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...
Cited: in Davies 2009 p.423) Denunciation is not concerned with the crime or victim, but the impact of the sentence on the community. Those who break the law are not only causing damage to the victim, but also challenging the values of society. Denouncing certain crimes by incarcerating offenders reassures law-abiding members of society that breaching the values that support their way of life are worthy of conviction and that society is prepared to punish those who break the law and challenge these values of society. The importance of denunciation is that it recognizes shared fears and rules within a community or society by the outrage that society feels towards certain crimes whilst providing an understanding of how the society is expected to act; hence highlighting the importance of imprisonment. Societies define themselves by identifying and denouncing the unacceptable behaviour that outrages them. This highlights the importance of prisons in shaping society and acknowledging desired, acceptable behaviour whilst providing justice and demonstrating societies’ commitment to appropriately punishing unacceptable behaviour by reassuring law-abiding citizens who feel aggrieved if those who do break the law get away without punishment.
In the eyes of society without prison denunciation is not demonstrated because alternative methods of punishment, perceived insufficiently punitive by society, fail to reassure citizens that people who break laws, that support societies’ way of life, are being punished appropriately and proportionately. When considering the publics’ perception of crime, victim satisfaction and how criminals should be punished, prisons work on the premise of denunciation and retribution.
Lord Denning stated that "Punishment is the way in which society expresses its denunciation of wrong doing: and in order to maintain respect for law it is essential that punishment inflicted for grave crimes should adequately reflect the revulsion felt by the great majority of citizens for them.” (Skinner 1997 p.23) Without imprisonment for certain crimes, unacceptable behaviour is not acknowledged and assumed morality is not reinforced and consequently there would be no shared understanding of unacceptable behaviour within society. This could jeopardise shared expectations and citizenship within society as well as encourage people to take law enforcement into their own hands. This highlights the importance of prison working on denunciatory grounds to maintain law and order and prevent such private responses to crime, and the committal of crime with no fear of consequences.
Following critical analysis, I disagree with the statement that prison only ‘works’ on the premise of incapacitation as it demonstrates the other sentencing theories, but at different strengths. Evidence suggests that despite the majority of ex-prisoners re-offending, prison may deter those who have not been incarcerated previously who often return to prison after entering the ‘revolving doors’, not through fear of punishment but the disapproval of others. Prison may also deter ex-prisoners who serve a longer custodial sentence although this could be explained by successful rehabilitative programmes. Strong retributivist evidence demonstrates that incapacitating persistent and dangerous offenders offers reassurance to the community where other alternative sentences are deemed too lenient. This most punitive punishment provides a balance of justice when an offender commits a serious crime demonstrating retribution, and reassures law-abiding citizens who feel aggrieved if those who do break the law get away without punishment demonstrating denunciation and society’s commitment to defining rules. Although some evidence suggests rehabilitative programmes within prisons can rehabilitate long-term prisoners it is an inappropriate place for rehabilitation, especially for inmates serving a shorter sentence due to the environment of a prison, the label gained after incarceration and convicts socialising with other criminals, consequently increasing the difficulty for inmates to reintegrate back into society on release. (Hudson 2004 p.30)
Although prison demonstrates the presence of denunciation, retribution and possibly deterrence, depending on the type of offender and length of sentence, I think that there are more effective ways of punishing criminals than incarceration as it fails to reduce crime. Prison should be a last resort for offenders who are dangerous; where there is no other appropriate sentence and they need to be incapacitated to protect the public because it is generally unsuccessful in deterring and rehabilitating, the forward looking measures that will reduce and prevent crime and transform convicts into better, law-abiding people.
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