PENAL THEORY
Introduction
When someone has committed behaviour, which breaches criminal law, there is a belief that
they should suffer something unpleasant. Punishment is a penalty in response to this proven
criminal behaviour.
In England and Wales, punishment is carried out in a very formalized way. It starts with the
court system, charges by police, the individual pleads guilty in court or is found guilty either
by a panel of magistrates or a jury. Since the deliberate infliction of harm can be regarded as
illegal and may out of the sentencing context be a breach of criminal law, the use of harm
must be justified. Punishment must have a justified aim of punishing because if we’re
punishing merely for punishment’s sake, that behaviour can be argued to be as
reprehensible as the original criminal behaviour. If we’re going to punish an individual, the
reason must be justified.
What these justifications are is the more difficult and controversial question. The main
sentencing theories can be divided into forward-looking and backward-looking.
Forward-Looking theory
Forward-Looking theories focus on the benefits that can be achieved through the infliction
of punishment. The methods of punishment are therefore justified on the basis that they
work to limit and/ or prevent future crime. Spending money on forward-looking theories is
much easier to rationalize because of the long-term benefits, which they give to the public.
The very essence of forward-looking theories is that they do influence and reduce crime.
Reductionists have to show that the method in which they are punishing, or the justifying
aims of these punishments do produce these long-term effects. Forward-looking theories
rely on the fact that the punishment does reduce crime in the future.
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The three main forward-looking theories are:
a. Deterrence
b. Incapacitation
c. Rehabilitation
a. Deterrence
Punishment, which is warranted by reference to its crime preventative consequences –
Andrew Ashworth.
The foundations of the theory are traceable to the work of two criminologists, Cesare
Beccaria, and Jeremy Bentham.
In 1764, Beccaria wrote an essay on crime and punishment, which questioned the standards
that governed the use of criminal punishment in Italy. His argument on deterrence theory
was that we as individuals make decisions based on what will give us pleasure. We want to
avoid pain and unless deterred, we are going to act in whatever way we can to get that
pleasure. Unless somebody tells us no, we are effectively going to do what we want to get
that pleasure. He argued that deterring punishments need to be certain, swift, and
proportionate to the committed crime. In addition, he argued that they need to be carried
out in public so that individuals were aware that ‘if you do x, y is going to happen’.
Bentham in an Introduction to Principles of Morals and Legislation in 1781, started to
develop the idea of rational choice theory. This used individuals as reasoning actors who will
consider the means, the ends, the costs, and the benefits of any given action and then will
make a rational choice as to whether they should proceed. The foundation of rational choice
theory is a behavioural choice. The idea is that we can all choose whether we act in a
particular way. A good example of this is speeding. If you’re late, you weigh between being
late and keeping within the law and speeding to get there on time. With thinking about
whether or not we’re going to commit that behaviour.
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• Strands of deterrence
i. Individual deterrence (Special deterrence)
This relates to a given individual. As a judge, you must consider what will deter an offender.
This can be tricky as the judge must know a lot about the individual – their criminal past,
sentences have and haven’t worked, predict the future in terms of trying to work out what is
going to prevent them from committing further crime. This focuses on the offender rather
than the offence. It means there can be great disparity (difference) in sentencing. If two
individuals have committed similar offences, if the sentencing system is not based on the
offences but rather on the offenders, one can be given a community order for 2 years
whereas the other can be given 2 years in custody, which is grossly disproportionate but that
needs to be done if deterrence is to be achieved. This is an issue with individual deterrence.
ii. General deterrence
This is when the sentence of an individual is used to tell or warn the public that if you
behave in a certain way, that’ll be the repercussions of your actions. When the courts look at
general deterrence, they use someone as an example. For instance: the 2011 riots in London
as a result of the police shooting of Mark Doughan brought about a lot of civil unrest. Other
people used this as an excuse to loot and break into shops. When these individuals came
before the court, the court was severe on their punishment. There was a 200% uplift on the
sentences that were being given because the courts refused to put up with such behaviour.
This is the difference between individual and general deterrence.
An argument for general deterrence, and to some extent individual deterrence is the
utilitarian theory. This is the idea that sacrificing one individual even though that individual
is incarcerated for a longer sentence than they normally should be, does not matter if the
greater good is occurring (the general public behaves). This is the justification for using the
more severe and exemplary sentencing.
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• Arguments for Deterrence
Proponents argue that it is only deterrence theory, which is compatible with the idea that
human beings can choose whether or not they perform a given action. There is an argument
that as human beings, we are calculated (risk calculators) as we continually assess whether
the benefits or rewards of any given behaviour outweigh the consequences. It’s a rational
choice theory – continually weighing up the benefit or the consequences of your action.
Benefits could be an economic gain or an emotional response to criminal behaviour. It could
be revenge or satisfaction. Consequences include punishment but also the cost of
committing the crime and the offender’s time. The idea is to ensure that the consequence is
worse than the benefit so someone can be deterred from committing that behaviour. The
consequence must outweigh the perceived benefit. If this is achieved, people are dissuaded
from committing criminal behaviour.
• Debates about the use of deterrence in sentencing
i. Practicalities
The theory requires knowledge of what level of punishment is going to deter that individual,
which is difficult to determine. There are different reasons why one may be deterred, and
this could have nothing to do with the punishment. It might be based on social stigma,
preventing the individual from getting the job that they want, or losing their home. It is
tricky to know how somebody is going to be prevented from committing a crime.
ii. Severity
Is it fair, or just, to use one individual as an example? Is it appropriate for someone to be
sentenced to 10 years instead of 4 for ‘the greater good’? Breaching their human rights just
to have an example to deter the masses.
b. Incapacitation
This is when an offender is physically restrained or prevented from offending. The most
common way that this is done in England and Wales is through imprisonment, although it
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