Penal Theories

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  • Created by: aljaz_0.o
  • Created on: 08-11-17 09:46

What is criminal behaviour?

Criminal behaviour falls into 3 categories

¤Moral: this is wrong and so should be punished

¤Pragmatic: this interferes with the smooth functioning of society and so should be punished.

¤Structural: we object to this/this is against our interest, so we will punish it.

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What is Punishment?

Punishment definition: Penalty for an offence

Aim of punishment (generally): To produce harmful consequences for the offender; this seen as acceptable as long as it is justified

Justifications of punishment: Traditionally justified by utilitarianism & retribution

(http://keydifferences.com/wp-content/uploads/2016/12/reinforcement-vs-punishment.jpg)

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Modern Penal Theories

5  Modern Penal Theories 

1.  Just Deserts & Retribution

2.  Incapacitation

3.  Deterrence

4.  Rehabilitation

5.  Restorative Justice theories

(http://static1.squarespace.com/static/558e44bee4b02242f7edb31a/558e468be4b0b838700d7bcd/558e46b7e4b0b838700d83af/1435525837402/?format=1000w)(http://study.com/cimages/videopreview/videopreview-small/3zyydbrya3.jpg)

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Just Deserts

Just Deserts

Theory idea: the seriousness of the crime should be the only basis of the length and type of sentence    

2 functions for punisment infringing offender's rights & appealing to offender's sense of morality

Problems

  • Can't be sure that the punsihment will always be commmensurate with the seriousness of the crime
  • Should we consider individual factors? Should we set upper/lower limits?
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Incapacitation

Incapacitation

Theory idea: the offender is restrained and is incapable of offending

 Examples:  Imprisonment, Exile, House arrest, Curfew, Removal of driving and other licences

Problems:

Forgets about proportionality so works against just deserts which is about balancing the offence with the sentence

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Rehabilitation (1)

Traditional Rehabilitation

Theory idea: medical model of 'curing' the offender, sentencing is secondary and length is determined by how long the 'cure' e.g. CBT will take

Other factors considered:

  • why the offender is offending (drug/alcohol misuse, poverty, unemployment) & change these factors
  • Basis of modern probation

Examples: Cognitive Behavioural Therapy, counselling, training

Problem: Optimism in the theory lasted until 1970s

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Rehabilitation (2)

Modern Rehabilitation

Theory idea: based on education model & training rather than the traditional medical 'cure' model; promises a payoff to society in the form of transformed offenders, those who are law abiding and productive and do not offend.

factors include:

  • problem solving & how to cope with situations
  • offender active rather than passive
  • responsibilty placed more firmly on offender than old rehabilitation

Problem: Is it naive?

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Deterrence (1)

Deterrence

Deterrence Definition (per Ashworth): punishment, which is warranted by reference to its crime preventative consequences - Individual deterrence: deters the particular offender from reoffending. - General deterrence: deters others from committing similar offences. Length and type of sentence must, therefore, be determined on what will deter others, rather than just the particular offender

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