrence assumes that offenders act rationally, carefully weighing up risks. But some act irrationally

  ·         People who break laws they see as unjust are unlikely to be deterred by punishment
• Severity Vs. Certainty

  ·         However severe the punishment may be for a particular offence, if there is very little chance of being caught and convicted, then it will be unlikely to deter offenders. i.e. even though there is a mandatory three-year minimum sentence for a third domestic burglary, only about 5% of burglaries result in conviction

  ·         If the likelihood of facing the punishment is low, it may not be a deterrent

  ·         If an offender is certain to be caught, then a relatively mild punishment may be an effective deterrent
• Individual Deterrence

  Also known as specific deterrence. Uses punishment to deter the individual offender from re-offending. The punishment should show the offender that the crime is not worth the punishment
• General Deterrence

  Aims at deterring society in general from breaking the law. If the public see an individual offender getting punished, they will know that this is what will happen to them.
• Deterrence - This means to “put people off” committing crime
• Public protection Theory

  Lombroso

  ·         Argued that criminals are biologically different from society and it is not possible to change or rehabilitate them

  ·         He favoured sending habitual offenders to exile i.e. detaining them on islands away from society

  Right Realism

  ·         Incapacitation protects the public from crime

  ·         A small number of persistent offenders are responsible for the majority of crimes

  ·         Incapacitating them with long prison sentences would significantly reduce the crime rate
• public protection Criticisms

  Incapacitation leads to longer sentencing and long term “warehousing” of offenders with little hope of release

  Incapacitation is a strategy of containment or risk management – it does nothing to deal with causes of crime of to change offenders into law abiding citizens

  The three strikes principle re-punishes people for their previous crimes

  It is unjust because it imprisons them for crimes that the law assumes they may commit in the future
• public protection policies

  ·         Execution of offenders – preventing them from committing further crimes

  ·         Cutting off the hands of thieves

  ·         Chemical castration of sex offenders

  ·         Banishment e.g. in the early 19th century, convicts were often transported to Australia

  ·         Foreign travel bans – to prevent football hooliganism

  ·         Curfews and electronic tagging – restricts movement of offenders
• Imprisonment


  The main means of incapacitation
• Taking offenders out of society


  Prevents them from committing further crimes against the public
• Incapacitation for public protection has influenced sentencing laws
• Sentencing laws influenced by incapacitation for public protection


  • Crime (Sentences) Act 1997 introduced mandatory minimum jail sentences for repeat offenders
  • Automatic life sentences for a second serious sexual or violent assault
  • Seven years minimum for a third Class A drug trafficking offence
  • Three years minimum for a third domestic burglary conviction
• Imprisonment for public protection (IPP)


  Indeterminate sentence given to a dangerous offender convicted of certain violent or sexual offences, introduced by the CJA (2003), stopped in 2012 for new cases
• Three strikes and you're out policy


  • Offenders given long prison sentences for a third offence if the two earlier offences were serious crimes, introduced in the 90s in the US
• public protection

  ·         Punishment may be used to protect the public from further offending by incapacitating offenders

  ·         Incapacitation is the use of punishment to remove the offender’s physical capacity to offend again
• Reparation Theory

  Labelling theory

  ·         Favours restorative justice as it reintegrates offenders into mainstream society

  ·         By enabling them to show genuine remorse, it allows reintegration and prevents them from being pushed into secondary deviance

  Functionalists

  ·         Durkheim argues that reparation causes denunciation (showing offenders that society disapproves of their behaviour and that it is unacceptable)

  ·         Social control achieves solidarity in society

  ·         The setting of boundaries of acceptability towards crime strengthens social cohesion
• reparation Criticisms

  ·         Reparation may not work for all types of offence

  ·         Compensation for damage to property or minor offences may be fairly straightforward – difficult to make reparation for sexual or violent crimes

  ·         Reparation to homicide victims is impossible

  ·         Reparation is too soft and offenders get off lightly
• Restorative justice

  ·         Makes amends for social damage

  ·         It involves the offender recognising the wrongfulness of their actions

  ·         It brings the offender and victim together and allows the victim to explain the impact the crime has had

  ·         Offender can come to appreciate the harm that they have caused, express their remorse and seek forgiveness

  ·         Restorative justice can help to bring closure to the victim and reintegrate the offender into society
• Making amends for material damage can include:

  Financial compensation

  ·         This can be paid to the victim i.e. paying to repair damage done to someone’s property

  ·         Courts can impose compensation orders on offenders

  Unpaid work

  ·         To make reparation to society through community payback, for example, removing graffiti from public buildings

  ·         This would be imposed by the court as a community order
• reparation

  ·         Involves the offender making amends for a wrong they have done, whether to an individual victim, society as a whole, or both

  ·         The harm done can be both material and social