Exam answers questions sentencing and penology 50% PDF

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1. ‘Even if a civil society were to be dissolved by the consent of all its members (e.g., if a people inhabiting an island decided to separate and disperse throughout the world), the last murderer remaining in prison would first have to be executed […].’ (Immanuel Kant, 1797, Metaphysics of Morals) Critically discuss the theory that underpins Kant’s justification for punishment

Immanuel Kant is the main author of the classical retributivist theory of punishment. According to retributivism, punishment is only justified if it is a direct consequence of wrongdoing. Retributivism believes in just deserts, the idea that a penalty should be equal to the pain caused. Justice will only be satisfied if the guilty are punished in relation, and proportionally, to the offence committed. Kant’s retributivism is centred on a moral foundation of respect for the integrity and autonomy of the individual. Classical retributivism sees the relationship between the man and the state as one of willingness to abide the law due to the recognition of the principles of rule of law. This is translated on the emphasis of a formal criminal justice system which follows clear principled guidelines and respects the inherent humanity and value of the individual. The goal of Kant’s retributivism was to remove any arbitrariness and bias from sentencing, including the infliction of cruel punishment. To be morally accepted, punishment must be grounded on ethical principles. Kant was against unusual and cruel punishment, such as the death penalty, for most offences. However, it recognised that in relation to murder, no other penalty could produce the just deserts caused by such a crime. Life is inherently meaningful and, therefore, life imprisonment could not be proportional to taking a life. Although Kant’s theory leaves space for human rights implementation, since it recognises individuals should not be punished beyond their prison tariff, it raises questions in relation the goal of punishment. The idea that retribution can only be attained by causing similar pain, but at the same time accepting mitigator factors and circumstances, can lead to unworkable sentencing guidelines. Importantly, it would be necessary to assert which mitigating factors are capable of being considered. Kant has not made clear if mitigating factors would only be acceptable if related to the offence, such as the circumstances for voluntary manslaughter, or if remorse and mercy would also play a role. In addition, it has been argued that severe punishments can also indirectly affect others, such as family members or even communities. Classic retributivism understands punishment as a direct consequence of a reasoned action. It believes individuals are capable of independent thought and rationalisation, and, therefore, should be responsible for their actions.

3. ‘There is clearly a chasm between human rights laws and the experiences of those incarcerated.’ Critically discuss.

For a long time, the idea that those in prison were underserving of rights dominated the public and legal discourse. It was believed that conditions inside prison would have to be worst that the ones outside in the community (less-eligibility principle) in order to successful deter criminals, and, additionally, to impose further punishment on those who have broke the law. However, as the application of human rights evolved and penetrated different spectrums of society, increasing stress has been given to the human rights of those incarcerated. The ECHR has played a crucial role in exerting pressure on national authorities to broad the scope of rights afforded inside prisons. In the UK, the prison riots in the 1990s demonstrated how a sense of injustice and unfairness could escalate to violent conflicts. The Woolf report recognised this and urged that the prison system be reformed with the goal of furthering rehabilitation and future inclusion in society. Since then, increasing weight as been given to prisoners’ rights along with the idea that prisoners’ rights should not be infringed beyond what is necessary for their imprisonment. The enactment of the HRA 1998 brought the option to challenge decisions due to human rights violations speedily and on national ground which has helped enforce a higher level of standards within the prison system. Although some rights have been recognised for some time now, others still face opposition, and their limitation is capable of being justified under the European Convention. Prior to the widespread use of the ECHR and the enactment of the HRA 1998, Art 5 UDHR had already established that those in the prison system should not be subjected to torture or inhuman and degrading treatment, and Art 10(1) ICCPR provided protection on the basis that ‘all persons deprived of their liberty shall be treated with humanity” and respect for their inherent dignity. These rights have helped shape the rules related to overcrowding and search in prison. Most importantly, they have recognised the vulnerability inherent in being a prisoner to be a victim of degrading treatment by the prison system which led to the creation of the European Committee for the Prevention of Torture and the National Preventive Mechanism, established by the UK under the Optional Protocol to the Convention Against Torture. Both mechanisms make independent visits to prisons. The treatment of prisoners in the UK is ruled by the Prison Rules 1999 issued under s47 of the Prison Act 1951. However, since prisons are public authorities under the HRA 1998, prisoners are entitled to have their human rights protected, beyond those which are lawfully curtailed for the purpose of imprisonment. The important question is, which rights can be lawfully curtailed and are those limitations proportional to the aim. A number of challenges have been to the ECHR by UK prisoners. Art 5 has also been used to protect the right to not be arbitrarily deprived of liberty. In James, Wells and Lee v UK the court found a breach of Art 5(1) because the prisoners, who had already completed the punitive part of their sentence, where denied parole on the basis that they had not completed behavioural rehabilitative programmes to show they did not represent a danger to society. However, they had not completed those programmes because the prison was not able to provide them. The Court found that lack of resources could not be a justification for lawfully maintaining a person in prison beyond their sentence. This has subsequently led to the abolition of this type of sentences (called IPP). In a similar fashion, Art 5 has been used to challenge mandatory life sentences in Stafford v UK. The court has held that, in order to comply with Art 5(4), once life prisoners have completed the punitive part of their sentence, they are entitled to have their case reviewed for parole.

The court has also been helpful in limiting the discretion given to prison governors to impose disciplinary procedures. In Ezeh and Connors v UK, the ECHR held that the power afforded to prison governors to impose additional days as punishment for disciplinary offences breached Art 6(3) (c). The law was subsequently changed and, according to PR 53A(1), the governor only has the power to decide if a charge is sufficiently serious that could possibly lead to additional days, but, if that is the case, then he has to refer the case to an independent adjudicator and offer legal representation to the prisoner (PR 54(3). Art 8 ECHR, the right to private and family, has also been useful for the advancement of prisoner’s civil rights. Firstly, it is accepted that the right to private and family life encompasses the right to have regular contact with family members. It is argued by prison reformists that maintenance of family bonds helps rehabilitation and social inclusion. This is of extreme importance in relation to women in prison with children outside. Secondly, Art 8 has also been claimed in relation to interference with correspondence. The results from the jurisprudence in this subject are limited. The ECHR has recognised the right to correspond with legal advisors (Silver v UK; Campbell v UK). however, restrictions in relation to other correspondence are set out in PSO 4411 which are capable to be justified under Art 8(2), in particular national security and public health and order. Thirdly, this right has also been invoked by prisoners in relation to allocation and transfer of prisons. However, since allocation and transfer’s decisions are based not only on risk assessments but also on budgetary needs, the prison has a wide margin of appreciation. Although prisoners have been capable of challenging categorisation decisions (R (P) v SS for the Home Department), this right does not extend to being able to choose which prison to be in (Wakefield v UK). The same reasoning of risk management and assessment was applied when a challenge was made for refusal of temporary release (X v UK). Fourthly, Art 8 has also been useful to challenge limitations on prison visits. Here, the margin of appreciation is substantive since it involves concerns for security. However, the family of a prisoner was successful in challenging the procedures to be able to visit a family member in prison in Wainwright v UK. Mrs and Mr Wainwright were subjected to a strip search which failed to respect their dignity. Finally, the right to marry has also been found fall under Art 8. This has been recognised in Draper v UK, and it is reflected in PSO 4450. The right to freedom of expression (Art 10) has also been claimed in relation to the right to talk to the media. PR 34(1) sets out the grounds for interference which mirror Art 10(2) exceptions. However, it has been more difficult to successfully challenge those rights which would allow for a similar life to the one outside. The most stringent one is the right to vote. In 2005, Hirst successfully challenged the blanket ban on the right to vote in the UK under Art 3 of Protocol No 1. The UK argued that the goal was to prevent crime, and further punish prisoners for their role in destabilising society. The ECHR found that the ban excluded a very significant number of people without considering the gravity of the offence, which meant that the ban was not proportional to its aim. Although the Court declared the legislation was incompatible, a solution has not been found yet by the UK government and, until now, the blanket ban persists. In addition, under Art 8 couples have challenged the discretionary power the UK had in deciding if a prisoner could be part of artificial insemination. In SS of the Home Department, ex part Mellor, the Court of Appeal ruled that a prisoner had no right to participate on artificial insemination on the basis on this right to family life. It was held that, part of imprisonment, is the loss of certain privileges and pleasures. However, in Dickson v UK, the ECHR chose to focus on the wife’s rights to family life, considering the welfare of any child, in addition to consider the prisoner’s rights under Art

8 and Art 12. It was held that, although states have a margin of appreciation, individual proportionality must be considered. The Grand Chamber drew from its previous decision in Hirst to emphasise that imprisonment does not equal loss of every right which was fully enjoyed outside in the community, and that justification is still necessary if limitations are going to be imposed. Finally, Art 8 was also considered in relation to conjugal visits. However, any challenges have been unsuccessful (ELH and PHB v UK). Conjugal visits is a topic which lacks consensus among European states. Arguments against relate to the less-eligibility principle, in particular the loss of intimate relationships due to imprisonment, in addition to security considerations. Moreover, there are additional costs linked to such an encounter since visitors could not be allowed in the communal prison areas. However, it has been argued that this type of socialisation could help rehabilitation since relationships could be maintained. Furthermore, it could promote good behaviour within the prison.

Prisoners’ rights is an evolving legal subject. The ECHR has played an important role in furthering the idea of normalisation inside prisons and ending the gap of rights between “inside” and “outside”. On retributivist ideals, the loss of liberty is enough punishment. Any other limitations will go beyond the just deserts and, therefore, are not lawful. However, due to the prison’s inherent deterrent role, there must be room for discretion based on security and risk reasons, and public safety and protection....