22 July 2013 Written by  Dejene Girma and Mekonnen Feleke

Theories of Sentencing

Although punishment has been a crucial feature of every legal system, a widespread disagreement exists over the moral principles that can justify its imposition.

One fundamental question is why and whether the social institution of punishment is warranted.  The second question concerns the necessary conditions for punishment in particular cases. The third relates to the degree of severity that is appropriate for particular offenses and offenders.

Since punishment involves pain or deprivation that people wish to avoid, its intentional imposition by the state requires justification. The difficulties of justification cannot be avoided by the view that punishment is an inevitable adjunct of a system of criminal law.

The question: "what are the rationales behind punishment?’’ remains unanswered.  This question will soon take us to the theories of punishment. Generally, punishment contributes to the preservation of public order through inflicting the wrong doer who is expected to behave in the future to become a good citizen and to inspire fear in any one "who witness the punishment of wrong doer, and to make them prudent."  This is the primary rational of punishment. 

There are theories of punishment of which the following are generally been regarded as the most important

Retribution

It is the oldest of the rationales for punishment tracing its root to the Bible.  For instance Leviticus 24:17-22 reads:

" when one man strikes another and kills him ,he shall be put to death … when one injures and disfigures his fellow country man, it shall be done to him as he has done; fracture for fracture, eye for eye, tooth for tooth."

Retribution is often assimilated to revenge, but a public rather than a private one.  Retribution is based on the principle that people who commit crimes deserve punishment.  In that sense, the theory is backward looking: the justification for punishment is found in the prior wrong doing.

Retribution theory punishes the offenders because they are deserving of punishment. It says to the offenders: "you have caused harm to society; now you must pay back society for that harm. You must atone for your misdeeds.

Implicit in retribution is the condemnation or denunciation of both the offender and the offending behavior.

Retribution, however, is not in a kind.  Society cannot rape rapist or steal from thief, although in some countries death penalty is exacted for murder.

Instead, the law tries to convert the offence into a common currency to impose a sentence which is proportional to the harm caused.

In this regard, it might be observed that retribution, with its emphasis on proportional punishment, provides a basis for the grading of offences.

Deterrence

Deference is one of the several rationales of sentence.  It is described as 'consequentionalist' in the sense that it looks into the preventive consequence of sentence.  It relies on the threats and fear though sentencing.  Deterrence is based on the belief that crime is rationale and can be prevented if people are afraid of penalties.

There are two types of deterrence; namely General deterrence and specific deterrence.

General Deterrence

Knowledge that punishment will follow crime deters people from committing crime, thus reducing future violations of right and the unhappiness and insecurity they would cause.

It aims at deterring other people who witness punishment and like minded with the offender, from committing this kind of offence.

It makes other people prudent by inducing the public to refrain from criminal conduct by using the defendant as an example of what will befall a person who violated the law.

J. Bentham, the main proponent of this theory argues that all punishment is pain, and should therefore be  avoided, however, it might be justified if the benefit in terms of general deterrence would outweigh the pain inflicted on the offender punished and if the same benefits could not be  achieved by non-punitive methods

Sentence should therefore be calculated to be sufficient to deter other from committing this kind of offence, no more no less.

Specific Deterrence

A goal of criminal sentencing that seeks to prevent a particular offender from engaging in repeated criminality.  The actual imposition of punishment creates fear in the offender that if the repeats his act, he will be punished again.

Adults are more able than small children to draw conclusions from the punishment of others, but having a harm befall oneself is almost always a sharper lesson than seeing the harm occur to others.  To deter an offender from repeating his actions, a penalty should be severer enough to outweigh in his mind the benefits of the crime.

For the utilitarian, more severe punishment of repeat offenders is warranted partly because the first penalty has shown itself ineffective from the stand point of individual deterrence.

Incapacitation

Incapacitation is the use of imprisonment or other means to reduce the likelihood that an offender will be capable of committing future offenses.

It makes the offender incapable of offending for substantial period of time.  It is popular form of "public protection" and sometimes advanced as general aim.

This pragmatic theory argues that offenders need to be separated from the rest of the society in order to protect ordinary citizens from their committing other offences. The implicit premise is that, if not incarcerated, offender will continual in their criminal way.

In ancient times, mutilation and amputation of the extremities were sometimes used to prevent offenders form repeating their crimes.

Modern incapacitation strategies separate offenders from the community to reduce opportunities for further criminality.  Incapacitation is sometimes called the " lock' em up approach’’ and  forms the basis for the movement forward prison  "warehousing."

It is confined to particular group, such as "dangerous" offenders, career criminals or other persistent offenders.

                                                                

Capital punishments and severing of limbs could be included as incapacitation punishment. But there are formidable humanitarian arguments against such irreversible measures.

What has been claimed for incapacitating sentencing is the imposition of long, incapacitating custodial sentence on the offender deemed to be dangerous.  The proponents of this theory argue that one can identify certain offenders as dangerous who are likely to commit serious offence if released into community in the near future and the risk of victims are so great that it is justifiable to detain  such offender for long period.

Opponents of this theory have chief objection: over prediction.  They say that incapacitating sentencing draws into its net more non dangerous than dangerous offenders. For instance, in the UK study indicates that only 9 of 48 offenders predicted as dangerous committed dangerous offences within five years of release from prison.

An equal number of dangerous offences were committed by offenders not classified as dangerous.

This indicates that there are hundreds of offenders serving discretionary sentence of life imprisonment in the UK and Wales, imposed on the ground of predicted dangerousness, and  there is no way of telling, whether the predictions on which these sentences rest are not over caution in ratio of two – to – one.

Rehabilitation

Rehabilitation seeks to bring about fundamental changes in offenders and their behavior.   As in the case of deterrence, the ultimate goal of rehabilitation is a reduction in the number of criminal offenses.  Whereas deterrence depends upon a fear of the law and the consequences of violating it, rehabilitation generally works through education and psychological treatment to reduce the likelihood of future criminality. This theory argues that too much alternation was given for crime, and little was given to the criminals

This theory rests upon the belief that human behavior is the product of antecedent causes that these causes can be identified, and that on these basis therapeutic measures can be employed to effect changes in the behavior of the person treated.

This requires modification of attitudes & behavioral problem through education and skill training. The belief is that these might enable offenders to find occupation other than crime

If a dangerous offender needs to be located until he/she is no longer dangerous, it is the duty of the state to rehabilitate the offenders so that they can be released.  That is why rehabilitation is termed as the other side of restraint coin.

This theory closely related with forms of positivist criminology which locates the causes of criminality in individual pathology or individual maladjustment whether psychiatric, psychological or social.

This theory tends to regard the offender as a person in need of help and support.  At says that criminals are socially sick people who need some kinds of treatment.

Social theories of Sentencing.

They are contemporary theories. It is a dissatisfied response to the four "traditional" theories of punishment which deal with sentencing in isolation from its wider social and political setting.  These theories attempt to make sentencing principles more responsive to social condition and community expectation.  Three of these tendencies are:

Barbara Hudson

According to Barbara, priority should be given to crime prevention and to reducing the use of custody by the penal system.  Hence, changes in social policy (employment, education, housing, leisure facilities) are more important to justice than debate about proportionality of sentence.

When coming to sentencing, there should be greater concern with the problems of whole human being than particular pieces of behavior. More emphasis should be given to "rehabilitative’’ opportunities.

Nicola Lacey

The first thing must be the states recognition of its duty to foster a sense of community by providing proper facilities and fair opportunities for all citizens.  Once this is achieved in a community, punishment is justified as re-enforcing the value that has been decided to protect through criminal law.

John Braitwaite & Phillip Petit: Republican Theory of Criminal Justice.

The central value of this theory is dominion, defined in terms of  each citizen’s ability to make life choices with a social and political framework which each citizen has  participated & then to be protected in those choices.

Conflict among Different Theories 

 

For many years, most of the literatures on the subject of punishment were devoted to advocacy of a particular theory to the exclusion of others.

Those who espoused the rehabilitation theory condemned the other theories, while, those who favored the deterrence theory denied the validity of all the others, and so on.

For instance, if criminals are sent to prison in order to be transformed to good citizen by physical, intellectual, and moral training, prison must be turning into dwelling house  far too comfortable to serve  as any effective deterrent to those classes from which criminals are chiefly drawn.

In the cases of incorrigible offenders, there are people incurably bad, or some men who by some vice of nature, are even in their youth beyond the reach of reformative influence.

The application of purely reformative theory therefore, would lead to astonishing and inadmissible result. The perfects system of criminal justice is based on neither the reformative nor the deterrent principle exclusively, but the result of compromise between them.

In this compromise, it is the deterrent principle which would possess predominate influence, and its advocates who have the last word. This is the primary and essential end of punishment. All others are merely secondary and accidental.

It is necessary, then, in view of modern theories and tendencies, to insist on the primary importance of deterrent element in criminal justice.  The reformative element must not be overlooked.

For instance, in case of youth criminals and first offenders, chances of effective reformation are greater than that of adults who have fallen into offences.

Finally' let us evaluate the Federal Criminal Code (2004) inline with these theories. Article of the code declares the object and purpose of the Criminal Code and it reads: The purpose of the Criminal Code   of the Federal Democratic Republic of Ethiopia is to ensure order, peace and security of the State, its peoples, and inhabitants for the public good.

It aims at the prevention of crimes by giving due notice of the crimes and penalties prescribed by law and should this be ineffective, by providing for the punishment of criminals in order to  deter them from committing another crime and make them a lesson to others , by providing  for their reform  and measures to prevent  the  commission of further crimes.( Emphasis added by the writer)

The first paragraph of the above Article talks about the overall purpose of the Criminal Code, whereas the second paragraph states how that purpose can be attained, As it is clearly stated ,  the Criminal Code  has been designed to attain it  by preventing the commission of the crime. Prevention of the crime in turn is intended to be attained by giving due notice of the crime and penalties prescribing in the Code Due notice the public may be given to the public through publication of the Criminal Law and this may in turn gives access to all citizens and inhabitants to be aware of what acts or omissions are crimes and the respective penalties.

This does not mean that all those who are aware of the crime and penalties may always respect the law always. It is true that people may disregard and transgress the law. It is this situation the criminal Law in advance predicts and provides penalties when saying: "…should this be ineffective, providing for the punishment of criminals…"

The very Provision states the prime purpose of punishment. As it is clearly stated under this Article, the vital purpose of punishment is to deter the offender from committing fresh crime  and also to deter other with inclination to commit a crime .This conclusion can be inferred from the phrases  of the provision which says : …in order to deter them from committing another and make them a lesson to others….

This is also emphasized in the Preface of the Code on page IV, and it reads: Punishment can deter wrongdoers from committing other crimes; it can also serve as a warning to prospective wrongdoers.

Hence, the words lesson used in Art.1 and warning used in the Preface address the general deterrence, while the Code directly intends to deter the wrongdoers.

One can also understand the fact that the Code has also incorporated a rehabilitation theory for the Code clearly states this when it says: …by providing for their reform and measure …

The rehabilitative approach of the Code is further elaborated in the Preface page IV and it reads: …with the exception of the death sentence, even criminals sentenced to life imprisonment can be released on parole before serving the whole term; in certain crimes convicts can be released on probation with out the pronouncement of sentence or without enforcement of sentence pronounced. This helps wrongdoer to lead a peaceful life and it indicates the major place with the Criminal Law has allocated for their rehabilitation(Emphasis supplied)

The Preface further reads:  The fact that the wrongdoers instead of being made to suffer while in prison take vocational training and participate in academic education which would benefit them upon their release, reaffirms the great concern envisaged by the Criminal Code about the reform of criminals. (Emphasis supplied)

Different kinds of punishments are devised in the Code to attain the purposes. Just to mention some, simple imprisonment and pecuniary penalties have deterrent value. The same holds true for warning, reprimand, admonishment and apology from secondary penalties. (Art.122)  It may also give a chance to an offender for rehabilitation.

Neither Art.1 nor the Preface makes reference to incapacitation theory. However, does not mean that the Code has not adopted this theory, because this can be inferred from the following kinds of punishment: rigorous imprisonment that may be imposed on offenders committed serious offence. As it is provided for as per Art. 108 of the Code, besides punishment rigorous imprisonment is intended to separate the offender from the community  by applying strict confinement of the criminal for special protection to society. But the law tried to attain trio of purpose by rigorous imprisonment: incarceration, rehabilitation, and deterrence.

Death penalty is another typical example of incapacitation incorporated in the Code. Furthermore it has deterrence value to others with similar potential to commit a crime.

To mention secondary penalties of incapacitate nature, suspension and withdrawal of license, Art. 142 prohibition and closing of undertaking, Art.143 Measures entailing a Restriction on personal liberty, Arts.145 and the following and etc.

One can rightly say that the Ethiopian Criminal Code has followed the modern approach because it has incorporated different types of theories and different kinds of penalties are incorporated to serve these purposes. However, no single punishment is devised just to serve a single function of punishment.

Last modified on Monday, 22 July 2013 16:35