Criminology ATS1423- Week 2 PDF

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This document contains notes from the lecture, required readings and tutorials from week 2....

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Criminology ATS1423- Week 2 (Theory and philosophy of punishment and sentencing) Interactive lecture Aims and principles of sentencing; Outline of content; - Definition of punishment. - Historical accounts of punishment. - The aims and principles of punishment. - ^ Consequentialist. - ^ Expressive. - Deterrence, Rehabilitation, Incapacitation and Community protection, Denunciation and moral reprobation, Retribution and ‘just deserts’. - Sentencing legislation in Victoria. Definition of punishment; - Crimes differ over space and time!- as does punishment! - Punishment: reflection of those in power + tool used to maintain power + reflection of society’s sensibilities and cultures (dominant moral values). - The practice of imposing a penalty (physical pain, shame or restraint) onto an individual who has acted disobediently and/or defiantly by engaging in behaviour deemed legally and/or morally wrong in accordance with individual, communal, legal or religious principles (White, Perrone and Howes, p. 501). - ‘Punishment is intended to be burdensome” - Deprivation of desired things e.g liberty, time, freedom. 5 elements of modern punishment (Hart 1968); - Must involve pain or other consequences normally considered unpleasant. - Must be for an offence against legal rules. - Must be of actual or supposed offender for [his] an offence. - Must be intentionally administered by humans other than the offender. - Must be imposed and administered by an authority constituted by a legal system against which the offence was committed. Historical accounts of punishment; - Personal retribution: punishment was localised (bringing case to authority), personalised and arbitrary, in the hands of the victim. Blood feuds became a problem. - ^ Before legal system & prisons. - Ecclesiastical justice (500-1450): move away from personal/family based retribution, and now the Church got to decide both crime and punishment. - The rise of capitalism and the Industrial Revolution moved power from Church to State (1700-1800). - Move from punishing the body to punishing the mind. Beginning of the modern prison (1800-). Justifications for punishment; - Consequentialist Aims: only ever warranted on the grounds that it produces positive future consequences or outcomes for society; it must either achieve socially desirable benefits or avert socially unwanted harms. - Utilitarian perspective → present pain. - ^ Deterrence: reduce the likelihood of crimes being committed in future by the threat of punishment - ^ Incapacitation: impose a physical restriction on offenders. - ^ Rehabilitation: to treat or reform the offender. - Consequentalist = focuses on preventing future crimes. - Expressive Aims: grounded in a backward-looking rationalisation, that is oriented towards pursuing the expressive – the symbolic and ideological – functions of punishment. - Punishment merited as repugnant and wicked act is committed. - The state and law take on a proactive, morally functionalist, or normative character. Aim to communicate what behaviours are not just legally, but morally acceptable → stigmatisation of crimes.

- Denunciation and moral reprobation. - Retribution and ‘just deserts’. - Expressive = to punish previous conduct + retrospective theories of punishment. Deterrence; - Humans seek to prioritise pleasure over pain → penalties attached to crime must be attached. - Individual (offender will be less likely to reoffend) and general (people learn vicariously and by watching other people = threat of punishment = deterrence). - Reduction of offending through fear of consequence. - Offenders are considered rationale decision-makers, assessing pros and cons based on: ~ Certainty and swiftness of punishment (fast + must be caught every time → problems with this in the justice system!). ~ Type and severity of sanction. ~ Communication and credibility of the threatened legal repercussions. - ^ General = need to be aware of the consequences and what the law is → questionable. - Table 22:1 says ‘punishment may be proportional or non-proportional to the offence’. - Effective punishment must be proportional: not too lenient or too harsh (trust in state declines). Rehabilitation; - Can be seen as a ‘caring’ approach. - Views humans as deterministic. - Emphasis on correcting offending behaviour - And crime as a consequence of pathology, an illness to be treated, and an offender to be ‘fixed’. - What about those ‘moral’ offences? Crime as a social construction? (actions deemed as wrong e.g homosexuality) What are we really punishing? The new ‘normal’ gets to decide? Political prisoners? (speaking out against the state). - ^ Is there a fault with society rather than the individual. - Can also be positive if offender needs are appropriate addressed (reading and writing, treatment for addiction and mental illness, skills to survive in modern society). Incapacitation and community protection; - Impossible for offender to create further crimes → spacially confined to an area e.g prison + incapaciation e.g chemically castrating sex offenders + utlimate incapacitation = death penalty. - Needs of the offender is not a factor here. - Community protection and future safety is: society is risk averse. - Should be a last resort option, but is used more and more frequently in Australia. - Calculating dangerousness and estimating risk is central to this aim. - Clinical (risk based on judgement of individuals who have their records) and actuarial predictions (statistical predictions: person is perceived to be a risk based on stats, similar individuals have acted in the past). - Should sentencing length be based on presumed future dangerousness, as opposed to severity of crime? Ex. Indeterminate sentencing, post-release containment. - Influenced by high-profile crimes in Victoria. - Proving future behaviour in free society based on behaviour in prison: is this a fair/useful practice? Denunciation and moral reprobation; - Punishment as a tool to communicate to society what behaviours are deemed morally harmful or socially repugnant. - ^ Who or what group gets to decide what is morally right? - Punishment of individuals serves as public censure (as the public executions did in the past), which in turn serves to reaffirm the legitimacy of the law (and those who made the law). - Personal moral values vs societal moral values e.g voluntary euthanasia + abortion → expressive aims receives more criticism than consequentialist aims. - Conflict between state morals and citizens morals e.g same sex marriage + this is what we mean by saying that crime is a social construction. - Always problematic when morality and punishment are too closely connected.

- Law can be influenced by class, church and race framework. - Who decides what is moral and immoral in this society right now? In any society at any point in time? Retribution and ‘just deserts’ (not spelt with 2 ‘s’); - Punishment because the offender deserves it → regardless of consequences. - Offenders responsible for their own actions and thus their punishment. - Aims to redresses the unfair advantage to society that the criminal has taken e.g engaged in corruption + removed from that position. - Positive (offenders desert provides a reason in favour of punishment, to extent they deserve it) and negative retribution (only guilty must be punished and extent to deserve: no requirement). - Positive retribution = even if an island society was disbanded the last murderer should be put to death → duty to do so.- Crime results in a moral debt to the victim → punishment = payment for the debt. - Retribution = injury is a necessity, rehabilitation and deterrence = unintended by-products. Issues and debates: - What about victimless crimes? Moral debt to victim? - Same crime = same unfair advantage? Poor v rich The purpose of the imprisonment of adults in Victoria, as outlined in section 5(1) of the Sentencing Act 1991 are: - Just punishment - to punish the offender to an extent and in a way that is just in all the circumstances. - Deterrence - to deter the offender (specific deterrence) or other people (general deterrence) from committing offences of the same or similar character. - Rehabilitation – to establish conditions that the court considers will enable the offender’s rehabilitation to prevent them from commiting further crimes. - Denunciation – to denounce, condemn, or censure the type of conduct engaged in by the offender invoking shame and/or embarrassment. - Community protection – to protect the community from the offender. - A combination of two or more of these purposes. Matthews reading: ‘The emergence of the modern prison’ - Current debate = imprisonment dominated by an emphasis on politics and the way ‘populist punitiveness’ is driving up the prison population. - Modern prison = space, time and labour + can develop the use, size and development of prison. - ^ Crime in Britain and America = level of recorded serious crime combined with cultural variations. - ^ Female prisoners = changing status of women, greater involvement in crime or changes in sentencing practices. - 17th century great confinement = shift from punishment as executions, whippings, public shamings to institutions such as workhouses and jails. - Medieval jails = awaiting trial, execution, deportation vs modern prison = deprivation of liberty is the punishment. - ^ Poor argument that great confinement was a product of humanism: barbarism → civilisation. - Foucault = gruesome nature of public executions were an accepted form of punishment → public reminded of punishment. - Public support for hangings decreased in 18th century → viewed as capable of undermining public order → advocated use of imprisonment and solitary confinement as more appropriate. - 17th and 18th century Europe: new penal codes → accompanied by nation state = right to punish shifted from the vengeance of sovereign to defence of society + separation of illegality from protection of rights and private property. - ^ Aim = code which codifies penalties and lays down principles for administering punishment → less variable and personalised. - Beccaria influenced this approach is that crime is a rational activity → cost-benefit analysis → punishment > advantages of crime.

- Attempts to ^ deterrence and minimise cost and effort: certain and firm → punishment applied equally and linked with seriousness of offence. - Crime = transgression against society → broken ‘social contact’ repay society → regenerate respect, liberty and freedom → deprivation of liberty. - Act not background or motivation of offender = equality. - Enlightenment thinkers = prison could reform offenders and improve society through industry + reminder to others of the consequences of non-conformity. - Modern prison = local jails + houses of correction which had emerged from old bridewells. - Bridewells established in 16th century to suppress idleness and vagrancy + other institution for poor was the workhouse: provided relief and employment → local poor driven away and vagabonds scared away. - Howard, Fry and other reformers = x indiscriminate mixing of inhabitants and benefits of solitude. - Prison Act 1856 = amalgamated jail and the house of correction. - Transportation overseas was used for felons → due to overcrowding of prisons → American colonies and Australia. - Old vessels known as hulks = temporary confinement: sent to clear Thames and seaports. - Eventually in place of transportation the government implemented the Australian ‘ticket of leave’ scheme = early parole. - Punishment is underpinned by material interests → rhetoric of reforms isn’t that influential. - Prison reform = wider social conflicts and struggles between classes + regulating the poor → principle of ‘less eligibility’. - ‘Every system of production tends to discover punishments which correspond to its productive relationships → changing forms in production and organisation of labour = prison. - Commodification of time = essential component in development of modern prison. - Political movements could influence punishment e.g fascism. - Foucalt also underpinned by materialist analysis → later punishment = more humanitarian than public torutre and humiliation. - Punishment = universal and deep penetration to create a docile and responsive workforce. - The emerging forms of punishment were aimed at the soul rather than the body. - It was not the scientific study of crime = prison → actually the other way round. - Foucault like many of his predecessors has been criticised for not examining women = different types of prison and different offences → raises issues about labour market and imprisonment and value of ‘social contract’ theories = women not enfranchised citizens until the 20th century. - By 18th century women could be confined to bridewells for moral offences e.g ‘bearing bastard children’, ‘lewdness’ or ‘failure to maintain families’. Oxford reading: ‘Punishment and penalty’ - Punishment and imprisonment are synonymous. - Changing nature of punishment a reflection of and contributor to social function (e.g control, power, domination) and cultural significance (societal ‘mentalities’ and ‘sensibilities’. - Punishment = imposing a penalty on someone who has engaged in legally/morally wrong behaviour in accordance with principles. - Punishment as personal retribution = localised, personalised and arbitrary → victim exacted vengeance + others close to victim. - Ecclesiatical justice = administration of law and punishment on the basis of religious principles. - ^ Shift from personal or group retribution as outside agencies = adjudication and punishment. - The church also assumed responsible for immoral but not criminal behaviour eg adultery. - Punishment no longer about retribution but about repentance, atonement and religious salvation. - Even within the law competing views of punishment: Old Testament = ‘eye for an eye, a tooth for a tooth’, New Testament = forgiveness. - Rise of capitalism and the IR = severed connection between church and state = mode of production demanded a type of legal and political apparatus.

- Secularism = a principle espousing the separation of legal and governmental practices from religion. - ^ Transfer of power from church to state = crime viewed as an offence against state and society not individuals → punishment by state not victim. - Punishing the body = mirror violence of original crime onto convict's body = flogging, branding, mutilation, ‘merciful’ instance death, prolonged death. - Humiliation also a key aspect of punishment e.,g stocks, pillories → society saw sovereign's vengeance affirming awareness of rule. - Change from physical punishment to mental punishment → conflict with morality. - ^ Punishment = repayment for societal infractions rectified via forced work. - Consequentalist aims = utilitarian objectives to be pursued through punishment e.g positive consequences or outcomes for society = outweigh pain of punishment. - C = deterrence, reform & rehabilitation, incapacitation & community protection. - Expressive aims = denunciation and moral reprobation, retribution and ‘just deserts’. - Deterrence = reduce future level offending in society through fear of consequences. - Specific = specific offender + general = wider community. - ^ Human nature viewed as voluntaristic, rationalistic and utilitarian. - Rehabilitation = tailored towards offence related needs e.g drug treatment, counselling etc. - Initially incarceration aimed to achieve individualistic reformation and redemption → ameliorate their behaviour and acquire a sense of civic duty. - Incapacitation and community protection = protect from future offending → focus on future behaviour and social harm. - Prediction of future harm: statistical prediction (stats about how similar individuals behaved) + clinical prediction (judgement of professionals → social history, psychological and medical records). - Expressive aims of punishment = symbolic and ideological functions of punishment e.g denunciation, condemnation and moral reprobation. - Punishment justified on the basis of culpability rather than future advantages. - Denunciation = deeming crimes as morally harmful or socially repugnant → legitimacy of rules + authority and belief. - Retribution = repayment theory, placation theory, annulment theory, satisfaction or vengeance theory, denunciation theory, desert theory (deserving), penalty theory. - ^ Act of punishment seeks to restore equilibrium by counterbalancing the unfair advantage gained by the wrongdoer. - Classical model = retribution, deterrence and justice → pleasure > pain. - Classical theorists = punishment should promote the greatest good in society. - ^ Argues consequentialist aims of punishment through deterrence but argues that justice > ^ positive consequences. - Positivist theories = therapeutic models = reform, treatment and rehabilitation → behaviour is predisposed → crime = ‘pathological deficiency’. - ‘Just deserts’ = pain via an offender should equal the pain caused to victim and community. - P favours individualised treatments rather than consistent punishment. - Return back to classical theorists after disillusionment with rehabilitation. Political perspectives; - Conservative theories = notions of collective conscience or consensual values → promotes a common good = link between state and people, - Liberal theories = plurality of community values and interests → ^ individual rights and freedoms → punishment justified as it offers citizens freedom of personal autonomy. - Note: state power is only legitimate if it enhances individual freedom and privacy. - Radical theories = crime is a structurally shaped outcome of social deprivation and the state protects the interests of the rich. - Sociological perspective = acknowledge social foundations and purposes → punishment = microcosm of wider social processes. - Pratt: countries with ^ social welfare and ‘community’ = less punishment and vice versa.

- Durkheim = punishment is intrinsic to social solidarity and control → societies reaffirm core values. - Foucault = prisons are a place where useful social qualities can be instilled in a manner compared to military units. - ^ Prisons = permit the powerful upper class to continue the subjugation of the lower classes. - Rusche and kirchheimer = changes in modes of punishment through the ages related to different phases of economic development and structural changes in society. - ^ E.g prisons fill with ‘surplus populations’ (i.e marginalised layers of working class) in periods of ^ unemployment → related to state of economy rather than state of crime per se. - Incarceration is reflective of class relations → punishment = maintenance of class relations → punishment reflects the interests of those who own the means of production. - Another example = Australian convicts: overpop in Britain and $$ to build prisons, Aus = labour shortage. - Histories of punishment completely ignore women + theories relating to punishment of man. - A social understanding of punishment must be informed by feminist reasearch on women’s impriosnment and by studies of disciplining women’s bodies....