This essay seeks to critically discuss whether punishment is “a symbolic way of getting back at the criminal, of expressing a kind of vindictive resentment”. We will be focusing on many areas such as the penal policy, the different sentencing philosophies, community sentences, imprisonment and social theorists to support this essay.
‘Penal’ is related to, or prescribing punishment, as for breaking the law (The Free Dictionary By Farlex 2018). In criminal law, punishment involves the offender of a crime as a means of discipline. It usually involves pain, hardship and deprivation to the recipient (Cavadino, Dignan and Mair, 2013:32). Criminal law punishment is typically imposed on the offender by an authority, usually by the court. “Punishment is, on the face of things, an apparatus for dealing with criminals… but it is also… an expression of state power, a statement of collective morality, a vehicle for emotional expression, an economically conditioned social policy an embodiment of current sensibilities and a set of symbols which display a cultural ethos and help create a social identity” (Garland, 1980:287).
Throughout most of the 20th century, we became accustomed to having a new criminal justice act in each parliament (in England and Wales), almost one every five years. Since 1977, the government has enacted 23 criminal justice acts and has created three thousand new criminal offences.
Some of the new legislation has brought with it mandatory sentencing so that judges are prevented from taking full account of circumstances in individual cases. Furthermore, there has been relentless pressure on judges at all levels to pass more prison sentences and longer prison sentences.
Judges and magistrates decide on a sentence for the offender in accordance with the crime committed; it is crucial that the punishment given fits the crime. The judges and magistrates in England and Wales use sentencing guidelines. Factors that are taken into consideration before giving a sentence are: the seriousness of the crime – the more serious the crime, the more severe sentence the offender will receive. The harm caused whether this is physical, psychologically or loss of possessions or money. Lastly is the level of blame the offender will receive depending on the circumstance such as – the planning of the offence, using a weapon or targeting a vulnerable victim which would make the offender more blameworthy (Sentencing Council 2012).
Judges and magistrates also take into consideration whether the offender has any previous convictions and if so; the sentencing may be more severe. Personal circumstances also differ on the type of sentencing an offender may receive such as if anyone is dependent on them, if the offender is genuinely remorseful for the crime they have committed or if they decide to come clean and plead guilty of the crime committed. Coming clean and pleading guilty of the crime they have committed can reduce an offender’s sentence up to a third of the original sentence they may have received however this can cause a lot of uproar from the community because if the offender does receive a reduced sentence; they may feel as though justice is not fully being applied (Sentencing Council 2012).
Judges and magistrates must think carefully of the decisions they make and what sentence would be most likely to change the offenders’ behaviour, therefore, it is vital that the sentence given to the offender helps them in not committing more crimes in the future (Sentencing Council 2012).
There are many ways in which societies punish wrongdoers. The hard treatment usually includes the death penalty, punishment of the body (such as tortures, mutilations, brandings and whippings), slavery, transportation, confiscation and other financial deprivations. prison, community services, exclusion from specified places, electronic monitoring and many other financial deprivations. Philosophers tend to have the ‘hard treatment’ in mind when considering moral justifications as they believe this form of treatment is the most effective when punishing an offender. However, the penal systems of most modern societies include several other types of sanctions. These include probation, exclusion from specified places, disqualifications, community service, curfews and electronic monitoring. Additionally, there are other forms of punishments such as giving caution, formal reprimands, conditional and suspended sentences. These forms of punishment are not severe, they may bring harm or hardship to a certain extent but nevertheless attempt more so to change people for the better by providing them with rehabilitative sanctions. This gives offenders a chance to change for the better and aspire to make a difference in their life.
There are two opposing ideas over what the purpose of punishment should be regarding the penal system. These include the Reductivist policy (forward-looking punishment) and the Retributivist policy (backwards facing punishment). The Reductivist policy involves deterrence, incapacitation, reform and rehabilitation which aims to prevent future crimes. On the other hand, the Retributivist policy involves retribution and ‘just desserts’ and denunciation to punish for crimes committed in the past. In addition; there also other responses used to deal with offenders such as through restorative justice and reparation.
The Reductivist policy aims to justify punishment by future consequences as it is claimed that punishment will reduce the future incidence of crime. It is supported by a form of moral reasoning known as Utilitarianism. The utilitarianism of Jeremy Bentham is a well-known example of consequentialism: “that property in any object, whereby it tends to produce benefit, advantage, pleasure, good, or happiness… or… to prevent the happening of mischief, pain, evil, or unhappiness” (BLTC 2018). Reductivist principles focus on the avoidance of future crime through deterring potential criminals (deterrence), keeping actual or potential offenders out of circulation (incapacitation) and reforming actual criminals (reform and rehabilitation).
Deterrence is one of the primary objects of the criminal law and it aims to discourage members of society from committing criminal acts out of fear of punishment (The Free Dictionary By Farlex 2018). There are two forms of deterrence which are known as ‘Individual deterrence’ and ‘General deterrence’. Individual deterrence involves the offender finding the experience of punishment so unpleasant to the point where they never wish to repeat any more criminal acts due to fear of the consequences. General deterrence is when offences are punished not to deter the offenders but to discourage any potential offenders.
Incapacitation involves preventing the offender from committing any more crimes in the future as they have been removed from society and locked up. The sentencing policy takes persistent and serious offenders off the streets, therefore, reducing the crime rate. Capital punishment (also known as the death penalty) is the most severe form of incapacitation and incapacitation is usually a strong justification for capital punishment: “Prison works. It ensures that we are protected from murderers, muggers and rapists, and it makes many who are tempted to commit crime think twice” The (Guardian 2004). Although most nations have abolished capital punishment, over 60% of the world’s population live in countries where the death penalty remains intact. These include countries such as China, Japan, India, Pakistan, Bangladesh, Sri Lanka, the United States and Indonesia. (Wikipedia 2018).
Incapacitation focuses on expressing abhorrence and disapproval of wrongdoing. This is because of the severity of the punishment the offender can receive depending on the crime they have committed. There are strengths to this justification as well as there being weaknesses also. The strengths being that many believe is to be a good form of deterrence to stop further crime (re-offending) and prevent future harm to the community as well as reducing crowding in prisons. On the other hand, some argue that incapacitation is not a fair enough punishment to people for what they might do, rather than what they have done. Some also argue that some forms of incapacitation such as the death penalty are an easy way out for the offender as the crime committed was so severe. For example, if the offender killed the victim and in result received the death penalty; the victim’s family will not get their loved one back and therefore may feel that ‘tit-for-tat’ is not the best way for them to feel that they have received justice for the loss of their loved one. Another weakness is that although the offender may have been incapacitated; this does not always have benefits because even if a crime has been reduced slightly; the prison population tends to increase.
The idea of reform developed during the 19th century in which prison regimes sought to change the offender through a combination of hard labour and religious instruction. Rehabilitation programmes were introduced in the 20th century with the emergence of the welfare state.
The Retributivist policy aims to punish wrongdoers. Its justification rests on the belief that they deserve it, irrespective of any future beneficial consequences. Retributivist ideas re-established under the guise of ‘just desserts’. The phrase ‘just desserts represent the idea that one should be punished simply because one committed a crime. It involves a fair and appropriate punishment related to the severity of the crime that was committed.
Denunciation utilizes public condemnation as a form of community moral education. This is where a person that is found guilty of a crime is denounced: in other words, subjected to shame and public criticism. Education through denunciation is generally aimed at discouraging law-abiding citizens from committing criminal acts. Its purpose is to reinforce their rejection of law-breaking behaviour. A limitation to this can include that due to the level of embarrassment the offender may feel; this may make them want to retaliate and therefore rebel and commit further crimes. Denunciation may not be the best approach to deal with a person that has been found guilty of a crime as this can affect them significantly in many ways such as socially, physically and psychologically.
Other responses to deal with offenders include restorative justice and reparation. Restorative Justice is different to the former justifications of punishment and a relatively ‘new approach’. It ‘is a process whereby all the parties with a stake in a particular offence come together to resolve collectively how to deal with the aftermath of the offence and its implications for the future’ (Marshall 1996: McCold 1998a). It distinguishes victims of crime and offenders; there is no pressure on having to reconcile, nor is victimisation erased. There are three main methods of restorative justice which are known as VOM (Victim – Offender Mediation), Conferencing (also known as Family Group Conferencing or restorative conferencing) and Circles.
Victim-Offender Mediation is a process that provides victims that are interested in doing so with the opportunity to meet their offenders in a safe and well-structured setting. The restorative approach generates offenders to come face-to-face with their victims. The focal point of Victim-Offender Mediation is to hold offenders accountable in which they learn the consequences of their actions alongside providing vital support and assistance to victims.
Conferencing (Family Group Conferencing) deals with offences involving the family. Conferencing involves the people most affected by the crime: the victim and the offender; and the family, friends, and key supporters of both. All participants are brought together by a trained facilitator to discuss how they and others have been harmed by the offence and how they can come to a solution. Participation is voluntary which indicates that neither the victim or offender is pressurised to attend the conference if they do not wish to. (Mennonite Central Committee 1997), (Living Justice Press 2017)
Sentencing Circles is another form of restorative justice which was first used within the Criminal Justice System in the 1990s. This form of restorative justice involves victims, the offender, families, supporters and other community members to come together and have their say of what should happen in result of the incident occurred. Sentencing circles allow everyone the opportunity to have their say. This involves them having a talking stick which grants each individual uninterrupted time to speak up. (Living Justice Press 2017)
Restorative justice has turned out to be very successful over the years as many victims and offenders have been left satisfied with the outcome.
Reparation is a practical way to pay back for the harm caused by the offence, either by directly repairing the harm or through constructive work to help the local community. The victim is usually consulted about what should be done. Reparation can involve reparation to the victim or community reparation. Reparation to the victim may involve for example an oral or written apology or supervised activity-based reparation (to the victim). Community reparation includes a variety of activities to ‘payback’ benefits to the community, including work like community service activity (Sheffield Youth Justice 2018).
Community sentencing is another form of punishment. This is prescribed to an offender if they have been convicted of a crime by a court but are not sent to prison. A community sentence involves the offender doing unpaid work in their local community such as removing graffiti, removing wasteland or decorating public places and buildings. This is known as ‘Community Payback’. Community sentences can be given for crimes such as damaging property, benefit fraud or assault. The usual reasoning for a court giving an offender a community sentence is likely due to three reasons such as: if the court thinks that the offender is more likely to stop committing crime than if they went to prison, if it’s the first time they have committed a crime or if they have a mental health condition that affects their behaviour. Offenders are expected to complete anything from forty to three hundred hours of community payback, however, these hours depending on the severity of crime they committed. Whilst being on a community sentence, there may be a few rules the offender has to follow. This may include in them having a curfew, having an electronic tag to monitor their whereabouts, being stopped from going to certain places or taking part in certain activities as well having to attend appointments with an offender manager (GOV.UK 2018).
The National Offender Management Service plays a big role in community sentencing also as they ensure that people serve these sentences and orders that have been handed out by courts, both in prisons and in the community. They are accountable for how the prisons are run in England and Wales (GOV.UK 2018).
Community sentences for under 18s are different from those that are given to adults. There are three main community sentences that can be given such as referral orders, reparation orders or a youth rehabilitation order. A referral order includes a panel of people from the offender’s local community and their youth justice workers and the offender is then asked to agree to a programme of work to address their behaviour. Reparation orders are when the offender makes up for the harm caused by the crime such as repairing any damage done. A youth rehabilitation order can last up to three years and this involves the court deciding on different things that you must do or must not do. Youth offending teams work with young offenders and help them to stay away from crime or re-offending in the future. Regarding community sentences; they help to supervise young offenders serving these sentences (GOV.UK 2018).
Not sticking to these rules can result in a warning, being sent back to court or their punishment increasing. However, if the community sentence is successful; the offender may have benefitted in many ways such as with controlling their addictions, helping to improve their mental health condition or even help them in gaining new skills and qualifications for the future. This enables them a chance to improve themselves as a person and make a change in their community.
Communities may disagree with the use of community sentencing as they may feel as though the offender has not received a severe enough sentence for the crime they have committed. They may feel that justice has not been given and that the offender received an easier punishment in relation to the severity of the crime.
The main sociologists that have explored the role that punishment plays in society in depth are Durkheim, Marx and Foucault.
Emile Durkheim examined the relationship between crime, law and punishment to look for mechanisms that created social solidarity (also known as functionalism). This means that whatever aspect of social life is being studied; it must be approached from the perspective of discovering what role it performs in preserving social stability. Durkheim identified the function of modern punishment in reassuring the public sentiment.
Karl Marx brought out the ‘Marxist framework’ which allows us to understand why offenders from the working class are imprisoned and offenders from the middle and upper classes are not. Discriminatory decision making throughout the whole criminal justice system ensures that the socially advantaged are routinely filtered out; they are given the benefit of the doubt or are defined as good risks, or simply have access to the best legal advice. He found that serious punishments such as imprisonment are predominantly reserved for the unemployed, the poor, the homeless, the mentally ill, the addicted, and those who lack social support and personal assets. The Marxist theory is based upon the idea of class struggle and ideology. The Marxist theory implies that the reason we imprison offenders is to control those who are a threat to dominant values.
Michel Foucault practised ‘Disciplinary Punishment’ in the modern era. Disciplinary punishment gives ‘professionals’ such as parole officers, psychologists and others to assert power over the prisoner, most notably in that the prisoner’s length of stay depends on the professionals’ judgement. Foucault suggested that a continuum should run through modern society, from the maximum-security prison, through secure accommodation, probation, police, social workers and teachers, to our everyday working and domestic lives.
Popular punitiveness is the concept in which society/populace is fearful of crime and offending, therefore, resulting in them strongly favouring more severe, harsh and punitive sanctions against wrongdoers. The penal policy follows this demand and therefore has led to giving offenders a more severe punishment for the crime committed.
In conclusion; it is to be argued whether punishment is in fact ‘a symbolic way of getting back at the criminal, of expressing a kind of vindictive resentment’. In several cases, this may deem successful as the society will feel as though justice has been rightfully served regarding the conclusion of what happened to the offender. The offender may have realised their mistake (through restorative justice) and turned their life around by giving back to the community, however, on the other hand, there may be offenders that go back and re-offend many a time which may leave society feeling very dissatisfied. This is because the punishment the offender received did not affect them in a beneficial way and in fact, may have caused them to retaliate. In other cases, it may be a symbolic way of getting back at the criminal as the society will view it as ‘tit-for-tat’ due to the court giving the offender a punishment well deserved in accordance to the level of crime they have committed.