BA (HONS) Criminology, policing and Forensics
Year 3 - Penal Theory
Theoretically speaking; Prison only ‘works’ on the premise of incapacitating and nothing more. Using the penal theories studied so far, critically analyse the above statement.
Prison, a punishment applied when no other sentence is deemed punitive enough, incapacitates dangerous offenders for the purpose of public protection. Punishment must be for an offence against legal rules and must involve pain or other consequences usually considered unpleasant (H L A Hart, 1968, cited in MSG p.10) demonstrating incapacitation, denunciation, retribution, deterrence or rehabilitation. If prison ‘works’ on more than one ground, it should create fear of punishment (deterrence,) suitably punish criminals convicted of a sufficiently serious crime considered worthy of incarceration (retribution), prevent re-offending by correcting criminal behaviour (rehabilitation), and establish boundaries, demonstrating to society that certain behaviour is unacceptable (denunciation). It is argued that prison only ‘works’ on the premise of incapacitation and it is this statement that I will critically analyse. (Davies 1997, cited in MSG 2012 p.9-11)
It is argued that prison deters people from offending through fear of punishment. Deterrence is not concerned with fairness and justice but with the consequence and effectiveness of sentencing. It assumes that individuals consider the consequences of their acts and the likelihood of being caught, whilst perceiving the potential sentence undesirable. It is difficult to determine whether prison deters through fear of punishment because of the strong perception that crime is opportunistic. The white paper 1990 argued that deterring through imprisonment is unrealistic because most crime is opportunistic whereby the offender does not estimate the likely consequences of their actions, (Davies 2009, p.417) such as homicide, an impulsive offence committed as a result of anger. Also, most offenders do not expect to get caught and thus do not consider the possible sentence. (Hudson 2004 p.22) However, not all crimes are spontaneous and thus some people considering crime, especially those who normally respect the law, may be deterred when considering the consequences because of the fear and shame of imprisonment. (Home office 1990, cited in Davies 2009 p.411) Prison ‘marginally deters’ more aggravated forms of crime including armed robbery, where longer imprisonment deters the armed robber from using the firearms. (Hudson 2004 p.23) In the Government Social Survey Willcock and Stokes (1968) found that people are more likely deterred by the likely moral reactions of significant others. (Cavadino 1997 p.35) Men aged between 15 and 22, mostly feared their families’ reactions (49 per cent), jeopardising their occupation (22 per cent), the publicity and shame of having to appear in court (12 per cent) and least commonly the punishment (10 per cent.) (http://www.studentshelp.de/p/referate/02/5220.htm) This demonstrates that those concerned about their reputation and social status may be deterred by fear of imprisonment, but not by fear of punishment. Someone who has little in their life and would not perceive prison as undesirable, whose occupation, social status or reputation would not be affected, or a youth/gang member who would consider prison as a ‘badge of honour’ would not be deterred. Arguably, women may fear punishment and prison more than males due to their stereotypical expectations and physique. Often when there is an incline in certain types of crime, judges ‘crack down’ on these specific crimes by issuing a harsher ‘exemplary sentence’ to deter. (Hudson 2004 p.21) When the possibility of receiving a custodial sentence decreases, such as when there is less media attention or when alternatives to prison are used the fear decreases, prison no longer effectively deters. It is also evident that prison fails to deter...
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