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On sentencing. Should it be based upon retribution?

Should a judge when sentencing should always bear in mind retribution? If he does not, is he not failing in his duties?

The retributive theory of punishment is founded between the Church and the State historically. This theory simply states that wrong doers deserve punishment and the penal system can demand atonement by way of punishment.

Retributive sentencing also requires that the severity of the punishment is related to the amount of harm that has been caused.  In principle, it is the “eye for eye” doctrine. Thus, the operation of the ‘tariff system’ is adopted meaning that the sentence in punishment would be proportionate to the moral worthiness and seriousness of the crime.  The stronger the public sentiments and outcry is the offence, the more severe the punishment should be.   But isn’t this process, like argued by Smith and  Hogan, containing a relic of barbarism in that the judge is actually wreaking vengeance on behalf of the public for the wrongs done against society? Thus, is has on occasions been called a crude retaliation theory because it depends  simply on the degree of public revulsion.

Without a doubt,  it is absolutely necessary for a judge to have to consider all other factors before him and to bear in mind over and beyond retribution when imposing a sentence.  Consideration must be given to the utilitarian theory of punishment which rather than looking to the offending act as the retributive theory practices, it should require a punishment to be inflicted only so far as it will deter the particular person as a warning from repeating the offending act.

The principle of deterrence is seen to be more balanced.  However, the use of this method might seem to contradict the principle of justice that all like cases should be treated alike. Thus it would seem unfair to the offender that he was being made an example becuase his sentence may not reflect his own moral blameworthiness but simply policy matters extraneous to his own particular circumstances.

There is also the rehabilitation theory which suggests that crime is committed because the offender has somehow slipped from societal norms and thus, all that is required is to reinforce societal values so that he will become a valuable contributing member after the rehabilitation process. Baroness Wooton maintained that crime is also due to causal factors, such as psychological or environmental. Thus, criminals shouldn’t be punished but treated. However, many differing views  have also been observed in that prisons are indeed a “University of crime” and it would only have an opposite effect as a young or new offender can learn the more subtle aspects of crime. Moreover, the gross disparities is sentences resulted as different judges held different views as to what lenght of prison sentence was necessary to reform an offender.

This Retributive theory of metting out punishment can be contrased with the Utilitarian theory in that the latter theory provides that punishment can only be justified by reference to its beneficial future aspects on the wrong doer. Thus the accused should not be punished for its past mideeds. Rather, it should have a curative or beneficial effect. This approach, if considered, enables the courts to “individualise” the sentence. This will allow for particular character of the accused rather than just applying a strict scale of punishment.

The protection of the public is regarded among the judiciary as the most important object of Criminal Law. Oftentimes, the judge may impose an extended term of imprisonment or apply the incapacitation theory, that is to deport the offender to another state especially if there were hard core and dangerous criminals who were capable of causing serious harm to the public. This is made possible by the virtue of Section 28 of the Powers of the Criminal Court Act 1973.

It may be a fact that in most cases, a judge has very little interest or minimal consideration put in to reform the offender.  The retributive approach to sentencing do not pay great emphasis on the possibility of the offender being reformed. Most judges agree and feel that they can do little to encourage or implement. As confirmed by a dicta, in relation to offences of dishonesty, sentences of imprisonment except where there’s an element of protection of the public, they are not normally intended to be the correct sentence for the particular crime and not to include a curative element.

However, exceptions can be drawn if offences involve a more dangerous nature such as drugs or cases requiring protection for the public.  Example, case of R v Glasse  (1968) the Court of Appeal upheld a longer term than average sentence on the basis that extra time was necessary not merely as punishment but to produce the necessary conditions where the offender can be cured. (In this case, the offender was a drug addict.)

Conclusion, retribution is an important and vital factor for consideration for a judge when sentencing. However, it is not the only factor as its retaliation aspect must be tempered by other factors if the judges were to achieve their specific aims both in relation to society as a whole and the individual ofender or victim as well.

The task of sentencing is no small task and the judge is oftentimes seen as to be walking on a thin tight rope where he has to balance between the public hysteria of a crime to the other end of the scale of the ultimate justification to a reasonable citizen.

F. L.
2 February 2009

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