The examination and understanding of contemporary criminal justice goals of sentencing is extremely important if scholars are to recognize the every-changing views of crime and punishment. It is common knowledge that crime has always existed as well as the need to punish criminals. While the standards of punishment and sentencing have changed from banishment and fines to torture and blood feuds (Senna & Siegel, 2005), it is apparent by examining the goals of sentencing that the contemporary system of punishment is due in part to the formation of Common Law. Examination of the goals of sentencing reveals that there has been an obvious shift from the once acceptable physical punishment towards more humane sentencing options such as imprisonment, probation, parole, intermediate sanctions, indeterminate sentencing, determinate sentencing and the death penalty.
Keywords: Goals of Sentencing, Sentencing Options, Concepts of Sentences
In order to research the goals of sentencing, it is apparent that scholars must have access to a vast quantity of resources which are reliable as well as accessible. It is also important that a variety of research be examined which at a minimum should include retribution, incapacitation, deterrence (general and specific), rehabilitation and restoration, as well as the existence of imprisonment, probation, parole, intermediate sanctions, indeterminate sentencing, determinate sentencing and the death penalty.
While today there are numerous goals and options available that the contemporary criminal justice system focuses on in regards to imposing punishments and sentences, it is obvious that the goals of sentencing have changed from punishments that were once geared toward satisfying the victim, to broader aspects which more recently have been found to focus on reducing recidivism. It is important to note that by examining and researching the various options available today in regards to sentencing, it becomes apparent that there is no longer a set of policies or straight forward sentencing, and what was once a standard punishment for a particular crime is now being replaced by individualized approaches.
Throughout researching the criminal justice curriculum, scholars are recommended to reference and examine the importance of the goals of sentencing which include retribution, incapacitation, deterrence (general and specific), rehabilitation, restoration, imprisonment, probation, parole, intermediate sanctions, indeterminate sentencing, determinate sentencing and the death penalty.
While punishment refers to a negative response that is imposed on an individual due to committing an act that has been established by society as being inappropriate (Hugo, 2010), retribution, which is often referred to as a justification for punishment, involves the offender "getting what they deserve". Retribution is often viewed as the practice of an eye-for-an-eye; thus a murderer being put to death for the crime of murder would be considered retribution.
Incapacitation refers to the idea that if offenders are incarcerated, additional crimes are prevented thus the perception is that prisons contribute to the solution of crime prevention. Research conducted by Hemmens, Kifer, & Stohr (2003) supports this theory with findings that suggest that jail and prison staffs are more likely to recognize the goal of corrections as being incapacitation.
The focus on deterrence is divided into two categories which are general deterrence and specific deterrence. While general deterrence focuses on preventing the crime before it happens, specific deterrence focuses on how to reduce recidivism. While examining the two concepts of deterrence, Siegel (1992) discusses the importance of understanding the process that occurs prior to an individual choosing to commit a crime by stating "before choosing to commit a crime, the reasoning criminal evaluates the risk of apprehension, the seriousness of the expected punishment, the value of the criminal enterprise, and his or her immediate need for criminal gain" (Siegel, 1992, p. 131).
Rehabilitation refers to the thought that offenders have underlying reasons for committing the crime and thus the chance of recidivism can be reduced if the offender is afforded the opportunity to have various types of rehabilitation including cognitive and rationale therapy, individual counseling and substance abuse groups. Gadek (2008-2010) discusses rehabilitation versus punishment and notes the cost effectiveness of rehabilitation versus strictly incarceration.
Restorative justice is an approach that is based around the belief that offenders should be forced to take responsibility and show accountability for their actions, and the victim as well as the community affected, are paid back to some degree by offenders performing community service or paying restitution. Zehr (2002) discusses that restorative justice takes into consideration not only the victim, but considers what needs the victim and offender has and whose obligation it is to meet the identified needs.
In researching the goals of sentencing, it is apparent that in contrast to the structure of the criminal justice system of twenty years ago, contemporary criminal justice systems have no standard approach. Although contemporary criminal justice policies are still referred to as tough-on-crime policies, most jurisdictions are now focusing on individualized programs. It is evident that there is no one single approach to sentencing an offender; yet in order to understand the fundamentals of crime and punishment, the goals of sentencing which are retribution, incapacitation, deterrence, rehabilitation and restoration must be examined.
The principle that is commonly used to describe the ethics of law is that the punishment should fit the crime. Individuals who agree with this theory are increasingly in favor of retributive justice, which includes punishments such as an eye-for-an-eye and a hand-for-an-hand. According to Cavadino & Dignan (1997), advocates who support retributive justice advocate that punishment is strictly utilized to punish offenders according to the severity of the crime committed. Maiese (2004) advocates that "retributive justice is a matter of giving those who violate human rights law and commit crimes against humanity their "just deserts" (p. 2).
While retributive justice serves to demand that the punishment fit the crime, research suggest that there are negative sides to enforcing the idea of retributive justice. Maiese (2004) discusses that when punishment is solely based on the degree of the crime committed, it is easy to place emphasis on revenge versus retributive justice. Maiese (2004) states "like retribution, revenge is a response to wrongs committed against innocent victims and reflects the proportionality of the scales of justice" (p. 2). While there are those that support harsh punishments against offenders, there are viable and effective alternatives to retributive justice such as restorative justice and psychiatric imprisonment.
Restorative justice has become increasingly more popular as this theory focuses not only on the offender, but includes the victim and the communities that were impacted by the crime committed. Restorative justice places the responsibility on the offender to acknowledge how the crime affected the victim as well the community. It is important to note, that research has suggested that restorative justice is more commonly utilized with property offenses as well as civil and criminal offenses and has been considered ineffective and inappropriate to use with those convicted of drug offenses, domestic violence and sexual assault ( ). In contrast, restorative justice is the opposite of retributive justice in that "restorative justice, therefore, advocates restitution to the victim by the offender rather than retribution by the state against the offender" (Maiese, 2004, p.1).
Restorative justice is achieved by including the offender, victims and the community. This is beneficial in that this process involves all of the individuals who were affected by the crime committed. Examples of restorative justice would include crime victim awareness education for the offender and the offender being held responsible for paying restitution and performing community service. Hayes (2005) notes that another goal and objective of restorative justice is decreasing recidivism. Although there are those such as Beven (2005) that argue that restorative justice has no significance as related to recidivism, Hayes (2005) advocates that restorative justice not only can prevent recidivism but it can deter other potential criminals.
In examining deterrence, there are two main ideas that encompass the theories of how to decrease recidivism as well as how to prevent crime altogether. The concepts are general deterrence and specific deterrence. While the general deterrence theory advocates that individuals will commit crimes when there is no fear of punishment, specific deterrence focuses on punishing offenders in order to prevent them from violating the laws that were broken. It is important to note that it is the theory of specific deterrence that utilizes negative sanctions in order to prevent further acts of crime.
In researching the various theories of deterrence, the question arises as to whether general deterrence is effective considering that this theories focus is based on an individual's ability to determine whether or not apprehension is a certainty? According to Keel (2005), research as related to capital punishment indicated that the general deterrence theory is not effective.
Keel (2005) further notes that there is minimum relevance when considering capital offenses in the states which utilize the death penalty. This noted ineffectiveness in regards to the theories of deterrence also raises the question as to whether incapacitation is an appropriate sentencing option.
Incapacitation focuses on the belief that in order to ensure public safety, that it is acceptable and appropriate to incarcerate an individual not necessarily for what they have done, but in order to prevent that individual from committing a crime. It is apparent that incapacitation depends solely on the abilities of the Judge, prosecuting attorney, public defenders as well as local community correction programs to have the skills and education to identify those individuals that have the potential to re-offend. When examining the various forms of sentencing that are currently utilized in contemporary criminal justice systems, home confinement, drug court, day reporting centers and incarceration would all appear to provide a form of incapacitating effect, while sentencing an offender to unsupervised probation, unsupervised home confinement or simply sentencing the offender to pay a fine would not exhibit an incapacitating effect. It is obvious that the ultimate and permanent form of incapacitating an offender would be sentencing an individual to the death penalty. While ultimately the goal of sentencing is to provide public safety and to reduce recidivism, the question arises as to whether it would be more cost effective to incapacitate only those offenders who have committed violent crimes and who have increased risk factors that would that would lead one to believe that the offender was capable of committing dangerous crimes. With the importance that is currently being placed on the prison overcrowding, it is sensible to advocate that more offenders should be placed into home confinement or community correction programs which have the resources to offer intense supervision, in order to utilize the prisons that are available for strictly the goal of incapacitation.
Rehabilitation versus punishment is a strong consideration when researching the goals of sentencing. While deterrence and a decrease in recidivism are the components that each community strives to meet, each society has a responsibility to consider rehabilitation when enforcing sentencing.
Rehabilitation allows an offender the opportunity to become educated about their behavior and affords the offender the chance for change. Although rehabilitation is most commonly utilized with juvenile offenders, it is important to note that rehabilitation has been shown to be effective with the adult offender population when you examine the results that the community correction programs are reporting over the last few years. Incarceration does not offer programs or have a process in which rehabilitation can be offered to offenders and the cost of incarceration far exceeds the costs associated with rehabilitation. Rehabilitation also clearly satisfies the goals of restorative sentencing in that the majority of community correction based programs that exist today have requirements that participants pay their restitution and perform set hours of community service in the community that was offended. It should also be noted that crime victim awareness programs are becoming increasingly popular in community programs today which educate offenders on how their actions not only affect them, but how the same actions affected the victim and their families.
The goals of sentencing are important and necessary if society is to maintain order and stability. While contemporary criminal justice systems remain influenced by politics, research supports the theory that increasing the number of offenders that are incarcerated may in fact look like a community is getting tough on crime, but the underlying issue is that this method does nothing for decreasing recidivism; thus in effect, as long as society views incarceration as the choice for punishment, societies will continue to contribute to the increasingly high prison cost as well as contributing negatively to recidivism rates.
There are numerous sentencing options available today that clearly satisfy incapacitation, deterrence, retribution, rehabilitation and restoration. Probation, parole, home confinement, day reporting centers, and drug court are all viable options for offenders who are non-violent and pose no danger to society. Rehabilitation offers not only a way to satisfy deterrence, restoration and retribution but it can also contribute to incapacitation in that offenders can be court ordered to locked down psychiatric prisons and rehabilitation centers. It is my belief that there is a need for guidelines in regards to maintaining a consistency between the crime committed and the punishment; yet if it stands true that society is a product of individuals, then society must embrace the effort that the focus can no longer be placed on incarceration but on alternative programs and alternative sentencing in order that the needs of the offenders can be met which in turn allows society to place a positive emphasis on deterrence as well as recidivism.