“Punishment is the last and least effective instrument in the hands of the legislator for the prevention of crime”
Law enforcement serves two main purposes: (i) to punish wrongdoers; and (ii) to deter would-be wrongdoers from committing crimes as they stand a risk of being apprehended and punished (Foucault 2012). Laws that promote various forms of sanctions for criminal offences (for example, probation, imprisonment, and fines) act as a warning to criminals and would-be criminals that they will be faced with sanctions if caught (Lacey & Pickard 2015; Travis et al. 2010). Specific policies implemented by the criminal justice system such as increased surveillance of and enforcement of crime “hot spots”, police “crackdowns”, “three-strikes” laws, and mandatory minimum sentences, among others, are all implemented in the hope of bringing down the rate of crime by way of deterring would-be offenders and offenders (Roberts & Hough 2013). This is a clear indication that punishment as a means of deterring crime is a key focus for the criminal justice system. Despite this vital significance, and the high expectation that criminal justice policies such as legal punishment can help to inhibit crime (Nagin, Cullen & Jonson 2009), there appears to be limited credible and solid empirical evidence to support the claim that criminal sanctions act as deterrence to crime.
Two of the most widely practiced means of preventing crime are deterrence and incapacitation. Deterrence involves issuing threats of punishment to wrongdoers to prevent crime, while incapacitation involves rendering the criminals unable to commit crimes through incarceration. Certainly, there appears to be an emphasis on the use of these strategies as a means of preventing crime. It is important to draw a clear distinction between incapacitation and deterrence. Individuals who have been incarcerated have also been incapacitated meaning that they cannot commit additional crimes (Lacey 2011). On the other hand incarceration may acts as deterrence to crime by instilling fear of being incarcerated in someone, thus refraining from committing future crimes. However, according to Nagin (2013), argues that it is not an effective strategy to deter crime by incarcerating a person who is guilty of having committed a crime. Additionally, Nagin (2013) notes that there is limited benefit to be gained by increasing the severity of crime as a means of crime deterrence. These assertions are a clear indication of the complex nature of issues of deterrence and punishment.
One way of punishing those who commit crime is by incarcerating them. However, Nagin (2013) reports that this is a very ineffective means of deterring crime. This is because while prisons act as a notable alternative for punishing and incapacitating individuals who commit crimes, this is not a very effective form of deterring crime. There is ample evidence in existing literature to show that people are not deterring form committing future crimes by the prospect of long prison sentences if caught. While short sentences have been shown to somewhat deter crime, on the other hand, prolonging lengthy sentences only yield modest deterrent effect. Mulvey (2011) opines that between 2 and 5 percent of individual who commit crimes account for more than 50 percent of the crimes. It appears therefore that an effective strategy would be to incarcerate these individuals early in their criminal careers. However, Nagin (2013) notes that the problem here is that the criminal justice system is not able to identity who these individuals are. While there have been attempts to indentify young individuals who are at risk of offending, the manner in which this is done is at the very least, ineffective. Another issue worth of consideration is that persons at a higher risk of offending could already have been incarcerated based on the fact that they are more predisposed to apprehension in comparison with persons who offend less frequently.
Another issue worth of consideration is that while it would be expected that increasing the severity of punishment would help to deter crime (Duff 2013), this is not the case. Several hypotheses have been provided to explain this relationship. The first explanation holds that severe punishments fail to “chasten” persons convicted of crimes. Some practitioners and policymakers are of the opinion that when the severity of the prisons experience has been enhanced, this in turn increases the “chastening” effect. Accordingly, persons convicted of having committed an offence have a reduced probability of committing future crimes. On the contrary, scientists have failed to establish any evidence regarding the chastening effect. Research findings also show that being incarcerated may actually exacerbate recidivism, as opposed to reducing it. According to Nagin (2013), prisons may act as an environment where individual learn to commit crimes. For example, a review published by Nagin, Cullen and Jonson (2009) sought to assess the impact of imprisonment on reoffending.
Based on the findings of this review, the researchers arrived at a conclusion that in comparison with non-custodial sanctions, “incarceration has a null or mildly criminogenic impact on future criminal involvement” (Rosenfeld, Quinet & Garcia 2011, p. 309). In addition, the possibility that a would-be offender or offender will get caught and punished for crimes committed, is probably a far ore effective means of deterring crime that the severity of punishment. In this case, severity is used in references to the duration of a sentence. Studies reveals that for majority of the people convicted of a crime, they are more likely to be deterred by a short to moderate prison sentence.
On the other hand, prolonged prison sentences have been shown to only yield limited deterrent effect. Accordingly, certainty or the possibility that a wrongdoer will be caught and apprehended is a more effective means of deterring crime than severity (Stohr, Walsh & Hemmens 2012). What this appears to suggest is that effective policing that results in prompt and indisputable sanctions acts as effective crime deterrence as opposed to the threat of being incarcerated. At the same time, there is limited evidence to support the claim that as the deterrent effect increases, there is also a resultant rise in the possibility of conviction.
Sampson, Laub and Eggleston (2004) have identified an individual's age as a powerful determinant in crime deterrence. Even persons with the highest risk of committing crimes have been shown to experience a slowdown in their criminal behaviour as they get older, usually at around the age of 35. While imposing a lengthy prison sentence to such individuals will fulfil the objective of incapacitation and punishment, in this case, incapacitation would be a costly means of crime deterrence for this aging population given that their probability of committing more crime in future is bound to decline on account of their age.
As noted earlier, a key cost of committing crime is the likelihood that one will face legal sanctions for their actions, such as being apprehended, being convicted, and punished (for example, being put on probation, serving jail term, or even the death sentence, depending on the severity of the crime). A key assumption held by deterrence theorists is that by punishing wrongdoers, the criminal justice system is in effect increasing the cost of committing a crime, and hence the likelihood of inhibiting crime rates (Stohr et al. 2012. Notably, three elements of legal punishment are crucial to this cost of crime: (i) certainty; (ii) celerity and (iii) severity of punishment. Holding all other things constant, a legal punishment tends to be more costly in case where more severe, swift, and certain. By swift, we mean that the offender is punished as soon as they offend (Raphael 2009).
Essentially, the criminal justice system hinges partly on the anticipation that having in place conscientiously sanctioned laws and suitable penalties that can be implemented with logical swiftness shall reduce crime levels by deterring would-be offenders and offenders from partaking in new criminal activities through punishment. As such, the severity, swiftness and certainty with which a jurisdiction responds to crime underline the objective elements of punishment (Piquero 2015). For instance, a legal jurisdiction may decide to increase the number of law enforcement officers on its streets in the hope of reducing crime. This will in turn enhance the certainty that an offender shall be caught committing crime. In this case, the objective certainty of punishment is enhanced by increasing the law enforcement officers on the street. In the same way, a jurisdiction may try to minimise crime by increasing the punishment or penalty for a certain act of crime with no impact on its certainty. For instance, thus far, various states have passed various felony forearm legislations that in effect increases the severity that an offender caught using or threatening to use a firearm while committing a crime shall be met with severe punishment (Pratt & Eriksson 2013).
These kinds of laws are aimed at increasing the cost of crime. They are also aimed at deterring people who might be inclined to commit crimes from using guns. Duff (2013) is of the view that the goal of punishment is to suppress crimes by enhancing the manner in which the would-be offenders perceive the severity, celerity and certainly of punishments for crimes. What this means is that legislators develop and change the prime objectives of punishment in the hope that this will in turn impact on the perceptual elements of punishment. In this case, the perceptual elements of punishment refer to the elements that would-be offenders and offenders in a certain jurisdiction believe exist within such a jurisdiction (Stohr et al. 2012). In the same way, a state could pass felony firearm legislation, thereby increasing the penalty subjected to offenders who commit a crime using a firearm, in the hope of minimising the levels of such crimes. By passing such a law, the state hopes that the public shall acknowledges the increased punishment that the legislation inflicts on offenders, thus deterring even would-be offenders from committing crime.
Deterrence theorists report that the perceptual (subjective) and objective elements of punishment share a strong and positive relationship. However, this relationship tends to be empirical not to mention that the subjective elements of punishment are prone to other aspects besides the objective elements of punishment. However, the nature and magnitude of the link between perceptual and objective elements of punishment is crucial for public policy and deterrence theory (Wilson 2013). Fundamentally, thus, both the perceptual and objective properties of punishment add a social psychological element to the deterrence theory.
There are various ways of avoiding crime without having to resort to punishment, including education, persuasion, and 'situation crime prevention', amongst others, all of which seek to remove the occasions and causes of crime. While it is easy to advocate for those forms of measures, in order to provide a rationale for a system of punishment based on these measures, it is important to demonstrate how these would make an efficient and unique contributions to crime prevention (Stohr et al. 2012). To begin with deterrence seeks to dissuade potential offenders in a prudential and rational manner. By rational, we mean that deterrence endeavours to persuade potential offenders to desist from crime. It is also prudential as it appeals to the self-interest of potential offenders thus persuading them to avoid the likely pains that would accompany punishment for crimes committed.
Determining the efficiency and effectiveness of any deterrent system is a tall order, not least because its efficacy is reliant on the perceived possibility that the offender will be detected and convicted, not to mention the severity of sanctions that accompanies crime committed is also another determining factor. Nonetheless, a deterrent system will obviously deter certain potential offenders from committing certain offences (Ashworth 2015), and this is a clear indication that deterrence punishment acts to prevent crime.
In addition, potential offenders can be incapacitated through punishment. Incapacitation involves doing something to an individual thus rendering it impossible that he will act in a certain manner. Potential offenders can be incapacitated by for example incarcerating them or killing them, in effect ensuring that they do not commit crimes. Some forms of incapacitation are temporary while others are permanent. For example, penal incapacitation tends to be temporary and partial. On the other hand, capital punishment is a permanent and complete incapacitation that ensures that the individual executed cannot commit any more crimes in future (Duff 2013). However, a person who has been incarcerated for a certain offence could still commit other offences against his fellow inmates. There is also the possibility that they would commit future crimes once released, unless they are serving a life sentence.
While incapacitation provides apparent consequentialist motive for imprisonment and capital punishment, it is doubtful as a key objective of our current penal system considering that only a handful of their punishments are actually incapacitative. The most important thing, however is to ensure that there is an overall decline in the number of crimes committed (Roberts & Hough 2013). As such, there can be no hope in preventing crime efficiently by incarcerating for examples burglars and drug dealers if other burglars and drug dealers will replace those imprisoned on the streets.
Punishment can also help to rehabilitate or reform potential offenders. A consequentiality reform process identifies strategies to change people's motives and dispositions so that they can desist from partaking in criminal activities in future on their own volition, as opposed to having to refrain from crime reluctantly out of fear of possible punishment, as often happens with deterrence. Put in another way, rehabilitation or reform could seek to induce in potential offenders a “a positive respect for the law or a motivationally efficacious recognition that crime is wrong-rather than, for instance, persuading people that it is in their long-term interest to be law-abiding” (Duff 2003, p. 5). Reform could also endeavour to improve offenders in a general manner in other ways besides having them refrain from crime, such as by improving enabling them to make a near perfect adjustment and by improving their personality.
Rehabilitation entails an attempt to improve people's capacities, opportunities, and skills, as opposed to reforming their motives or dispositions-by subjecting offenders to training opportunities in order to equip them with valuable skills so that they can seek gainful employment for example, or enrolling them into programs that will enable them to deal with various problems that they could be facing, such as drug addiction. In this case, the objective is merely to assist individuals desist from crime, or put in another way, improve their lives. The rehabilitative model gained popularity in the 1960s and 1970s and often views society as the basis for criminality. Based on the rehabilitative model, crime is largely viewed as a by-product of social factors (Weisburd, Farrington & Gill 2016). Consequnelty, certain societal forces such as racial discrimination, poverty and unemployment deter mien criminal behaviour. Accordingly, the goal of the criminal justice system is to eliminate or mitigate these harmful forces. Since the rehabilitative model views structural defects in society as the causes of crime, accordingly, criminals need to undergo rehabilitation, as opposed to being punished. This appears to be the basis of John Ruskin's statement that punishment ought to be considered the last option in crime prevention.
Punishment could also prevent crime through other means as well. For example for example, punishment might be designed in such a manner as to shame offenders to such an extent that they desist from committing future crimes (Wesiburd et al. 2016). Alternatively, offender punishment could assist offenders to demonstrate a trust in and respect for the law.
While punishment obviously has its benefits in the criminal justice system, it also has various limitations that render it an ineffective means of preventing crime. If at all punishment is to work, it ought to be predictable. In order for punishment to work, it needs to be applied at its maximum intensity, lest temporary effect and tolerance should ensue. However, intense application of punishment for most of the offences often contravenes our senses of fairness and justice. Being threatened with possible punishment, regardless of its severity, is less likely to deter an individual who is convinced that he could get away with his actions. A severe punishment is also least likely to deter an individual so overcome by disordered thinking or emotion as to have regard for the likely implications of their behaviour (Vermeulen & De Wree 2014). It is also important to ensure that punishment occurs immediately. This is because delays in punishment give a chance for the reinforcement of other behaviours. It usually takes months, sometimes years, for an offender to be apprehended, to appear in court, and be incarcerated.
No justice system can fulfil all the conditions necessary in order to ensure effective punishment. For this reason, programmes and policies whose goal is to rehabilitate the offender have a higher probability of success in not only preventing crime, but also improving community safety. Lately, proponents of the rehabilitative model seem to have assumed the utilitarian view that crime rates can be successfully reduced by implementing correctional treatment programs. Based on this perspective, supporters of this rehabilitation model opine that it is no longer necessary to institute lengthy prison sentences as a means of reducing crime. On the other hand, even though rehabilitation is essential in punishing criminals, it should not be implemented at the expense of other forms of preventing crime namely, deterrence and incapacitation. There is the risk that a criminal justice system that depends too much on the rehabilitation perspective would result in marked inconsistencies in terms of sentencing offenders who have committed related crime on the basis of the apprehended rehabilitative function of an individual offender. As such, there is the risk that “two persons who have committed precisely the same crime under the precisely the same circumstances might receive very different sentences, thereby violating the offenders’ and our sense of justice.” (Wilson 2013, p. 151).
In sum, the criminal justice system relies heavily on deterrence and incapacitation as forms of punishment to wrongdoers. However, incapacitation of wrongdoers such as by having them incarcerated for lengthy prison terms does not always lead to crime reduction, and neither does crime deterrence. Accordingly, more focus should be on how to reform offenders and would-be offender so that they no longer have an incentive to commit crimes in future. In this case, the rehabilitation model has been shown to reduce crime rates and is hence an essential tool for punishing criminal. However, its implementation should not come at the expense of deterrence and incapacitation but should instead help to complement these strategies.
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