The level of punishment must strike a balance

In traditional society, punishment was simply the art form of obtaining retribution, rehabilitation, incapacitation, and deterrence of those who had, or would forgo the set boundaries of social cohesion. As such, it set out the minimal standard of morality expected, and paved the way for future developments.

Ideally retribution exists around the notion that those who commit crime should experience some form of suffering for their negative actions. In such countries as the United States of America, retribution has become the primary objective of punishment, whilst rehabilitation has become almost completely instinct. Even though listed as one of the purposes of sentencing within the Australian legislation, research has questioned rehabilitation’s ability to achieve its goals. Incapacitation on the other hand can be contrasted to the likes of retribution for it is the severest form of punishment, and at the same time protects the community by minimising the possibility of relapse on the criminal’s behalf for a specified period of time. Deterrence on the other hand exists in two different forms and is brought about by a combination of the fore mentioned objectives of punishment. Firstly it manifests itself in the form of a ‘specific deterrence’, which aims to dissuade the offender from committing further crime; and secondly as a ‘general deterrence’ which aims to dissuade others by making them aware of punishments that have bestowed those who committed similar crimes.

In a number of Australian jurisdictions, ‘just deserts’ seems to be one of the governing purposes of punishment or, indeed, the primary principle of punishment. And this principle centers around the concept that punishment should be the consequences of criminal activity extracting justice, not so much as rehabilitation. The Australian Law Reform Commission in an attempt to clarify ‘just deserts’ suggested that such factors as intent, premeditation, planning and methods be considered, inevitably setting sentencing guidelines. The legislation in the A.C.T alone makes relevant the degree to which an offense was the result of provocation, duress or entrapment. Other factors that are taken into account when passing sentence include the degree of participation, breach of trust, consequences and impact on victim and society as a whole, youthfulness, vulnerability and the possibility that there existed unforeseeable consequences. In cases were there exists prior convictions, the courts will generally punishes the offender more severely, if the previous matter is of relevance to the current case. In Victoria, if the accused is of supposed ‘good character’ and has contributed moderately to society in past, the penalties imposed on them will generally be less in severity unless the crime is one of common occurrence (with the particular individual) or if they have been convicted on charges of drug trafficking.

In cases involving the actions of young offenders aged under 21, common law is explicit as to their sentencing being of a reformatory nature. The rational for this principle is that public interest is better served by seeking to avoid the damaging effect of imprisonment. The only instances in which a minor should be treated as an adult would be in cases of repeated offenses, or in areas which are considered to be grave in nature such as murder, violence and rape.

Another factor that effects the severity of sentencing is ones race and creed. In Australia, Justice Murphy stated that living conditions and race present special mitigating factors in the application of justice. In cases that involve aboriginals, the courts must take into consideration concessions for cultural beliefs, tribal feelings and disadvantages or unfair treatment of these individuals leading up to the crime they are being tried for. The Australian Law Reform Commission made the following statement as a recommendation: " A general legislative endorsement of taking Aboriginal customary laws into account is appropriate. It should be provided in legislation that where a person is, or was at the relevant time, a member of the aboriginal community and is convicted of an offence, the matter that the court shall have regard in determining the sentence to be imposed with respect to the offence includes (so far as they are relevant) the customary laws of that Aboriginal community, and the customary laws of any other Aboriginal community of which some other person involved in the offence (including a victim of the offence) was a member at the relevant time".

When an individual’s state of mental health is in question, the statutory guidelines specify that this should be considered as relevant a factor in sentencing as age and character simply because of the individual’s inability to fully comprehend neither their actions or responsibilities to others. In cases such as this, the factor of deterrence proves to be ineffective simple because it cannot scare mentally ill individuals into compliance because they cannot comprehend it, therefore sentencing should only aspire to control the accused and not be wasted in anything more. As to the severity of the punishment, it is often a degree more lenient in these instances because of the comprehension factor. But if the guilty party has previously acted in a similar fashion, and is considered a possible threat to society they will most likely receive the same penalty that would be imposed on any offender that had not been suffering a mental disorder.

One other factor that is also commonly accepted in deciding the severity of punishment includes the remorse shown by a criminal’s actions after the incident. These include pleas of guilty, co-operation with the authorities, apologies and possibly self inflicted injuries including mutilation and suicide attempts. But the weight these factors carry into making punishment more lenient are minimal at best, simply because criminals are generally smart enough to know that by acting in certain ways they stand a chance of having their sentences reduced. So to, the punishment should not be reduced simply because a person admits to guilt, nor should it be reduced because the individual feels remorse brought on by his capture. These signs of grief and remorse do not effect the outcome of their crimes, nor should they, for that matter, effect the severity of the sentences.

Punishment within Australia comes in many and varied forms. A simple punishment can take the place of a minimal fine, whilst the more sever would include prison sentences ranging from a few months right through to a life sentence. Countries such as the United States of America go as far as to punish individuals with death penalty in certain cases. In distinguishing the penalty to fit the crime each criminal justice system must derive its punishment from several factors including the effect of the crime on society, the events leading up to and pertaining to the crime including the social environment and mental conditioning, previous criminal records of the individual in question and only then is it possible for a judge to pass sentence by comparing legislation, previous cases with the same details and the individual circumstances.

For the sentence to be ‘fair’ it must fit the crime. For instance if an individual with no prior convictions is charged with shoplifting, a prison sentence would too harsh and thus ‘unjust’. In cases of this kind, such a punishment would be an injustice to the criminal. If punishment is excessive, it could possibly be classified as torture. On the 10^th December 1985, Australia signed the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or punishments. Article 1 of this convention states that torture is "Any act by which severe pain or suffering, whether physical or mental, for such purposes as… punishing for an act… that has been committed". In this instance the definition of ‘torture’ depends solely on the severity of treatment. If the severity of the punishment is unjustified by the crime, then it could be considered torture, and thus ‘unjust’. One current example of an injustice within the Victorian criminal system revolves around the Fire Arms Act 1996, which has now found a sixteen year old child facing three different charges of possessing a none registered handgun, not possessing a firearm license as stated by part two of the Firearms Act 1996, and owning a firearm when not authorised to own one. The injustice in this particular is quite obvious, since the gun was not used or intended for criminal use, and especially when one discovers that the weapon was actually a toy cap gun. This injustice exists because the government has not corrected faulty anomalies within the gun laws. If on the other hand the sentence is too lenient and the only punishment imposed is a fine (being less in value than of the goods stolen or destroyed) this would prove to be an injustice to society because it would not allow individual rights to be adhered to or protected. For the punishment to be truly effective, it must crush any benefits obtained through the criminal actions, but at the same time not excessively punish. This would not only act as retribution, but also as a deterrent to other individuals who may consider committing similar criminal actions with the intention of benefiting themselves.

Unfortunately this ‘just’ and ‘fair’ ideology for both the criminal and society as a whole is only practical in theory. An in depth study of over 20 state prisons within the United states (by sociologist Rosemary Erickson) has revealed that out of 310 convicted bank robbers and street muggers interviewed showed that the threat of punishment was of no, or little deterrence despite the fact that most prisoners had previously served time in prison before. The research strongly suggests that the threat of punishment has little meaning to robbers, as 83 percent seriously believed they would not get caught, whilst 80 percent had no idea as to the punishment they would receive. These findings within themselves create a new dilemma for the implementation of punishment. Deterrence does not seem to be of much use against hard criminals, nor do long prison sentences. The most prominent reasoning for this conclusion stems directly from the authorities inability to cope with high crime rates with limited resources, making capture at the best of times difficult if not impossible. And while this loop hole exists within the legal system, sentencing cannot possibly reach it’s prime directives effectively. Consider cases of burglary as an example. "Of the burglaries committed, less than 7 percent result in an arrest. Of those arrested, 90 percent are prosecuted, 53 percent are convicted. Of those convicted, 42 percent are sent to prison. If we multiply these probabilities together, we find that a burglar has only a 1.4 percent probability of doing prison time".

Keeping this failure in mind, it is almost understandable why such countries as China and the United States of America still opt for the death penalty in cases that involve serious criminal actions such as murder and drug trafficking. Pro death penalty advocates claim it is the only punishment that can offer an equivalent degree of severity for serious crimes like murder and at the same time act as the best deterrence. But there exist two failures in this system of an ‘eye for an eye’. The first is that in taking another life for retribution the system and the society that has developed it are in effect lowering their own standards and in effect becoming what they are persecuting. The second failure simple revolves around fairness. If we have death sentences for individuals who have murdered, then it would only be fair that the system begin to burn arsonists, and have belongings of thieves stolen. As this would undoubtedly not be the case, then there should not be any place for double standards within any criminal system.

The death penalty is then faced with yet another two perplexities. Within 38 of the 50 states in America that currently impose the death penalty, the homicide rate has continued to increase. Reasons for this can possibly be attributed to ‘impulse murders’ that have not been pre-planed, and as such, no accurate data is available to make any definite conclusions. But logic suggests that crimes with no ‘mens rea’ stand no probable chance of deterrence regardless of the strength of the penalties to follow. The other problem facing this form of punishment is that even in a highly developed legal system, with the right of appeal and high standards of proof, the possibility of executing an innocent person is a constant risk. Timothy Evans was hung on the 8^th of November 1949, then later in October 1966 received a posthumous pardon clearing him of the murder of his child. " There are a considerable number of other prominent cases in the United Kingdom were the death penalty could have lead to wrongful executions had it been available in recent decades. These include the wrongful convictions for child murder (Stefan Kizsco), for terrorist offences and multiple murder (Guildford Four, Birmingham Six, Judith Ward) and for the murder of a police officer (Tottenham Three)".

As has been exemplified by all the factors that must be taken into account when sentencing, the Australian Law Reform Commission suggests that it is impossible to identify among the varying philosophical approaches to punishment a dominant rational which could guide sentencing, simply because all the approaches previously discussed are potentially relevant in determining punishments in different cases. So to, it is the commissions belief that the importance attached to any particular goal or goals of sentencing inevitably varies from time to time, reflecting changes in society and community perceptions. In America alone, it seems that society has turned its back on rehabilitation and is concentrating all its efforts on retribution in an attempt to reduce their plaguing crime wave as opposed to their 1949 belief in rehabilitation (as stated by their Supreme Court in the case of Williams Vs New York (1949)). Currently within Australia, sentencing seems to predominantly flow around ‘just deserts’, fairness and proportionality. In an attempt to do this there are restrictions prohibiting the imposition of a sentence of imprisonment for minor offences of dishonesty or property damage unless circumstances exist such as prior convictions or the crime is in excess of $2,000. Further more in states such as South Australia, Criminal Law prohibits sentences of imprisonment unless the accused has shown a tendency towards violence, stands the possibility of committing more serious offences if at large, and all other possibly avenues of punishment have proven inadequate. This safe guard is an attempt at keeping punishment in proportion so as to not exceed the gravity of the crime, nor fail in giving sufficient weight to the seriousness of the offence. At the same time the criminal justice system allows for equal punishments to be distributed amongst criminals guilty of the same crimes, but only if their surroundings environments (such as age, background, mental health) leading up to the crimes are of a similar level.

Punishment is a tool with which to remove the cancer like growth of crime from society. When used properly, it forms barriers that are intended to prevent crimes from ever developing. But if used incorrectly, it can lead to injustices. Once this happens, the system can become just as bad if not worse than the criminals it attempts to protect society from. In most cases this does not happen because of safe guards and guidelines within the system. As it stands today, sentences are developed methodically by a process of reviewing individual characteristics of each criminal (ranging from their state of health, right through to their social environment) and then analysing the level of effect the crime had on society. By developing an understanding of these factors, it is then possible to set a fair and ‘just’ sentence based on the intent, effect and sentences passed in previous cases. Sometimes though, cases can be misrepresented through blundering defence councils, outdated laws, and in cases like these justice is not be served. Developing sentences that a well balanced in terms of severity is not at all a simple task, but thankfully it is not often that sentences are unjust.

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Author unknown, "Death Penalties within America", Internet address http://www.amnesty.org.uk/news/index.html
Author Unknown "Doing Justice: The Choice of Punishments", New York Times, 1976
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Acts

Crimes Act 1914 (Cth)
Crimes Act 1990 (ACT)
Sentencing Act 1991 (Vic)
Criminal Law Sentencing Act 1988 (SA)

Australian Law Reform Commission Reports (31, 1986)
Countries of the World: Criminal Justice Reports. 1991 Bureau Development, Inc.
First Report 1993 - The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Article 1)
Sentencing: Report of the Victorian Sentencing Committee (Melbourne,1988) Volume 1
Sentencing Guidelines 1995-96 Annual Report (United States of America)