6. Basic concepts of penology (2016)Apunte Inglés
Apunts de l'assignatura criminological language, de primer de criminologia a la UAB amb la professora Bettina Steible, de l'any 2016
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1º Criminologia UAB
TEMA 6: BASIC CONCEPTS OF
What is penology?
Penology is the science of the origin and development of punishment, its significance and utility.
- Focus on the justifications, characteristics and effectiveness of penal institutions.
- Daily lives and culture of prisoners and staff, and some of the inherent dangers of confinement.
- Some even advocate for the end of the use of imprisonment.
Studying the way a society punishes the offenders, we can get an idea about how’s the society.
If penology is the science of punishment, what is punishment? What is punishment? “The legal process whereby violators of criminal law are condemned and sanctioned in accordance with specified legal categories and procedures” (Garband 1990) Components - Censure: expression of disapproval as a society - Sanction: supposed to produce some pain, which has different forms.
We rely on the criminal law.
It must be based on the law and must be imposed by the state.
Capital punishment in the world The capital punishment is the death penalty. Capital punishment in the world: - There are countries where it is abolished for all crimes, such as Canada, Australia, Argentina, Spain and most countries in Europe except from Belarus.
1 Criminological language - 1º Criminologia UAB In other countries such as Brazil, Kazajstan, Chile, Bolivia, or Peru, death penalty is abolished for all crimes not committed in exceptional circumstances, such as crimes committed in the time of war.
- There are countries where the capital punishment is a legal form of punishment, but it has not been used in the last 10 years or has a moratorium effect. Some of these countries are Argelia, Marruecos, Cuba or Guatemala.
- Finally, there are other countries such as United States, China, Arabia Saudi or Libya where death penalty is a legal form of punishment for certain offences.
Why should offenders be punished? Depending on the sentence that we choose there is probably a philosophy that underlines it.
What do we think it is the objective of punishment? What do we want to achieve? Why do we think should offenders be punished? - Discourage people from offending? - Make amends for what they have done? - Protect us from those who are dangerous? - Reinforce social values and bonds? - Punishment ensures that people understand that laws exist to be obeyed? - Simply because they deserve to be punished? Aims of sentencing Retributivism Consequentialism - Desert theories - Utilitarianism - Deterrence - Rehabilitation - Incapacitation In Retributivism we punish people depending on what they have done in the past, while in consequentialism we look forward to what we want to achieve in the future (teleological theories).
2 Criminological language 1º Criminologia UAB 6.2: CONSEQUENTIALISM It justifies punishment on the basis of what it will achieve in the future.
Utilitarianism We have a punishment and we want it to be useful, and even though we know that it will inflict some kind of pain, the use of punishment is greater than the pain.
Prevention or reduction of future offending.
Deterrence Prevent criminal activity through the development and application of effective and efficient sanctions. There are two types: General deterrence “The punishment suffered by the offender presents to everyone an example of what he himself will have to suffer, if he is guilty of the same offence” – Bentham.
General aim of imposing punishment so as to deter other potential offenders.
Notions of certainty and severity of punishment appear.
Severity: how hard the punishment is.
Certainty: how likely is the punishment to occur.
There’s a shift from severity to certainty of punishment, it is more important the likeliness than the hardness of it.
Personal deterrence General aim of deterring those who have already offended from doing so again.
- Example: “Three strikes and you’re out” sentences that were introduced in America in the 1990’s”.
What critics can be made to this approach Von Hirsch et al. 1999: - How do we prove that this system work? How does one decide how severe punishment has to be in order to make people decide not to commit offences? Is the same level of severity appropriate for everyone? Are all offences rationally assessed? How about those offences where there is a significant degree of emotion? 3 Criminological language 1º Criminologia UAB Is it the case that everyone will actually know about punishments that have been imposed? Evidence of a link between the certainty of punishment and crime rates, but considerably weaker evidence of a link between the severity of sentences and crime rates.
Rehabilitation Crime is best prevented by addressing directly the factors – economic, social or personal – believed to be the cause of crime. Focus on the causes of crime.
“At its height, punishment was recast as a means of restoring the offender to good citizenship through programs of training, treatment, counseling, psychotherapy, drug and even shock treatment” (Zedner 2004) The person who commits crime does it because he or she has a problem, and if we fix it, the person will become a law abiding citizen.
What critics can be made to this approach? - Overly determined view of behavior.
- Too little on the ability of individuals to make decisions and choices.
- Conflict with the idea of a right not to be punished disproportionately.
Focus on the diagnosis, treatment and completion of accredited programs instead.
Incapacitation “If general deterrence and individual rehabilitation are difficult to achieve, it perhaps deems a plausible goal to protect potential victims from further crime by known offenders through physical incapacitation, either by rendering criminals physically harmless, or by remaining them from circulation”. Hudson 2003 - The state has a duty to protect, and if it cannot do it incapacitation.
There are different forms: Death penalty, prison, etc.
4 Criminological language 1º Criminologia UAB 6.3: RETRIBUTIVISM Backward looking Imposition of punishment in response to actions already undertaken.
- “Lex talionis” an eye for an eye, a tooth for a tooth, a life for a life.
This sort of equivalence does not help in relation to the appropriate punishment for offences like fraud, or blackmail.
- Deontological theory: The punishment is like the payment of a debt.
Justification for punishment The offender deserves it. The punishment is not a means to an end, but an end itself (Kant).
We impose punishment because it is the right thing to do, but if it has other consequences it does not really matter.
“Just desert” Just desert is the condition of deserving something, either bad or good.
- In reaction to the alleged excesses and failures of rehabilitation. (70s) - Von Hirsch: punishment is justified as the normally appropriate response to crime: those who culpably commit offences deserve censure.
Censure = “bad treatment” which makes the offender take the censure seriously.
Proportionality of the amount of “hard treatment”.
Proportionality Key concept in desert theory: to make punishment certain, consistent and fair.
- Cardinal proportionality: Magnitude, variation on the offence. The penalty must fit the gravity of the conduct.
- Ordinal proportionality: Ranking of the relative seriousness of different offences, create a scale of values.
What critics can be made to this approach? - Vengence? - No positive good is achieved - How do we determine proportionality? - Tariff system leaves little discretion to all for mitigating factors.