Punishment Justice Reform PDF

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QUESTION 1: Describe the principle of incapacitation. Explain the differences between collective and selective incapacitation.

The principle of incapacitation is when a person's ability to engage in illegal or other deviant behaviour is revoked. The purpose of incapacitation is to safeguard community members from certain criminals who may constitute a threat to their welfare and safety. Incapacitation was viewed as a way to take away someone's liberty while also effectively deterring others from committing crimes. This idea was introduced by Cesare Beccaria in his book On Crimes and Punishments (1764) and was later popularised by Jeremy Bentham. Beccaria's deterrence theory argued that effective punishment and successful promotion of law-abiding behaviour should be based on "deprivation of liberty" sufficient to deter people from committing crimes, rather than on the spectacles of capital punishment or torture (both of which he opposed). This meant that the use of prisons as a form of punishment for crime was regarded as the most appropriate method of depriving a person of their liberty. Incapacity is classified into two types: collective and selective. Collective incapacity occurs when all individuals are sentenced to the same sentence. Individuals are sentenced solely for their current offence and possibly their prior criminal record. Unlike selective incapacitation, it does not elicit any predictions about a specific individual's expected future behaviour. Individuals are sentenced based on their predicted likelihood of criminal activity in the case of selective incapacity. Selective incapacity allows for a wide range of sentences for the same offence in order to account for differences in crime control potential among offenders convicted of the same offence.

QUESTION 2: Stanley Cohen coined terms such as ‘dispersal of discipline’ and ‘net widening’. Whose work did Cohen build upon? Describe and apply what Cohen meant by ‘dispersal of discipline’ and ‘net widening’. Stanley Cohen built upon the work of Michael Foucault, whose theories mainly focused upon the relationship between power and knowledge, and how they are used as a form of social control through societal institutions. Cohen expanded on these ideas and introduced new terms such as dispersal of discipline and net widening. Dispersal of discipline refers to how the use of disciplinary power has spread throughout society – disciplinary power (surveillance) is not only used to control people in prisons, and it is not only criminals who are subjected to disciplinary power. For example, surveillance is now everywhere and everyone is subject to it such as the widespread use of CCTV in public places, which is now considered

normal. Most people now follow the rules because they are aware that they are being watched; they regulate their own behaviour out of fear of becoming the wrong kind of person.

The problem of expanding social control over individuals through various new programmes is referred to as nett widening. Although the initial goal of these reforms is usually to divert people away from the criminal justice system, this does not always happen. The nett of social control may be broader, stronger, and more recent. The underlying idea behind this criticism is that the new alternative sanctions introduced to divert offenders from custody constitute new alternatives to old alternatives in practise.

QUESTION 3: Discuss how Durkheim and Marxist theorists differ in their views of punishment and sentencing practices.

According to Durkheimian theorists, criminal law and the legal process are reactive, punishing individuals based on the importance of the laws and norms they violate. Furthermore, social structure influences law and its enforcement by fostering an environment conducive to crime and other forms of deviance. Conflict and Marxist theorists, on the other hand, argue that punishments are meted out in proportion to levels of economic and political inequality. These theories hold that law is a tool used by ruling elites or the state to control the poor and powerless.

Durkheimian theorists say that economic inequality within a neighbourhood or community creates a structural strain towards anomie, which fosters crime and violence among the poor. However, law and legal consequences embody broad-based norms and values and serve as a line of defence against crime and violence. As a result, disparities in incarceration rates between communities are due to disparities in crime levels, which are linked to economic disparity. Communities with high levels of economic disparity have greater rates of crime and arrest, and consequently higher rates of incarceration.

Marxist ideologies frequently emphasise structural inequality by claiming that the state serves the interests of economically and politically powerful groups. By implementing laws that promote political and social stability, courts and other law enforcement institutions serve the interests of people in positions of power. This is done through seizing control of entire parts of the population that are particularly volatile and dangerous to societal order. According to Marxist views, the state employs criminal punishment, especially imprisonment, to suppress the threat of violence or political mobilisation among alienated and poor populations.

QUESTION 4: In Queensland, individuals can get an on-the-spot fine of $1,378 for breaching COVID restrictions. Define three different penological principles and explain how each can justify this punishment.

There are four main penological principles: rehabilitation, retribution, deterrence and incapacitation. Regarding individuals receiving a hefty fine for breaching COVID restrictions, the principles of retribution, deterrence and incapacitation can be used to justify this punishment. In terms of criminal offending, deterrence refers to the idea that the possibility of punishment will prevent people from committing crimes and so lessen the likelihood and/or amount of crime in society. Since it is known that individuals who do breach COVID restrictions can be penalised, the consequences of the crime should be enough to deter people. Consequently, the punishment can be justified as it can be seen to lessen the chance of people breaching COVID restrictions.

Retribution is a punishment theory that proposes that an offender should bear moral responsibility for their misbehaviour or wrongdoing. Because of what they have done, offenders are deemed deserving of sanctions, and the punishment should be proportional to the offence. Since breaching COVID restrictions can put members of the public at risk of contracting the virus themselves, or lead to harsher restrictions, the $1378 fine can be justified.

The principle of incapacitation is based on the idea that an individual should be punished in order to protect members of the community from certain offenders who may endanger their welfare and safety. Incapacitation does not only refer to incarceration; the broad definition includes any restriction on one's movement or possessions. This theory is somewhat similar to retribution in that breaching COVID restrictions can negatively impact the welfare of members of the public and therefore, fining individuals who breach the restrictions can be deemed a reasonable punishment.

QUESTION 5: Identify the author associated with the idea of “risk society”. Explain what is meant by “risk society”, including specific reference to punishment/sentencing practices. Ulrich Beck, the author linked with the term "risk society," proposed that society had evolved from a Marxist class-based society to a risk society. This meant that rather than seeking to change offenders' behaviour, crime was considered as a behaviour that could be regulated and managed. With this approach, the role of punishment was switched from deterrence and retribution to risk management, which meant that punishment was employed to lower the risk of crime. Beck argued that managing

risk, such as utilising rehabilitation, was just as important as controlling risk, such as using incarceration to eliminate the risk entirely.

Beck's coining of the term "risk society" had far-reaching implications for punishment in the twentyfirst century: prioritise determining, measuring, and mitigating risk. Rather than being about justice, penal solutions and sanctions are tied to risk reduction. The disciplinary model's primary goal was to change people. Changing individuals was the key project of the disciplinary model. Actuarial sentencing is the most prominent example. The goal of actuarial justice shifts from punishing offenders to mitigating the risks that they pose. The system's management is at its core. Different institutional paths are available for different types of offenders, depending on the risk they pose. Actuarial justice can be considered orientated towards future offending because it forecasts and prevents future behaviour rather than punishing, comprehending, or dealing with the past....