Retributive justice: can the punishment fit the crime?

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This assignment would be focused on the argument that “if the punishment does really fit the crime. This would be purely based on both chronological and the Criminal justice approaches to take on this question. For someone to be penalized for the crime committed, the jurors and the judges in the criminal justice system use decision making techniques in deciding which type of punishment the offender deserves and they contract into account of both mitigating and aggravating factors into consideration before awarding any punishment.

Jurors are set of panel committee who take on a key role in decision making when a judge is imposing sentence or punishment on an offender. The proportionality of the punishment will set how the strength of the decision making process. At times Jurors do hear the same evident frequently but do disagree on proper verdict. Moreover, pre-existing prejudices and attitude influence jurors` decision making which in turn affect the verdict.

Retributive Justice is a theory of justice that considers punishment, proportionate, to be responding to crime. If someone breaks or flouts the law of the land, the justice system in the society responds to the by forfeiting something in return. Retribution should be distinguished from vengeance. It is aimed only at wrongs, it has inherent limits, is not personal, involves no pleasure at the distress of others and employs procedural standards (Robert 1981). In ethics and law “allow the penalty suit the crime” is a rule of the aphorism that means the severity of penalties for a misdeed or wrongdoing should be sensible and harmonious to the harshness of the violation. The classical school proponent Jeremy Bentham asserted that punishment should fit the crime. Jeremy meant that the punishment should be proportionate to the crime. That is, mild penalties or, less serious crimes, with a gradual scale of punishment as the sincerity of the increased crime. Normally punishment fits the crime more than the criminal. Nations have a long list of minimum and maximum sentences for particular offenses. Inside this, there is a little leeway dependent upon the state of creative thinker of the criminals repeat offenses and what their motivation was.Penalty is the intentional and strategic infliction of suffering on an individual found guilty of a legal crime. According to Colette, a judge might, for example, try to find out whether a punishment is justifiable by considering the potential results of taking out the punishment, and whether such would create his greatest balance of happiness over unhappiness as compared with other available option (Corlett, 2008, p. 35).

The feeling of “penalty fits the offense” is globally debatable in a sense that there have been some major debates in critically analyzing that punishment or sentences awarded to criminals are proportionate. Whether the law says is proportionate, there is an ambiguity about his particular question. Sentences in legal terms refer to the method employed by the state to impose penalty on an offender who has been found guilty of a felonious crime. In that location would appear to be a universal human belief that society causes the right to react against those who transgress it behavioral borderlines. The “Common Sense” response seems to be castigated and punishment. Punishment, even so, has no rigid limits. According to Lacey (1988.15), she averred that “there is no one neat, polished final justification for penalty; there are only statements for and against it which apply differently not only within different political organizations but also according to the societal and economic conditions prevailing in different companies in which the institutions exist”. Punishment (sentences) has severe and far- reaching effects on offenders. The consequences of punishment may be direct, such as the loss of liberty, money or time or indirect consequences. The indirect consequences of punishment may be wide-ranging and last long after the infliction of official punishment has ended. A distinctive example is prisoners may lose their occupations and homes as a termination of their conviction and often do not get work when they give back to the residential district. As a upshot, they some justification that are in line with considering when imposing punishment into offenders.

There are two basic perspectives in punishment justification and these are Retributive and Utilitarian approaches which would be discussed in this essay to find out if there is any correlation between these two perspectives in identifying if the punishment does fit the offense. To set the appropriate penalty for a particular offender, the resulting sentences would likely vary widely. As Von Hirsch has taken down, ' Deciding how much to punish is an agonizing process in which conflicting aspirations compete. (Garland).

English philosophers John Stuart Mill and Jeremy Bentham asserted that utilitarianism is characterized as a quantitative and reductionist approach to moral philosophy. Utilitarianism perspective encompasses a number of justifications example is the 'deterrence' where people can be discouraged from committing an offense because of the results. People are deterred from action when they abstain from them because they dislike what they conceive to be the possible effects of those actions (Walker 1991:13). Ultimately, punishment is the process by which the state responds to those who are known to have broken the law. According to Ashworth (2002:1077) points out that when a court reaches a sentence, it authorizes the usage of state coercion against the individual for committing an offense. The form of punishment varies from country to country. In the United States, for instance, the range of punishments still includes capital punishment. In the United Kingdom, however, punishment generally falls into three classes namely, deprivation, restriction and lastly positive obligation.

Deprivationcan take the form of imprisonment,which deprives the offender of their liberty or a fine which deprives the offender of money.Restriction may involve curfew orders and the use of electronic ags and finally obligations may also mean that offenders have to perform unpaid work in the community.Whatever form of punishment takes,it involves an element of condemnation,labelling and censure and only a small proportion (about 2 per cent) of criminal acts actually result in a sentence being imposed (Ashworth,2002).

The other justification of punishment is the retributive.This approach differs from the Utilitarian perspective in that it is backward looking rather than direct considering the future good.According to retributive perspective ,punishment is a neutral and appropriate to response to crime.Reparation is a sub division in retribution of punishment which is increasingly important principle in sentencing.This involves the offender repairing the damage caused by the offender.The idea behind reparation is not only to redress the balance between the offender and the society,but also to make offenders aware of the harm they have caused and therefore, to acknowledge their law-breaking behavior (Casvadino and Digan,2002).

The criminal Justice Act (CJA1991) adopts six basic principles in punishing an offender and these principles determine the nature of the crime.Through punishment it is often hoped to achieve one or more sentencing aims,often described as theories of sentencing. Retribution ,incapacitation, rehabilitation, deterrence, denunciation and lastly restitution are the six principles the penal system uses in punishing an offeneder.The theories affect what the sentencer hopes to achieve by a sentence and what considerations should be taken into account.Thus if the aim is to rehabilitate,the needs of the offender must be considered.The rehabilitation aims to prevent further offending by reforming offenders characters,thus `curing` them of their criminal tendencies.If to protect the community through incapaciting dangeruous offenders,the risk of future danger must be calculated.This is done by simple restraint which renders the offender incapable of offending.If the aim is to deter,an evaluation of what will make an impact on those considering criminal act in the future must be made.If it is to denounce,the moral expectation of the community must be signalled and last if to seek retribution,the right balance must be found between the seriousness of an offence and the severity of sanction.

The retribution, who justifies punishment on the grounds of deserts,use the principle of proportionality to determine the amount of punishment.(Austin and Irwin) simply stated,this principle holds that the amount of punishment imposed on the offender should be equal to the amount of harm done by the offender. If the harm is great , the punishment should be severe; if the harm is minor, the punishment should be lenient. Disproportionate penalties or severe sentences for minor crimes or lenient sentences for serious crimes – are under served and as such they are unjustified.The theoretical justifications of punishment will answer differently the question of how much to punish.If judges are asked the question of how much to punish,each will be representing a different philosophy of punishment.

Punishment is often seen as desirable that should be concerned with justice for and fairness to individual offenders,as implied by the due process model.Thus if different sentences are given for similar offences to offenders with similar circumstances and background,they could be seen as unjust and unfair and this is known as sentencing disparity and is more likely to happen.According to Andrew Ashworth,the penal system can draw on any one any combination of the six theories to justify a decision. Between determination of guilt and decision on sentences,there are various stages to go through,including a hearing of the mitigating circumstances the defendant may wish to offer in an attempt to reduce the severity of the punishment.

The dilemas of sentencing policy are often popularly encapsulated as seeking a balance between the offender and the offence.Thus should punishment fit the crime or should the punishment fit the offender.Many discussions of the sentencing policy focuses on the individual offender or the individual offence as evident in the dessert approach.For punishment to be imposed on an offender,it is not surprising that a criminal justice system based on adversarial principles should produce a sentencing policy that geared towards the individual offence,ofender and the circumstatnces of the case.

There have been tendencies in considering fairness,therefore,current discussions focus on fairness to individual offenders and fairness in terms of the sentence being proportionate to the crime.In recent years,the balance has shifted with more weight being given to the seriousness of the offence and less to the needs and risks of individual offenders. For punishment to fit the crime involves some factors incorporated in the verdict by the jury`s decision process.The juror decision is the product of complex set of factors including at a minimum,the juror`s personal history,character,social background,attitude ,ideologies and values limits and proclivities of his or her cognitive process;the nature of evidence presented at trial and legal rules that are supposed to govern the ways in which the evidence is interpreted ,weighed and applied to the decision.

The question of if punishment do fit the crime is not a straight forward answer.The Criminal Justice Act 1991 (CJA 1991) set out to impose a coherent theoretical approaches to punish an offender.The implications of this Act,along with other legislation are considered when examining the types of sentence available to the courts and the criteria and the procedures for their imposition.There have been an overt and other less obvious influences on sentencing decisions that is punishing someone.Some of these considerations have caused concern on the grounds of bias or inconsistencies.

Punishment do not fit the crime simply because there are disparities and discrimination in the criminal justice system when it comes to sentences.Sentence disparity is a situation in which similar offenders are treated differently or different offenders are treated the same as overly simplistic.There are actually different types of sentencing disparities and not all of the sentencing disparities are equally problematic.These disparities are ;Inter-jurisdictional disparity,Intra-juridictional disparity and the last is the Intra-judge disparity.

Inter-Judictional differences occur when the sentencing patterns of judges in different jurisdiction vary.They come about because certain categories of crimes are viewed as more serious and certain types of offenders are perceived as more dangerous in some jurisdiction than in others.For example offenders convicted of serious felonies may be sentenced more leniently in large urban court systems,which routinely try such crimes than in rural areas,where misdemeanors and less serious felonies dominate court dockets.Similarly,offenders convicted of selling drugs may be sentenced more harshly in cities plagued by drug use and drug-related violent crimes than cities in which drug abuse is less problematic.The geographical variations in sentence outcomes signal inter-juridictional disparity.Evidence of Inter-juridictional sentencing disparity is found in studies that compare the sentences imposed by judges serving different communities within a single state.Ulmer,for example,compared the sentencing decisions of judges in three Pennsylvania countries.He found out that despite the existence of state-wide sentencing guidelines,the sentences imposed by judges in the three counties varied.

The second facet of disparity is the intra-jurisdictional disparity. The sentences imposed by judges in the same jurisdiction may also vary. Judges in a particular jurisdiction may also have differing perceptions of crime seriousness or may give greater or lesser weight to legally relevant factors,such as the seriousness of the crime and the offender`s prior criminal record.

The third type of of disparity is the intra-judge disparity.This type of disparity occurs when an individual judge makes inconsistent sentencing decisions.The judge in other words,imposes different sentences on equally culpable offenders whose crimes are indistinguishable.Although these sentence variations might be attributable to subtle,and thus not easily observed or measured,differences in crime seriousness and offender blameworthiness, they might also be due to idiosyncratic behavior on the part of the judge.Sentences might vary from case to case depending judges mood;evaluation of the defendant`s character,attitude or demeanor,or feelings about the attorney who representing the defendant.

Apart from these disparities,that have an impact on punishing an offender,there is another factor which comes into play and this is “Discrimination”.Like disparity,discrimination can take a number of forms.Walker and his colleagues suggested that discrimination falls along a continuum that ranges from “pure justice” to systematic discrimination.An example of systematic discrimination would be the treatment of blacks by the criminal justice system during the era of slavely.Another example would be the use of death penalty for the crime of rape:405 out of the 453 men were executed for the crime of rape in the United States from 1930 through 1976 were black.There are two forms of discrimination are being practice in the criminal justice system and these are the direct discrimination where it refers to a situation in which race,ethnicity or gender affects sentence severity after all legally relevant case and offender characteristics are taken into consideration.The other form which is subtle discrimination refers to what researchers characterise of indirect or interaction effects.There is evidence that judge's assessment of blameworthiness and generous are affected by the offender`s race/ethnicity as well as the offender`s gender.There is compelling evidence of gender disparity in sentencing.Women re substantially less likely than men to be sentenced to prison ,women who are incarcerated receive significantly shorter prison terms than men.

To conclude,there is nothing like punishment fit the crime per se.There criminal justice system considers so many factors before imposing punishment to the offender.It considers range of factors for example if the offender has not got any criminal record,the judge might be lenient to punish the offender leniently base on the judge`s discretion regardless of the crime except murder which involves life sentence mandatory when charged guilty.Discrimination and disparity have an impact for punishment to be proportional.Some judges do discriminate example people from minor ethnic community might receive harsher punishment than those of the majority.The criminal justice system is bias and unjust.They system treats people differently and some people are punished based on the offender`s character rather than the offence itself and such act of punishment does not fit the crime