Penology

Sir Hyder Ali Memon CRIMINOLOGY-2 PENOLOGYSubject of Study Penology refers to the general science of punishment As: a scientific discipline, a subject of study and a topic of education it has evolved within the science of criminal law. Penology deals primarily with the criminal punishment i.e. the punishment inflicted for a culpable act defined as crime by legal provisions. Penology is a section of penal sciences, together with the (dogmatic) science of substantive criminal law, the science of law of criminal proceedings, the science of criminal executive law and penitentiary law, the science of crime detection and criminology, and criminal and penitentiary policy. The name of the discipline comes from the Latin poena (‘punishment') and from the Greek logos (meaning, among all, 'knowledge' and `reason'). Thus, penology may be defined as the ‘systematic knowledge of punishment’. Its findings are important both for criminal law and for general considerations on punishment in social sciences and humanities. Penology sees punishment as an institutionalized and complex process of legal and social nature (i.e. legal and social institution) which may take various organizational forms. In such context, criminal punishment means the process of intentional, legal and social condemnation and of intentional causing of objectively measurable personal affliction, which has been legally defined, decided by judgment of an independent court in the name of the legal and social system (State), and which consists in official, organized deprivation of goods of a person who, in the opinion of the court, would presumably cause illegal prejudice to such System, by voluntary violation of sanctioned norms which provide for the existence of crime and which correlate with a specific penalty. In penology, the fulfillment of criminal punishment (actualization) starts with the announcement of the valid judgment and lasts until the end of its execution process (full actualization). However, penology is equally interested in the stage of criminal proceedings and its social repercussions to be called "the potentiality of punishment", i.e. in research on legal and social aspects of influencing social reality by official actions intended to accomplish the administration of individually defined criminal punishment, i.e. actions which have been taken since the opening of the proceedings ad personam. In penological sense, the ultimate function of criminal punishment is to reintegrate a shaken legal and social system. In this perspective, the influence of 1 Sir Hyder Ali Memon CRIMINOLOGY-2 PENOLOGY punishment ceases to exist only when legally tangible and socially and individually vital effects of punishment process come to an end. At present, the expression "penology" covers: 1) Research on social consequences of punishment (punishment functions); 2) Analysis of theoretical aspects and practical experiences in internal mechanisms of the functioning of criminal justice, in particular prisons; 3) Theoretical research on punishment grounds, i.e. axiology, ideology, rationalization and philosophy of punishment, substantiations of sentences and punishment execution. As a result of such polymorphic research interests, penology, depending on the research and theoretical approach dominating in a given country, at a given time, has come closer to: a) Philosophical Reflections on Punishment It differs however by drawing in its analyses on the science of criminal law (both its theory and dogma tics), general works of social sciences (sociology) and the results of empirical studies; b) Anglo—Saxon approach of Criminal Justice Studies (or German Sanktions forschung) or Polish broad penitentiary sciences, i.e. legal, sociological and pedagogical studies on the functioning of criminal justice, which penology understands in a broader ideological and philosophical context. In recent literature of the subject, a specific weight has been given to interdisciplinary legal and social research which integrates past works in penology. The aim of those studies is to analyze and find theoretical synthesis of criminal, philosophical, social, cultural, political and institutional conditions for punishment and criminal policy. Such studies are defined as culturally integrated penology. Historical Overview Any act of affliction caused to the human being has always required substantiation. That is why it has always been sought to give a specific justification to punishment understood as a general legal and social practice and a case—based, specific action. The reasons for punishment, while discussed on specific case 2 Sir Hyder Ali Memon CRIMINOLOGY-2 PENOLOGY basis, always draw on general axiological foundations of the society, reflections on the good and the evil, morality, rationality, rightfulness, the vision of the human being and social order. Reflections on punishment, and specifically on criminal punishment, merge several general questions on the human being and society, and such discussions have been present since time immemorial in religion, in writings of philosophers and messages of artists. However, systematic penological studies developed as a result of attempted reforms of criminal justice system and of the execution of penalties undertaken but in 18 th century. The aim of the reformers was to replace the punishment practice based on retaliation rhetoric with rational ideals of social rehabilitation and crime prevention. Their postulated and implemented changes aimed at grounding a rationally devised, comprehensive criminal and penitentiary policy on those enlightened foundations. The works of the 1e century reformers of criminal law and prison system—Cesare Beccaria, John Howard or Benjamin Bentham, to name but a few symbolical figures, were essentially sociological and philosophical penological studies, even if the expression itself was not used at that time. Only later, did dogmatic works prevail over reforming reflections of social and philosophical nature. Modern dogmatics, which for the sake of research balance, saw the need to set separate social studies of punishment, i.e. future penology, developed particularly from the works by Anzelm Feuerbach, dated at the turn of the 18 th and 19th century. Penology, as a separate field of investigation and lecture , has also been shaped by practical discussions on the organization of the execution of penalty of imprisonment. Such reflections were pursued within prison studies carried out since the beginning of the 19 th century, and studies on practical programs of influencing the convicted, which was an emerging idea at that time. These studies were later jointly named with the expression of penitentiary sciences. We may assume that in modern times, as in the Antiquity (e.g. in works by Plato and Aristotle) social and philosophical reflections on punishment preceded practical discussions on criminal law and on procedures and rituals of punishment execution. Historically, punishment was first studied as social phenomenon and philosophical dilemma, and penology became a separate field of research and of lecture only as a result of the emergence of specialist discussions in criminal law dogmatics and 3 Sir Hyder Ali Memon CRIMINOLOGY-2 PENOLOGY practically oriented penitentiary studies. It was but due to the development and institutionalization of the science of (dogmatic) criminal law and to the professionalization of penalties (imprisonment) execution, together with the subjugation of the process, at least partially, to scientific rigor that the need appeared to separate penology as a subject of research and lecture . Since then any research on punishment as social phenomenon and philosophical dilemma would be carried out as but one more contribution to general social, philosophical and legal thinking, and more and more often stimulated by the needs of modem science of criminal law and penitentiary system. Modern science of criminal law, together with criminal policy and penitentiary science, which were in the 19th century emerging disciplines, needed solid theoretical grounds built on the accumulated knowledge of social sciences, legal sciences and humanities, institutionalized at that time at universities. Such knowledge was, to some extent, provided through lectures and publications of penology - a more or less distinct field of study since approximately half of the 19 th century, and through the lecture of dogmatic criminal law and prison sciences. However, since the end of the 19th century the influence of penology on criminal law became somehow limited due to the rapid development of positivist studies in etiology and phenomenonology of crime, i.e. in criminal anthropology and criminology. While those sciences had an important impact on the functioning of justice and its specific institutions, including the development of punishment organizational forms, they did challenge the very ideological foundations and the rationality of criminal punishment discourse, and thus the identity of penology. They grew in influence in between—war period, and became dominant in three post war decades, which had significantly impaired the development of penology. The dominant positivist paradigm weakening in the seventies of the 20th century had a negative impact on the condition of criminal and penitentiary policies as they were losing solid scientific foundation. According to theoreticians, since that time, penal sciences have been undergoing a serious cognitive and political crisis and loosing unequivocally established legitimacy. Such condition has contributed to the revival of penological studies and thinking since the end of the 20th century. 4 Sir Hyder Ali Memon CRIMINOLOGY-2 PENOLOGY In Poland, the first handbook of criminal law had been w r i t t e n i n 1830, Warsaw University by Romuald Hube, and it discussed criminal punishment from penological perspective, i.e. as a social institution (prison). Its substantiation and duration was eclectically associated with Hegelian dialectical science of the nature of social life and the State , interpreted in the context of catholic thinking , on the one hand, and with practical considerations on criminal and penitentiary policy, in the spirit of Cesare Beccaria and John Howard, on the other. At a later date, many prominent Polish scientists integrated penological questions into their lectures on criminal law. We may quote here such figures as Stanislaw Budziriski, professor at the Warsaw School of Economics (known also in humanities as the translator of works by G o e t h e , S c h i l l e r , P u s h k i n a n d L e r m o t o v ) , Wa c l a w M a k o w s k i , p r o f e s s o r at Warsaw University and senator of the Second Polish Republic. Yet, we should mention first of all Juliusz Makarewicz, the most prominent Polish representative of the criminal law science in the 20th century, a leading co — author of the Polish Criminal Code of 1931 (named also Lex Makarewicz). Makarewicz wrote a penological work on historical and anthropological genesis of criminal law institutions, entitled "Einführung in die Philosophie des Strafrechts out Entwicklungsgeschichtlicher Grundlage" and published in Stuttgart in 1906. Its Polish translation was published only in 2010, after more than one hundred years since its first German edition. Some would consider the edition date of this penological study as the beginning of the independent modern penology in Poland. In Anglo – Saxon literature, the beginnings of penology as scientific are associated with two distinct tendencies. Firstly, its development is thought to be stimulated by the reformist, humanitarian penitentiary thinking, and John Howard as a key figure. Secondly, its emergence is considered to stem from the development of modern criminal and penitentiary policy based on liberal utilitarianism, which aimed at the establishment of the foundations for socially and economically rational management of the society. 5 Sir Hyder Ali Memon CRIMINOLOGY-2 PENOLOGY In common view, the leading representative of the approach was Jeremy Bentham. In Germany, the genesis of penology is associated with the 19 t - century prison reform program , on the one hand, and with the contemporary development of legal, criminal, anthropological and historical studies on the genesis of criminal law institutions, mainly of various organizational forms of punishment, including the penalty of imprisonment. The very name penology appeared in scientific literature in the first half of the 19th century (not later than in 1838). Then, social-philosophical as well humanistic reflections on punishment became visibly autonomous in subject and methodology from the dogmatics of law and from practical prison studies. As a result, penology was more and more defined as including, for the purpose of research subject (punishment as social phenomenon) and for the purpose of academic lecture, various so- defined social and philosophical studies on criminal punishment. In some countries, such studies were resulting mainly from penitentiary reforms (e.g. England), in others, like Poland, from the lecture of criminal law, deeply rooted in social, historical and philosophical context. In Germany, they took an intermediate dimension and concerned mostly the history of criminal institutions of both substantive criminal law and of prisons. Independently of different shifts in the area of focus, the definition of the subject matter of penology became more and more refined: it pertained to criminal punishment as social institution and its different research levels (historical, sociological, legal, philosophical and penitentiary) which laid grounds for its methodology. Studies on criminal punishment as social institution carried out from historical—social perspective or philosophical—social perspective, or sociological, penitentiary—legal perspective, were defined as penological ones. The starting point of such research, whether these were theoretical generalizations on prison reforms, or social — philosophical general reflections on the evolution of punishment, criminal liability and sentence in substantive criminal law, was of secondary and minor importance for the identity of the discipline, especially that the lecture on penology might be subject to a greater subject refinement, depending on the direction of scientific thinking. Within different research angles, it took the form of either theoretical, social and philosophical research on the notion of punishment, a 6 Sir Hyder Ali Memon CRIMINOLOGY-2 PENOLOGY sociological analysis of the institutions of justice, the historical description of penal ideals and criminal law institutions, or the interpretation of theoretical foundations for specific organizational forms of punishment and the measurement of their effectiveness in socio—criminological and penitentiary—pedagogical aspect. In historical terms, the scope and forms of institutionalization of penological topics as lectures and publications distinct from criminal law and prison sciences, remained heterogeneous and took different dynamics in different Western countries. Penology—oriented studies were also included in several Polish works on criminal law, starting with the first Polish systemic lecture on criminal law by R. Hube, already mentioned in the paper, while the very name "penology" was finally adopted in Polish science of criminal law to define the studies of punishment as social institution only by Bronislaw Wroblewski, who published in 1926, in Vilnius, two—volume work entitled "Penology: Sociology of Punishment" . Penology as a Scientific Discipline Franz von Liszt, who is deemed to be the founder and one of the leading representatives of the sociological school of criminal law (dated at the turn of the 19thand 20th century), stated that penology aims to define criminal punishment and to establish how it differs from other measures of social Control. The similar view on the subject of penology was shared by Bronislaw Wroblewski. According to these two authors, the aim of penology is to establish real, socially tangible nature of sanctions defined as criminal punishment and not solely to study logical and linguistic, systemic and aim—oriented interpretation of regulations setting such sanctions. Thus, penology differs from the science of substantive criminal law, law of criminal proceedings and executive criminal law by not being a dogmatic science of legal norms. Penology includes normative aspects of criminal punishment, but normative and linguistic penological studies on purely dogmatic analysis of regulations are dominated by the analytical research on language carried out for the purpose of further studies on punishment as social phenomenon (analytic philosophy) institutionalized in legal provisions. 7 Sir Hyder Ali Memon CRIMINOLOGY-2 PENOLOGY It is only at the very last stage of such research that penology combines the science of substantive criminal law, law of criminal proceedings and executive criminal law, as it takes into account the results of the analyses made within the dogmatics of criminal law. Penology is then an auxiliary discipline of the science of criminal law (the core of penal science is made of dogmatic studies), but at the same time carries for such science a fundamental meaning, by defining its foundations. These are: First of all, ontological foundations, i.e. those pertaining to the real existence (action) of the criminal punishment institution and of the whole criminal law in their different dimensions: normative, sociological, psychological, historical, cultural and economic; Secondly, axiological foundations, i.e. those related to the substantiation of criminal punishment and of the whole criminal law, and, in consequence, indirectly to their political legitimacy. Thirdly, epistemological foundations, defining research on criminal punishment and criminal law in the light of different research methods. Penology endeavors to give, within a given perspective, the comprehensive justification and description of the punishment system, by interweaving epistemological, ontological and axiological threads. Penological thinking was mainly forged on the basis of some general social vision of punishment and its various forms, in particular the penalty of imprisonment. Originally, i.e. in the 19th century, ideological involvement and general sociological— philosophical reflections were combined with detailed penitentiary studies. The progressive development and professionalization of each and every stage of punishment execution led to the emergence of more specialized studies on specific aspects of punishing. This caused a horizontal split into, for instance, penitentiary pedagogy and psychology and politics and science of penitentiary law, and a vertical split into general studies on social process of punishment (penology) and disciplines focused on selected aspects of professional execution of punishment (penitentiary sciences). While penitentiary sciences are accurately classified among criminological sciences, penological studies are directly more close to the philosophy of criminal law 8 Sir Hyder Ali Memon CRIMINOLOGY-2 PENOLOGY and reflections on the most general foundations of criminal punishment in its cultural and social, historical and philosophical context. In this sense, penology is an autonomous sub —discipline of the science of criminal law, and means an interdisciplinary approach to a defined subject matter, which is criminal punishment as a social phenomenon. Similarly to Anglo—Saxon tradition, some Polish sources consider penology as a sub-discipline of criminology. This approach contradicts Polish tradition in the development of penological studies, but the argument of tradition should not prevail over the arguments of content. It may be claimed that some works began to confuse the scope of penology with the scope of specific studies on the execution of penal sanctions, which in Poland fall into the scope of differently defined penitentiary sciences (including penitentiary law and policy). This confusion between criminology and penitentiary sciences should be seen as the fruit of the period of dominance of positivist paradigm in social sciences school in criminology, and simultaneous crisis of the philosophy of punishment in the science of criminal law, which lasted since the beginning of the 20th century until approximately the turn of the seventies and eighties of the 20th century. At that time, the major activity was shifted from the development of the theory of punishment to challenging the foundations of criminal law and searching alternative forms of dealing with social phenomena defined by criminal law as crimes. The tendency was to develop specific penitentiary studies necessary for practical execution of different organizational forms of punishment and empirical studies in criminal policy and criminology. Simultaneously, much neglect was caused to scientific thinking on their theoretical grounds in the science of criminal law as such grounds were thought to be beyond the scope of penal sciences. It is worth underlining that the present revival of interest in word literature in penology and philosophy of punishment has not been brought by the discovery of new, convincing rationalizations of punishment as social and legal institution. It is more the result of the assumption that the criminal punishment is an important institution of social life and, in consequence, considering social reality as such, it would be difficult to call its dusk. Criminal punishment as a category (institution) lying at the heart of criminal law continues to be an extremely important form of interference into the rights and freedoms of the individual, and its execution 9 Sir Hyder Ali Memon CRIMINOLOGY-2 PENOLOGY still misses unquestionable theoretical justification and axiological foundations. That is why, criminal punishment may be claimed to be at present a tragic institution. It is tragic because, even if not sufficiently effective, it still seems to be a necessity in combating crime, and because, even if a long—time source of essential moral objection (as a form of affliction caused intentionally to the human being), it is maintained in the name of the ideals of morality and justice, so often raised in its defense. In practice, the return to penology, together with modern awareness of the tragic dimension of punishment, stems from the quest for alternatives to criminal punishment, in places where the condition of social and political relations and the sensitivity of soul give such opportunities. In that sense, there is no contradiction between the development of corrective justice studies, mediation studies or even the emergence of abolitionist thinking and movement, on the one hand, and penological research, which may give such tendencies a solid scientific foundation. In other, numerous instances, the evolution of penology fosters attempts to give the punishment a more humanitarian image, for example by devising penalties not involving loss of liberty or by civilizing the execution of imprisonment (development of international prison rules). This will have important implications because, as history shows, unreasonable abandonment of the institution of criminal punishment, instead of diminishing the scope and intensity of repressive measures may lead to their increase, which was spectacularly demonstrated to the world by the example of Guantanamo camps. It should be underlined that the question of the place of penology as a separate discipline within other penal sciences and the resulting definition of the scope of its interest has important scientific and teaching consequences. It is certainly not problematic either for science of for teaching whether the very term "penology" is used or not, as it is not problematic whether penology is classified as a sub—discipline of criminology or a separate discipline of the science of criminal law. What counts for science is whether the adopted solutions give rise to socially and scientifically important subjects. Similarly, what counts for teaching is whether the frame of topics in penology is defined in a way to adequately complement knowledge brought by other penal disciplines such as (dogmatic) sciences of criminal law, criminology, and particularly criminal and penitentiary policy. By limiting penology to some apparently erudite introduction to the 10 Sir Hyder Ali Memon CRIMINOLOGY-2 PENOLOGY proper, i.e. dogmatic, lecture of criminal law or to some short sociological and philosophical introduction to general considerations of criminology and penitentiary science we will lack in—depth studies on criminal punishment as social phenomenon and philosophical problem, and fail to transfer appropriate subject knowledge within didactic process. As a consequence, we will face "a penological gap", seriously impairing any practical possibility to diagnose reliably the issues of the functioning of criminal law in legal and social system. Such approach hinders the full use of works in sciences of mankind, society and law which would help optimally devise, at a given stage of civilizational progress, the actions of those involved in different forms of social control, specifically within criminal justice system. Penological theory of punishment should be, as it has already been stated by Bronislaw Wroblewski and Leszek Lernell, an introduction to the science of criminal policy and penitentiary sciences. This theory depicts social and cultural context and controversial axiological foundations and limits of criminal punishment. This means that for the purpose of general thinking on criminalization (and penalization), on rules of criminal liability, general principles of awarding penalties as well as theoretical bases for their execution, penology may bring important contributions, translatable into more specific solutions in criminal policy. It may be helpful in establishing an axiologically and praxeologically coherent system of criminal law. Without such grounding, the actions of the State in criminal policy and penitentiary policy will loose their coherence, which may lead to both a decrease in the efficiency of fight against crime and the loss of political and axiological legitimacy of such actions. Penology may be considered as some separate set of interdisciplinary subjects of scientific research on (criminal) punishment, including research on the bases of criminal liability, as well as a separate set of penology — oriented topics of teaching (theory and philosophy of punishment, sociology and anthropology of punishment, history of punishment, ideology of penal institutions etc.) selected for the purpose of didactics. In that way, the basic subject of interest of penology will be different organizational forms of criminal punishment as social institution in the context of culture and general organization of the society. From that perspective, penology 11 Sir Hyder Ali Memon CRIMINOLOGY-2 PENOLOGY will remain the theoretical foundation for research on the definition of sanctions (institutionalization) in legal provisions and their interpretation in the course of law application, as well as for the specific research on the execution of various organizational forms of punishment, first of all those executed in liberty (deprivation and restriction of liberty) carried out within penitentiary sciences. It combines the study of philosophical, ideological and cultural institutions of criminal punishment and the study of its real functions within criminal policy and within a broader socio—cultural, political, economic and institutional context. Penology remains a modern discipline as it draws on works from other different fields, for the needs of its research and teaching. Thus, it bears an interdisciplinary and inclusive character; it includes different themes and research perspectives into the study of a multi — aspect theme, which is the criminal punishment. The dominance of legal and criminal thinking in penology does not come from any particular scientific weight of legal, and more broadly penal questions in penological studies; it is more that the social effects of penological studies and teaching of penology for students is primarily dependent on the needs of criminal justice. Criminal law and criminal justice are those two areas in which social effects of penological research and teaching, and, which is a more frequent case, social effects of the lack of penological activities of justice and of penological knowledge among those responsible for criminal policy and penitentiary policy of the State are most perceptible. Penology Vs. Pedagogy and Sociology of Education Penology sees the criminal punishment as a social institution. The notion of social institution refers to repeatable, well — established behaviors, patterns, rules and rituals. Another notion frames social institution as a distinctive type of activity fulfilling the needs of individuals and communities. Within such meaning, used also by Bronislaw Malinowski, the institution is split into the ultimate principle, i.e. the aims and objectives as foundations of its rationalization, norms, staff and material assets, the manifestations of its activities and social functions understood as its known and unknown consequences for the society. In the latter case, the primary meaning is interwoven with the secondary meaning, which defines the visible 12 Sir Hyder Ali Memon CRIMINOLOGY-2 PENOLOGY organizational form that social institutions may take, for instance the specific organizational forms of criminal punishment. Social institutions, in their specific organizational forms, may be classified into different types, such as: 1.Family and kinship institutions which mainly regulate the rules of biological and cultural reproduction of the society in the course of nurturing and child care; 2.Political institutions which regulate the relations of power and define the political organization of the society and the functioning of coercive measures; 3.Institutions which regulate the rules of social stratifications and define the distribution of social positions and social resources within the society; 4.Economic institutions which regulate the production and distribution of goods; 5.Nurture and education institutions which pertain to religion, scientific and artistic activities, mass media activities and participation in higher culture. Considering the classification above, we may assume that penology, and more broadly speaking, all types of criminal justice studies investigate first of all social institution belonging to the second and the third type, in other words, institutions of political nature which regulate the relations of power, the political organization of the society and the functioning of coercive measures as well as those establishing the rules of social stratification and define the distribution of social positions and social resources within the society. However, from the pedagogical point of view, the most important institutions are covered within types one and five; these are family and kinship institutions regulating primarily the rules of biological and social reproduction of the society through nurturing and child care, on the one hand, and nurture and educational institutions pertaining to religion, scientific and artistic education, mass media activities and participation in higher culture, on the other. This is quite an important assumption as it helps set the initial pragmatic difference between the sciences of pedagogy, including social prevention and rehabilitation, and penology, and more broadly criminal law and the sciences of criminology, which is theoretically vital and bears some in—depth practical implications. 13 Sir Hyder Ali Memon CRIMINOLOGY-2 PENOLOGY It becomes clear that pedagogy and penal sciences often raise different questions even if in empirical, none—social sense, they talk about the same events. This theoretical distinction was introduced within culturally integrated studies, and may pave the way for the practical integration of works from these two, fundamentally distinctive, research fields. The integration of findings of sciences of education plays an important role for penological studies. The role of criminal punishment is to fulfill, to a large extent, the needs of individuals and communities as for the sense of order, security and justice. Such role may be fulfilled within the limits set by the ultimate institutional principle of the State, which provides for philosophical foundations of rights and freedoms of the human being, i.e. within the limits of the respect of human dignity. This requires taking into account, in devising punishment organizational forms and in establishing the sentence and execution methods, the humanistic knowledge of the human being, including any findings on possible humanitarian methods of modifying human behavior. Criminal punishment should never be confused with punishment in education, which is obvious from culturally integrated perspective. Punishment in education refers to the individual (and his/her well—being), a human being who, due to influence (i.e. reasonable aversive stimuli), should permanently change his/her behavior for the sake of himself/herself and the society. On the other hand, criminal punishment is primarily used in order to ensure the sense of order, security and justice for the society at large (and it may only secondarily consider the well — being of the individual under punishment as a member of such society; it will however never be its primary function). This difference between criminal punishment and punishment in education, raised in culturally integrated studies, does not preclude any links between pedagogy and sociology of education with penology. It only gives such relations a right dimension and helps avoid errors of categorical shift, encountered sometimes in penitentiary literature. According to abovementioned findings of culturally integrated studies, in awarding criminal punishment in the name of the State we need to maintain axiological coherence of the system of law, i.e. the need to respect dignity of the punished individual. That is why it is necessary to continue to study the compliance of criminal punishment with humanitarian standards protecting human dignity. And that is 14 Sir Hyder Ali Memon CRIMINOLOGY-2 PENOLOGY also why the knowledge from the field of sociology of education and pedagogy may have a significant influence on findings pertaining to the objective scope of punishment (penalization) and its forms, particularly regarding the minors and juveniles. It is universally important in shaping the forms of humanitarian punishment. It helps establish limits beyond which, in the light of present humanistic knowledge of the human being and its social behavior, there are no sufficient reasons for applying some particularly inflicting forms of influence. It cannot be scientifically confirmed that any type of social institution is a necessity. As the research, among all studies led by Robert K. Merton, show, what is necessary for the society to exist is a function exerted by specific types of institutions and not such specific institutions and their organizational forms themselves, including, for instance, organizational forms of criminal punishment. This functionalist assumption may become a good theoretical basis for different approaches in abolitionist thinking which postulates to repeal, as far as reasonable, the system of criminal punishment, or at least the penalty of imprisonment as contrary to the well—being of the man and as lacking respect of human dignity. From the perspective of culturally integrated penology , in such approach, abolitionists need to find measures to ensure individuals and societies the sense of order, justice and security without the help of the system of criminal punishment. The discussion on this difficult topic, definitely going beyond the scope of the science of criminal law and criminology, should involve humanist thinkers, including the representatives of pedagogy and sociology of education. Independently of the fundamental role of pedagogical sciences (rehabilitation and penitentiary pedagogy) for penitentiary sciences, social pedagogy and pedagogy of education should contribute to the penological debate on the most general grounds of punishment . Such debate is strictly connected with thinking on the whole social system and on values to be transferred to young generations, as well as with the reflections on methods deemed as worthy, or at least acceptable, for their promotion and protection. The debate focuses on methods which may be applicable in various organizational forms of criminal punishment. It may also contribute to the discussion on methods of social control different from criminal punishment. It 15 Sir Hyder Ali Memon CRIMINOLOGY-2 PENOLOGY may relate to alternative measures of different, also none—repressive forms of control within social organization as a whole (social prevention) and other axiologically similar alternative forms of resolving social conflicts within criminal justice, for instance restorative justice or mediation. CORRECTIONS Penology Penology is the branch of criminology concerned with government policies and practices in dealing with persons convicted of crimes. Its etymology, from the Latin poena, meaning “pain” or “suffering,” reflects the early conception of punishment as the primary objective of state action toward criminals. However, in modern times interest in punishment has been largely replaced by concern with changing the abilities, interests, attitudes, and emotions of criminals. Accordingly, as we move farther into the second half of the twentieth century, we often find the term “corrections” being used instead of “penology.” The treatment of criminals has always been motivated by 1) the feelings of hostility and desires for revenge that criminals arouse in their victims and in those who sympathize with the victims; 2) abstract philosophies, ideologies, and religious beliefs regarding punishment; 3) prevailing theories of crime causation. Usually all three of these motives and rationales operate simultaneously, but the sequence in which they are enumerated above corresponds to the historical shift that has occurred in the relative power of each to determine penal objectives. These objectives are epitomized by four words: revenge, restraint, reformation, and reintegration. All four have always been pursued to some extent, but there have been marked changes in the frequency with which each has been explicitly set forth as the primary penal goal. 16 Sir Hyder Ali Memon CRIMINOLOGY-2 PENOLOGY Revenge and restraint Evidence that government concern with punishing persons who commit crimes developed primarily to replace private vengeance-seeking by the victims and their kin is provided not only by historical accounts of early judicial agencies but also by objective statistical scaling of societies on the basis of their culture traits. Freeman and Winch (1957), in an analysis of 48 societies, found that where governments do not assume this private punishment function, the society rarely is able to maintain full-time priests; without full- time priests, they do not have full-time teachers; unless they have full-time teachers, they lack full-time bureaucrats; and so on up the scale of societal complexity. Thus, it seems well established that penal activity is a prerequisite to much elaboration of other functions by government and religious institutions; when there is no penal program, the regulation of society by church or state is continually subject to restriction by the anarchy of private feuding among offenders and victims. Until the eighteenth century in Europe, and much later in many other areas, the structuring of penal policy by the prevailing religious and political status hierarchies was explicit. The nobility was subject to a criminal law different in its specification of penalties from that which prescribed punishments for commoners. The latter were dealt with most harshly, especially when the victims of their offenses were of the nobility. This was justified by an explanation of crime as the consequence of a base nature, a condition presumed to be most frequent in the “low-born.” An alternative theory, that crimes result from the possession of one’s spirit by the devil, through witchcraft and wizardry, justified both the imposition of some punishment by clerical courts and a strong church influence on the penal policies of secular courts. Two major influences on punishment that may be latent at all times were blatantly manifest in Europe until the end of the eighteenth century. These influences were the social distance between the punisher and the punished and the economic interests of the punisher. When the punisher could perceive the offender as both alien and inferior, there was little reluctance to impose death, torture, physical mutilation, severe corporal punishment, or some combination of these. When punisher and punished were peers, the most frequent penalties were forfeiture of property, forced labor, and banishment. Rusche 17 Sir Hyder Ali Memon CRIMINOLOGY-2 PENOLOGY and Kirschheimer (1939) exhaustively document an argument that the supply of labor also determined penal policy with respect to lower-class offenders: when labor was scarce, punishment was most often forced work in galleys or in houses of correction, but when there was a surplus of labor, punishment by death or by transportation to the colonies prevailed. Beccaria and Modern Penology There developed in the Enlightenment, partly in reaction to the severity of punishments imposed by the nobility, a conception of all men as equal. This was equality, not in possessions or status, but in rights and in potential amenability to guidance by reason. In 1764 these conceptions were brilliantly used by Cesare Beccaria as postulates for a new penal policy. His Essay on Crimes and Punishments had an immediate and tremendous influence throughout Europe and America and is often considered the beginning of modern penology. In the half century that followed, Beccaria’s arguments were extended by Voltaire, Bentham, Romilly, and others, reflecting the philosophy of utilitarianism. This resulted in so-called “classical” criminal law, which still provides the framework for our penal codes. This legal perspective calls for punishments based on the offense, rather than on the offender, and calculated to inflict no more pain than suffices to offset the satisfaction that a crime might yield to its perpetrator. Imprisonment and forced labor, because their ostensible severity can be precisely graduated in terms of time, were well suited to the employment by judges of what Bentham called a “felicific calculus.” This is the prescription of punishment in precise degrees of severity, so that the pain the court imposes balances the presumed gratifications from the crime. The high valuation of liberty and the respect for all humans which were fostered in the democratic revolutions also promoted a preference for imprisonment or labor as penalties, rather than torture or death. Furthermore, the public felt protected when felons were confined. As a result of these several factors, during the half century which followed publication of Beccaria’s work, imprisonment replaced capital and corporal punishment in Western Europe for over two hundred felonies. 18 Sir Hyder Ali Memon CRIMINOLOGY-2 PENOLOGY Reformation and the Reformatory Movement “Classical” legal philosophy stressed dual objectives: “individual deterrence” was to offset the happiness that an offender supposedly gains from his crime, and “general deterrence” was to make non offenders perceive crime as not conducive to happiness. However, a different justification for imprisonment was promulgated around the time of the American Revolution in the Pennsylvania colony, many of whose Quaker leaders had been imprisoned in Britain for their religious beliefs. Like some European Roman Catholic penal pioneers in the same period, the Quakers were inspired by the monastery cells in which monks sought spiritual reformation through isolation and meditation. Prevailing penal construction congregated groups of inmates in large rooms, but the Pennsylvanians advocated a separate cell for each offender, cutting him off from communication with his fellows. They claimed that this promoted more penitent thought, especially when these “penitentiaries” limited the reading matter in each cell to a Bible and religious tracts, with little or no work and with visits only from preachers and pious laymen. The “Pennsylvania system” spread rapidly. It became the predominant prison pattern in continental Europe during the nineteenth and twentieth centuries. However, it was opposed as costly, and its claims of reformation were challenged by advocates of a system developed at a prison in Auburn, New York, during the first half of the nineteenth century. The Auburn system, which soon prevailed in the United States, emphasized solitary confinement at night, but congregate work during the day, under a rigid rule of silence. Later in the nineteenth century the striped suit and lock step also were identified with the Auburn system; these features largely disappeared only after World War n. Despite their ostensible contrast, both the Pennsylvania and the Auburn prison systems were based on a conception of crime as learned in communication among criminals, rather than as a purely individual calculation of alternative utilities. Both prison systems also claimed that they trained offenders in legitimate modes of thought and behavior, instead of merely deterring them. Emphasis on training increased in the latter part of the nineteenth century with the “reformatory movement,” which is usually traced to the Elmira Reformatory in New 19 Sir Hyder Ali Memon CRIMINOLOGY-2 PENOLOGY York. This special institution for young felons developed distinctive features in the 1870s under the leadership of Zebulon R. Brockway. It borrowed from Alexander Maconochie’s Norfolk prison colony in Australia the “mark system” of awarding inmates numerical credits for each period of good behavior, with loss of these “marks” for misconduct. A specified total number of marks were required for each small reduction of restrictions or increment of comfort in the institution, as well as for release. Elmira added to this an emphasis on education and vocational training. Most major prison systems established reformatories during the subsequent half century. However, they generally replaced the mark system by less mechanically assigned hierarchies of rank and small privilege for inmates, known as “honor” systems in the United States, and elsewhere as “graded” or “step” systems. PROBATION AND PAROLE Probation and parole are procedures for release of convicted criminals or adjudicated delinquents on a conditional basis in order to assist them in pursuing a noncriminal life, with the proviso that they may be committed or returned to a correctional institution if their behavior after release fails to meet standards of the releasing authority. If granted by a court as an alternative to incarceration, this release is generally called “probation.” Probation evolved from the common-law procedure of suspended sentence, by which a judge first imposes a specific penalty, then orders that the penalty not be enforced if the offender behaves as directed. Probation differs from suspended sentence in that the court appoints someone to assist the convicted person in achieving a law- abiding life, as well as to check whether the conditions of release are obeyed. If granted by an administrative agency to someone who already has served part of a term of confinement, this release is usually called “parole” in the United States and “license” in Britain. The term “parole” can be traced to parole d’honneur (word of honor), a type of oath known in medieval days whereby military prisoners or offenders of noble birth were released on their promise not to escape or not to resume conflict. The cognate or other equivalent of the term “conditional liberation” is used in non- English-speaking countries. However, in much popular speech and even in some legal statutes within the United States “probation” and “parole” are used interchangeably. 20 Sir Hyder Ali Memon CRIMINOLOGY-2 PENOLOGY Both probation and parole represent a shift from the classic penal goal of deterrence to the modern goal of encouraging the offender to find some legitimate alternative to crime, while continuing to restrain him for the protection of society. Probation and parole also involve postponing a final decision in dealing with the criminal; the offender’s ultimate treatment is left uncertain until he is observed further. Classification and Individual Treatment Concomitant with the reformatory movement were the separate developments of probation and parole. The simultaneous emphasis on institutional programs for reform and on conditional modes of release to test how well reform was achieved reflected the development of the biological and social sciences during the nineteenth and twentieth centuries. These fostered a conception of crime not as something to be morally condemned but as a phenomenon having natural causes and, hence, controllable if these causes are identified and altered. However, a great diversity of causes seemed to be involved. Early criminological researchers, notably Cesare Lombroso, ascribed crime to biological inheritance; Psychologists first emphasized imbecility, and later the emotional disturbances of early childhood, as causes of crime; Sociologists called attention to deviant subcultures and to the influence of social support in delinquent and criminal activity. The most prevalent explanation for crime, therefore, became “multiple causation”. This justified the major prison management emphasis in the second quarter of the twentieth century, “classification” and “individual treatment” of inmates. The classification process in correctional institutions begins with medical and psychological examination of the newly received prisoner, plus a caseworker’s preparation of the inmate’s life history. These reports are discussed by the institution’s classification committee, which usually consists of the head of its custodial staff, plus the director of its school, its physician, chaplains, and caseworkers. They first assess risk of escape, of violence, or of other misconduct by the inmate. Then, within the limits posed by these custodial concerns, they recommend a program of training and treatment by 21 Sir Hyder Ali Memon CRIMINOLOGY-2 PENOLOGY which the institution may help to correct the inmate’s deficiencies. As an incentive to his compliance with this treatment program, the inmate is advised that such a self- improvement effort will enhance his prospects for parole. Two major problems have been widely recognized in these reformation efforts; The first is the fact that society has seldom been willing to invest in its treatment programs funds sufficient to correct serious educational, vocational training, psychological, and other deficiencies of most offenders. The second is the demonstration by research that, for many offenders, such treatment does not prevent a return to crime, especially when their social acceptance and their conception of themselves as successful has been and continues to be much more immediate and frequent in criminal than in noncriminal pursuits. Accordingly, the second half of the twentieth century has seen the penal objectives of deterrence and treatment, inherited from prior periods, augmented by concern with changing the social relationships of offenders. PUNISHMENT The term “punishment,“ in its psychological sense, is most commonly and appropriately applied to a situation in which a deprivation or unpleasant experience is deliberately imposed by one party upon another because of an actual or supposed misdeed which is knowingly and intentionally committed by the latter. The misdeed may be the violation of a rule, a law, a command, or an expectation and may consist either of an actor of inaction when action is called for. It is generally presumed that both parties to the transaction perceive the “punishment“, as unpleasant and the provoking act as a misdeed or at least as punishable. At the sociological level, punishment is characteristically defined in terms of collective perceptions and official definitions. Confusion is likely to follow from the failure to distinguish between the sociological and psychological frames of reference. Thus, from an official point of view, a person who is arrested, tried, and acquitted for an alleged crime has escaped punishment, despite the fact that his reputation may have been 22 Sir Hyder Ali Memon CRIMINOLOGY-2 PENOLOGY destroyed in the process. Punishments which are externally equivalent from the societal standpoint may be very differently perceived by the individuals upon whom they are imposed and may, indeed, not be experienced as punishment at all— as, for example, when an offense is committed to obtain free board and lodging in jail during the cold winter months. Those who regard certain laws as immoral, discriminatory, unjust, or tyrannical often feel that the imposed punishment confers honor and distinction upon them; the question in this case is whether it is the ethical duty of citizens to obey the law or to violate it. The Crime of Punishment The act of punishment in human relations is itself subject to normative control by a wide range of formal and informal rules, the violation of which in some instances transforms the act of punishment into a crime. Parents are generally conceded the right to punish their children for disobedience, but the injury inflicted by a criminal upon his victim for disobedience to his commands is defined as crime, not as punishment. Similarly, excessive parental chastisement of a child may bring formal punishment upon the parent. Critics of current penal practices make frequent use of the phrase “the crime of punishment“(Shaw 1922). Formal and Informal Punishment Formal punishment is regarded as that which is administered through the courts, and all other kinds are called informal. Informal punishment is of course extensively used in a wide variety of interpersonal and institutional contexts. It is commonly employed in the rearing and education of the young. All types of associations and establishments, such as educational and military institutions, political, occupational, and other types of associations, tend to have established ways of dealing with recalcitrant members. Expulsion from the group is a common sanction in voluntary associations. Punitive sanctions tend to be emphasized when membership is involuntary or in some degree coerced, and they may be specified in relatively formal sets of rules 23 Sir Hyder Ali Memon CRIMINOLOGY-2 PENOLOGY and regulations, as for example in boarding schools, prisons, and other similar establishments. Our concern here, however, will be with punishment for crime. Penology Penology comes from the Latin word poena which means punishment and it is concerned with an in-depth examination of the formal institutions of criminal justice such as police, courts and corrections. It is concerned with the process devised and adopted for punishment, prevention of crime and treatment of prisoners. Sentencing and punishment are currently increasing profile policy issues. They have generated debate and proposals for new procedures, criteria, social life. This is a policy area that is also complex and issues of criminal justice practice and the administration are continually with the public domain. The modern society has attempted to address the problem of increased crime by building more and more prisons but the futility of incarceration is apparent, calling for renewed debate on how best to counter this. Sentencing and punishment are by no means mere academic matters. Policy and practice impact on actual and potential victims of crime if they fail to prevent or limit reoffending. They affect the offender and family and friends and also leads to a large expenditure on courts and prisons. These are also topics where they are strong personal and popular feelings about what should happen and how justice should be done. Policy and practice in this area are also contingent on and influenced by a very wide range of factors. Political, social and economic issues are not only of great importance in the broader development of penal policy but are also relevant to the particular circumstances of individual offenders and their experience of punishment. Understanding factors influencing penal policy 1. Punishment can be distinguished from other forms of pains or sufferings which are not a response to our misdeeds e.g. painful medical treatment. Punishment rests on moral reasons and is the expression of moral condemnation in response to rule infringements. Feinberg J (1994) in an article called "The expressive function of punishment refers to censure or condemnation as to the defined feature of punishment "it has a symbolic significance. It is a conventional device for the expression of attitudes of resentment and 24 Sir Hyder Ali Memon CRIMINOLOGY-2 PENOLOGY indignation. A key feature of punishment is that it rests on a moral foundation expressing a moral judgment. It is reflective and based on reasons. It stems from an authoritative source usually the state. A key question that has been asked is why some acts are criminalized and not others and why society deals harshly with some wrong doing and lightly with others. the most common questions posed are:- - What particular response is made to an action or behavior and why? I.e. what to punish. - If the response is penal which particular penal option is selected? I.e. how to punish. - What is the particular level of penal response? I.e. how much to punish. 2. Penology is also concerned with questions of equality, fairness and justice which must also be considered within the policy e.g. whether some groups are selected for harsher punishment or if apparently neutral policies have differential impact. e.g. discrimination against race(s) or economic means or the mentally disordered, women and children etc the notion of justice is not clear cut but embodies fairness to all members of the community including victims and offenders and sticking a balance between their competing interests. This is as the cornerstone of the current criminal justice system. 3. human rights have implication for both the theory and practice of punishment in justifying specific punishments in assuming the justice of punishment and in improving standards in penal institutions e.g. respect for sponsors, treatment of remand prisoners, bail, right for fair trial, presumption of innocence etc this principle may act as a control on judicial discretion and inhibiting disparities in sentencing. 4. There are also influences on penal policy which may reflect the political and ideological principles underpinning the penal policy. Political dimensions raises questions about power, how much power a government has to implement policy through enhancement of law. In economic terms, crime punishment is costly in 25 Sir Hyder Ali Memon CRIMINOLOGY-2 PENOLOGY financial terms and has a significant influence of penal policy. Cost of processing offenders is enormous, therefore there is increasingly a move to cut costs by introducing e.g. community penalties and when deciding what to punish, some offenses may be uneconomic to punish, such as minor infringement and sometimes it is better to use lighter sentences. 5. Influence of public opinion on penal policy. It is a key variable in shaping the response to crime and disorder. It can be expressed through electoral choice e.g. hanging, lethal injection, public opinion polls, letter of compliance and judges who see themselves as dispensing popular justice as representative of the public. For the criminal justice system to be effective, it must have legitimacy in the eyes of the republic. Sometimes, this causes a problem where a government's response to moral panic by giving harsher sentences, which do not succeed in controlling crime. It is also sometimes difficult to identify accurately the public opinion on issues of crime and punishment. 6. Prison population: these are increasing in number and felt that there is a need for alternatives to custody such as community penalties and fines. However, this requires public awareness and information on crime levels, sentencing decisions and policies. The public has to be convinced that alternative to custody will be effective and to be aware that the greater use of imprisonment will only marginally affect crime rates. Influence of theory on penal law and practice 1. Principles from criminology and penology: These principles are the justifications of punishment and they include; retribution, rehab, social protection and none recently restoration of social harmony. Together, they constitute the store of knowledge regarding what is theoretically the best response in dealing with offenders, because theorists from oppressing conditions may agree that punishment is necessary but different in their news of the best response, the type of punishment may depend on which theory, which purpose of punishment is explicit or implicit in policy. It may also depend on which philosophical ideas underpin the chosen 26 Sir Hyder Ali Memon CRIMINOLOGY-2 PENOLOGY punishment. E.g. where the individual is seen as autonomous or possessive, free will or whether their actions are determined by their surrounding environment or genetic makeup. 2. The so called 'new penology':This has also influenced penal law. It draws on the new managerialist focus on value for money which is reflected in new public management. It applies private sector method to public sector incorporating a concern with efficient use of resources e.g. to consider whether punishing certain types of minor infringements is cost effective. It uses actuarial (statistics to manage, predict, etc) to manage the risk of offending and reoffending. The new penology according to Simon 1992, embraces both a theory and a practice and punishment. In the new penology, crime is seen as normal and the best we can hope for is to control crime and risk through actuarial policies and technocrat forms of knowledge, internally generated by the penal system. This approach focuses on categories of potential and actual offenders rather than an individual on managerial aims rather than management and transformation of the offender. Its focus is on actuarial incapacitation as a way of managing risk and removing persistent offenders from society. Prison is used to warehouse offenders at high risk of reoffending and because of managerial cost concerns are , prisons will be reserved for the rest risk categories. Actuarial justice provides means of selecting the target population to be imprecated. This approach has been..a significant influence of penal policy in USA and UK. 3. Classical theories of punishment: The principle justification of punishments is clearly associated with distinct traditions or schools. Retribution was influence by the late 18th Century philosophies and received in the 1970s and 80s. The rival tradition is which includes the justification of , social protection or incapacitation or . Both theories accept that punishment can be justly inflicted but differ in their views of what constitutes the justice of a particular punishment. Both seek to limit to use of 27 Sir Hyder Ali Memon CRIMINOLOGY-2 PENOLOGY discretion of sentencing in favor of a more vigorous principle approach and both address issues of proportionality. Both approaches have had a strong impact of penal policy in recent years. One major influence of penal and sentencing policy has been a particular reattribute idea of just desserts. Justice will be served to better through a more consistent approach in sentencing so that convicted aims get their just and deserts which is the calculation of seriousness and the consideration of a sentence proportionate to it. 4. Policy trends in the late 20th Century, due to the increased repeat offenders and increasing during the 1940s onwards the rehabilitative deal lost much of its support but have recently received renewed support. In the 1990s in the USA and UK saw a marked increase in the use of punishment and incapacitation with focus being a proportionate punishment rather than treatment or deterrence per say. Trends in the past 20 years or so have seen the emergence of law and order as key. In the UK, more policies focus is being shifted towards the heed to rebalance the system in favor of victims, witnesses and communities and to give paramount importance to protecting the public and resting public confidence in the aim justice system. The aim is to increase the rights of victims even if this means fever rights of the defendants. Sentencing and Discretion In a principle sentencing system, the exercise of discretion by the sentence must be controlled. The purpose of this section is to examine the ways in which it is done through the law, guidance and also the use of justificatory principles as a constraint. As we have seen, what is construed as fair or just depends on the charging ideas of social justice and theoretical approach that is taken to understanding the notion of punishment itself. However, there is a consensus that it would be unjust if an agency or individual could use its powers to impose and implement whatever punishment it wished to impose. Justice in sentencing then requires at the very least that those individuals who undertake the sentencing of convicted criminals are constrained by a set of principles be they moral, 28 Sir Hyder Ali Memon CRIMINOLOGY-2 PENOLOGY legal or religious and by a framework of rules. Further, in a democracy, sentencing may not be perceived as just if those rules and principles are not acceptable to the electorate. The proper control and exercise of discretion is consequently crucial in the quest for justice in sentencing and punishment. Discretion is one of the most contentious concepts in criminal justice because it is so important' and yet as difficult to define. If we consider discretion to be operating on a continuum from complete to no discretion, he/she would follow the penal code for the word, almost like a robot. Where he has total discretion, it may be unfair. At one extreme, sentencing is unjust because there are no constraints whatsoever on the sentence who can then make decisions if he so wishes based on personal prejudices and whims. Discretion can become a major source of injustice if not confined, structured and checked. At the other end of the spectrum is the sentence who has no discretion whatsoever, because the rules and the principles are so highly drawn with all potential factors accounted for that the sentence is simply the technician who fills in the date and reads off the answer, in this case, the sentence. These two might be viewed as potentially unjust in that it would not take into account only individual circumstances that had not been foreseen. The logical conclusion is that justice is to be found between the two ends of this discretion spectrum. Constraints are placed on the sentence because totally free discretion is inherently unjust. There is an expectation that the rule of law will be upheld so that the citizens can have confidence in the law and institutions of the state, without that confidence, the criminal justice system will be legitimacy and will not attract the moral allegiance of the citizens putting the system and the government at risk. In democratic states, then judges should not just do what they might want to do when sentencing. There are rules that to a greater or lesser extent guide them in the exercise of their discretion. However, there are those who still criticize the idea of sentencing guidelines as contributing to higher rates of custody because it reduces the discretion of the individual judge. How far rules should constraint the sentence is then a matter of debate. There are also constitutional matter about the independence of the judiciary on one hand and the implementation of democratic decided policy on the other. 29 Sir Hyder Ali Memon CRIMINOLOGY-2 PENOLOGY However, discretion is also seen as bad because a wide sentencing discretion leads to inconsistency of sentencing in which similar cases may be treated similarly. Differential treatment of offenders allows space for discrimination whether institutional or personal to occur for example, based on race, gender, ethnicity, geography, class, etc. even if this discrimination does not occur except as a perception the legitimacy of the sentencing process may still be undermined in the eyes of the public. A further argument against wide discretion is that it diminishes the possibility of accurately practicing sentence outcomes. Sections cannot give a clear deterrent massage to past or potential offenders and advocates are unable to advise their clients effectively. Also,if judges tend to sentence at the top end of what is legally permissible over sentencing occurs. This can lead to a crisis of resources for the government. Too wide, sentencing discretion could also make it difficult for a democratically elected government its desired sentencing policy. Structuring sentencing Discretion Trends in structuring sentencing discretion show that a number of changes in penal policy and legislation have incrementally seen the widening of choices of penalties for courts while narrowing the discretion to choosel The number of sanctions have increased to include probation borstal training, preventive detention for the mentally disturbed, rehabilitative and community based penalties, fines, suspended prison sentences, absolute or conditional discharges, community service orders, compensation orders, confiscation of proceeds of crime, mandatory minimum custodian sentences, extended post custody supervision etc. these can be termed as statutory constraints to the exercise of discretion. They are the so-called traditional constraints i.e. penalties available to the sentenser. Judges can only impose a penalty which is legally available in the jurisdiction. The range has widened over the years. Judges are also constrained with respect to the amount of punishment they can impose in relation to the available penalties. There are restrictions on the upper amount of sentence that can be legally imposed, the maximum laid down in legislation whether in terms of sentence length for custody or community penalty or financial penalty. The statutory maximum is meant to be used only for the gravest instances of the offence that could 30 Sir Hyder Ali Memon CRIMINOLOGY-2 PENOLOGY occur. Courts have therefore established their own normal range of penalties to which in practice sentenser refer. Further, not all these penalties are available to all sentensers and offenders. There are several different sorts of limits which apply in addition to statutory maxims. There are limits on sentencing powers of magistrates' courts that cannot impose sentences above certain set thresholds, e.g. there are certain penalties that may not be available for young people and children. 1) Secondly, there are also extra legal factors that influence either the amount of discretion the sentencing court can exercise or 'the outcome post sentencing. These include allocations of resources especially in relation to 'community sentences e.g. if funding does not allow for the establishment of community punishment schemes it can lead to custodian sentences. Also the relevant government official, the President or the Parole Boards can exercise administrative or executive powers which can affect the length of custodial sentences served. The government may also give guidance by way of circulars with the message of the report be that prisons should be used as little as possible. Finally, the role of public opinion and the media is also a factor in sentencing policy. 2) Thirdly, we have already discussed the development of the argument that prisons do not work to establish prisoners and hence the new ideas for what was believed to be more effective punishment e.g. community penalties, fines. There are policies based on these concerns to limit use of prisons and new techniques have been used to structure discretion in line with the policy aim. These are; (a) The incorporation in legislation in new hurdles for the imposition of custodian and community sentences e.g. in the UK, the Criminal Justice Act (1982) imposes statutory hurdles in relation to a custodial sentence on a first time offender especially juveniles and young adults. (b) Using mandatory sentences is another method for example life sentence for murder and more recently, what is known as the three strikes and you are out 31 Sir Hyder Ali Memon CRIMINOLOGY-2 PENOLOGY legislation in several states in the USA. It severely limits judicial discretion in regard to specific offences and repeat offenders e.g. in the USA, under the Criminal Sentences Act (1997 where one has been found guilty of drug trafficking offences a 3rd time, there is a minimum 7 years term imposed or the offender may be subjected to a dangerous offend hearing or indeterminate sentence for public protection.) (c) Discretion is also constrained by various forms of guidance to help sentences apply the sentencing framework as consistently as possible. This can be through the CA decisions or through sentencing guidelines. These guidelines consider the sentencing factors and give indication of proper range of sentences, the interpretation of sentencing legislation and endorse or establish particular factors as legitimately aggravating or mitigating the seriousness of the offending and the level of the punishment. In the UK, a sentencing advisory panel has been set up to help the CA make proposals for new guidelines. Indeed, they have even gone further to set up a sentencing guideline council and they may set up a permanent commission to improve transparent predictability and consistency in sentencing in the criminal justice system. Criticism against constraints on exercise of judicial discretion. 1. Reduced discretion results in a decreased possibility that justice can be tailored to the specific circumstances of a case or individual. This might itself lead to injustice. 2. Research has shown that mandatory sentences/penalties have not achieved their intended aims. 3. Judges and other legal professionals may seek ways to circumvent mandatory provisions. Discretion elsewhere in the Criminal Justice process could 32 Sir Hyder Ali Memon CRIMINOLOGY-2 PENOLOGY become the site for increased professional activity to negotiate justice clients in order that mandatory sentences might be avoided. 4. The lack of discretion at the sentencing stage could encourage more 'not guilty' pleas. The accused might consider that more is at stake if the likely penalty is severe and so chosen risk a trial. This would increase the workload for the courts and add to the financial costs. 5. The lack of direction may lead to constitutional or Human Rights violation. Lecture#5&6 Penology: An Introduction Penology is defined as follows:  Penology (from the Latin poena, “Punishment”) studies crime and punishment by theoretical perspective. It analyses role of theories justifying punishment in different ways. It covers retribution to re-integration of offender. It assesses whether or not punishment achieves its goals. Broadly, it also deals with correctional institutions, their design and classification of prison and security of inmates.  Branch of the science of criminology concerned with methods of punishment and correction of criminals and prevention of crime. The branch of criminology concerned with prison management and prisoner rehabilitation.  A branch of criminology dealing with prison management and the treatment of offenders.  It is a branch of criminology that studies crime and punishment.  Contemporary penology concerns itself mainly with prison management and criminal rehabilitation. 33 Sir Hyder Ali Memon CRIMINOLOGY-2 PENOLOGY  It is study of theories if crime & their impact on prisoner seeking reformation and rehabilitation and re-integration.  It is study of crime and prison management.  The study of prisons & treatment of criminals.  It understands role of prisons & treatment of criminals.  It understands role of prison environment and its impact on inmate, his reformation and rehabilitation. Penology Penology studies of crime and punishment. Penology covers a vast subject matter spreading from crime and punishment to reformation, rehabilitation and ultimate re- integration of offender in society. It deals with management of prisoners, security of inmates, services and programs within prison setting. Penology develops keen interest among students to explore impact of Prison designs on inmate satisfaction, inmate security and freedom of movement. 2. Punishment Punishment is defined as the price the criminal pays to society or individual by inflicting some harm or damage to someone‘s property. Punishment is a sanction (penalty) to prevent and control humans from violating the law. Herbert Packer, a Stanford University law professor, argues that punishment may be described as way of dealing with people who are marked by these features: 1. The presence of an offence. 2. An Infliction of pain on account of commission of the offence. 3. Obvious purpose is neither to compensate the victim, nor to better the offender but to inflict on the offender what is thought as deserved pain. According to Herbert Packer punishment achieves two main goals: a. the infliction of deserved pain on evil doer and b. prevention of crime. 34 Sir Hyder Ali Memon CRIMINOLOGY-2 PENOLOGY Concept of Punishment To conceive means to form (an idea etc). Conception is an act of forming an idea. This relates to forming an idea about punishment. The criminal has violated the law, so he/she has to pay the price for that violating act. The violator deserves to be inflicted pain upon as e knowingly did the act for which there is punishment set by the law. The criminal has taken away something for which he has to pay back. The criminal has to compensate for the harm he has done to an individual living in society. The punishment arises as consequence of the act that criminal has committed, thus choosing punishment for himself. There prevails society where there laws when protect citizens. Anyone breaking such laws is called violation. It is clear that those who break the law must know consequences of breaking-punishment. Justification of Punishment According to various schools of thought, punishment is justified as outlined: 1. Punishment is justified to compensate the harm inflicted by offender on the victim. Compensation may be in form of fine, rehabilitation (to a victim), and assistance or community service. 2. He is incapacitated to move the hi-prison. He doesn't enjoy fruits of free society. He cannot live with his family or meet his friends. He is separated from society as he is potential or repeat in offending. 3. To correct or defer an offender not to repeat the offense again. 4. To return the offender from prison to society in a way that offender has learned skills of earning his livelihood by lawful means. Ends/Goals/Objects/Purposes of Punishment 1. Retribution Retribution is a justly deserved penalty. It is the act of correcting for your wrong doing. It is the act of taking revenge (harming someone in retaliation for something harmful that he has done). This is an eye for an eye and a tooth for a tooth, another name for it is 35 Sir Hyder Ali Memon CRIMINOLOGY-2 PENOLOGY ‘Desert’ meaning that criminal offenders deserve the punishment they receive at the hands of Law and that the punishment be appropriate to the type and severity of crime committed. In Saudi Arabia, a thief’s hand is cut for the wrong act he has committed. The retributivists believe in like-for like retaliation in punishment. Severity in punishment must be proportional to the gravity of the offense. The best justification of punishment is also not purely retribution. The retributive justification of punishment is that the guilty reserves to be punished. 2. Incapacitation By keeping offenders in prison or other such institutions, innocent people in society are protected. This means offender confined in prison would not commit or repeat crimes. Thus criminal is denied opportunity to commit crime. 3. Deterrence This is an act to convince people that criminal activity is not worthwhile; its overall goal is crime prevention. Specific Deterrence seeks to prevent a particular offender from engaging in repetition of crime. In general deterrence someone is made an example to prevent general public engaging in criminal activity. 4. Rehabilitation Rehabilitation seeks to bring about fundamental changes in offenders and their behaviou. It is an attempt to reform a criminal offender. It is an act of restoring someone to his previous state. It is teaching good habits, importance of time, collective teamwork and learning some skill or vocation for survival after release from prison. 5. Restoration This levels the harm done to the victim by compensation service or other ways. It may be paying a fine or doing a community service. Forms of criminal sanction (punishment) They include fines, incarceration and probation, imposition of fines is one of the oldest and possibly one of the most widely used punishments. Fines given by offender to victims can help victims. Fines are community-based. 36 Sir Hyder Ali Memon CRIMINOLOGY-2 PENOLOGY 1. Death penalty/ Capital punishment: is a sentence of death to an offender proven guilty in a trial b court of Law. 2. Incarceration: is a term (period the offender is confined in a correctional institution or incarceration is the period an offenders stands as prisoner. It denotes the period especially after the conviction. The alternative to incarceration includes fines, restitution and community service. It is the most visible form of punishing serious offenders. The length of incarceration may be shortened if the offender lives according to rules set by the correctional officials. Incarceration has four goals: retribution, deterrence, incapacitation and rehabilitation. There are the three models of incarceration. I. Custodial Model: This is the correctional model which emphasizes security and discipline. It emphasizes the maintenance of security and order. II. Rehabilitative Model: is a model of correctional institutions that emphasizes the provision of treatment programs to reform the offender. III. Reintegration Model: In the criminal justice system, reintegration refers to the process of re-entry into society by persons that have been in prison, or incarcerated. Reintegration includes the reinstatement of freedoms not previously had by individuals as a result of being in prison. 3. Fines: are economic penalties which are paid by the offender in a specific sum of money within the limit set by law. Fines are imposed as an addition to probation or as an alternative to incarceration. 4. Community Service: It is an alternative to incarceration where a convicted serve the community by public manner thereby overcoming some of the harm caused by the crime or it is the requirement that the offender provide a specified number of hours of public service work, such as collecting trash in parks or other public facilities. 5. Probation: Sentencing of an offender to community supervision by a probation agency. It is done as spending a sentence to confinement. The supervision entails obeying specific rules of conduct while in the community. Probation is designed to maintain control and 37 Sir Hyder Ali Memon CRIMINOLOGY-2 PENOLOGY assist offenders while permitting them to live in the community under supervision. Probation is a judicial act. If conditions are not met, probation officer can bring the offender back to court and recommend that probation may be revoked and sentence be served in prison. Probation is advocated as a way of rehabilitating offenders whose crimes have not been serious whose past record is clean. Intensive Probation: Is the probation granted as an alternative for incarceration under conditions of strict reporting to probation or with a limited caseload. 6. Restitution: is the requirement that the offender that the offender provides financial remuneration for the losses incurred by the victim. Restitution requires that offender pay to the victim the cost of the crime. Restitution is compensation paid to a victim who has suffered a financial loss as result of offender’s crime. It is restricted to property offenses. Restitution is often a condition of probation. Jail / Prison A Jail is a place keeping under-trials during trial or a place for convicts with punishment less than one year. A Prison is place for confinement of offender whose punishment is exceeds one year to life imprisonment or death penalty. A Criminal is one who is defined by law as such if he violates the law. Inmate is defined as one admitted in a hospital for treatment or one incarcerated for a sentence. Classification of Offenders is a systematic exercise, at any stage in Prison, where offenders are segregated on basis of age, sex and type of offence. Prison Programs are variety of initiates to entertain, treat, reform and rehabilitate offenders. Jail is a place keeping under-trials during trial or a place for convicts with punishment less than one year or jails are the places where less serious offenders are confined or kept during or after trial. Jail, historically has been a strange correctional hybrid part detention 38 Sir Hyder Ali Memon CRIMINOLOGY-2 PENOLOGY centre for people awaiting for trial, part penal institution for sentenced misdemeanants (people involved in less serious crimes), part refuge for those social misfits who are taken off the streets jail is the traditional dumping ground not only for the criminal but also for the public drunk, the mentally ill and the deviant moral. Jails is usually a facility where prisoners generally idle, without opportunities for programs, like reformation, rehabilitation or education. Jails are entrance way or entryway to correctional institutions. Jails serve two vital purposes;  they detain accused individuals awaiting for trial and  they house those sentenced offenders serving terms usually of one year or less. Jails are characterized by number of population making treatment and rehabilitative programs difficult if they are launched. Jail continues to retain its pre-trial detention function and serving as facility for offenders serving short terms. Jail is characterized with overcrowding, no treatment or educational programs for sentenced inmates. A new generation Jail is a facility of popular architectural design and management policies that emphasize interaction of inmates and staff and provision of services. This approach attempts to use the physical plant to improve the staff’s ability to manage the inmate population. THE PODULAR UNIT (the term derived from pod and modular) is a living area for a group of inmates that defines a post or a watch. The pod replaces the old cell ranges. Twelve (12) to twenty five (25) individual cells are organized into a unit (the pod) that common living area where the inmates of the pod are allowed to congregate. (American Corrections, Tod R. Clear and George F Cole) 39 Sir Hyder Ali Memon CRIMINOLOGY-2 PENOLOGY PRISON DESIGN Radial Design It is an architectural plan has it roots in the works of 18th century British social theorist using "pods" of radially orientated cells around. Telephone-pole Design An architectural plan for a prison calling for a long central corridor crossed at regular intervals by structures containing prison’s functional areas. Courtyard Style Design An architectural design by which the functional units of a prison are housed in separate buildings constructed on four sides of a hallow square. Campus Style Design An architectural design by which the functional units of a prison are individually housed in a comples of buildings surrounded by a fence. Classification of Prisons Prisons are classified according to level of security required: a) Maximum Security Prison: (Close custody Prison) A Prison designed and organized to minimize the possibility of escapes and violence and to that end imposes strict limitations on the freedom of inmates and visitors. The purpose of such facility is custody and discipline. 40 Sir Hyder Ali Memon CRIMINOLOGY-2 PENOLOGY b) Medium Security Prison: A Prison designed and organized to prevent escapes and violence but in which restrictions on inmates and visitors are less rigid than in facilities for more dangerous offenders c) Minimum Security Prison: A prison designed and organized to permit inmates and visitors as much freedom as is consistent with concept of incarceration. Prison Problems Prison problems are defined as baggage of unsolvable issues related with prison inmate population, prison management, health & other facilities. 1. Inmate-to-inmate violence: is the use of physically harmful attacks involved between two or more that two inmates. 2. Inmate-to-staff violence: is type of violence in prison where physical harm (with intention) is inflicted by inmate to the staff. REFORMATION AND REHABILITATION Reformation Reformation is defined as:  A process to remove faults from a person or behaviour.  Initiating a process to give up bad habits, improve ones behaviour or abolish misconduct or abuse etc  Overall improvement in one’s behaviour or moral  Reformation [improvement (or an intended improvement)] in the existing form or condition of institutions or practices etc.  Rescuin from error and returning to a rightful course.  To reform make changes in (something or institution) in order to improve it. To cause someone to relinquish an immoral or criminal style. Reformation is the act or process of reforming. 41 Sir Hyder Ali Memon CRIMINOLOGY-2 PENOLOGY REHABILITATION Rehabilitation is defined as:  A process of restoring a convicted offender to a constructive place in society through some form of vocational, educational or therapeutic treatment.  Rehabilitation is restoration of someone to a useful place in society  Reclamation, renewal, rehabilitation (the conversion of wasteland into land suitable for use of habitation or cultivation)  To rehabilitate means to restore to a former condition. Rehabilitation is an act of restoring someone to health or normal life by training and therapy after imprisonment, addiction or illness.  Rehabilitation is achieved through counseling, education and vocational training to inmates. The aim is to correct defects of behaviour causing criminal life patterns.  Rehabilitation means to assist an inmate to re-adapt (re-adjust) to non-criminal ways of life. It may be proving help in controlling over anger and violence. It may be religious lessons developing sense of right and wrong and creating fear of God Almighty.  It may be an exercise to accept responsibility for actions. 42 Sir Hyder Ali Memon CRIMINOLOGY-2 PENOLOGY Notes.5 OVERVIEW: THEORIES OF PUNISHMENT RETRIBUTION  The basic principle of this theory is that the offender must receive as much pain & suffering as inflicted by him on his victim (Severity of punishment be proportionate to the crime)  It works on central idea that the offender has gained unfair advantages through his/her behaviour and that punishment will set this imbalance straight.  Retribution could be said to the ‘natural’ justification. In the sense that man thinks it quite natural and just that a bad person ought to be punished and a good person rewarded.  Retributive holds that each offender must be punished even if the victim wishes to forgive the offender or extend mercy. DETERRENCE  The advocates of deterrent theory justify punishment as a deterrent to the offenders punished and also to others in community.  It acts on belief that man acts rationally therefore he is completely responsible for his act.  The hedonistic assumption is that the people regulate their behaviour by calculatin of pleasure and pain. The potential offender evaluates all possibilities and chooses that activity which maximize his utility (William E. Cobb)  It advocates the certainty, swiftly and severity of punishment INCAPACITATION  Incapacitation refers to depriving offenders of the capacity to commit crimes, usually through detention in prison or capital punishment. 43 Sir Hyder Ali Memon CRIMINOLOGY-2 PENOLOGY  The use of incapacitation strategies is as old as punishment itself. Most techniques of incapacitation have been aimed at making it impossible for offenders to do any offence.  Deterrence and rehabilitation both carry a necessary possibility of being unsuccessful because whether or not potential offenders offend or actual offenders reoffend, is up to them. Freedom of choice remains, and therefore the possibility of offends remain. Offenders can commit crime, crime out weight and rehabilitation not only work.  If general deterrence and individual rehabilitation are difficult to achieve, it perhaps seems a goal to protect potential victims from further crimes by known offenders through physical incapacitation either by rendering criminals physically harmless or by removing them from circulation. Prevention of crime by amputation by death or by life imprisonment is an incpacitative restraint which makes impossible or difficult for the offender to reoffend.  Selective Incapacitation: Sentencing According to Risk  Conventional Criminological wisdom maintains that most offenders commit one offence and don’t re-offend furthermore. The main goal of selective incapacitation is to reduce crime by identifying and maintaining high-risk offenders in prison.  Selective incapacitation is a corrections strategy that seeks to protect society and save limited corrections resources by incarcerating only those offenders who pose the greatest threat to society. Threat is equated with quality and quantity of offenders' offenses and likelihood of re-offending.  Generally, the primary means of incapacitating offenders is through incarceration. This strategy presumes the offender is prevented from committing further crime, at least for the duration of prison term.  The problem with this approach is that most criminals have relatively short careers, which has support of some researches. 44 Sir Hyder Ali Memon CRIMINOLOGY-2 PENOLOGY  Another variation of the incapacitation rationale is Selective incapacitation. REHABILITATION  Retribution, deterrence and incapacitation involve a process of thinking that proceeds the crime to the punishment.  Rehabilitation is most complex notion than others, involving an examination of the offender and the criminal, and the concern for the criminal’s social, psychological and biological background & punishment.  Rehabilitation assumes that offender must not re-offend/repeat offending.  Rehabilitation involves application of various methods, vocational training is the most practical form of rehabilitation.  Rehabilitation theory regards crime as the symptom of a social/psychological or biological disease & sees the aim of rehabilitation as curing that disease through treatment(Bean).  Indeterminate types of sentences are building blocks of this philosophy.  The demise of rehabilitation as theory of punishment began in the 1970. Martinson (1974) who argued that ‘nothing works ‘; that is, no treatment program works very successfully in preventing re-offending. DETERRENCE  J Bentham was the founder of deterrent theory which justifies punishment as a deterrent to the offenders punished and to others in community.  It is designed to deter future crime; it frightens other citizens so much that they will not do what the defendant did.  If the purpose of punishing the offender that he avoids doing criminal act deterring by punishment is called specific deterrence.  The general deterrence principle in economic term is ‘pay the price of a crime’. 45 Sir Hyder Ali Memon CRIMINOLOGY-2 PENOLOGY  The hedonistic assumption is that the people regulate their behavior by calculation of pleasure and pain. The potential offender evaluates all possibilities and chooses that activity which maximize his utility (William E. Cobb)  It acts on belief that man `acts rationally, therefore he is completely responsible for his acts.  It advocates the certainty, swift and severity of punishment.  Critisim  Using a punishment, a deterrence has the fundamental flaw that human nature turns to ignore the possibility of punishment until they are caught.  A question, however, arises as to whether punishment really deters the offenders in future or other members in the community? Studies made in this regard by Schwartz revealed that sanctions did have some effect or minor offences like tax violations but in the matter of complex offences like murder, even the extreme threat of death menalty has not proved to have a much deterrent effect on the criminals.  Prison problems are defined as baggage of unsolvable issues related with prison inmate Notes#6 Theory of Rehabilitation  The retribution, deterrence an incapacitation involve a process of thinking that proceeds from the Crime to Punishment.  Rehabilitation is most complex notion than other; involving an examination of the offender and criminal, and the concern for the criminals social backgroung & punishment.  Rehabilitation assumes offender violated law due to inner or outer factors beyond his control. 46 Sir Hyder Ali Memon CRIMINOLOGY-2 PENOLOGY  Rehabilitation involves application of various methods; vocational training is the most practical form of rehabilitation.  Rehabilitation theory regards crime as the symptom of a social/ Psychological or biological disease & sees the aim of rehabilitation as curing that disease through treatment (Bean).  Bean gives strengths of the rehabilitation position as being its emphasis on the personal lives of offenders, its treatment of people as individuals, and its capacity to produce new thinking in an otherwise rigid penal system.  He also suggest its weaknesses include an unwarranted assumption that crime is related to disease & that social experts can diagnose that condition; treatment programs are open-ended & do not relate to the offense, and the fact that the offender not being seen as fully responsible for his actions, is capable of manipulating the treatment to serve his or her own interests.  Vocational Programs: one of the oldest ideas in prison programming is to give the prisoner as skill that can help to make him/her comtitor in the social marketplace.  Psychological programs: This aims at making common man or offender in its previous condition of mind, through psychotherapy etc.  Behaviour programs: According to this idea, what needs reformation is not the offender’s mind or emotions but his or her behaviour.  Social programs: We use the term social therapy to denote these programs because they attempted to develop a pro-social environment within prison to help the offender develop non-criminal ways of coping outside. They are based on idea that people learn lawbreaking values and behaviour in social settings from peers to whom they attach importance. So those values should be altered.  Indeterminate types of sentences are building blocks of this philosophy.  The demise of rehabilitation as theory of punishment began in the 1970. Martinson (1974) who argued that ‘nothing works’; that is, that no treatment program works very successfully in preventing re-offending. 47 Sir Hyder Ali Memon CRIMINOLOGY-2 PENOLOGY  Later he attempted to rectify this pessimistic view of rehabilitation & treatment by acknowledging that some programs work, sometime for some types of offenders.  The objective of reform or rehabilitation is to reintegrate the offender in society after a period of punishment and to design the content of punishment as to achieve this ………  There was a growth of human social science, which admitted the idea of criminal behaviour as caused by psychological and environmental factors suspect able to change. Reforms, rehabilitation is therefore associated with ‘modernism’ and ‘positivism’, mean belief in the possibility of change and improvement through the application of science to human behaviour.  Although now a day’s penal reformers try to discourage the use of imprisonment on the ground of acts tending to make people worse rather that better, it must be remembered that when imprisonment changed from being a means. Primarily for holding people awaiting bail or deportation, to being primarily a mode of punishment, it was being a primarily, a mode of punishment, it was being introduced as an alternative to death or transformation not as an alternative to probation or community service.  In recent decades theory of criminality has been linked with possession of an extra X-chromosomes, meso-morphic body shapes, extra amount of testosterone, shifef eyes etc. Lecture#9 Theories of Punishment  The retribution concept of punishment relies on the basis on spiritual explanation of crime. (Most early) 48 Sir Hyder Ali Memon CRIMINOLOGY-2 PENOLOGY  Retributive Justice is a matter of giving people their Jus Deserts. The central idea is that the offender has gained unfair advantages through his or her behaviour, and that the punishment will set this imbalance straight.  Retributive Justice requires that the severity of the punishment be proportionate to the crime.  The doctrine of hell was framed in terms of retributive theory of punishment, the wicked receiving their just deserts, with no thought of the possible reformation of the offender.  A retributionist assumes that the law exists for a reason —a moral reason. All crime, even victimless crime, involves a social harm—a moral harm. In other words, violating the law not only offends against the law of the land, but the moral code of the land.  Retributive assumption holds that each offender must be punished; even if the victim wishes to forgive the offender must be punished, even if the victim wishes to forgive the offender or extend mercy. CRITICISM  Bentham questioned whether there really is a moral duty of retribution. How can one act of violence cancel out another evil act?  Further utilitarians have criticized the retributive approach on the ground that it has no social utility.  Another argument put forward is that if individuals have no right to exact retribution, how group of individuals (state) in the society can acquire such right?  Punishment must as an instrument for reducing crimes by deterring the offender and others from doing similar acts in future or it must prevent the commission of OFFENCES BY INCAPACITATING THE OFFENDERS. DETERRENCE THEORY Deterrence theory: 49 Sir Hyder Ali Memon CRIMINOLOGY-2 PENOLOGY  Follows from choice theory  Juveniles commit crime because they choose to do so  The choice is based in perceived risks and benefits  If the risk outweighs the benefit they will most likely not commit the act  Two types of deterrence:  General  Specific General Deterrence o Discourages would be delinquents from committing delinquent acts because the threat of punishment is real o The Fear of punishment outweighs the benefits of the acts Specific Deterrence o Is designed to impose a sanction on an adjudicated delinquent to prevent them from committing additional delinquent acts o Imposing stiff sanctions on a juvenile for committing an offense or delinquent act o Do six months of community service every weekend and you may think twice before you do something to get in trouble again THE ASSUMPTIONS OF DETERRENCE  Individuals are rational actors  Weigh potential risk against benefits  Juveniles are aware of sanction/penalty  The risks associated with punishment are unpleasant  The sanction must be:  Swift 50 Sir Hyder Ali Memon CRIMINOLOGY-2 PENOLOGY  Certain  Severe 51