Criminology and Crime

NATURE AND SCOPE OF CRIMINOLOGY – week 2

1. Defining criminology

Criminology is a combination of two Latin words:
Crimen – crime
Logus or logy – science

It is the science or study of crime. It is concerned with the conduct of individuals which is prohibited by society and law. It is a socio-legal study which seeks to discover the causes of criminality and suggests appropriate remedies.

1.1 Definitions by various scholars
1.11 Edwin Sutherland
Criminology is the body of knowledge regarding crime as a social phenomenon. It includes within its scope the processes of making laws, breaking laws and reacting towards the breaking of law. (From the above definition it is apparent that criminology is a combination of how the society defines and deals with crime within a social and legal context).
1.12 Donald Taft
Criminology may be divided into two branches:
1. general
2. specific

Criminology in a general sense is the study of crime and criminals. In a specific sense it seeks to study criminal behavior its goal being to reform the criminal behavior or conduct of the individual which society condemns.
1.13 Webster
Criminology is the scientific study of crime as a social phenomenon or of criminals and their behaviors and family conditions. Criminology can thus be said to be an academic discipline that employs scientific methodology to study crime, its major forms, its reasons for existence or causation and how the criminal justice system can respond to crime. In its narrower sense, criminology looks at criminal behavior of individuals in society and how they come to be perceived as such i.e. Their social, cultural and economic background. In a wider sense, it looks at how the criminal is dealt with e.g. how he is punished and therefore includes penology.

Criminology as a subject therefore focuses on three main areas.
(a) The sociology of law, which examines social aspects and the institutions of the law.
(b) Theories of causation (criminogenisis)
(c) The study of the social responses to crime, which examines in more depth the formal institutions of criminal justice (police, courts and corrections)

Criminology borrows heavily from other sciences including biology (genetical make up of a criminal) psychology) (thinking process of a criminal mind), psychiatry (mental stability and inclination of a criminal), philosophy, general medicine etc.

1.2 Philosophical explanations on the origin of criminology
The social contract theory of Hobbes and Rousseau
The classical approach to criminal justice

1.3 Importance of criminology
I. The most significant purpose of criminology is its concern for crime and criminals. There is a basic assumption that no one is born a criminal. Reformation is therefore treated as the ultimate object of punishment while “individualization” i.e. according individualized understanding and treatment is the preferred method for such reformation.
II. It is important for lawyers (when dealing with criminal clients it helps to understand their mind set and particular circumstances for purposes of giving proper legal advise as well as for pursuing a logical line of defense), judicial officers (for purposes of awarding appropriate sentencing, it is important for a judicial officer to not only understand the offender, but the society/community’s perceptions and emotions on given offences), law enforcement officers (for purposes of investigations, prosecutions, surveillance and crime prevention, for those holding criminals such as prison officers), social workers, psychologists, etc to understand the criminal more).
III. It enhances official understanding of criminals, offenders, the types and prevalence of offences committed, generally or specifically by a class of people or in certain localities. This kind of understanding supported by data is important for crime detection and control. The government is enabled to plan better in terms of allocation of resources towards fighting different types of crimes.
IV. The ultimate object of criminology is to render a crimeless society. (This is of course a very remote possibility especially considering how crimes are created and the fact that sometimes very legitimate behavior i.e. chang’aa drinking is criminalized).

Is criminology a science?
Proponents of the view that criminology is not a science base their argument on the standards of quality and validity of what can be classified as science. To this end they argue that the validity of a science is based on two concepts:
I. Stability i.e. it must be firmly established with unlikelihood of ad hoc and unpredictable changes
II. Homogeneity, i.e. the quality of being alike all of the same type.
Since crime is not stable, nor is it homogenous, i.e. not all actions amounting to a crime in one jurisdiction will amount to crime in all jurisdictions, it is therefore concluded by the said proponents that criminology cannot be a science.
George Wilber
He argued that anti-social behavior in society cannot be scientifically interpreted. According to him, general propositions of universal validity are the essence of a science. Such propositions can only be made regarding stable and homogenous units. Crime is not a stable homogenous unit but varies from place to place and from time to time. What may be regarded as a crime in one jurisdiction may not be a crime in another e.g. abortion, euthanasia, etc.
Max Weber
A German criminologist.
He argued that criminology as a branch of sociology merely researches into components of human behavior without providing for solutions unlike normal sciences. Thus by offering an analysis of criminal acts without puritive answers it merely exposes a situation without a solution and thus cannot be called a science. (What about penology, which offers solutions, and arguments for rehabilitation and reintegration into society, decriminalization, which are advanced by criminologists, it is therefore not entirely true that criminology does not offer solutions in any case do all sciences offer puritive solutions).
Herman Manheim
He belongs to the school that argues that criminology is not a science as it has no techniques and methods of its own, and that it borrows heavily from others e.g. medicine, psychology etc. He argues that so far criminology has developed no scientific methodology of its own; its techniques of research are on the whole identical with those used in other social sciences.
Ellenburger
In response to Manheim’s arguments; His response is that: - Even amongst the natural sciences there are some like botany and zoology which deal with the study of facts which are not strictly unique and individual and which do not deal with general phenomena. Criminology is based on other social sciences just like medicine is based on anatomy, physiology, physics, chemistry etc. Neither medicine nor criminology is purely theoretical. They have a meaning which derives from their practical application. The justification for medicine lies in the therapeutics and public health and that of criminology in penal reform, penology and prevention of crime.

2. MEANING AND DEGREE OF CRIME – week 3

2.1 The concept of crime

2.1.1 Legal definition of crime (a positivist definition)
According to the positivists, the subject matter of criminology concerns the content and application of the criminal law of whatever society is under consideration
Thus, the scope of criminology is fixed by the legislature and in some countries the judiciary – unsatisfactory definition of the scope of criminology?
i. According to Michael Adler, such a definition implies that there would be no crime without criminal law: ‘if crime is merely an instance of conduct which is proscribed by criminal code, it follows that criminal law is the formal cause of crime.’ According to Jason Ditton ‘No crime has been committed…until a court finds- i.e creates for all intents and purposes – guilty intent.’ ii. This definition does not explain why certain behavior is criminalized. Crimes have often been defined as immoral acts – limitations of this definition. Morality being equated to religious doctrines or traditional practices. Main concern, whose morality? Positivists approach – confinement to legal definitions iii. It fails to explain why the content of criminal law varies over time. E.g Nelson Mandela – a one time criminal and later a hero for the same reasons

2.1.2 Fundamental human rights
Definition of crimes to be determined by the human rights corpus

2.1.3 A sociological definition
Sociologists define crime as deviance behavior. Deviance is a sociological concept, which means any conduct that, differs from the prevailing norms of the reference group – different behaviors or behaviors disapproved by a group of people. For example, a student always wearing suits to class would be considered deviant
Far removed from the sort of rule-breaking that concerns criminologists. Hence often, the two terms are used together – perhaps to demonstrate their differences
Not to forget that some deviant characteristics are considered to be serious crimes. For example, murder, rape etc.

2.1.4 Crime in the eyes of the beholder (traditional definition)
Traditional explanations of crime assume that society is based on a consensus and that criminal law reflects that consensus. Other explanations deny the existence of such a consensus and suggest that society comprise individuals and groups, each with their own values and interest.
Whereas crime is traditionally based on the existence of criminal law, another view suggests that without a reaction by particular elements in society (those in power), crime does not effectively exist
Nils Christie crime ‘ is like a sponge. The term can absorb a lot of acts – and people – when external circumstances make that useful. But it can also be brought to reduce its content, whenever suitable for those with a hand on the sponge

2.1.5 Marxist definition - Crime as protecting the interest of the powerful
Creation of crime as a result of pressure from the powerful in society who fear any kind of threat to their interests

2.1.6 What scholars say of crime and/criminal behavior
Kenny
He defined a crime as a wrong whose sanction is punitive and which is in no way remissible by any private person but is remissible by the Crown.
Keeton
Defined a crime as an undesirable act, which the state finds most convenient to correct by the institution of proceedings for the infliction of a penalty rather than leaving the remedy to the discretion of the injured person.
Sutherland
He defines criminal behavior as behavior, which is in violation of criminal law. No matter what the degree of immorality, reprehensibility, or indecency of an act, it is not a crime unless it is prohibited by criminal law. Professor Sutherland further mentions seven attributes of a crime.
a. Before a behavior can be called a crime there must be certain external consequences or harm. A crime has a harmful impact on social interest.
b. The external consequences or harm shall be strictly forbidden. Anti-social behavior is not a crime unless forbidden by law.
c. There must be intention.
d. Mens rea (a guilty mind) must be present
e. There must be fusion or concurrence of mens rea and intention
f. There must be a causal relationship between the legally forbidden harm and the misconduct
g. There must a legally prescribed punishment.
While Kenya predominantly corresponds to the first definition of crime –see the constitution of Kenya article 50 (2) n – it is important to note the following difficulties in the definition of crime:

There is no universal concept of crime
From time immemorial certain conduct or norms were permissible but these vary with time and place

2.2 Categories of crime: conflicting images of crime

2.2.1 Autonomous behavior vs. structural forces
This is an argument between classical free-will notions of individual responsibility and positivist arguments suggesting that individuals are largely shaped by constitutional or environmental factors outside their direct control.
In simple terms: the crime problem is as a result of ‘evil or bad people’ or ‘deprivation and unemployment’. To be considered in detail later

2.2.2 Rich law vs poor law/ white-collar crime
White collar crimes developed as a result of the inadequacies of traditional explanations of crime was generally described as being committed by the lower-class individuals and that explanations of their criminality emphasized on poverty and individual personality defects.
White-collar crimes have no relations with poverty. This is criminal behavior committed by the upper-class individuals in the course of their employment
Financial cost of such crimes far outweigh those considered to be committed by the poor
Additional damage: breakdown of trust in social relations
White collar crimes , according to Sutherlands, could be brought about by ‘differential association’ – individuals are subject to influences both in favour of law-abiding behavior and in favor of law-violating behavior. Criminals are those people who have been subject to stronger law-violating influences. This implies that people who work in organizations with criminal practices are common are likely to engage in such activities themselves.
Categories of White Collar Criminals
1. Politicians and Government/Public Servants
They are considered to be the custodians of the law and destiny of the nation. The most common offence that they indulge in is in the misappropriation of public funds/resources, with the aid of third parties e.g. contractors, suppliers, employment of unqualified persons, over-employment, payment of salaries and other benefits to non-existent workers (ghost workers).
Corruption
Grand corruption has bedeviled many governments and since the year 2000 the UN was already in a process of dealing with corruption within public institutions. In the year 2000 it established and ad hoc committee to look into an effective international legal instrument to fight against corruption. The efforts were carried out under the International Office for Drugs Control and Crime Prevention. This culminated into the United Nations Convention against corruption held in Merida Mexico in 2003.
The key characteristics of this Convention are in the following articles:
Article 5
Stresses the importance of the critical issues of transparency and accountability in national legal institutions.
Article 9
Focuses on public procurement and calls upon the public authorities “to take necessary steps to establish appropriate systems of the procurement based on transparency, competition and objective criteria in decision making that are effective inter alia, in preventing corruption.”
Article 10, highlights the issue of secrecy in public administration and calls for the action to secure greater freedom of information.
Article 11, subsequently call on government to safeguard the integrity and independence of the Judiciary by preventing opportunities for bribery.
Article 12 expressly, raises the issue of corporate governance by calling for strengthening regulatory and legal action to curb private sector corruption.
Article 15/16
Decry the bribery of national and foreign governance officials and call for action to stop such practice.
Article 33
Underscores the need to protect people who report acts of corruption.
Article 43
Stresses the need for co-operation to curb corruption and calls for the strengthening actions.
Article 51
Provides for the return of assets to countries of origin as a fundamental principal of the Convention.
The new Anti-Corruption and Economic Crimes Act and the Kenya Public Servants Ethics Act both of 2003 deal with corruption, which has become the number one white-collar crime in Kenya.
It is now generally accepted that corruption has a negative impact on society. Globally institutions such as the World Bank, IMF and the UN have conducted studies that show evidence that corruption tends to affect the poor more severely therefore making them poorer with time. It hinders economic development, reduces social services and diverts investments in infrastructure and social services.
At the social level, corruption erodes the principles of democratic governance resulting in abuse of human rights, political and social instability etc.
Clearly even though corruption has always been an offence under the Corruption Act, concerted efforts that can be seen now are singly as a result of international interventions, by aid granting institutions and countries. During the cold war aid politics were largely characterized by loyalty and countries that were loyal to the capitalist west or communist east did not have to show proper accountability of funds received from the so called donors as long as they were loyal. Most of these countries from the developing world having just emerged from colonialism were often propped up to the detriment of political and economic governance. The end of the cold war brought new dynamics into play and pressure for aid to the newly “liberated” eastern bloc. Having overthrown their dictators thereby increasing democratic space, they brought in a new pre-requisite into aid, that of democratic governance. It was no longer tenable for the aid giving countries to rely on ideological loyalty, nor to be praising and welcoming new democratic leaders in the former Soviet Union, while supporting despots in other developing countries.
In this new order, it was necessary to create legal frameworks of international nature to ensure that international trade is not captured by a few “criminal” elements through corruption. So whereas, at the local level corruption directly results in poverty, at the international level it leads to unfair competition or lack of it, it increases the cost of doing business and distorts the picture of use of aid and international loans, and may also lead to difficulty in repayment, in poor countries governments may resort to the increase of taxes, and overtaxed populations do not over political or economic stability which is required for trade to thrive.
High level corruption involves public officials who use their decision making positions to subvert justice for economic or political gain. Private sector represents the demand component of corruption.
Corruption networks sometimes operate in a similar fashion to organized crime.
KACC (KACA, 1997, ACPU)
It is vested with the mandate to investigate, corrupt conduct, trace, recover corruptly acquired public property, devise corruption prevention mechanisms and educate the public on the dangers of corruption.
Whereas, the Commission has power to institute civil proceedings to recover property, it does not have powers to institute criminal prosecutions against perpetrators.

2. The medical profession
This category exhibits white – collar crime through the procurement of illegal abortions, administration of euthanasia, unnecessary treatment and or surgical operations, splitting of medical fees with patients whose health costs are covered by insurance or by employers, exploitation of ignorant persons, this could be through medical research, failing to abide by requisite ethical conduct of research that use human volunteers, issuance of false medical certificates and reports.
3. The police Force
The police are the custodians of law and order in society. They are charged with apprehension, investigations and in many jurisdictions the prosecution of offenders. In this regard they are likely to commit the following crimes; pay offs to conceal crime generally, or evidence specifically, cover ups, brutality to offenders etc.
4. Business men/Corporate Bodies
This category seeks to maximize its profit at the expense of and without regard for the public. Crimes include failure to abide by regulatory standards on safety and security and quality of products, distortions of market forces, through hoarding, fraudulent or false advertising practices.
5. Accountants/Tax Consultants
Crimes include assisting firms, companies and individuals in tax evasion, preparing false or distorted returns, failing to disclose malpractices in public quoted entities.
6. Engineers
Crimes include underhand dealing with contractors and suppliers, passing off sub-standard work and materials etc.

2.2.3 Organized crime
With the advancement of time and technology criminal behavior has also become more advanced. Organized criminals embrace criminality as a profession to earn their livelihood. In so doing they organize themselves into criminal gangs/outfits and carry out their anti-social activities with skill and efficiency for profit or personal gain or in pursuance of certain political ideals. Sutherland and Cressy refer to it as an organization of vices. At its best, organized crime becomes an economy within an economy or government within government.
The chief characteristics of organized crime are:
A hierarchical order
In organized crime there is a definite order or arrangement in the control and functions of the daily activities.
Authority of the controlling group
The “top management” controls the whole organization and all
Activities.
Treatment given to outsiders
Outsiders are not tolerated under any circumstances and will be eliminated even on suspicion of having edged in.
Method of conducting crime
Each organization has a standardized method of committing crime as well as definite rules of criminal conduct. It has its own laws, customs and techniques. Before a particular crime is conducted, its details are carefully worked out and looked into. This is a “policy matter” which is the responsibility of the top management. After the policy has been laid down, the actual job of carrying it out is given to a few people in the organization. In this coordinated manner, the criminal act is carried out.
Essential outsiders
In every criminal organization, there are persons who do not directly participate in crime activities but who give protection to members of the gang, some such outsiders, are advocates, politicians. Protection may also be induced through corruption from law enforcement officials e.g. police officers, state lawyers and judicial officers.
Organized crime has been compared to a multi national corporation. It deals with:
1. Predatory crimes – hijacking, business, racketeering, terrorism,
2. demand oriented crimes – criminal activities which are highly desired by some sections of the community e.g. gambling, narcotics, prostitution(adult and child), slavery
3. the penetration of legitimate business by organized crime e.g. trade unions, state corporations

2.2.4 Juvenile delinquency
This is a situation where a minor revolts/rebels against authority and breaks laws and regulations as laid down by society, the state or the family. The causes of juvenile delinquency are:
1. parental discord
2. unhappy home backgrounds
3. wrong parental attitudes
4. poverty
5. industrialization

The family plays the following roles:
1. It provides organic sustenance and habit training for the juvenile
2. It provides primary growth association for the juvenile so that he can socialize in interpersonal relationships
3. It is the major avenue for the transformation of values, knowledge and culture.

According to Professor Sutherland, the types of families and homes leading to delinquency can be categorized as follows:
Where other members of the family are criminally inclined, alcoholic or immoral
Absence of one or both parents through death, divorce, separation or desertion
Lack of parental control through ignorance or other factors, lack of awareness or knowledge on parental techniques
Racial or religious differences including differences in the standards of living
Economic problems such as unemployment, insufficient income which sometimes forces one or both parents to be absent from home.

Statistics indicated that where one or more members of a family are criminal, especially the parents, the young ones are likely to become delinquent. Other factors include psychology, and other emotional stresses within the family. These may arise out of favoritism, rejection, rigidity and harshness of the parents and hardships.
Slawson
His study revealed that 54% of the studied delinquents had run away from home due to emotional stress and psychological stress within the family. A girl who finds no affection at home compensates for it with relationships. If she does not find affection within them she may engage in illicit activities including prostitutions.
The rates of delinquency tend to be higher in families with combined older brothers with younger brothers and sisters. Girls with older brothers and sisters register higher rates of crime than those with older sisters and no brothers.
Juvenile delinquency may be influenced by the environment e.g. poverty
Films, videos, TV programmes, and other literature
School environment

Cowie
He conducted a study on delinquent girls. He concluded that girls and women offend the law much less frequently as do boys and men. When they do so, by and large, the delinquency does not take the form of aggressive and socially destructive qualities as that of males. A few girls who fall into delinquency have certain characteristics:
1. they would be physically impaired
2. oversize
3. lumpish
4. uncouth
5. graceless

Juvenile Systems and Courts
The development of juvenile courts can be traced to a better understanding of the idea of criminal responsibility and the recognition that the factor of age or youth overcame the previously upheld notion or idea of complete or total responsibility of the acts of a young person.
Roscoe Pound
Juvenile court brought individualized judging. It recognizes the special circumstances of a particular juvenile. It is a legal tribunal where the law and science especially that of medicine and others dealing with human behavior – biology, sociology and psychology worked side by side with the sole aim of remedying and to a degree presenting delinquency rather than punishing it.
Coupled with the development of the juvenile court there was a movement to provide a separated institution for the young offenders e.g. borstal homes, juvenile remands, approved schools, and probation centers etc.
Patterson
According to him; there is no leper in the world so contagious as the hardened offender and the accustomed prisoner. Any newcomer to prison should be kept away from him. Still more urgent is that the newcomer who is in no way a criminal should never cross his path and certainly should not consult with him on a daily basis.
2.2.5 Recidivism
This connotes persistent indulgence in crime. These are offenders who are jailed, released, re-arrested and re-sentenced. These offenders have a long criminal record, have been frequent inmates of penal or correctional institutions and show scant regard for institutional adjustment.
Causes of Recidivism
According to Professor Sutherland, the main causes of recidivism are:
I. the social psychology of the offender;
II. inadequacy of the reformative techniques.

On the first point, he was of the view that urbanized regions are more conducive to recidivism than rural areas. Factors such as higher cost of living; slums and congestion offer sufficient opportunities for offenders to commit crime unnoticed for years. Criminality therefore becomes a habit and they eventually become recidivists.

Some penologists argue that continued isolation of an inmate from normal society due to a long stay in prison renders him unfit for normal life release. He therefore prefers the routine prison life to which he is accustomed.

The prisoner may also suffer from inferiority complex, feeling that law-abiding members of society look at him with suspicion and distrust. According to Prof Sutherland, reformative measures are also inadequate. Probation, parole and short-term sentences have become inefficient. It is argued that short- term sentences and other minor punishment means the incessant coming and going of habitual delinquents.

SOCIOLOGICAL EXPLANATIONS OF CRIME – week 4

1. The Classical and positivist traditions

1.1 The classical
1.1.1 Pre-Enlightenment Europe
The Excesses of the French society of the 18th C: the power of the sovereign – ‘the divine right of kings’ – church and aristocracy was so overwhelming that individual rights as perceived nowadays were virtually non existence: crimes against religion- atheism; and against the state including merely criticizing its actions: no court rules and procedures – arbitrary trials: confessions through torture: unequal application of hideous punishments: burning alive, mutilation and branding
Crime was seen as a consequence of evil. Humans were seen as both being controlled by external forces and creators of their own destiny – a dichotomy, which has remained central to explanation of crime to present day.
Simulation of writers such as Charles Montesquieu, Jean Jacques Rosseau and Francoise Marie Voltaire
The French revolution

1.1.2 Classical school
The emergence of natural law in the quest for fundamental reforms:
St. Thomas Aquinas, St. Augustine – power of punishment given to an absolute monarch ruling under the divine right – the direct inheritance of power from God
Plato, Aristotle, Cicero – reason and common sense to replace superstition and arbitrariness: people’s actions were not guided by supernatural powers but a rational calculation which balanced the benefits and the cost

Cesare Beccaria
Of crimes and punishment (1764)
Like the social contract theory, Beccaria considered that people have agreed to sacrifice a portion of their own freedom of action ‘so that [they] might enjoy the rest of it in peace and safety.’
Social contract – a selfish idea- not for the interest of citizens.
Prohibiting an action was likely to increase rather than decrease crime.
There should be as little law as possible
Criminal law should:
h. uphold the requirements of a particular society
i. clearly define crimes
j. not be retrospective
k. a written code of all criminal law protection of the rights of an accused in the administration of justice
i. proscription of torture ii. equality in selection of the jury: suspect and victim iii. presumption of innocence should be paramount iv. punishment to be proportionate to the harm done
v. punishment not to reflect the sinfulness of the act – that is a matter of God vi. certainty of punishment vii. against death penalty- on the basis of a social contract, individuals would not have into a social contract which would allow other people to kill them influence in criminal system: America, France et cetera: the French Revolutionary Code of 1791: level of punishment; failure to distinguish crimes committed intentionally/accidents and different offenders – equal/proportionate punishment for similar offences

Jeremy Bentham (1748-1832) opponent of death penalty utilitarian ‘The greatest happiness of the greatest numbers’
‘Nature has placed mankind under the governance of two sovereign masters, pain and pleasure…[They] govern us in all we do, in all we say, in all we think: every effort we can make to throw off their subjection will serve but to demonstrate and confirm it.’
Utility thus justifies punishment as follows - to deter crime was therefore to ensure that the amount of pain derived from the forbidden activity was greater than the amount of pleasure

1.1.3 The neoclassical school
Napoleon’s Code of 1810:
i. replaced fixed punishment by stated maximum and minimum sentences – an element of judicial discretion ii. prerogative of mercy re-established iii. death penalty introduced to offences considered most serious iv. consideration of age, mental state and mitigating cicumstances
Napoleonic principles provides for the basis of criminal justice system in most countries
Like classism, neoclassism still considered human being as being guided by reason, having free will and freedom of choice, and therefore able to be considered both morally and legally responsible for their actions.
Classical theory – more attractive to rulers as its social contract emphasized that as everyone had a stake in society, it was everyone’s interest to obey the law. Crime was therefore irrational – concentrated mainly among the poor.
What social contract failed to do was to question whether particular laws were just

1.2 The Positivist school
Augustine Comte 1826 ‘The law of three states’
He claimed that the history of civilization has had developed through three stages: ‘the theological, the metaphysical and positive’
In the theological, people ascribed to goodness, evil devine or demonological interventions
In the metaphysical, abstract notions such as ‘ideas’ and ‘forces’ replaced the supernatural as the explanation of causation
The positive dispenses with the two explanations and turns to scientific explanations of causation. The question why was replaced by ‘how’ and the answer, according to Comte, should be sought by use of a mathematical calculation – sociology/ social science

Adolphe Quetelet and Andre Guerry
Views crime as a social and environmental phenomenon: different from the classical ‘free will’ and ‘rationality’ principles
Guerry ‘Time has gone by when we could claim to regulate society by laws established solely on metaphysical theories and a sort of ideal type which was thought to conform to absolute justice. Laws are not made for men in the abstract, for humanity in general, but for real men placed in precisely determined conditions.’
‘Society prepares the crime and the guilty [person] is only the instrument by which it is accomplished’: poverty

Cesare Lombroso (1835-1909) The criminal man
Study on physical characteristics of criminals
Criminals are biological reversions to an earlier stage of evolution and are thus more primitive than law abiding individuals.
He called them ‘atavistic’ and claimed that research showed them to possess physical anomalies such as unusually shaped jaws, ears and noses; excessively long arms; and an abundance of wrinkles – an ape-like appearance
Revision of book, before his death, to include environmental factors

Enrico Ferri (1856-1928)
A pupil of Lombrosso who placed more emphasize of social, economic and political factors
According to Ferri, the following are the factors causing of crime:
i. Physical, including race, geographical, location and climate ii. Anthropological, such as sex, age, biological and psychological conditions iii. Social, by which he meant nature of government, economic conditions, religion and general customs
Prevention of crime better than punishment and the state could reduce crime by: birth control, inexpensive houses, better street lighting provisions for public recreations and freedom of marriage and divorce

Summary
Both classical and positivist traditions in criminology view the main purpose of the criminal justice system as being to control crime. The ways of achieving these are however fundamentally different. Main distinctions between the two:
a) Determinism: crime is viewed as a behavior, which is caused by biological, psychological or social factors. As opposed to rational decisions made by offenders
b) Differentiation: an essential requirement by positivists’ theories of causation to establish the existence of ‘types’ of people likely to commit crime. These types can be based on biology, personality, or values.
c) Pathology: not only are criminals different from non criminals but there is something wrong with them

2. Environmental criminology – week 5
Before industrialization had progressed so far, poverty and degradation was apparent to observers in Europe. Crime and disorder was perceived as emanating from the ‘dangerous’ classes.
After the writings of Charles Darwin, it became easier even for educated opinion to portray them as a race a part.
At any time, it was feared, they might break out into a revolt as had happened in Europe.
According to Fregier, it was almost difficult to distinguish actual criminals from the general mass of the poor and depraved.

Manifested in three different schools
1. Social disorganization
2. Ecological theory
3. Differential association

2.1 Social Disorganization
Criminology began to develop as a separate discipline at the beginning of the twentieth century from two separate strands: one from clinical medicine, heavily influenced by the theories of Lombroso, and the other development of sociology, in the university of Chicago USA.
In 1860, the population of the city of Chicago was 110,000; 1880 – 500,000; 1890 – 1 000 000; 1910 – 2 000 000. Much of the increase was as a result of mass immigration mainly from Europe
Having been poor from their native homes, these families were destined to start a new life; characterized by low wages for long working hours
Chicago school empirical study on how families from various backgrounds managed to co-exist. Development of the writings of Emile Durkheim

Emile Durkheim (1858-1917)
Devoted significant amount of space to crime and deviance

Durkheim’s sociology
Durkheim sought to study human beings and their societies from a fundamentally sociological perspective. By so doing he sought to repudiate those who reduced human behavior to individual psychological or biological impulses. This is not to say that he rejected the psychological states of mind as deriving from the nature of society itself. Indeed, he was centrally concerned with the effects that social forces had on the individual member of society and sometimes the distinction between the two dimensions is not clear-cut
His study of suicide (1970) best exemplifies the importance of social dimension. He locates the source of suicide not in the psyche of an individual but a social reality external to the individual. In other words, there are suicidogenic forces at work that are external to the individual.

Durkheim’s social order
He depicted crime as a social product and the level of criminality as representing the extent of social integration
‘Order’ a central problem to sociology
His concern with order led him to consider issues of crime, deviance and difference
At the time of his writing, industrialization and urbanization had profoundly altered the nature of European societies – social upheveals rampant
Durkheim also counterposed the past – in the shape of traditional, primitive societies – with the present, though he took the view that while there was a real danger of sliding into irretrievable disorganization, those with power could actively intervene to prevent this happening
He later worked with the French government to design the state education system

Mechanical and organic solidarity
Durkheim argued that in pre-industrial, traditional societies, social order was based upon a certain kind of social solidarity that he called ‘mechanical solidarity’. These societies lacked the complex web of mutually dependent institutions characterizing modern societies. They were composed of fragmented, small, tribal or clan-based segments. Solidarity was achieved through an all-encompassing set of norms and values referred to as ‘collective conscience’. Although this constraining moral was external to the individual – in the form of social facts – through a process of socialization, it became internalized by society members
In this society, social order was fundamentally rooted in moral regulation
Unlike modern societies, there was no place for individualism: the individual was subsumed in the ‘tribe’ or ‘clan’. Reactions to non conformity would be harsh, retributive in character
According to Durkheim, freeing an individual from (as is with individualism that reign in modern societies), from the constraints of mechanical solidarity brought with it its own dangers in terms of social order
In his view, human nature was composed of two selves: the social self (socialized and integrated), and the egoistic self (unsocialised and unitergrated).
The egoistic self freed from constraining social forces and left to its own devices naturally posed desires that knew no bounds. If modern societies were to emphasize on individualism – to have a central value to right of individuals to realize their own potential – then some restraining mechanisms had to operate, otherwise disorder would reign – for example in the form of crime and deviance.

Durkheim’s contribution
His work was influential in shifting analysis of criminality away from sources rooted in the individual towards sources that were sociol-cultural in nature
He was a proponent of the positivist school of thought, especially with reference to methodology: that is, he attempted to develop an objective, scientific understanding of society
He characterized societies as ‘healthy’ or ‘unhealthy’/’pathological’, assessed in terms of degrees of organization or disorganization, and by employing the concept of ‘anomie’.
His evolutionary view of social development and the application of social Darwinian principles also influenced the Chicago ecologists, who conceived of the social life of the city in terms of dynamic social processes involving interactions between the inhabitants and their environments
He influenced functionalist writers through his discussion of the importance of a consensus regarding norms and values, and the socialization processes through which this was achieved.
Later writers were to utilize his argument that crime was both normal and functionally useful
His works also represented an interesting early precursor of labeling theory. He argued that the quality of ‘crime’ or ‘deviance’ is not the intrinsic quality of a given act but that definition which the collective conscience lends them
Finally, his analysis of social bonds that secure a cohesive, intergrated society, pointed the way to the emergence of control theory much later own in the twentieth century

Fredrick Engels (The condition of the working class in England-1845)
Expressing his views on the working class-life in Machester, he concluded that blame for the deprivation and crime he saw all around him lay at the feet of the middle and upper classes in their ruthless exploitation of the workers within capitalism.
Violence of conflictual crime could be explained as a form of retaliation against the ‘bourgeoisie and their hencemen’. Such crimes could also be committed against members of the working class
Engel attributed the sexual immorality and drunkenness among the workers to a lack of moral training and being the only pleasures that were left of them. These was prevalent among the unemployed and casual workers-what Marx called the ‘lumpenproletariat’.

2.2 Ecological theory
Defined as the relationship which exist between people who share a common habitat, or local territory, and which are distinctly related to the character of the territory itself
At the core of human ecology is the ‘zonal hypothesis’ as illustrated in Burgess’s analysis of Chicago (1925)
Burgess divided the city of Chicago into five concentric zones, which resemble the rings formed on the surface of still water after a stone has been thrown in. the innermost zone was the central business district, known as ‘The Loop’. The next zone outwards was the ‘zone of transition’, a deteriorating area where factories, poorer residences and the ‘red-light district’ could be found. Beyond, was zone three, which contained the homes of ordinary working people (many of whom had escaped from zone two) and zone four and five, with increasingly affluent homes reaching out into suburbia. If the city was growing considerably, areas which had been in zone three or four could find themselves becoming part of the ‘zone of transition’ with a corresponding deterioration.
The concentric growth of the city occurred through what has been termed ‘invasion, dominance and succession.’
The Chicago researchers considered that, in the longer term, once the different ethnic groups settled and became established in a suitable area, their crime rate would start to diminish
The ‘zone of transition’ was therefore a highly volatile area – an area lacking in social integration

2.3 Social differentiation
While the work of earlier Chicago socialist writers concentrated on the effects of competition and succession in socially disorganized areas, the later Chicago writers shifted the emphasis from culture and conflict to consideration of the wider social structure

Clifford Shaw (Brothers in crime, 1938)
Because parents and neighbors tend to show approval of unlawful behavior, many delinquents grow up in a world where delinquency is considered a accepted form of conduct

Edwin Sutherland (Principles of criminology, 1939)
A part from his Chicago background, Sutherland was greatly influenced by Gabriel Tarde’s book, The laws of imitation of 1890
Tarde argued that criminal behavior is learnt from environmental influences rather than being inherited. He formulated three laws of imitation: human beings imitate each other in proportion to the extent in which they live in close contact; generally, the inferior person imitate the superior person; and when two mutually exclusive ‘fashions’ occur simultaneously, one will come to replace the other e.g the replacement of knives for firearms in violent crime
Differential association claims to show how delinquent practices came to be ‘culturally transmitted’ from one individual to another, and that coming into contact with delinquents is a necessary but not a sufficient condition of oneself becoming delinquent.
The differential association theory was an essential bridge between positivistic Chicago school and writers from interactionist and subcultural perspectives.
Criminal behavior is learnt in interaction with others especially in ‘intimate personal settings’ (that is, not through reading or watching films; television was not available when the theory was first expounded)
At the heart of differential association is that a person who is exposed to ‘an excess of definitions favourable to violation of the law over definitions unfavourable to violation of the law’ is likely to become a criminal. The likelihood is determined by variations in the frequency, duration, priority and intensity of the associations
‘Priority’ suggests that associations made in early childhood are likely to have a greater impact than those created later in life
Even though Sutherland accepted that there are differences in individual disposition to criminality, he maintained that these were only relevant in that they might affect the chances of a person’s exposure to different associations. An individual cannot inherit a propensity to criminal behavior, in accordance to symbolic interactionism, as human behavior only has meaning in a particular cultural setting.
The theory also claims that while crime is an expression of needs and values, it cannot be explained by those needs and values. The desire for high income is widespread: some people work hard to try and attain it others steal.
Sutherland also applied this theory to his own notion of white-collar crimes and professional crimes. He argued that individuals become white-collar criminals because of their absorption in a business process, which considers illegal practices as acceptable.
The strength of this theory, unlike earlier theorists, was that as at the time of its exposition, it showed that crime was not just a product of poverty, but could occur in the most routine settings, ranging from Chicago slum to the largest business operation.
Culture conflict captured in earlier versions of this theory as the underlying cause of differential association and therefore criminal behavior. Cultural conflict was the clearest indicator of social disorganization within the society. This was dropped in later versions

Evaluation of the theory

Criticism
1. The theory has been criticized as being difficult to be subjected to empirical tests. Mixed results
2. Sutherland’s theory does not attempt to explain the origin of crime. It relies on an existing criminal group that influences a normal person to engage in criminal activities.
3. The theory cannot apply uniformly to all kinds of offenders e.g. rural and urban based offenders, white and blue-collar criminals. It cannot apply evenly to perpetrators of individual crimes e.g. crimes of passion, occasional and incidental offenders or those pushed to criminal conduct by factors outside their control e.g. Genetic make up, mental imbalance etc.
4. It has also been argued that contrary to Sutherland’s theory, criminal or delinquent behavior is not learned. It comes naturally. It is non-criminal behavior that is learned.
5. The theory fails to recognize that there may be an element of free will in human behavior and leaves little if any room for the introduction of new knowledge i.e. it acts as a conclusive study, yet it is generally accepted that there must be an element of the “unknown”.
6. The theory fails to recognize biological and psychological factors. It is argued that biological differences in human personality also account for criminality in the individual.

Response to the critics
In response to one of the critics George B Vold (Theoretical Criminology, Oxford University Press 1958) who stated thus; “One of the persistent problems that always has bedeviled the theory of differential association is the obvious fact that not every one in contact with criminality adopts or follows the criminal pattern”. (page 194).

The response has been that this criticism fails to take into account the words differential and excess, these words refer to both criminal and anticriminal associations and had to do with counteracting forces. Melvin L DeFleur and Richard Quinney (A Reformation of Sutherland’s Differential Association Theory and Strategy for Empirical Verification: (Journal of Research in Crime and Delinquency, January 1966). They discovered that the sixth assertion of the theory says that persons become criminals because of exposure to an overabundance of criminal associations, in comparison with anti-criminal associations.

They restated the theory as follows:
“Overt criminal behavior has as its necessary and sufficient conditions a set of criminal motivations, attitudes, and techniques, the learning of which takes place when there is exposure to criminal norms in excess of exposure to corresponding anticriminal norms during symbolilc interaction in primary groups.”
Hence it is erroneous to argue state or imply that the theory is invalid because a category of persons – such as policemen, prison workers or criminologists – have had extensive association with criminal behavior patterns yet they are not criminals.

Secondly, in response to the criticism that the theory says that persons become criminals through association with criminals is not the correct position. The theory it is posited is concerned with ratios of patterns of behavior , no matter what the character of the person presenting them. Accordingly if a mother teaches her son that honesty is the best policy, but also teaches him that it is alright to steal a loaf of bread when you are starving, she is presenting the son with an anticriminal behavior pattern and a criminal behavior pattern, even if she herself is honest, non criminal and even anticriminal. In other words one can learn criminal behavior patterns from persons who are not criminals and anti criminal behavior patterns from hoods, professional crooks, habitual offenders and gangsters.
Thirdly, there was criticism based on the use of the word systematic as opposed to general criminal behavior, in subsequent publications Sutherland deleted the offending word.

Fourthly, in response to the criticism that the theory does not explain why people have the associations that they have, it is stated that this is a highly relevant research problem and when viewed as a principle that attempts to account for variations in crime rates it does deal in a general way with differential opportunities for association with an excess of criminal behavior patterns.

Lastly the responses can be seen in the context of on going research, ie the theory could only be realistically be expected to deal with facts or norms that were known and available at its conception, criticisms form a good basis for new research taking into account various developments.

3. Poverty, anomie and strain – week 6

3.1 Poverty and crime
In 1827 Guerry conducted a study in France on the co-relation between crime and poverty. He concluded that the richest parts of France had the higher rate of offences against property, but only about half the amount of violent crime. Nevertheless, there were poor people living in the wealthy areas; Guerry concluded that poverty in itself did not cause property crime but the greater wealth simply provided more opportunity to steal
Adolphe Quetelet also considered that opportunity could be relevant in explaining the higher crime levels in wealthy cities, and pointed out that the considerable inequalities between rich and poor in the same area could serve to increase temptation

Crime and unemployment
The underlying assumption that unemployment levels can more or less be equated with experience of poverty is questionable
Some people in employment may be classified as poor and there are many unemployed persons whom no one would classify as poor
It is thus dangerous to conclude that because both unemployment and crime levels are high, the two have got a correlation
Recent research has reached differing conclusions:
Glaser and Rice (1959) discovered that during periods of high unemployment recorded levels of crime increased for adult crime and decreased for juvenile delinquency. They speculated that this could be as a result of parents being able to spend more time with their children
According to Steven Box (1987) unemployed juveniles are more likely to bleak during such periods

Economic inequality
Poverty and economic inequality have to be distinguished
Poverty would relate to deficiency of material items that are necessary for a minimum level of existence
Economic inequality involves a comparison of the levels of material possessions between different groups in society
A country can have little poverty but enormous inequalities of wealth and vise versa
Question: is there a correlation between inequality of income and crime?
According to Stack (1984) as the gap between the rich and poor grows increasing crime is likely especially by those who consider that existing political structures will not improve their position

3.2 Functionalism and anomie
The essence of functionalism is that there is a consensus of core values within a society which corresponds to the needs of its members, and it is the task of institutions such as the family and the school to socialize individuals to conform to those values
Society is viewed as a functioning entity comprising many parts, each of which interrelates with and supports each other
As crime is a part of society, it therefore becomes conceivable that crime and deviance could also serve a function

Emile Durkheim
Associated with this theory
He did not denigrate religion as Mark had done, but considered that all such influences were subservient to the collective sentiment or soul of a society
The focus of his studies was on how the organization of society can drive people towards breaking its rules
The considered the fundamental problem facing the western - modern society - was the cult of the individual.
This was exacerbated by the declining power of religion, industrial capitalism
The collective sentiment of society was thus becoming secular and individualistic and the values that were now necessary for a stable society were at odds with the values of capitalism.
Although many of Durkheim’s views on crime can be found in his works on suicide, they have subsequently been adopted by criminologists as being of more general application
Durkheim thought that some crime is normal in society and that it would be impossible to imagine a society without crime. What makes a society, as opposed to group of individuals, is a sharing of basic values, which in turn necessitates rules to encourage compliance with these values.
It is inconceivable that everyone ascribes to these rules. Thus rule breaking necessitates criminal law – imagine a society of saint where crime is a utopian fantasy
Anomie – derived from a Greek word a-nomos meaning ‘lawlessness’ was used by Durkheim in two different senses:
Durkheim stated that anomie resulted in the transition from early mechanical or pre-industrial societies to industrial ‘organic’ societies. Mechanical societies were groupings where the members followed same customs and religion and tended to their own needs. There was little division of labour outside the family unit and the similarity among the members encouraged group cohesion.
In contrast, industrialized ‘organic’ societies are more heterogeneous in terms of wealth, religious beliefs and ethnicity, and have a highly developed division of labour involving more elaborate and specialised forms of work.
Each type of society is characterized by a particular form of collective consciousness. This refers to the set of beliefs, which is common to the whole society and acts as a powerful force in shaping the way it behaves. In a society largely based on mechanical solidarity, this takes the form of strict conformity and uniformity of culture. On the other hand in an organic society, the members are associated through structural interdependence rather than shared life experiences. Durkheim considered that all societies are at some stage between being mechanical or organic; no society is entirely one or the other.
Crime in a mechanical state is functional to the society in 3 distinct ways:
1. Since deviant behavior can lead to exclusion from group, individual members are obliged to abandon their own interests to maintain group solidarity. This also makes the identification of offenders relatively simple
2. Crime reaffirms the groups’ collectivity through punishment of criminals. Punishment not only sets societies moral boundaries but also strengthens allegiance to them.
3. Crime is the constant testing of the boundaries of tolerance. Crime can therefore play a positive role in social change. For example, Jesus Christ, Mahatma Gandhi, Martin Luther King
Durkheim’s second usage of the term anomie was in his book: Suicide (1897).
Durkheim distinguished four different types of suicide: related to social integration and social regulation in a society.
1. ‘Altruistic’ suicide: where an individual is over inter-grated into the group and thus lucks a separate entity. For example, Muslims prepared to sacrifice themselves in ‘holy war’
2. ‘Fatalistic’ suicide: occurs where there is excessive social regulation. For example, slavery
3. ‘Egoistic’ suicide: suicide results from excessive individualism, where individuals lack the support of family, workmates or the community
4. ‘Anomic’ suicide: result from disturbances caused by major changes in economic conditions resulting in a weakening of the forces of regulation in everyday life (an inevitable consequence of an organic society): he found out that there was low suicide rates in poor areas, high suicide rates during war and revolutions.
Unlike Marxist theories, Durkheim did not believe that societal problems were simply a matter of class or reducing the wealth of some in order to redistribute it to others. What was necessary is to recreate what Durkheim calls the ‘moral constitution’ of society.

Merton anomie and strain
Robert Merton, an American sociologist, adopted Durkheim’s theory on anomie to develop a new theory
These are features that create strains for some people leading eventually to delinquent behavior. Thus, criminogenic pressures are inherent in society itself
Both Merton and Albert Cohen believe that the bulk of delinquency is found within the lower working class
For Durkheim, the condition of anomie only arose exceptionally when weak social regulation was unable to restrain people’s aspirations during economic turmoil, for Merton, it was an ever present feature in American society. He considered that it resulted from the lack of a structured and legitimate means for most people to attain what was indiscriminately held out to all as the ultimate goal – material wealth. Not everyone will attain such wealth, but everyone is expected to try lest you risk being called ‘lazy’ or ‘unambitious’.
Durkheim has described anomie as the society’s inability to regulate the natural appetites for its members. Merton, however thought that these appetites were not necessarily ‘natural’ but were ‘culturally induced’.
Merton’s anomie theory is sometimes called ‘strain theory’ to indicate the strain which drives people into committing deviant acts

4. Conflict, Marxist and radical theories of crime –week 7

Since human history, two contrasting views have been put forward
1. A consensus view: which believes that society is based on a general consensus of values and that the state is operated in such away as to protect it. If various groups hold differing views, then the state will arbitrate in such away as to represent the general interest. This is strongly represented in the functionalism of Emile Durkheim
2. A contrasting, conflict view of society was however raised by labeling theorists like Howard Becker: who makes the rules and why? These theorists acknowledge that society includes groups with competing values and interests. This goes back in history to Plato and Aristotle. Unlike a consensus view, conflict approach claims that the state does not uphold the interest of society as a whole, but only those of the groups which are powerful enough to control it

Conflict theorists

Thorsten Sellin (1938) book Culture conflict and crime
According to Sellin, every group and cultures have got ‘conduct norms’ which are a product of social life. As the society grows bigger, there is a great likelihood that these different norms will come into conflict
Primary culture conflicts will occur for example in boarder areas between two different cultures or as a result of colonization, immigration into a new territory
Secondary culture conflicts occur when a single culture fragments into different subcultures, each with its norms and values. The law will still reflect the norms of the dominant culture rather than any consensus among the individual members of the society
In Sellins view, subcultural norms do not signify class based frustration, but simply represent fundamentally different values held by particular groups

George Vold
Whereas Sellin’s analysis was based on the conflict of behavioral norms among different subcultures, Vold’s theory was centered on a conflict of interests.
Vold started from the assumption that most people are group oriented and that their lives are essentially tied up with group affiliation. Groups emerge when people have common interests or needs, which can best be advanced through collective action.
Unlike Sellin’s cultures, Vold’s groups are fluid, forming and then disappearing when there is no longer a particular interest to serve. Ultimately, individual members come to have a psychological rather than rational attachment to particular groups and will be prepared to devote a great deal of effort to them. Groups come into conflict with each other and these serves to strengthen the loyalty of their own members.
Vold considered that politics is inevitably based on compromise: ‘the principle of compromise from positions of strength operates at every stage of this conflict process.’ There is a constant shifting of position, with individual groups changing the balance in the power equation.
If the ‘criminals’ were successful in overthrowing the government, the former national leaders themselves would become the ‘criminals’. Volds analysis was purely based on logic and avoided questions of which group was right and which was wrong.
The conflict between these groups, with each struggling constantly to maintain or improve its position in the hierarchy, is essential in the normal running of society. It is especially visible in the legislative process, where some groups manage to have their interests enshrined in the law at the expense of other groups. The winning groups are not only more likely to obey the law than the losers, but will be particularly active in urging the police to enforce it. Crime can therefore be seen as the activity of minority power groups. Individual crime must be viewed as activity which is carried out for the ultimate benefit of the group
According to Vold, much crime is committed by groups. Individuals come together for strength and support, and to protect themselves against the police who are seen as the agents of the dominant group

Ralf Dahrendorf
Dahrendorf considered a consensus view of society to be utopian. He claimed that in any given relationship members of a society had to be in one of two positions: a position of dominance or a position of subjection
It is inevitable that members of society evaluate each other differently and conflict is bound to occur
Dahrendorf rejected Marxist approach of a simple bifurcation between the bourgeoisie and proletariat as being old-fashioned and inapplicable to today’s age. For example, the needs of unskilled and semi-skilled labourers may conflict with those of skilled laborers just as they conflict with their managers and the owners.
Those who are in positions of domination will use sanctions wherever necessary to enforce the norms. The norms themselves can only be altered by the efforts of others to bring about change
There will, therefore, be a permanent readjustment because the inequality in society will provide the incentive to the disadvantaged to try to obtain power themselves
The permanent readjustment will by definition ensure a constant state of conflict

Marxist criminology
Marx’s references to crime could be viewed as justifying its functionalist value in a capitalist society
Marxist criminology claims that the power resulting from exercise of capitalism is basically responsible for crime
Marx wrote in the period following immediately following the turmoil of industrial revolution. He was trying to explain why the feudal system that had existed in Europe for hundreds of years had collapsed and to predict what would happen next
Marx identified conflict between the forces of production, meaning society’s ability to produce material goods, and the social relations of production, which refers to the relationship between people, and includes the question of how what is produced is distributed

BIOLOGICAL AND PSYCHOLOGICAL EXPLANATIONS OF CRIME- week 8

1. Biological factors and crime
Association of biological features and crimes dates back to Egyptian writings; and the bible. In medieval English, Havelock Ellis writes that ‘If two persons fell under suspicion of crime, the uglier or more deformed was to be regarded as more probably guilty
When Socrates was on trial, a study of his face was carried out and it showed that he was cruel and inclined to drunkenness.
Physiognomy, which is a study of facial features, was later referred to in Cesare Beccaria’s book ‘On Crimes and punishment’ (1764). A fuller statement is found in Physiognomical fragments (1775) by Johann Lavater. Lavater warned about bearded women, weak chins, ‘arrogant nose’ and ‘shifty’ eyes.
The theory on physiognomy gave way to a much more structured theory called phrenology-associated to Joseph Gall. According to this theory, the working of the mind are related to the shape of the brain and the skull and that measurement of bumps on the skull can provide an indication of personal characteristics. Thus criminals could be identified by a particular series of bumps
The publication of ‘On the origins of species’ (1859) and ‘Descent of mind’ (1871) by Charles Darwin provided an impetus to criminal anthropology in the works of Cesare Lombroso.

Cesare Lombroso
Lombroso viewed criminals as suffering from depravity caused by an atavistic reversion: in other words, a regression to an earlier form of life found in humans’ ape-like ancestors. In 1870, while conducting an autopsy on a famous bandit, he found that the man’s brain had characteristics, which are usually identified with lower primates.
Some of the characteristics that would identify such a reversion include: an asymmetrical face; unusual ears; a nose upturned or flattened in thieves and aquiline (beak-like) in murderers; fleshy tips; receding chin; excessively long arms; and too many fingers or toes
A further study on 383 Italian criminals led Lombroso to conclude that five or more of such stigmata would indicate a ‘born-criminal’.
Lombroso also found that these characteristics were much less in non-criminal e.g soldiers

Charles Goring (The English convict: a statistical study, 1913)
Goring compared the metal and physical characteristics of 3,000 English recidivist prisoners with large groups of ‘non-criminals’ over a period eight years. The non-criminals comprised Oxford and Cambridge undergraduates, hospital patients and soldiers
Goring claimed that he did not find any significant difference between the prisoners and the control group. The thus concluded that there was no such thing as a physical criminal type. The only exception that Goring agreed with is that criminals were on average two inches shorter than non-criminals and weighed between 3 and 7 pounds less
Goring claimed that this exception supported his claim – which was based on assessment of mental ability – that criminals had a general inherited inferiority. This did not however mean that criminals were in the early state of development as Lombroso thought.
Although Goring suggested that Lombroso’s works lacked a proper scientific basis, it has been said, that in his intense desire to discredit Lombroso, Goring suppressed finds that appeared to support Lombroso’s basis

Genetic factors
In 1910 Hugo Vries published his first version of the book, The Mutation theory, in which he claimed that any living thing – plant or animal – is a mosaic of independent variable characteristics. New varieties and subspecies of life emerge by mutation as breeding occurs, and parents transmit to their offspring both desirable and undesirable characteristics including congenital defects and diseases.
A similar theory is shared by Goring who claimed the hereditary nature of criminal characteristics

Twin studies
Goring undertook the study of twins; there are two types of twins: monozygotic (MZ) twins come from a single fertilized egg that has divided (commonly referred to as identical twins). They are of same sex, similar appearance and similar genetic structure. Dizygotic (DZ) twins result from the simultaneous fertilization of two eggs and have no closer genetic relationship than any two siblings.
If MZ twins act in the same way – such as committing crimes – this could be attributable to a common genetic factor. On the other hand, if crime is related predominantly to the environment, then all sets of twins –MZ and DZ –will have more similar levels of offending.
One difficulty is, of course, that any similarity in crime rates between each twin may be a result of their common upbringing. The ideal study would be of MZ twins brought up in different families.

Adoption studies
A further way of investigating the impact of heredity on crime is to study the behavior of adoptees. If a child adopted soon after birth comes to resemble its biological more than its adoptive parent in a particular attribute, there is a clear (although not conclusive) evidence of genetic influence

Chromosome abnormalities
Sex chromosomes – these are chromosomes that determine an individual’s sexual characteristics. Normal female and male chromosomes are referred to as XX and XY respectively.
In exceptional circumstances, an abnormal cell division takes place before conception so the resultant embryo will contain an unusual number of sex chromosomes.
In 1961 studies were carried out on individuals with XXY chromosomes. This condition is associated with small testes, sterility, mild retardation, alcoholism and homosexuality
In was further discovered that XYY sex chromosome – since the extra Y indicated extra maleness – it was speculated that a man with this complement might show greater signs of aggression and more involved in crime
The most notable physical characteristics of XYY men is that they are extremely tall, with a mean hight of 6ft 1 in, compared with a mean height in normal men. Other distinguishing factors are well developed genitals and tendency to mild acne

Biochemical factors
This claims that crime results from emotional disturbance caused by hormonal imbalance – no clear evidence
Premenstrual tension (PMT) – this is a condition associated with symptoms such as tiredness, depression, irritability and headaches. It is claimed that a majority of crimes committed by women are committed 8 days before or during menstruation Testosterone – men who have unusually high level of the male sex hormone, testosterone. Such men are said to be more likely to be involved in crimes such as rape and murder since men are naturally aggressive, an excess of such hormones only makes them worse

2. Intelligence, mental disorder and crime
The idea behind the concept of mental disorder is that the underlying causes are not physical in nature, but are due to the workings of the ‘mind’
Hirschi and Hindelang in 1977 conducted a research on delinquents and non-delinquents and found that the average IQ of juvenile delinquents was about 92 (8 points below the mean) and that this did not significantly vary in relation to race or social class. They agreed that IQ was not entirely related to hereditary and may be influenced by environmental factors
Further studies have concurred that not only is there an IQ gap between offenders and non-offenders, but that a disproportionate amount of crime is committed by people at the lower end of the intelligence scale.
In the modern day, IQ is measurable on both verbal and performance tests and the gap between delinquents appear to be far greater on the verbal measurements.
Quay considered that this might be a direct cause of antisocial behavior in situations of conflict.
Other criminologist suggest that such verbal difficulties may have a remarkable impact on school performance and as a result the student may adopt alternative, perhaps criminal, methods to obtain success. What about in adults?
Findings from the Mauritious Child Health Project have shown that poor nutrition in early childhood was related to both lower IQ ratings and an increased likelihood of antisocial behavior at the age of seventeen.
Some types of crimes – like white-collar – may require a higher than average IQ level, particularly on the verbal tests.
What seems clear is the link between IQ ratings and juvenile delinquency. The question however remains over the IQ tests

Race, intelligence and crime
Studies suggest that on average, whites have an IQ score about 15 points higher than blacks, and East Asians obtain a slightly higher score. Some writers have used this to explain why blacks are over-represented in crime statistics in proportion to their numbers in the population.

Mental disorder and crime
Criminologists suggest a correlation between mental disorder and crime. In early Britain for example, crime itself was viewed as a symptom of mental disorder
The problem with such an assessment is that, because most people commit crimes at some point in their life, this would be tantamount to claiming that most of the population is psychologically disturbed.
While research findings fail to provide conclusive proof of a link between mental disorder and crime, other explanations are possible. For example, mentally disordered offenders may simply be more inept in their criminality, and thus are more likely to be caught; the police may have a greater inclination of charging such people etc.

Forms of mental disorder

Schizophrenia
This is generally indicated by one or more (but not all) of a number of disturbances: difficulty in associating thoughts; hallucinations in the form of hearing voices; strong and inappropriate emotional responses like sudden amusement at another’s misfortune; disturbances in motor behavior like continual gesturing and forming odd facial expressions
Schizophrenia is said to affect 1% of the entire population.
Though its causes are unclear, it is believed to be a combination of genetic, biochemical and social factors
The most extreme forms of violence perpetrated by schizophrenics are generally aimed at themselves, through self mutilation, on members of their family and friends
Violent acts usually occur during delusions particularly in cases of extreme jealousy and infidelity

Depression
Many of us have variously described ourselves as being depressed. Extreme forms of depression have been diagnosed as mental illness
There are two basic forms: major depression and bipolar disorder
Major depression is the feeling of considerable unhappiness and guilt, problems with appetite and sleep, and thoughts of suicide
Bipolar disorder involves a fluctuation between manic periods, which are characterized by high levels of activity and exaggerated views of self-importance, and spells of depression

Neurosis
Certain extreme forms of excessive-compulsive disorder may lead to kleptomania, which is a compulsive and virtually irresistible desire to steal
There is a general importance that little evidence exist of any relationship exist between neurosis and crime

Psychopathic disorder
Literally translates to ‘psychologically damaged’ person;
Also referred to as ‘sociopath’ or ‘antisocial personality disorders’
‘The consensus view is that psychopathic disorder is not a description of a single clinical disorder but a convenient label to describe a severe personality disorder which may show itself in a variety of attitudinal, emotional and inter-personal behavior problems. The core problem is the impairment in the capacity to relate to others – to take account of their feelings and to act in ways consistent with their safety and convenience.’ (Stephen Jone, Criminology (2011) 313)
In the previous adoption and twin studies – psychopathy can be genetically transmitted
Psychopathy theory sees psychopathy as representing problems in the development of the superego and the Oedipus complex. The extreme form has no superego and has no is able to act without any consideration for others. Most psychopaths have an incomplete and thus ineffective superego
Family influences and early childhood behavioral problems are significant factors. For example, a loveless home and variable environmental influences
Oedipus complex - a child coming to identify with the parent of the same sex will be incomplete. This explains why psychopaths feel no guilt of their aggressive behavior and are able to manipulate other people through indifference to their feelings
Research conducted by Widom (1976) showed that the way in which psychopaths react in situations is particularly dependent on how the other actor is perceived. Set the task of playing a game in a hospital, pairing of psychopaths performed equally as well as pairing of nurses. However, when a psychopath was paired with a person considered to be normal, the level of cooperation diminished
According to Howells (1983) psychopaths assume that any person with whom they are dealing has negative views towards them and, instead waiting to appraise a situation, they may resort to violence first.
Whatever the cause, the inability to learn from experience and thus see the consequences of antisocial behavior is widely believed to be one of the fundamental characteristic of psychopathic condition

3. Personality theories
‘Personality describes an individual’s temperamental and emotional attributes that are relatively consistent and that will influence behavior
A persistent or stable personality characteristic has been referred to as trait
There are two personality theories that explain delinquent behavior:
1. Psychoanalytic explanations of crime
2. The learning theories

Psychoanalytic explanations of crime
Sigmund Freud (1856-1939) emphasized on the part played in people’s mental functioning by the unconscious mind. The unconscious, which contains instinctive urges and repressed memories, has been likened to ‘the submerged, invisible part of the iceberg.’ This constitutes the largest, and in some respects, the most powerful section of the mind.
Freud begins from the position that individuals are provided biologically with selfish pleasure seeking and destructive tendencies. The basic drives or instincts, such as to eat, be comfortable, obtain sexual pleasure, derive from the unconscious part of the mind and are expressed in psychic energy which Freud called id. They demand instant gratification and are only subject to the pleasure principle
While an instinct arises within the body and one cannot escape from it, an external stimulus is from without the body
To enable an individual live in society, the psychic energy need to be controlled. This control is carried out by the ego and superego
The ego restricts the urges by demonstrating the realities of the consequences – for example, punishment. The ego also serves the id positively: if a baby learns that by crying it is likely to be attended to. While doing this, the ego is guided by the superego
The superego reflects the internalization of parental of societal standards. It comprises two elements: conscience and the ego-ideal. The conscience is formed of moral rules and any challenge by unwelcome impulses are prevented from reaching consciousness by the ego’s defences.
The ego-ideal reflects the standards to which the individual aspires and furnishes the ego with positive goals
The ego and superego act as counterbalancing agents: the superego turns the powerful energies of the id onto the ego in the form of feelings of guilt. If the id is strong and the superego weak the ego will be unable to function properly. An individual will be aware of the dangers of being apprehended and punished, but the pleasure obtained from a criminal act (as felt through the id) will overcome any restraint from the ego.

Learning theories
According to learning theorists, little human action is automatic or instinctive, most of it is based on learned experiences.
Aristotle argued that all behavior is learned by association and that non results from innate characteristics. He claimed that sensory experiences are associated with each other in the mind because they occur in relationship to each other on every occasion the individual interacts with the outside world. ‘Associationism’ became the pre-eminent form of learning theory
The division in learning theories today is between such behavioral theorists and cognitive theorists, who still adhere to Aristotle’s original belief that learning occurs through the association of ideas and factual knowledge. Behaviorists claim that people learn by trial and error through associating stimuli with responses: cognitive theorists believe that people learn through associating memories and ideas as part of a problem solving process.

SECTION B: PENOLOGY – week 9

Penology is the study of punishment and the treatment of offenders. It concerns itself with the events that follow after the conviction of the offender. There is a close relationship between criminology and crime. Criminology focuses on the causes of crime and delinquency. The objective is a better understanding of crime and criminality with the goal of crime prevention. Knowledge of the factors that cause crime helps the state, state agencies, social workers, law enforcement officials to eliminate to some degree the said conducive factors.

Penology is concerned with crime prevention and control. It focuses on the response of society to delinquent and criminal acts. The response includes within its scope legal and extra legal procedures for handling delinquents and criminal offenders as well as the methods devised for the prevention and control of delinquency and crime.

For us to react positively and effectively to criminal acts, we should be able to understand the causes of the acts, (i.e. through the understanding of criminology). It would help in determining the most effective methods and procedures for handling and treating offenders as well as preventing crime in general.

The manner in which society treats its offenders is an important mechanism through which it attempts to achieve its social goals. There is however no agreement on what these goals or objects is or should be. Some penologists hold the view that society can only be protected by punishing the criminals. Others regard criminals as victims of social or economic and psychological forces in society. The proponents of this view argue that since society creates deviants it has a moral obligation to make amends and treat them with compassionately and with understanding in order to salvage and rehabilitate them.

Throughout history, humanities’ approach to the treatment of criminals can be summarized as follows:
Revenge
Rejection
Repression
Restraint
Reintegration
Treatment of offenders has historically been characterized by punishment. However, modern trends as influenced by various schools of thought (sociological, positivist, etc) lay emphasis on reformation and re-socialization of the offender.
Treatment of crime and criminals in African Customary law
Traditional social control, the prevention and control of criminal behaviour in traditional African societies was based on kinship and the extended family system. The family was therefore a very central institution in social order. Starting from the family unit to the highest level of African customary systems of governance, whether it was the centrally organized Kingdoms of Uganda, West Africa etc or the tribal chieftaincies of the Kikuyus, etc, collective responsibility was key to social order.

“…..in most African societies, legal rights and duties are primarily attached to a group rather than to individuals…. The individual plays a relatively subordinate role. Very often, the members of the group, as individuals, are only users of collective rights belonging to the family, lineage, clan, tribe, or ethnic group as a whole. A law-breaking individual thus transforms his group into a law breaking group, for in his dealings with others, he never stands alone. In the same vein, a disputing individual transforms his group into a disputing group and it follows that if he is wronged, the may depend upon his group for vengeance, for in some vicarious manner, they too have been wronged.” (Igbokwe, Virtus Chitoo, Social-Cultural Dimensions of Dispute Resolution: Informal Justice Processes among the Ibo-Speaking Peoples of Eastern Nigeria and their Implications for Community/Neighbouring Justice System in North America” African Journal of International and Comparative Law, Vol. 10,1998 pg 446-471 at page 449-50.

This is not to say that “group law” in the traditional African context is to be overstated.

“While there is a measure of truth in this view of the idea of liability for wrongs, it is inaccurate in so far as it assumes that jurisprudence in Africa does not distinguish between primary and secondary liability for offences against the law. No doubt, African sentiments attach great weight to the solidarity of the group as a necessary condition of the maintenance of the social equilibrium of the local community. Thus, it is common for members of the group to make loans of surplus lands, cattle or crops to one another in times of scarcity or misfortune; and it is also natural that, if one of their number should incur the penalty of the payment of blood-money or compensation, other members of his group or family would come to his aid in meeting such an obligation. There is no doubt whatsoever in the minds of these other members, and certainly not in the customary law on the subject that the primary liability is that of the wrongdoer himself alone, and that the other members are merely assuming secondary liability if the fails to pay either in part or as a whole. It is considered by the wrongdoer’s kitha dn kin a matter of family pride that none of their members’ legal obligations be allowed to remain outstanding in relation to the wronged family.” (Elias T O Traditional Forms of Public Participation in Social Defence: International Review of Criminal Policy, No 27 1969, 18-24 at page 19.

As a result of this very communal and collective governance system, there was little distinction between civil and criminal cases. Both criminal and civil cases were dealt with in pretty much the same manner. The law was therefore dominated by the idea of compensation to counter-balance and restore equilibrium in society. Cases such as murder, assault and rape were redressed by compensation. Payment of fines or costs to the elders concerned in the settling of disputes whether criminal or civil was the accepted practice in African societies. African customary law focused on reconciliation as means of restoring the social balance upset by the criminal act. However, there were violent punishments in some instances, depending on the nature and gravity of offences e.g. corporal punishment, mutilation, torture, flogging, banishment, and execution.

Traditional societies employed the following modes of dealing crime and criminals:
1. Reconciliation between the offender, the victim and their families
2. Restitution of stolen or misappropriated property
3. Compensation to the victim or his family by the offender or his family
4. Compensation paid to the community as a whole, mainly through elders or chiefs by way of fines or costs
5. Corporal punishment for serious offenders or for persons not amenable to fines owing to poverty
6. Capital punishment was reserved for serious offences such as witchcraft
7. Social ostracism public ridicule – sometimes an offender would be tied up to restrict movement
8. Religious sanctions to protect the community from the hostility of the gods, spirits, e.g. through the offering of sacrifices
9. Expulsion of the offender from the community – in serious cases which did not warrant execution – outlawing

African customary criminal law is not applicable in modern Kenya as it has been excluded from written law. Section 3(1) of the Judicature Act expressly provides that African Customary law is only applicable in civil cases. Article 50 (2)n of the Constitution of Kenya prohibits the conviction of a person of a crime unless that offence is defined and its penalty prescribed in written law.
THE CONCEPT OF PUNISHMENT
Punishment of wrongdoers is as old as wrongdoing and as old as society itself. In society there has always been behavior that is socially approved and considered as good and proper by the majority of the people. Similarly there has always been an aspect of social behavior that hurt or injured the feelings of members of the same group. In most human societies today there are rules that have been codified and set as laws whose main purpose is the maintenance of order among human beings. Consequently, the violations of these laws calls for societal reaction. Societal reaction in most cases takes the form of punishment. Punishment is therefore one of the devices for treating offenders to which society resorts to restore harmony or repair the damage done by the violation of the law.
Thomas Hobbes
He defines punishment as “an evil afflicted by a public authority on him that has done or omitted that which is adjudged by the same authority to be a transgression of the law; to the end that the will of men may thereby be disposed to obedience”.
Wolf Middendorff
He defines punishment as an unpleasant consequence which penal law prescribes for socially undesired human conduct and which courts impose according to the laws of penal procedure.
Westmark
According to him a person is said to be punishment when some pain is afflicted on him. That pain may take the form of imprisonment, fines, forfeiture of property or some other restriction or detriment imposed by society as a mark of its disapproval of the act or omission of the individual punished.
Sutherland and Cressy
Two essential ideas contained in the concept of punishment as an instrument of public justice;
1. The group inflicts it in its corporate capacity upon one who is regarded as a member of the same group. The loss of status, which often follows crime, is not punishment, except in so far as the group administers it in its corporate capacity.
2. Punishment involves pain or suffering produced by design and justified by some value that the suffering is assumed to have. This is the conventional conception as used in criminal law. If the suffering is merely accidental, to be avoided if possible, it is not punishment.

Grunhut
According to him, three components must be present if punishment is to act as a reasonable means of checking crime:
I. Speedy and inescapable detection and prosecution
II. After punishment, the offender must have a chance for a fresh start. Thus punishment should not import any stigma on the offender.
III. The state which claims the right of punishment must uphold superior values.
Parker
He defines punishment as follows:
1. It must involve pain or some other consequence normally considered unpleasant
2. It must be for an offence against legal rules
3. it must be imposed on an actual offender for his offence
4. it must be properly administered by human beings other than the offender
5. there must be a spirit of reform behind the punishment
6. it must be imposed and administered by an authority constituted by a legal system against which the offence is committed
7. It must be imposed for the dominant purpose of preventing offences against legal rules.

The study of treatment of offenders initially focused exclusively on punishment and excluded other ways of dealing with offenders. However, modern approaches to criminology focus on the role of society and social pressures on the making of criminal offenders. Penologists have thereby been forced to look beyond punishment.

Where did the right to punish spring from? The right to punish is vested in the state or public authority. Lawful punishment is afflicted by the state. Where does the state derive the power to punish?

According to Hobbes, before the emergence of the entity of the state, every man had a right to everything and to do whatever he thought necessary for his own preservation, including hurting, maiming or killing other human beings. Man was at this time a free agent.

The emergence of the family unit led to communalism. Family and clan units got together and worked as a group to protect their interests and rights. From communalism, society moved to the state. With the establishment of the state acceded some of his rights to the state. He however retained the right to self defence. The state’s right to punish is not grounded on any gift or concession by the citizens. The citizenry abandoned the right to punish in order to strengthen the hand of the sovereign. According to Hobbes for anything to be properly called a punishment it must possess certain qualities and any other act lacking these qualities but inflicting pain would be an act of hostility.

It therefore follows that:
a. Private revenge and injuries inflicted by private men are not legally speaking punishment. They are not sanctioned by a public authority. They do not stem from the state.
b. Social ostracism – where society ostracizes, ignores or neglects an offender this does not amount to punishment.
c. The act of punishment must be preceded by public condemnation as judged by a public authority. This disqualifies mob justice as punishment on the basis that the public condemnation of the offender is not judged by a public authority. It is lacking in state approval.
d. Punishment must be styled by a legitimate public authority. It must be pronounced by the appropriate public authority and meted out by the appropriate authority. Punishment inflicted by means of usurped authority or power or by a judge who has no authority is an act of hostility because the person condemned and the society in general have not delegated authority to these people.
e. Punishment must have a justification or end. Any punishment that ha no possibility of rectifying the delinquent or has no deterrence value on the offender is an act of hostility.
f. Divine punishment – i.e. from nature or God is legally speaking not punishment, because it is not inflicted by authority of man.
g. Punishment must fit the crime. If the harm inflicted is less than the benefit or contentment that naturally flows from the crime committed, then the harm on the offender does not amount to punishment. Where the harm is less than the crime, the offender would enjoy some residual benefit.
h. Punishment should not exceed that which is prescribed.
i. Harm inflicted for an act done before there was a law forbidding it is not punishment because there is no transgression of the law. Thus, criminal law does not apply retrogressively.

THEORIES OF PUNISHMENT
Philosophers and penologists have over the years advanced diverse explanations or justifications for punishment. According to Sir Rupert Cross, (The English Sentencing System, 1981, Butterworths, 3rd Edition), at page 120)
“In many ways it is a pity that the word “theories” ever came to be employed to describe the moral justifications of the practice of punishing with varying degrees of severity…………..As punishment entails the deliberate infliction of pain, it certainly needs to be justified morally, but the use of the word “theory” is unfortunate for at least two reasons. In the first place, it suggests that one theory must be right to the exclusion of all others whereas, as will appear shortly, it may well be the case that neither retributive theories standing alone nor utilitarian theories standing alone can provide an adequate answer to any major questions that are commonly raised with regards to punishment. The second objection to the use of the expression “theories of punishment” is that it tends to produce interminable and inconclusive discussions concerning the correctness of any one of them…”

There is no consensus on which explanations or theory best justifies punishment in society. The historical approach to crime and criminals has undergone tremendous change.

According to Gerhard Muller, punishment has undergone four distinct eras:
a. Era of retribution – revenge, repression, rejection
b. Utilitarian era – rehabilitation, reintegration,
c. Era of humanism
d. Era of nihilism – nothing works as expected

Earlier penologist and criminologists advocated for punishment with the sole aim of inflicting pain on the offender. The proponents of the retributive theory sought only to punish the offender. It was hoped that by inflicting pain on the offender as repressive means allowed or stipulated both the offender and the entire society in general would be deterred. However, this proved to be untrue. Retributive punishment did not yield the desired effect. It was argued that such punishment was inhuman, barbaric and tended to focus on the offence committed rather than the offender.

These criticisms of the retributive theory led to a new approach to punishment. Punishment began to be seen as that which should not only be retributive but also produce a desired effect upon both the offender and the society in general. This saw the evolution of utilitarian theories markedly those of reformation, incapacitation or restraint and reintegration.

Focus shifted from the offence to the offender. It was argued that the offenders did not necessarily have a criminal mind but that other factors led to criminality. These included social, economic and even political factors. In order to rid society of crime it was therefore necessary to address such other factors that influenced criminality. Punishment was therefore viewed as a curative measure. Thus, in addition to the other retributive forms of punishment – capital and corporal – there also evolved prisons which were intended for the solitary confinement of offenders. While in that condition prisoners were likely to meditate on their evil ways and change to better persons who were likely to reintegrate into society once their prison terms were over.

With time, however, prisons, which were intended to remedy the defects of retributive forms of punishment changed for the worse. They became harbors for vice. Living conditions became inhuman. Offenders once out of prison were worse off. They became embittered against society and tended to revert back to crime. There was therefore need for the evolution of yet other forms of punishment that catered for the changing needs of society.

Penologist today therefore advocate for non-custodial remedies such as probation, parole, discharge, community service orders, fines etc that seek to punish, rehabilitate and heal the offender in such a way that he will not revert to crime.

They argue that capital punishment and corporal punishment are inhuman and barbaric and ought to be abolished while prison sentences should be maintained for serious offences only.
RETRIBUTION
This is the most ancient method for dealing with offenders dating to the pre-classical period. It is retributive and revengeful in nature. This approach to punishment rests on the idea that a person whose conduct appears to have caused social harm should be held responsible for the harm. It is right that the wicked be punished. The punishments therefore tended to be more inhuman and sadistic. They usually consisted of banishment, mutilation of limbs, whipping, flogging branding, various forms of torture and death. There was usually no attempt to relate the nature of punishment to either the offence or the offender. In earlier times penal law allowed the infliction of greater injury on an offender that that which he inflicted on his victim.

Later, penologists called for more humane treatment of offenders and the older approaches were replaced by codes that advocated for nothing more than eye for an eye and a tooth for a tooth. Its proponents argue that punishment for wrongdoing is intrinsic in value. It is just notwithstanding any other benefits e.g. crime prevention. To them punishment should not be for any other purpose than restoring the moral balance that is disturbed by the crime. The imbalance would remain if the criminal goes scot-free. Punishing him would give satisfaction to the victim and society.

According to Emmanuel Kant, the full moral balance is restored when the offender is punished and the victim compensated. In his view, punishment is a reward, compensation a kind of annulment to a crime.

The basis of retribution seems to be societal revenge. An offender should be made to suffer not so much because it is good for him but because he deserves to suffer. According to Kant, “punishment must always be inflicted upon the offender for the sole reason that he committed a crime”.

According to Sir James Stephen, “it is highly desirable that criminals should be hated, that punishment should be so contrived as to give expression to that hatred, and to justify it.” To these penologists punishment should fit the crime and the offender should get what he justly deserves.
There are two components to the retributive theory:
Vindication
This is the sense of the society’s claim to amend for the harm done or for the outraged feelings. In its crudest form the first kind of vindication justifies punishment on the ground that it tends to satisfy the victim’s need for vengeance. More refined notions are the satisfaction of the victim’s sense of justice or the satisfaction of the feelings of resentment of the victim, his friends, as well as others who are aware of the crime.

Bentham (Principles of Morals and Legislation)
A kind of collateral end, which it (punishment) has a natural tendency to answer is that of affording a pleasure or satisfaction to the party injured, where there is one, and in general, to parties whose ill will whether on a self regarding account, or on account of sympathy or antipathy has been excited by the offence. This purpose, as far as it can be answered gratis, is a beneficial one. But no punishment ought to be allotted merely to this purpose, because (setting aside its effects in the way of control) no such pleasure is ever produced by punishment as can be equivalent to the pain. The punishment, however, which is allotted by other purposes, ought as far as it can be done without expense to be accommodated to this. Satisfaction thus administered to a party injured in the shape of a dis-social pleasure may be styled a vindicative satisfaction or compensation.
Williams 1974 Crim LR 558
Two young men who had been drinking pleaded guilty to buggery to a sheep.
In handing down sentence, the trial judge stated as follows:
“I fully appreciate that it is going to be a matter of comment about you for years to come and I think the kindest thing I can do is to visit upon you the outrage which I think anybody with decent feelings would feel about it so that nobody can say, in your village, that you haven’t paid for it.
Llewellyn Jones (1968) QB 429
A deputy County Court Registrar was convicted of offences involving conversion of funds under his control belonging respectively to a crippled infant and a mental patient. The trial judge sentenced him to 4 years imprisonment. On appeal it was argued that heavy punishment was not called for on deterrent grounds, it was unlikely that the accused would ever again be in a position to commit such offences, and other deputy county court registrars scarcely needed powerful warning by example in order to deter them from converting funds under their control.
Court of Appeal
“This Court is quite satisfied that this is not a deterrent sentence. It is a sentence which is fully merited, in a the opinion of this Court, as punishment for very grave offences, and as expressing the revulsion for the public to the whole circumstances of the case.”
FAIRNESS
This component emanates from the belief that there is a sense in which the criminal gains advantage over the law abiding citizen every time he commits an offence.

This is especially so in cases of successful acquisitive crimes. In other cases it may also be argued that the law abiding citizen may have derived some satisfaction from committing the offence but they abstained especially where similar opportunities may have been available to them. Punishment in this case serves to demonstrate to the offender as well the law abiding citizen that threats of the law will take effect, and that taking advantage of the self restraint of others cannot be done with impunity.

The question of fairness, is viewed as a matter between the state and the offender, the trend has therefore been that punishment of serious crimes should not be determined by the wishes of a particular victim. It therefore follows that if the sole aim of punishment was just vindication for the victim’s injury, then punishment ought not to be metted out where the victim forgives the offender. In general the courts therefore consider the victim’s attitude irrelevant to accused punishment because the accused has to be punished for flouting the law.
Hampton (1965) Crim. LR 564
Hampton aged 27 years had been convicted of rape of an 18 year old girl. She had permitted familiarities on the occasion, but clearly did not consent to the intercourse and reported the incident to the police immediately afterwards. On hearing that Hampton had been sentenced to 3 years imprisonment, the girl wrote to the Court of Appeal saying that she was shocked by the result, that she had no idea that this would be the consequence of her action and that the had told the accused before the incident that she would have intercourse with him sometime in the future.

The sentence was upheld and the Court of Appeal remarked as follows:
“It might well be true that she had no idea of the serious view that the Courts take of the crime of rape on young girls. But her misgivings could not afford any justification for altering a sentence which was right in principle and in fact well deserved.”
In Buchanan (1980) Crim. LR 317
The Court of Appeal upheld a sentence of two years for wounding with intent the woman with whom the appellant had been living, despite her express forgiveness and willingness to resume her life with him.

According Sir Rupert Cross, in general the offender’s wickedness nor his danger to others is reduced by the forgiveness of this particular victim, and the Courts are usually right to approach these cases with the interests of society as a whole as a the primary consideration. Consider this approach within the context of the statutory provisions for the production and consideration of victim impact statements in Kenya.
PROPORTIONALITY
Whereas, vindication and fairness provide partial answers to the question of why punish. Proportionality attempts to address the issue of how much punishment should be inflicted. The general answer is that it be as much as is deserved for the offence no more no less. How is this to measured. Is it in reference to quantity of punishment and moral deserts of the offender. Sentencers generally think in terms of a complex notion which they will frequently describe as the “gravity of the offence.” Such a definition may reasonably include wickedness and the extent that punishment is measured proportionately to the wickedness implicit in the definition of the offence, or indicated by particular circumstances. Gravity may also include reference to the amount of harm done by the offender and the extent that such harm was inflicted intentionally or negligently. Whereas, these may fall within the ambit of moral desert, gravity is sometimes measured by other considerations, which have feature social rather than moral significance. Example is the alarm caused by a particular category of offence, i.e. burglary and handling are not morally worse sentences than theft, but the maximum sentences are higher each case.

Criticism of this exercise of attempting to come up with the retributive theory in this regard is that an attempt to inflict pain commensurate to the crime is a futile endeavor to equate incommensurables. In other words what is the sense of taking about proportionality of fine to term of imprisonment to assault or theft.

Hegel in the Philosophy of Right has tried to justify and explain this approach. His point was that though they may differ greatly in form, crime and punishment resemble each other in that they each is a species of injury.
“…the universal feeling of nations and individuals about crime is and has been that it deserves punishment, that as the criminal has done, so should it be done to him…But a great difficulty has been introduced into the idea of retribution by the category of equality…….…….is easy enough from this point of view to exhibit the retributive character of punishment as an absurdity (theft for theft, robbery for robbery, an eye for an eye, a tooth for a tooth – then you can go on to suppose that the criminal has only one eye or no teeth)….Value, as the inner quality of things which in their outward existence are specifically different from one another in every way, is a category which has appeared already, in connection with contracts, and also in connection with injuries that subject of civil suits….In crime, as that which is characterized at bottom by the infinite aspect of the deed, the purely external specific character vanishes all the more obviously, and equality remains the fundamental regulator or the essential thing, to wit the deserts of the criminal, though not for the specific external form which the payment of those deserts may take. It is only in respect of that form that there is plain inequality between theft and robbery on the one hand, and fines, imprisonment, e.t.c on the other. In respect of their ‘value’, however, i.e. in respect of their universal property of being injuries, they are comparable.

Even if crime and punishment are each regarded as species of injury, there remains the question of the feasibility of measuring proportionality between them in terms of magnitude of a fine or the duration of a prison sentence. The procedure would entirely be unfeasible if its object were thought of as the production of a precisely correct sentence for each offence in isolation from all others. But it is perfectly feasible if the object is recognized as the attempt to equate the size of a fine or length of prison term to the gravity of the particular category of offences with other categories (theft and murder and the gravity of the circumstances under which the offence was committed with offences of same category (rape where the victim is viewed to have acted to some extent as a temptress as contrasted with rape in which the victim was waylaid and subjected to great violence.
Hegel states as follows
“Reason cannot determine, nor can the concept provide any principle whose application could decide whether justice requires for an offence (i) a corporal punishment of forty lashes or thirty-nine, or (ii) a fine of five dollars, or four dollars ninety-three, four etc cents, days, or (iii) imprisonment of a year three hundred and sixty-four, three, etc, days, or one year and one, two , or three days. And yet injustice is done at once if there is one lash too many, or one dollar or one cent, one week in prison or day, too many or too few.”

Hegel acknowledged that allowance has to be made for an element of arbitrariness, i.e. the fact that a decision has to be made one way or the other within certain fairly clearly defined limits. Usually courts are quick to react where such limits are exceeded.
Disbrey (1967) Crim LR 431
The appellant was sentenced to 3 years imprisonment for receiving and fraudulently using a stolen excise license. Nothwithstanding his bad record and the fact that the offence was committed in the course of his employment, the sentence was reduced to 6 months.
Salmon LJ stated thus:
“This court does not want to minimize the seriousness of the offences of receiving excise licences and using them fraudulently, but to send a man to prison for three years for doing that seems to this Court to be beyond reason.”
Riddle and Stevens
The accused persons were sentenced to fines of 20 sterling pounds for assaults causing actual bodily harm, they appealed against conviction but not sentence.
Salmon LJ
“No doubt there are crimes against property which, in exceptional circumstances, enable justice to be tempered by mercy and first offenders to be treated with extreme leniency. But crimes of violence are altogether different in kind. These appellants were members of a gang which in brutal and cowardly fashion, set on a man standing alone, and proceeded to kick him as he lay unconscious…..In such circumstances the appellant would, or should have been sentenced to long terms of imprisonment…They are all young with no previous convictions. Even so in circumstances such as these to impose the most derisory fines of 20 and 25 is a travesty of the proper administration of justice.”
The retributive theory is grounded on a number of assumptions;
d) That the culpability or responsibility for the an offence is punished and it is hoped that the penalty given produces equivalent satisfaction to the aggrieved party,
e) That the punishment is similar or as close as possible to the injury occasioned on the victim;
f) That the criminal is punished because he was fully responsible and he committed the offence with full knowledge;
g) That the criminal has benefited from the crime.

The theory has a number of shortcomings;
a) At the intellectual level, retribution is a dying theory. Modern penal theory is based on the idea of corrective or rehabilitative measures and cannot tolerate bloddy methods of punishment. Modhern human rights lobbyists are fighting for the abolition of punishment which involves physical torture. Many forms of punishment based on retribution like capital punishment and corporal punishment are being phased out.
b) The fact that a person has committed a crime does not always mean that the person has a truly criminal mind i.e. that he is inclined to evil or immoral acts. Circumstances may have an effect on the person e.g. poverty, age, state of mind.
c) The victim may not be interested in revenge. Thus revenge may not achieve Kant’s moral balance.
d) There being no foolproof method of determining those who are guilty, vengeful punishment may be directed at the innocent.

UTILITARIAN THEORIES
The objectives of punishment according to this theory is
1.5.a) to make the guilty man or the offender a better person and by extension the community better;
1.5.b) to improve society by either isolating or reforming the offender
They justify punishment only if it can be shown to be of some utility to the society. It is a curative theory. It is supported by thinkers such as Plato, Aristotle, and Mahatma Gadhi, who actually saw punishment a bitter pill that would cure all criminal tendencies. The are various theories of punishment falling under this broad category, including deterrence, public education, disablement and reformation as well as prevention.

DETERRENCE
This is the preventive effect that actual or threatened punishment has on an offender or potential offender in a given society. It is an ancient theory. John Salmond believes that punishment must be deterrent. The main aim of criminal law should be to make the wrongdoer an example and warning to all who are like-minded.

William the Conqueror of England is reported to have decreed that “no one shall be killed or hung for misdeed but rather that his eyes be plucked out and his feet, hands and testicles cut off so that whatever part of his body remains will be a living sign to all of his crime and iniquity”.

There is a close connection between deterrence and retributive forms of punishment. Retributive punishment is believed to have some deterrent value. Deterrence is meant to reduce crime and for this reason some penologists argue that the harsher or more horrid the punishment the more effective the deterrence.

Cesare Beccaria the Italian criminologist argued against the severity of punishment saying that punishment was not to provide a social revenge on the criminal and it was not the severity but the certainty and expedition in punishment that secured the best results for deterrence.

Deterrence is at two distinct levels – individual and general

Individual deterrence
The idea here is that the offender should be given such an unpleasant time that through the fear of a repetition of punishment he will never repeat his conduct. There are limiting factors however. The retribution theory insists that punishment should not be disproportionate to the offender’s deserts, the utilitarian insists that the punishment must be no more than is necessary to achieve its deterrent effect, sheer expediency on the other hand insists that the punishment shall not be such as to make the offender an object public sympathy. Rev Sydney Smith (1771 -1845) whose views on punishment were notoriously harsh was aware of these limitations and stated thus:
“When we recommend severity, we recommend, of course, that degree of severity which will not excite compassion for the sufferer and lessen the horror of the crime. That is why we do not recommend torture and amputation of limbs.” Cited in the “The Modern Approach to Criminal Law” by Radzinowcz and Turner at page 40.

The current penological view is that one sentence of imprisonment is enough for the majority of offenders: It is widely viewed by conjecture that the first prison sentence is the most traumatic. The initial impact of prison life is therefore thought to be a powerful individual deterrent.

At a personal level punishment serves as a lesson and warning to the offender himself. It removes him from the environment where he would commit crime (restrains him).
General deterrence
When reliance is placed on general deterrence, the aim of punishment is thought of as the discouragement of like-minded persons from committing offence by the threat of punishment and the example of the punishment of the offender.

At a general level, it deters other like minded persons from committing similar offences. This theory is illustrated in the case of R vs Atma Singh s/o Sharda Singh 1943 E.A.C.A 69

The appellant an elderly Sikh man appealed against conviction and sentence on the charge of causing grievous bodily harm to his wife. The brief facts were that the appellant’s wife had been enticed by another man, upon which she left their matrimonial home in Mombasa, to live with her new man in Nairobi. The appellant followed her there and managed to take her back to Mombasa, and thereupon cut off her nose and ears. He was tried and sentenced to 7 years imprisonment with hard labour. On appeal the sentence was affirmed. Describing the assault as barbaric and therefore one that needed punishment that would lead to deterrence, the judges further stated that for purposes of deterrence a lesser sentence would be misunderstood.

In R vs Mudanya Kazengwa 1979 KLR 48, the accused an Inspector of Weights was charged with Corruption c/s 3 of the then Prevention of Corruption Act. The facts were that he corruptly received Kshs 600 as inducement not to prosecute a man for hoarding tea. Under the section the offence carried a maximum penalty of seven years imprisonment or a fine of Kshs 10,000 or both for first offenders. He pleaded guilty and was sentenced to a fine of Kshs 5,000 or 6 months imprisonment. The magistrate based the sentence on various mitigating factors including;
1.5.c) the accused was likely to loose his job
1.5.d) the accused had a family to support
1.5.e) he was repentant and apologetic

On appeal it was held that the sentence meted out by the lower court could serve to encourage the commission of the offence. The sentence was set aside and replaced with one of 4 years imprisonment.

Daher, 1969 53 Cr.App R 490
A 19 year old Lebanese student was sentenced to 3 years for importation of cannabis. Daher, who was previously of good conduct had been induced to become a runner of some Lebanese drugs exporters by the promise of money and a short holiday in England in addition to the payment of his airfare; they also promised assistance to his impoverished family. On arrival in England he was found with cannabis worth 3500 sterling pounds in his suitcase.
Salmon J
“If a young man such as the appellant is given six months suspended sentence, back he goes whence he came and the news spreads like wildfire amongst all students. ‘Well, this is not a bad way of trying to get money because if it comes off you will just be sent home again.’ On the other hand, if it is known among potential offenders in the Lebanon and elsewhere that, if they are caught attempting to smuggle drugs into this country, they will be severely dealt with, there may be a remarkable lack of enthusiasm for enterprises of this kind and great difficulties put in the way of people who run this filthy trade.”

There is however, growing skepticism about the deterrent effect of either the threat or example of punishment. There are difficulties of conducting satisfactory research into the deterrent effect of particular sentencing policies. A survey of young men carried out by Willcock and Stokes in 1968, suggested that most people overate their chances of detection and rank fear of what others will think above fear of punishment as a deterrent. Courts however, continue to find usefulness for general deterrence in sentencing.

Long deterrence/denunciation or education
The deterrent theories already considered so far may be said to be deterrent in the short term. This is in the sense that the threat or example of punishment is supposed to operate immediately on those contemplating crime. The educative or denunciative theory may be described as long term in nature. It justifies punishment on the ground that it helps maintain people’s standards. The fact that people are punished for crimes is believed to build abhorrence for it over a period of years and thus to reduce the number of those who would even remotely consider it. A proponent of this approach is Sir James Stephen ( History of Criminal Law vol. II at page 79)

“ If in all cases criminal law were regarded only as a direct appeal to the fears of persons likely to commit crimes, it would be deprived of a large part of its efficacy, for it operates, not only on the fears of criminals, but upon the habitual sentiments of those who are not criminals. A great part of the general detestation of crime which happily prevails among the decent part of the community in all civilized countries arises from the fact that the commission of offences is associated in all such communities with the solemn deliberate infliction of punishment wherever crime is proved.”

Another proponent of this contention that punishment may be justified as an attempt at the moral education of the offender as well as others; is Dr. A.C. Ewing in The Morality of Punishment published in 1929 stated as follows:
“Now the existence of a penal law is an impressive condemnation of the practice prohibited by it. But surely this solemn, public condemnation on behalf of the community will have some effect not only on those actually punished but on others also. If it may help the offender to realize the badness of his action, may it not help others to realize this badness before they have committed the kind of act in question at all? This must not be confused with a purely deterrent effect. A man who abstains from crime just because he is deterred abstains through fear of suffering and not because he thinks it wicked; a man who abstains because the condemnation of the crime by society and the state has brought its wickedness home to him abstains from moral motives and not merely from the fear of unpleasant consequences to himself.”

The negative version of this theory is that failure to punish a crime adequately will depreciate its seriousness. This could partly explain the remarks made by judges in the cases that we have already looked at.
In this regard the theory has both retributive and utilitarian features
Goodhart, The English Law and the Moral Law pg 39
“Retribution in punishment is an expression of the community’s disapproval of crime, and if this retribution is not given recognition, then the disapproval may also disappear.”

A question that may arise is what justifies the use of a criminal to the good of others especially through the infliction of pain.

According to Sydney Smith (Modern Approach to Criminal Law, pg. 40)
“When a man has been proved to have committed a crime it is expedient that society should make use of that man for the diminution of crime. He belongs to them for that purpose.”

Sir Rupert Cross considered Sydney’s answer as being wrong and states that;
“The right is that the criminal is not being used merely as a means. He is being given his just deserts although, in the view taken in this book, there is no reason why she should receive them at the hands of an earthly power if crime is not reduced thereby.”

The difficulty with this approach is that it is not clear how these assumptions by penologists on the moral deterrence can be proved to be either right or wrong. Secondly as already indicated elsewhere it is difficult to measure how society or the community at large accesses the information required to enable this educative approach to crime. It is one thing to assume that and declare that ignorance of the law is no defense, and another to assume that people in actual fact do know the law and are guided especially in their criminal activities by such knowledge.
DISABLEMENT/INCAPACITATION/PREVENTION
This theory is connected to the deterrence theory. It is founded on the assumption that the isolation or incapacitation of an offender renders him incapable of committing crime and rids society of evil. Incarceration or imprisonment of offenders isolates them from the rest of society and from the circumstances that led him to crime. The death penalty also disables by permanently incapacitating the offender. Its main avenue for operation is the prison and related institutions.

The application is best illustrated in the case of Ndurugo s/o Karuga vs Republic 1950 EACA 50 where the accused was charged with the offence of stealing one cow. He was sentenced to 10 years imprisonment with hard labor. He appealed against both conviction and sentence. The conviction was upheld but sentence was reduced to 5 years. In the opinion of the appeal judges, the accused if let loose would commit more serious offences as he had 21 previous convictions. The sentence was thus intended to disable or incapacitate him to ensure security to the community’s property.
The theory has several weaknesses;
a) It merely postpones crime
b) It is based on the prison system with all its weaknesses
c) It presupposes that no crime occurs in prison
d) It encourages longer and unnecessary punishment

REFORMATIVE/REHABILITATIVE APPROACH
There are two aspects to the reformative approach;
a) that reform can come through the punishment itself, the pain of punishment is therefore expected to have reformative merits on its own. Sir Rupert Cross remarks that this view is unfashionable and that nothing can be said about it beyond observing that solitary confinement is an example from former times, the theory being that suffering the loss of liberty in solitude would induce remorse, repentance and reform.
b) The idea of reform as concomitant to punishment. This is the prevailing theory for sentences such as probation where reform is at the forefront to the extent that probation in many quarters is not viewed as punishment at all, but merely as a measure of rehabilitation.

Rehabilitation and reformation are one the major objectives of punishment and very fashionable amongst penal reformers. It finds basis on the notion that offenders are social misfits or persons who are socially maladjusted. Punishment is therefore seem as a means of re-socializing such persons with the aim of making them useful members of society. The problem with reformation is that it is a long and expensive process which is not guaranteed to produce the desired effect or result. Arguments in favour of reformation include:
a.a) reforming the criminal provides the state with opportunity to control crime in future;
a.b) the reformation process is also deterrent and thus an effective condemnation of crime
a.c) it creates resources for the state for training the offender – prison etc
a.d) it enables the criminal to stay within society – probation , parole, discharge etc provide s the best opportunity for re-socialization of the offender

Weaknesses evident in the theory are:
a) Reformation, in most cases, is supposed to occur in prison or jail. The prison environment is not conducive to reformation as it mixes the theories or objectives of retribution and deterrence with reformation. The prison atmosphere generally fosters hatred and bitterness yet the same is expected to be a correctional institution.
b) To achieve the objective of reformation prisoners are put to all kinds of programs – carpentry, tailoring, hairdressing, gardening, pig keeping etc. These programs however, do not help reform the offender as there does not necessarily exist a causal connection between lack of skills and criminality. It is only a small class of offenders who lack skills and it does not necessarily follow that they engage in crime due to lack of skills.
c) Reformation is an expensive process. It demands heavy infrastructure. In Kenya reformation is directed towards probation, parole, conditional and unconditional discharge, bonds to keep the peace, community service orders. The success of these programs demands financial as well as human resources and facilities for training.

Opinion varies as to the usefulness and appropriateness of using prisons as a mechanism for reformation. The Advisory Council on the Penal System (UK, 1974) stated as follows;

“Prolonged and repeated imprisonment is destructive of family relationships and, by encouraging the prisoner’s identification with the attitudes of the prison community, increases his alienation from normal society. In addition, long-term institutionalization is all too likely to destroy a prisoner’s capacity for individual responsibility and to increase the problems he must face when he returns to society” (Length of Prison Sentences, para. 10).

It is therefore rare to find a situation where courts would impose a term of imprisonment primarily for reformative purposes. It is generally believed that the best method for securing reform is through non custodial sentences.

The dilemma that judicial officers face is usually that of conflicts between the issue of general deterrence and reform and between reform and retribution and reform. This is because whereas, reform or rehabilitation focuses primarily on the offender i.e. it is mostly for the good of the offender, general deterrence and retribution focus on the offence, which is viewed as a violation against the society as a whole and which therefore requires punitive action. So it may be argued that in many cases, the maxim, “punish the offender rather than the offence” is only sound up to a point. And that there are many cases where the rights of the offender or the protection of the public require that the sentence should be concentrated on the offender.

In some instances, for example the courts may allow a longer prison sentence where there are facilities for the treatment of the offender, and it has been established that the treatment or therapy requires a minimum time frame which would then become a threshold for the minimum length of sentence. But even this notion is not that well settled.
Two English cases demonstrate the difficulties;
Ford (1969) 3 All E.R. 189
Ford had been sentenced to 27 months imprisonment for housebreaking and larceny, although his co-accused had only been given 12 months. The difference was largely due to the fact that Ford was an alcoholic and it was felt that the additional time in prison was necessary for the completion of his cure. His sentence was reduced to 12 months by the Court of Appeal.

“In relation to offences of dishonesty, sentences of imprisonment, except where there is an element of protection of the public, are normally intended to be the correct sentence for the particular crime and not to include a curative element. This Court wishes to make it clear that what it is now saying has nothing to do with special cases such those of possessing dangerous drugs or cases where protection of the public is involved.”
Moylan (1970) QB 142, 3 All ER 783
Moylan was sentenced to 18 months suspended sentence for larceny. He was subsequently convicted of causing malicious damage and being drunk and disorderly and was given 3 months immediate imprisonment. The judge also brought the suspended sentence fully into operation, partly in hope of curing Moylan’s alcoholism. The Court of Appeal held that this was wrong and activated the suspended sentence for 6 months only.

“In our judgment, in cases of dishonesty where there is, as it were, a background of alcoholism in respect of the accused, the Court must first determine what are the limits of a proper sentence in respect the the offences charged. Within these limits it may be perfectly proper to increase the sentence in order to enable a cure to be undertaken whilst the accused is in prison. But on the authority of Ford, it is clear that it is not correct to increase above that within the appropriate range of the offence itself merely in order to provide an opportunity of cure.”

It is interesting to note that whereas, prisons are increasingly wishing themselves to be viewed as reformative and rehabilitative institutions, there judicial thought and practice is clearly not taking the same track and especially for “run-off-the mill” type offences.

The challenges are even more evident in cases where the offences are intrinsically serious but are committed by relatively youthful offenders with previously relatively good conduct. Such offenders would normally lay claim to reformative and rehabilitative rather than punitive measures.
Newbury and Jones (1976) 62 Cr. App. Rep 291
A sentence of 3 years detention was thought appropriate for a youth of 15 who pushed part of a stone off the parapet of a bridge, causing the death of a guard traveling in a train which passed beneath.
Elvin (1976) Crim. L.R 204
A sentence of 4 years imprisonment upon a youth of 17 years with no previous convictions who had set fire to school buildings was upheld, as a general deterrent to discourage others from committing what was a particularly rife type of crime.
Smith and Wolard (1978) 67 Cr. App. Rep. 211
The Court here even said that general deterrence should be placed before reform when sentencing offenders for burglary of houses.
What can be seen from the discussions is that theories exist about sentencing and what principles are to be adopted. However, the reality of these theories find expression in the real cases that go before the courts and especially where those courts find it necessary to explain or expound on what the sentences are intended to achieve.

A case in point where the English Court of Appeal discussed these issues extensively is
Sargeant (1974) Cr. App. Rep. 74
The appellant was employed as a doorman at a discotheque. He observed a customer making a nuisance of himself, went over to the customer and butted him. From this action general affray resulted, although the appellant who had received a painful blow in return took no further part. He was sentenced to 2 years imprisonment.
Lawton LJ
What ought the proper penalty to be? We have thought it necessary not only to analyze the facts, but to apply to those facts the classical principles of sentencing. Those classical principles are summed up in four words: retribution, deterrence, prevention and rehabilitation. Any judge who comes to sentence ought always to have those four classical principles in mind and to apply them to the facts of the case to see which of them has the greatest importance in the case which he is dealing.

I will start with retribution. The Old Testament concept of an eye for an eye and a tooth for a tooth no longer plays any part in our criminal law. There is, however, another aspect of retribution which is frequently overlooked: it is that society, through the courts, must show its abhorrence of particular types of crime, and the only way in which the courts can show this is by the sentences they pass. The courts do not have to reflect public opinion. On the other hand courts must not disregard it. Perhaps the main duty of the court is to lead public opinion. Anyone who surveys the crime scene at the present time must be alive to the appalling problem of violence. Society, we are satisfied, expects the courts to deal with violence. The weapons which the courts have at their disposal for do so are few. We are satisfied that in most cases fines are not sufficient punishment for senseless violence. The time has come, in the opinion of this Court, when those who indulge in the kind of violence with which we are concerned in this case must expect custodial sentences.

But we are also satisfied that, although society expects the courts to impose punishment for violence which really hurts, it does not expect the courts to go on hurting for a long time, which is what this sentence is likely to do. We agree with the trial judge that the kind of violence which occurred in this case called for a custodial sentence. This young man has had a custodial sentence. Despite his good character, despite the excellent background from which he comes, very deservedly he has had the humiliation of hearing prison gates closing behind him. We take the view that for men of good character the very fact that prison gates have closed is the main punishment. It does not necessarily follow that they should remain closed for a long time.

I now turn to the element of deterrence, because it seems to us the trial judge probably passed this sentence as a deterrent one. There are two aspects of deterrence: deterrence of the offender and deterrence of likely offenders. Experience has shown over the years that deterrence of the offender is not a very useful approach, because those who have their wits about them usually find the closing of prison gates an experience, which they do not want again. If they do not learn that lesson, there is likely to be a high degree of recidivism anyway. So far as deterrence of others is concerned, it is the experience of courts that deterrent sentences are of little value in respect of offences which are committed on the spur of the moment, either in hot blood or in drink or both. Deterrent sentences may very well be of considerable value where crime is premeditated. Burglars, rovers and users of firearms and weapons may very well be put off by deterrent sentences. We think it unlikely that deterrence would be of any value in this case.

We come now to the element of prevention. Unfortunately it is one of the facts of life that there are some offenders for whom neither deterrence nor rehabilitation works. They will go on committing crimes as long as they are able to do so. In such cases the only protection, which the public has is that such persons should be locked up for a long period. This case does not call for a preventive sentence.

Finally, there is the principle of rehabilitation. Some 20 to 25 years ago there was a view abroad, held by many people in executive authority, that short sentences were of little value, because there was not enough time to give in prison the benefit of training. That view is no longer held as firmly as it was. This young man does not want prison training. It is not going to do him any good. It is his memory of the clanging of prison gates which is likely to keep him from crime in the future.”

A number of considerations from what we have discussed in the various principles or justifications for punishment arise from the passage
a) In giving regard to public opinion when considering sentence, Lord Justice Lawton draws attention to the denunciatory aspect of punishment and treats as retribution, in similar fashion to Sir James Stephen (Liberty, Equality and Fraternity (London, 1874), pg 162-2, writing that common crimes are punished; “for the sake of gratifying the feeling of hatred, - call it revenge, resentment, or call it what you will – which the contemplation of such conduct excites in healthily constituted minds.”
b) Although there is a clear link between retribution and denunciation, this justification seems justified to keep an approximate correspondence between the degree of popular abhorrence for certain offences and the level of the sentence is important in order to reinforce public attitudes towards those offences.
c) He places little faith in individual deterrence as a reason for making a particular sentence more severe than it might be on retributive grounds; he argues that general deterrence may be more justifiable in certain cases. His arguments seem to be more concerned with practical utility rather than theoretical considerations. So that it may be more practical to aim at deterring premeditated/planned crimes than those that are impulsive ones. One may argue that for purposes of prevention of crime it might be more effective to have a system that imposes high penalties for all offending, planned or impulsive, than to have one that reserves higher penalties only for the planned ones. The question would then be whether the extra amount of crime reduction gained by treating the two types of offences in a similar is justified for the imposition of extra suffering on those committing impulsive crimes, the utilitarian would not be persuaded, nor would retributivist who regard such impulsive crimes as less wicked than premeditated offences

The sentence was considered too long and reduced to 8 months imprisonment. Clearly the court must have considered this to be appropriate for one who had not been to prison before and therefore individually deterrent as well as appropriately retributive in view of the impulsive nature of the violence.

SENTENCING IN KENYA
The Kenyan Penal Code provides under Section 24 for the following forms of punishment.
a) Death
b) Imprisonment
c) Detention under the Detention Camps Act
d) Corporal Punishment
e) Fine
f) Forfeiture
g) Payment of compensation
h) Security to keep the peace and to be of good behaviour
i) Any other punishment provided by this Code or any other Act

DEATH
The prevalence of the death penalty has varied a great deal in different societies. In the medieval period the most common techniques for the carrying out of the death penalty was by burning, boiling in oil, breaking at the wheel, the iron coffin, drowning and impaling. In Switzerland impaling and immuring were practiced until about 1400 and death by drowning until about 1600. The last case of burning at the stakes in Berlin was in 1786. In ancient Rome the death penalty was inflicted on slaves and other non-citizens for various offences.

In England in the early 1700s the death penalty was frequently inflicted for religious offences, but most of the later inflictions were for offences against property and in some instances for very trivial offences.

It is reported for example that in 1814, three boys aged, eight, nine and eleven were sentenced to death for stealing a pair of shoes. Other offences for which the death penalty was applied in addition to theft, were, poaching, pick-pocketing etc. During the early part of these periods, the corpse was gibbeted, that is remained hanging in chains, and was sometimes soaked in tar so that it would remain for a long time as a warning to evil doers.

Some attempts were made by reformists to at least do away with the more gruesome methods of carrying out of capital punishment for the offence of treason; In 1814, one of these reformers Romilly tried in vain to substitute simple hanging as society reaction to treason in place of the penalty of hanging, cutting down alive, disemboweling, cutting off the head and quartering the body.

During the course of the last century there has been a distinct movement away from the death penalty, a number of countries have abolished entirely whereas in others the offences for which the death penalty is mandatory has been limited mostly to murder.

The other trend has been to have a permissive as opposed to mandatory death penalties. This where courts and juries have been given powers to decide whether one found guilty of a capital offence must be executed.
In countries like the US where some states have retained capital punishment, the manner of execution has also been modified to make less prolonged and less brutal i.e. the introduction of the electric chair, lethal injection as more civilized and swifter ways of execution.

In Africa, the application of the death penalty also varied from place to place:
a) Pre-colonial Kikuyu customs provided for burning of murderers and those who stole habitually
b) Banyankore – death penalty was reserved for premeditated homicide and pre-marital pregnancy
c) Basoga – stealing ripe bananas would result in unripe bananas being inserted into the offenders rectum until some internal organ ruptured and he would bleed to death
d) Kingdom of Benin – burning alive
e) Buganda – adulteresses could be put to death.

The death penalty is prescribed for the following offences:
a) Treason C/S 40(3) of the Penal Code
b) Murder C/S 204 of the Penal Code
c) Robbery with violence C/S 296(2) as well as Attempted robbery with violence C/S 297.
EXCEPTIONS
Under Section 211 of the Penal Code,
“Where a woman convicted of an offence punishable with death is found in accordance with the provisions of Section 212 of the PC to be pregnant, the sentence to be passed on her shall be of imprisonment for life instead of death sentence”.
Section 212,
The woman herself can allege that she is pregnant or the court which convicts may order that the question of her pregnancy be determined, it shall be determined by the trial judge. Evidence may be laid by the woman herself or the republic, and such evidence must be proved affirmatively to the satisfaction of the judge that the woman is indeed pregnant. It the woman is dissatisfied with the judge’s finding, and then she can appeal to the court of appeal.
Section 25 (2)
“Sentence of death shall not be pronounced on or recorded against any person convicted of an offence if it appears to the court that at the time when the offence was committed he was under the age of eighteen years, but in lieu thereof the court shall sentence such person to be detained during the President’s pleasure, and if so sentenced he shall be liable to be detained in such place and under such conditions as the President may direct, and whilst so detained shall be deemed to be in legal custody.”
25(3)
When a person has been sentenced to be detained during the President’s pleasure under subsection (2), the presiding judge shall forward to the President a copy of the notes of evidence taken on trial, with a report in writing signed by him containing any recommendations or observations on the case he may think fit to make.
Under LN 579/1963 – this power is delegated to the Minister and to the Permanent Secretary of the Ministry for the time being responsible for prisons.
Section 166 of the Criminal Procedure Code
Where it is shown that at the time of committing a capital offence the offender was insane then he shall be detained at the President’s pleasure.

Manner of Execution
Under Section 69 of the Prison’s Act it is provided as follows;
“When any person is sentenced to death, he shall be hanged by the neck until he is dead and the sentence shall be carried out in such manner as the Commissioner shall direct.”
Note the changing face of the mandatory application of death penalty -
The courts have found particular difficulties with the application of the law with regard to robbery with violence.

Definition of robbery
Section 295 of the Penal Code
Any person who steals anything, and, at or immediately before or immediately after the time of stealing it, uses or threatens to use actual violence to any person or property in order to obtain or retain the thing stolen or to prevent or overcome resistance to its being stolen or retained, is guilty of a felony termed robbery.
296(2)
If the offender is armed with any dangerous or offensive weapon or instrument, or is in company with one or more other person or persons, or if, at or immediately before or immediately after the time of the robbery, he wounds, beats, strikes or uses any other personal violence to any person, he shall be sentenced to death.

Justification for the Death Penalty
1. It is argued that it is deterrent. It disables the accused completely in that he would never be in a position to commit a similar offence or any other offence for that matter. It deters others, some proponents of this view suggest that it would be even more effective if carried out in public. (This is the mode preferred by successful coup plotters in Africa of the 60’s, 70’s and 80’s).
2. In the majority of cases, those who are sentenced to death are those who are beyond the hope of rehabilitation such that imprisonment would be a waste of taxpayer’s money. It is argued that execution is less costly.
3. It is more humane to hang a person than to imprison them for life
4. Without the death penalty, society would return to lynching, even for petty offenders
5. The death penalty is sanctioned by the Lord. Genesis 9 v 6 “Whoever sheds human blood, by man shall his blood be shed, for in the image of God made He man.” Exodus 21 v 13 “The punishment shall be life for life.”

Case against
1. Death is a not a punishment at for the victim does not live to learn to avoid wrong doing.
2. Studies have shown that the death penalty does not have a unique capacity to deter. Thus, its deterrent value is overrated and cannot justify its retention.
3. It is contrary to the highest ideals of civilized communities, it is cruel, inhuman, unkind, degrading
4. For Christians, it contravenes the commandment ‘Thou shall not kill’
5. Society cannot get rid of murderers by being a murderer itself
6. It is irrevocable – there is a real risk of executing innocent persons
7. Hanging is hangover from the barbaric past
8. It is exploited by oppressive regimes to repress and stamp out opponents
9. It is inflicted mostly on the weak in society – the most vulnerable members of society – i.e. the poor who are least able to access legal representation.

IMPRISONMENT
This is the most common form of punishment after fines. The Penal Code provides for maximum sentences, but the regime of minimum sentences was done away with.

The courts as a result of the amendments to those sections that previously carried minimum sentences now have total discretion with regard to penal offences to award any duration from 1 day to the prescribed maximum. However, a court whose jurisdiction is limited can only sentence up to a maximum of their jurisdictional limit, i.e. a Resident Magistrates maximum sentencing jurisdiction is 7 years, so if they try an offence such as simple robbery whose maximum sentence is 14 years, such a resident magistrate can only sentence up to 7 years.

It is a generally accepted principle of sentencing that in awarding sentences regard should be had that the maximum sentences are reserved for the worst cases, i.e. those cases that are exceptionally heinous.

This principle was recognized in the UK as early as 1932, by the Dove Wilson Report on Persistent Offenders
“In order that there may be a proper grading of sentences to fit the many degrees of gravity presented by the various cases which fall within the same legal category, it is necessary that the maximum sentence authorized by law should be reserved for the rare offences which are exceptionally heinous, that sentences approaching the legal maximum should be reserved for offences falling within the next degree of gravity, – and so on, with the result that ordinary offences (such as form the great majority of cases coming before the Courts) the heaviest sentence which the Court feels justified in imposing is usually far below the maximum sentence authorized by law for the category of offence in question.”

REMISSION
Section 46(1) of the Prison’s Act provides that convicted criminal prisoners sentenced to imprisonment, whether by one sentence or consecutive sentences for a period not exceeding one month, may be industry and good conduct earn a remission of one-third of the sentence or sentences.

Remission is therefore discretionary based on good conduct and industry and is not available to;
1. a prisoner serving a sentence of less than one month
2. a prisoner sentenced to one month imprisonment
3. a prisoner detained during the President’s pleasure

Remission can be denied on the following grounds;
1. The interests of the prisoner’s own reformation and rehabilitation
2. that the Minister in charge of internal security considers that in the interests of public security or public order not to release the prisoner

Remission can be lost as a result of its forfeiture for an offence against prison discipline.

Remission cannot be earned for the following periods;
1. any period spent in hospital through the prisoner’s own fault, or while malingering
2. any period during which the prisoner is undergoing solitary confinement as a punishment

Not withstanding all these stipulation, the Minister in charge of Prisons, on the recommendation of the Commissioner, may grant a further remission on the grounds of exceptional merit, permanent ill health or other special grounds.

The Commissioner also has powers to restore forfeited remission in whole or in part.

It should be noted that remission is intended to be an incentive for the offender to reform within prison, this evidenced by the provision of Section 46 (2) of the Act to the effect that; For purposes of giving effect to the provisions of subsection (1) of this section, each prisoner on admission shall be credited with the full amount of remission to which he would be entitled at the end of his sentence if he lost no remission of sentence.

PAROLE
Under Section 49 of the Prison’s Act provision is made that “Within three months of the date upon which a prisoner serving sentence of or not exceeding four years is due for release, the Commissioner may allow such prisoner to be absent from prison on parole for such length of time and upon such conditions as the Commissioner may specify.

The Commissioner has powers to recall a prisoner who is on parole at any time.

Form 3
Parole Licence and Conditions
Specifies, that the licence will indicate the place to which the parolee will proceed, and that they shall not move from that address without consent of the Commissioner.

Further there is a condition that they shall abstain from any violation of the law and will not associate with persons of bad character,They are required to carry the licence and to produce it if required by a prison or police officer. It further specifies the Prison to which the parolee may report in case they require advise or assistance. The conditions have to be explained to the parolee in the presence of a prison officer who has to certify so, the parolee is also required to sign or mark the licence signifying that it has been explained and they have understood. There is provision for affixing the parolee’s photograph and fingerprints.

It is noteworthy that not much has been done with a view to exploiting these provisions especially in line with the more developed jurisdictions where parole is used extensively to enable long-term prisoners the opportunity to shorten the lengths of their sentences. This is an area that calls for considerable reform measures. COMPULSORY SUPERVISORY ORDERS

Under Section 47, of the Prison’s Act, the Commissioner has the following powers;

(a) shall, in the case of a prisoner who, having been sentenced to imprisonment on not less than two previous occasions, is serving a sentence of imprisonment for a term not exceeding three years; and
(b) may in the case of any other prisoner where he considers it necessary or desirable in the interests of the rehabilitation of that prisoner to so do.

Make an order, to be known as a compulsory supervision order, providing for the compulsory supervision of the prisoner for any period not exceeding one year.

The prescribed form is form 2 under the Act. It contains the details of the offender under supervision, with specifics of who the offender is to report to in any case.

Contravention of the supervision orders through the conviction for other offences, or failure to comply with the conditions of the order; results in the revocation of the order, and the Commissioner is empowered to issue a certificate to that effect. The said certificate is conclusive evidence of its contents.

If the offender is undergoing punishment for a subsequent offence, then he shall automatically serve a period of 3 months or the period for which he earned remission whichever is the greater.

Where such ex-prisoner is at large, the Commissioner shall present the revocation certificate to a magistrate who shall then issue a warrant of arrest. Upon arrest, the magistrate shall upon proper inquiry and on being satisfied that the person has been convicted of a subsequent offence or failed to comply with the supervision orders shall sentence for the term provided for above.

The Commissioner has powers to discharge a prisoner undergoing imprisonment for violation of the supervision orders, and can make further supervisory orders with regard to the same prisoner.

The Commissioner also has powers to vary the supervisory order whenever he considers it necessary to free a person under the order should be freed from liability therein.

PRESIDENTIAL PARDON
Under Section 27 of the Constitution powers are given to the president to pardon. This is what is usually referred to as the prerogative of mercy and it may be exercised in several forms;
a) Pardon to a convicted person either conditionally or unconditionally
b) Grant a respite from the execution of a sentence or punishment either indefinitely or for a specific period
c) Substitute a less severe form of punishment.

Section 28 of the Constitution provides for an Advisory Committee to the president, but there recommendations are not binding on the president.

FINES
This is the most common type of punishment and it is usually meted out for minor offences. In some cases the Penal Code or the Statutes make specific provision for fines, together with the either the minimum or the maximum amounts, and in some cases they will specify whether it is to be additional or in substitution for imprisonment.

DISCHARGE
Under Section 35 of the Penal Code provision is made that where the court is of the opinion that having regard to the circumstances, including the nature of the offence and the character of the offender, that it is inexpedient to inflict punishment and further that a probation order is inappropriate, it may issue a discharge order. The discharge may be either conditional or absolute. Where it is conditional, then the condition should be that the offender will not commit another offence for a period not exceeding 12 months. Violation will lead to the court exercising its discretion on whether or not to sentence the offender for the original offence for which the discharge had been issued.

COMPENSATION
This can be awarded to a person who has suffered material loss or personal injury in consequence of the offence by the accused. Kenyan courts are usually reluctant to award compensation in criminal cases especially in those cases where serious injury has been suffered, and proper and sufficient medical evidence may not have been adduced, and so the task is usually left to the civil process.

RESTITUTION
Where there is any property involved in the cause of trial, at the end of the trial the court can make an order for the release of the property to the rightful owner.

COMMUNITY SERVICE ORDERS
These Orders came into effect with the enactment of the Community Service Orders Act, No 10 of 1998. It replaced the Extra Mural Penal Employment which was provided for under Section 68 of the Prison’s Act.

Background to the Orders

Whereas, the EMPE had been meant to reduce congestion in prisons and provide a mechanism for enabling rehabilitation of the offender within the community; there was a lot of dissatisfaction with its application and implementation. Under EMPE anyone who was liable for imprisonment for a term not exceeding 6 months could be placed on EMPE, each locality had designated EMPE centers which were invariably local administrative officers e.g. DO, and Chief’s officers as well as the courts themselves. The offenders were supervised by Prison’s officers, and they were meant to carry out work of a public nature. It was served between 8 am – 12 noon. Complaints against the systems included;
It did not lead to decongestion of Prisons, since the cut off of 6 months left out a lot of petty offenders
It was misused by the administrators to service their own private works
Some of the work carried out was mundane and had no impact for public expenditure
The timing of when it could be served ran counter to the idea that one could serve and still continue working, i.e. there was no flexibility, so offenders would still loose their jobs as a result of carrying out the punishment
There was disquiet with the idea that whereas, this was intended to be a community based rehabilitation programme; supervision was carried out by uniformed personnel.

In response to the increasing numbers of prisoners and the deterioration of prison conditions, matters were made worse when a conference organized to discuss prison reforms was told by the then High Court Judge, Justice Emmanuel O’kubasu that being sent to a Kenyan Prison was equivalent to being awarded a death sentence, the Kenya Government set up a committee to look into EMPE and to make recommendations on Community Service Orders, in the same year, 1996. Justice O’Kubasu, was appointed chairman and the Committee gave its report including a model statute to the Attorney General in 1997.

It is instructive that at this point and time Community Service Orders were already recognized as sentences in many commonwealth jurisdictions.

Section 3 of the Act provides as follows:

(1) Where any person is convicted of an offence punishable with-
(a) imprisonment for a term not exceeding three years, with or without the option of a fine; or
(b) imprisonment for a term not exceeding three years but for which the court determines a term of imprisonment for three years or less, with or without the option of a fine, to be appropriate.

The court may, subject to this Act, make a community service order requiring the offender to perform community service

2 (a) Community service shall comprise unpaid public work within a community, for the benefit of that community, for a period not exceeding the term of imprisonment for which the court would have sentenced the offender.

Types of work to be carried out; construction or maintenance of public roads or roads of access; afforestation works environmental conservation and enhancement works; projects for water conservation, management or distribution and supply maintenance work in public schools, hospitals and other public social service amenities work of any nature in a foster home or orphanage rendering specialist or professional services in the community and for the benefit of the community

The court may require a report from a community service officer before making an order.

The court shall not make an order unless the offender is present in court, and there are adequate arrangements for the execution of the order

Where a report exists, the court must be satisfied that the offender is a person suitable to perform community service.

The offender must consent to being placed on CSO.

PROBATION OF OFFENDERS
This is also community based rehabilitation mechanism and is usually meted out to first offenders that by reason of age, circumstances of the offence warrant the sentence. The sentence is meant to run for a minimum of 6 months and maximum of 3 years.

No order of probation can be made without the report of a probation officer. A probation report is detailed summary of the circumstances under which the offence was committed, the offender’s personal circumstances, and the recommendation by the probation officer. The report is made through the interview of the offender, his family members, relevant community members, the victim of crime and any other persons that the probation officer may deem necessary. The main objective of the report should be to give the court a very clear picture of whether or not the offender is likely to benefit from probation and what social support systems exist to enable this to happen. The report is not binding on the court. The success of probation depends to a large extent on the availability of attendant services such as counseling and skills development for the offenders.

Cited: Daher, 1969 53 Cr.App R 490 A 19 year old Lebanese student was sentenced to 3 years for importation of cannabis Two English cases demonstrate the difficulties; Ford (1969) 3 All E.R Elvin (1976) Crim. L.R 204