Rethinking The Deterrence Theory Criminology Essay

Rethinking The Deterrence Theory Criminology EssayWith much popular appeal, the concept of bullying has been wide accepted and downstairsstood, by judge and parliamentarians alike, to be a central tenet in the principles of sentencing and the wider penal system in England and Wales. Significantly, section 142(1) of the Criminal Justice Act 2003 expressly enjoins sentencers to take reckon of deterrence as atomic number 53 of the purposes of sentencing when determining what and how severe the appropriate punishment in a given case should be. In practice, as deterrence is widely sensed by judges, not only in the English and Welsh jurisdiction, moreover also elsewhere in the common law initiation, as a primary subject matter through which to afford public protection, in many cases involving adult offenders, precedence has tended to be given to deterrence over other get byations in the interest of the community.3Nevertheless, tensions be palpable between deterrence and other sen tencing aims.4The question of, for instance, whether punishment should be an end in and of itself, or whether it ought to be understood as a facilitator of the ideal of offender rehabilitation, extends in the front line of critical discourses into sentencing in the contemporary era.5Thus, it has become increasingly necessary to deliberate upon the goodness and value of deterrence not only in the context of sentencing but also to the purpose of the entire penal system.Within this context, the following essay forget proceed by first providing an overview of the paradigm of deterrence within the givinger framework of the contemporary penal system. It will then attempt to identify and question the clean-living and empirical underpinnings thereof. Further, it argues that from a criminological or sociological perspective, efforts to achieve deterrent effect, in single-valued functionicular where the individual offender is concerned, are in large fictitious character counterproducti ve. Finally, this essay rewards, whilst competition that deterrence as a penological theory is morally and empirically unsound, that it would be impractical to assume that deterrence will be creaky altogether in English sentencing law in the near future. Rather, the to a greater extent prudent and reasonable way to access code the matter would be to continue to observe the constantly evolving concept in an era of significant social, cultural, political and economic change. In conjunction with other penal theories, elements of deterrence will appear to remain a highly influential sentencing tool.Exposition of the deterrence theoryDeterrence is 1 of the oldest paradigmss in the history of criminological and jurisprudential inquiry. As early as in the early eighteen century, the primary purpose of state imposed punishments was said to be the reduction of nuisance, by means of terrifying potential offenders into obeying the law.6The punishment of prison house and the deterrence it brings about, by the relinquishment of the thoroughgoing freedoms, were onceived of as the best means of reducing offending in modern society7.Johnson defines the verb deter as to monish by terror, to fright from anything.8Deterrence can also be defined as including two separate aspects, depending on the class of people being tell at, namely individual (specific) deterrence and general deterrence.9Translated into judicial language in the specific context of sentencing, a Hong Kong judge, HHJ Ching Y Wong SC, drew the distinction thusA deterrent sentence may be in personam that is, individual or in rem that is, general. Normally if the circumstances that pertain to an offender are such that the courtyard is of the opinion that it mustiness be brought home to him that he is not to commit such rudenesss again, for example, a repeat offender, a deterrent sentencein personamis proper. When an offence is, inter alia, so prevalent or is so serious within its class, and the court is of the opinion that those of like minds are to be strongly discouraged from committing the equivalent or similar offences, then a deterrent sentencein remis called for.10In simpler terms, specific deterrence is directed at the offender in question and is expected to prevent her from reoffending by the imposition of punishment general deterrence, on the other hand, focuses on the public at large, and prevents potential offenders from engaging in roughshod conduct in the first place.11With its roots in the classical and utilitarian thinking of crime,12the deterrence theory is often compared to a cost-benefit analysis performed in the economic field.13Underlying the theory is the assumption that all offenders, and potential offenders, are by nature demythologized, the hallmark of their actions being the pursuit of maximum pleasure and tokenish pain. It follows that, as offenders choose, rationally and voluntarily, to commit crime, they respond readily to the perceived costs and b enefits of their actions.14As Lundman explains,If their unhurriednesss suggest that perceived benefits will exceed possible costs, then rational offenders commit crimes in anticipation of enjoying rewards. However, if these calculations lead criminals to conclude that costs will exceed rewards, then the rational course of action is to seek gratification in ways other than guilt.15In other words, if the calculation of the consequences of offending leads to the conclusion that there is more to be lost than there is to be gained from committing crime, the potential offenders should be naturally deterred.16Thus, within the utilitarian framework criminals are invariably errant, though still rational, individuals whose perversity or anti-social self interests serve to offer just about perceived benefits of offending.17It is in this light that Bentham passionately argues for the usefulness of deterrence, on the ground that the threat of punishment is the force employed to restrain possi ble offenders from commission of crime, from which the pain of punishment efficiency result.18Underlain by these ideas of rationality and self-interest, for deterrence theorists there are certain qualities necessary to an effective deterrent punishment. As Newburn elaborates on these qualities first enunciated by Beccaria19, punishment must come with certainty and be enforced consistently, and that it does should be acknowledged by the offender there must be celerity in the law, with punishment approach as promptly as possible, in order that both the public and the offender himself could see the relationship between the punishment and the offence as inevitably causal and finally, it must be properly proportionate to the crime, namely one that is relatively mild and moderate and inflicts pain exactly exceeding the advantage derivable from the crime.20Moral problems with the deterrence theoryAn emphasis on deterrence often leads to a harsher sentence than the offender would otherw ise be deemed to deserve.21The judgeship of Appeal has held, relying on the Strasbourg jurisprudence, that the legitimate object of deterrence can, in appropriate cases, amply justify such sentences.22It calculates apparent that in such cases the sentencing aim of deterrence can be paramount. Whilst weight would, in theory, perk up been accorded to the interests of the offender, where the alleged crimes are considered as threatening the wider community, the utilitarian theory of deterrence demands that individual rights and proportionality, in its narrow sense, subsume under the societal interests.23Young is critical of this judicial use of deterrence as a sentence enhancing factor.24He argues, not unconvincingly, that the theory is arguably inconsistent with fundamental notions of justice.25Indeed, why a persons liberty need be sacrificed for the educational impact it will render on others is a legitimate question to pose. This concern has been divided up by del Vecchio, who em phatically stated that the human person always bears in himself something sacred, and it is therefore not permissible to treat him merely as a means towards an end outside of himself.26A more fundamental moral weakness of the notion of deterrence pertains to the coherency of its ideological premise rationality. As in the analysis in Part I, deterrence has traditionally built upon the premise that individuals will desist from reoffending because of the fear inherent in the discipline and punishment meted out by the state. In a moral sense, then, a semblance of common reasoning is central to the application of the utilitarian reason of deterrence. Yet, as the famous philosopher John Rawls persuasively argues, there is no reason to assume that our sense of justice can be adequately characterised by familiar common sense precepts or derived from the more obvious learning principles.27It seems indeed somewhat simplistic to assume offenders as rational beings before or in the course of committing a crime. As the sign of the zodiac Office rightly conceded in 1990, offenders very seldom weigh up the possibilities prior to their conduct and typically do not act only after(prenominal) on rational premeditation.28In many instances criminals need to take their decisions hastily. Two young males fighting in a public street, for example, are un promising to run through ever thought about the consequences of their actions in the heat of the moment.29Moreover, as Cornish and Clarke argue, the decision-making process of offenders is remarkably limited in their understanding of possibilities, potentials and consequences.30For instance, most petty criminals are often badly informed about the criminal liability, let alone the penalties, associated with the crimes they commit.31As a result, even accepting that offenders are rational, it would be difficult, if not impossible, for offenders to flip accurately balanced the costs and benefits of the commission of the criminal ac t.32The weakness becomes even more obvious in the case of such rarer but usually more horrendous crimes as those involving violence, the offenders of which are characteristically not reasoning. Hudson plausibly argues that crimes of such phase are usually committed without a prior careful calculation of risk.33Most killings, for instance, are not rationally planned, but are impulsive and driven by strong emotion.34In other instances, such are crimes that pack intentionality where offenders commit crime regardless of the risk.35Interestingly, probably comprehending the moral difficulties existing therein, English courts have rarely invoked deterrence as a standalone ground for an otherwise disproportionate sentence. It is often relied on in conjunction with other penal theories. Deterrence has, according to the jurisprudence of the European Court of Human Rights, customarily been recognised as the twin of punishment.36Thus some commentators have gone further in contending that, in fact, punitiveness resides in the epicentre of the contemporary penal policies supposedly informed by the utilitarian principles of deterrence.37For them, the current political discourse and policy initiatives blame the offenders, silence excuses and see the punishment of the wrongdoer as the proper response.38Deterrence, then, has not been upheld on any principled basis, but has quite an been reduced to a morality that has to be upheld whatever the functional benefits.39As a result, from a philosophical perspective, classical utilitarianism upon which the theory of deterrence is based would seem quite unable to do justice to the mode in which many of our actual ends matter to us.40The epirical (in)validity of the deterrence theoryIt seems fair, to say that the empirical literature examining deterrence has not yielded enormous success different studies often tend to contradict each other, on occasions directly and completely.41Some evidence suggests that swift punishments do not abate the incidence of subsequent crimes any more than delayed punishments, owing to the cognitive capacity of humans to imagine.42More research efforts have been beat into the consideration of the other two aspects of deterrence. By and large, there is some evidence, albeit anecdotal in one way or another, showing that certainty of punishment has a greater deterrent effect than does severity of punishment.43However, even this is more than what Radzinowicz and King have been prepared to accept. They quite sensibly argue that, more precisely, it is the certainty of detection or intervention, not of punishment, that is the more crucial element in deterrence.44Lending support to this view, commenting on figures in the United States, Cornish and Clarke suggests that offenders are more likely to be put off by the immediate fear of exposure and being caught, as opposed to the threat of some penalty relatively unconnected in time.45Thus it may not be any surprise when Gough concludes th at deterrence should only be a minor consideration, if occupying a role to reckon at all, for the purposes of sentencing.46What is needed, in Goughs opinion, is tougher enforcement and targeted strategies that increase detection certainty, rather than any toughening of sanctions.On the other hand, there is a more critical view that the reduction of crime in these studies cannot be ascribed to deterrence. What have been influential might well have been the incapacitating effect of the punishment or other myriad variables quite asunder from the risks of punishment, including the motive for the crime, the strength of the temptation, the strength of inhibitions or moral revulsion against it.47In any case, all these studies, deriving as they do from crime statistics, must be interpreted with caution, whether they be supportive or dismissive of the deterrence principles. After all, there are no such things as empirical truths as such.48In determining whether or not deterrence should be regarded as being be exercise set by empirical difficulties, the entire discussion would prove moot if one does not appreciate the problem of interpreting crime statistics in the first place.Notoriously, any organised way of understanding about crime, criminals and crime control enclose in definitional and empirical terms is intricately problematic.49Ultimately, criminality is a natural by-product of such industrial, capitalist experience as economic growth, the easier availability of social opportunities, and the increased recognition of individual liberties.50It is essentially a social construct, varying as it does across time, place and people.51Viewed from such a perspective, deterrence is but part of a means devised by the state to statistically manage the social problem of crime.52Put in this wider social and political perspective, the extent to which deterrence is, just as punishment, thought to be a fundamentally important social theory inescapably reflects the broader poli tical economy of the urban society in which one lives.53As such, although crime data and criminal statistics are ostensibly transparent and open manifestations of offending patterns, to divorce the quantifiable empirical data from the broader politicisation of crime would be an unrealistic exercise provided the complex settings in the modern liberal democracy such as this country, in which crime, sociology and political economy are inextricably intertwined.54Doubts have therefore historically been cast onto the verity of the official figures with the most pessimistic criminological interpretations suggesting that crime statistics are universally doctored, and thus of limited worth to the understanding of the relationship between crime, the state and punishment.55In the final analysis, imagining crime figures as being free from bias would be to ignore the tension between broad generalization and the specification of empirical particular(prenominal)s,56and the interpretation thereof will inevitably entails an overly objective view of an inherently subjective phenomenon.57The anti-deterrent effects of punishment a criminological perspectiveSome criminologists do not merely dismiss deterrence as unconvincing, but have gone further in arguing that, quite far from producing the intended result, fear of punishment might sometimes lead directly to the commission of crime. It is possible that a criminal who has already offended, but not yet apprehended, feels that they have little to lose from further offending, because they have to be punished anyway. As Taylor cites as a striking example, at some point in the last century, a substantial minority of unmarried women in Scotland have been driven to commit infanticide exactly because of the fear of being in public humiliated as a punishment for adultery.58For those who have been apprehended and punished, further offending behaviour is still not impossible under the labelling theory, under which criminality is to be tho ught of as a quality created inevitably when punitive sanctions are applied to behaviour considered to be offending.59The offender takes on a criminal identity when he is labelled as such by a range of social reactions, including and following the imposition of an official sanction, which has the effect of isolating her from society.60Her probability to live by legitimate means whilst being labelled criminal would quite conceivably be reduced considerably, and resort might then have to be had to illegitimate ways of life. In this way the label is dramatised to the extent that it becomes entrenched and internalised.61In this light, the labelled, stigmatised and socially isolated, have to accept their status as criminals and build their lives accordingly, leading to a greater degree of deviance.62In this sense, punishment within the context of deterrence may in truth be counterproductive in reducing incidence of recidivism.63With all the negative social interactions that punishment entails, a sentence which speaks to the deterrence of the individual offender appears to reinforce the self-prophecy of criminality, render reintegration into the conventional world difficult, and a criminal career almost inevitable.64Thus punishment with a deterrent element may ironically result in the promotion of the kind of activities that it is designed to prevent.Conclusion Abandoning deterrenceor not?Deterrence has for the most part been discounted as an effective and justifiable approach to sentencing by academics, in particular criminologists, who are often more willing to consider the causes in addition to the consequences of criminal activity.65However, the popular appeal of the notion as a commonsense approach to sentencing appears to persist to this day.Given the important case of Attuh-Benson,66it seems unlikely that attempts, however able and sincere, to bring the criticisms levelled against the usefulness of deterrence before the courts would be of any avail. There t he Court of Appeal forcefully pronounced that if a different approach is to be adopted it should be in response to guidance from the Sentencing Guidelines Council who may wish to consider this matter.67After all, it is important to bear in mind that the way in which the state responds to criminality has always constituted an inexorably divisive conundrum with just any consensus as to what ought to represent a just punishment.68And sentencers, even those of the eminence and seniority of the Lord Justices of Appeal, will understandably consider and defer to the legislative objectives set forth in the Criminal Justice Act 2003, one of those being deterrence. Indeed, according to established principles of the common law, this is not an area in which the court should, in the words of Borins DCJ, sitting in the Canadian Supreme Court, pass on the wisdom of Parliament.69As such, discourses of deterrence are likely to remain a distinguishing give of the English sentencing policy, as in els ewhere in the world.(4172 words)Table of casesCanadaCiccone(1974) 7SASR 11October, 113Guiller (1985) 48 CR (3d) 226Luxton(1990) 58 cardinal (3d) 449Smith (1987) 34 CCC (3d) 97England and WalesAttuh-Benson 2004 EWCA Crim 3032Bieber 2008 EWCA Crim 1601Brown v Stott2001 2 WLR 817Holloway(1982) 4 Cr. App. R. (S) 128Howells19991 All ER50Sargeant (1974) 60 Cr App R 74Zampa(1984) 6 Cr. App. R. (S) one hundred tenEuropean Court of Human RightsEzeh Connors v. United Kingdom(2004) 39 EHRR 1Hong KongAG v Tang King-ming1986 HKLR 211HKSAR v Hiroyuki Takeda 1998 1 HKLRD 931Secretary for Justice v Ma Ping-wah 2000 2 HKLRD 312