Tuesday, 21 August 2007

Penology By Christopher Rowe

According to Garland (1990)* “Punishment today is a deeply problematic and barely understood aspect of social life, the rationale for which is by no means clear”.

The purpose of this essay is to explore and analyse the above statement, and give detailed explanations which define if Garland’s believes have good justification or are based on propaganda. The essay begins by briefly defining punishment in a penology context, and supports Garland’s theory by describing the problematic issues involved in modern punishment. The overcrowded prison saga is argued here discussing the problematic issues involved but also offering mild solutions, the essay does however, fully agree with the statement of Garland as it defines the negative effects caused through imprisonment. To further this argument the problematic issues of the probation service are also briefly discussed. The ‘barely understood aspect of social life’ suggestion by Garland prompts the essay to discuss work of Emile Durkheim. The controversial work of Durkheim equally supports Garland’s statement because of its widespread critique. The rationale for punishment is described in terms of positivist and classicist’s views of criminology. This is done to demonstrate contrasting views of punishment. Deterrence, retribution and rehabilitation are among the punishment issues raised, which provide support for Garland’s believe that punishment has an unclear rationale. In an attempt to provide more evidence a brief criticism of positivism and classicism is also demonstrated. The essay argues in favour of Garland’s statement and provides evidence to support this argument. This essay question is very significant because it examines the underlying principle of why punishment is conducted, and highlights the imperfections that are apparent in the way punishment is carried out in modern society.

There are many different uses for the word punishment, for the purpose of this essay punishment in a penology context will be scrutinised, as the author believes that it is in these terms in which Garland’s statement is referring. Hudson B (2003) Defines punishment in the penology context as penalties authorised by the state, and inflicted by state officials, in response to crime. Garland use of the word ‘today’ will be discussed in terms of the time of the industrial revolution and onwards. In a study by Hudson B (2003) further analysis of different authors work in an attempt to define punishment is analysed, and another definition is suggested. The punishment with which penology is concerned, is punishment for crime, pronounced by the judiciary and administered by penal institutions such as prisons and the probation service. Other types of punishment for example, of pupils by teachers, or of criminals by vigilantes and lynch mobs are excluded (Hudson B 2003). This is the basis of which the statement has been perceived by the author and will be the foundation for the argument of this essay.

Reid S (1991) states that the use of institutions for confining people against their will is ancient, jails and other short-term detention facilities were used for many reasons such as awaiting trials, execution, deportation etc. The use of prisons as a form of punishment for offenders is however a relatively modern development. The overcrowdedness of many jails and prisons either creates or at least aggravates most of the problems that characterise penal institutions today (Reid S 1991). It is this form of punishment that will partly be used to analyse Garland’s ‘punishment today is deeply problematic’ statement, and by doing this will demonstrate that the author fully agrees with Garland’s statement. Hudson B (2002) states that despite doubts about decarceration, in the mid-1970s due to the introduction of enhanced probation, intermediate treatment, and above all community service would in turn result in a decline in the number of offenders punished by imprisonment. Only the most serious crimes were expected to be associated with imprisonment. This however is not the case; Walmsley R (2003) states that the UK had the highest rate of imprisonment in the EU. The general effect of prison overcrowding is problematic in itself, Reid S (1991) states that it magnifies negative aspects of prison life such as more violence, deaths and homosexual assaults. The prisons educational, recreational, and vocational programmes also have long waiting lists. Overcrowded prisons can cause stress for inmates and staff, boredom, and easily spread disease.

Suggested solutions to overcrowded prisons have gone as far as releasing inmates to provide space for the newly convicted, but such a statement seems absolutely ludicrous. Politicians would argue that the situation is under control and that solutions are in place to combat this situation. Sim J (2004) states that globally the prison system is a growth industry, which employs hundreds of thousands of workers. Further to this Sim J (2004) suggests that it also generates a whole sub-strata of work for private companies who are increasingly involved in the building and managing institutions, as well as providing high-tech security equipment and contracted-out services such as catering and education. This does however not evade the fact that overcrowding in prisons still exists, and issues surrounding the process and effects of imprisonment are still somewhat problematic. Prison is still subject to much critique, which elapses a debate as to whether the system should change. There are several points argued in a study by Sim J (2004) that are worthy of quotation. It is pointed out that prison does not diminish the crime rate. This suggests to the author that modern day deterrence is not apparent through the use of punishment regarding prison sentences. It is also stated by Sim J (2004) that prison encourages the organisation of delinquents who are loyal to each other, meaning that it is possible for prison to educate crime. This shows that methods of reform are not apparent in every case for offenders. The study states that when offenders are freed they experience conditions of unemployment, stigmatisation and surveillance, which may condemn them to recidivism. Through this evidence it can be argued that prison, as a form of crime prevention is not entirely adequate. In this case Garland’s perception of punishment being deeply problematic has strong merit, and this essay is in complete agreement.

In order to further discuss the problematic punishment system today the probation service will be briefly discussed. Newburn T (1995) states that although the legal basis for alternatives to imprisonment increased during the nineteenth century, it was not until the first decade of the twentieth century that probation was put on stationary footing. Nash M (2004) beleives that the probation service reflected the modern approach to crime, and probation officers became the ‘experts’ trusted to deal with the problem in the community. However, as previously stated the crime rates have not diminished which possibly represents a failure for this service. The probation service has however survived; Nash M (2004) suggests that this is down to a complete transformation of the service and the fact that the government needs cheap alternatives to custody. Despite whatever successes the probation service may have had recently through their new policies, some critics still have doubts Nash M (2004) states that success with offenders is far from guaranteed and, in a world obsessed by results, this may yet prove fatal. If any form of punishment is to be used as an example, the probation service can be named as problematic.

Cavadino M et al (2000) states that a social institution is ‘legitimate’ if it is perceived as morally justified, the problem with the penal system is that this perception is lacking, and many people inside and outside the system believe that it is morally indefensible, or at least defective. The work of Emile Durkheim has long been acknowledged since his death in 1917. It is possible that Garland’s ‘barely understood aspect of social life’ statement has been characterised from the work of Emile Durkheim. Smith P et al (2005) states that at the core of Durkheim’s thinking is functionalism. This argues that we have to understand society as a system and that it is held together primarily by shared sentiments known as collective conscience. Durkheim believes that feelings of morality and belonging are core features in society, and this is apparent in his personal view of crime. Smith P et al (2005) suggests that crime according to Durkheim is an activity that confronts and transgresses the collective conscience and generates intense emotions such as outrage. But it is not his definition of crime that raises arguments, it is the functionalist view that crime shapes social cohesion. Durkheim argues that crime is sometimes good for society, this is apparent from his view that punishment has beneficial social consequences. Smith et al (2005) states that Durkheim believes crime can help innovation and change to take place by pushing moral boundaries and enabling new understandings to be established. Without such crime we would have a static and inflexible society. Not surprisingly the views of Durkheim and of functionalist criminology have received much critique, notably the work of Rock P (2002). In this study it is suggested that functionalism is discarded by many criminologists because it defied rigorous empirical investigation and, for some liberal and radical criminologists, it represented a form of Panglossian conservatism that championed the status quo. Which can be suggested is a similar argument of most criminologists when discussing dated theories. Further to this argument it is also pointed out by Smith et al (2005) that themes of power and inequality are missing from Durkheim’s work. With these points in mind it is possible to suggest the punishment is a barely understood aspect of social life.

Cavadino M et al (2000) states that punishing people certainly needs justification, since it is almost always something that is harmful, painful or unpleasant to the recipient. In order to demonstrate rationale for aspects of punishment it is necessary to discuss certain understanding crime theories. This will be established through classical and positivist approaches. These two contrasting theories have different believes about how criminals should be treated, this may be one element of Garlands argument that the rationale of punishment is by no means clear. The Classical school of criminology is associated with Ceesare Beccaria and Jeremy Bentham, their theories of crime were devised in the eighteenth and nineteenth century (Reid S T, 1991). It is obvious that social conditions have somewhat changed since the nineteenth century and it is important to understand that this will play a part in the theories produced by Beccaria and Bentham. The Classical Schools underlying philosophy was free will. It was maintained that behaviour is purposive and is based on hedonism, the principle of this is that human beings choose those actions that will give pleasure and avoid those that will bring pain (Reid, S T 1991) thus it was believed that each crime should be assessed and the punishment should be of greater pain than the pleasure endured during the act, and as stated by Muncie J (2004) as a result classicism looks to the prevention of future crime. Deterrence is based on the premises of affording rational, self-interested individuals good reasons not to commit crimes (Muncie J 2004). This means that the punishment must be one that can be calculated, thus, this theory is based on equal treatment for all.

Hudson B (2003) defines deterrence as a penal strategy usually taken to mean discouraging reoffending, or offending by hitherto law-abiding citizens, through fear of potential punishment. Hudson B (2003) distinguishes two types of deterrence, individual and general deterrence, that is, between deterring someone who has offended from offending again, and deterring potential offenders from offending at all. Individual deterrence is based around reform and rehabilitation and will be discussed further at a later stage of the essay from a positivist view of punishment. Deterrence has an immediate problem of knowing how severe the punishment has to be to stop people from committing crime, Hudson B (2003) states that the best way to do this is through the ‘reciprocity of perspectives’ this means that we can to some extent presume that people who think as much as we do will be put off by the prospects of punishments that would deter ourselves. This is however a heavily criticised method of thinking because it is believed that this will always be a working hypothesis and that a certain punishment would deter one individual, and would not deter another. Hudson B (2003) states that more problematic still for a penal strategy of deterrence are impulsive offences, where acts do not arise out of rational premeditation, but out of particular circumstances and relationships between particular individuals. Most murders and many assaults are of this nature. It is also apparent to the author that general deterrent theories would also only be plausible if the offender new of the severity of the punishment.

This brings us on to another form of rationale for punishment from a classicist perspective known as retribution. Many people view retribution as natural and an appropriate way to punish, It is believed by Hucklesby A (2004) that retribution concentrates solely on the offence and in essence can be seen as the antithesis to rehabilitation. The theory is based around not only preventing crime, but also punishing criminals because they deserve it. Hudson B (2003) states that Retributive penal systems have existed throughout history. The system seeks equivalence between the punishment and the crime, such that the offender should forfeit that which the victim has lost. In most Western societies corporate or capital punishment does not exist, despite many peoples believes of retributivism. However, Hudson B (2003) does state that the introduction of new legislation similar to the ‘three strikes’ does show a response to what the Western society seeks from their criminal justice system. Despite this statement not all beliefs rely on retribution and it is that of the positivist belief among others that differ.

The positive school like the classical school had its origins in Italy, and was founded by Cesare Lombroso (Reid, S T 1991). The positive school differed from the classical because they focused on the constitutional rather than the legal approaches to crime. Reid S T (1991) suggests that the positivists rejected the harsh legalism of the classical school and substituted the doctrine of principle determinism rather than the metaphysical idea of free will. The key features of positivism are suggested by Muncie J (2004) as the assumption that criminality is different to normality, the abandonment of rationality as a casual factor, and that criminals are abnormal, their actions are in breach of a held harmony in society. Other features of positivism include a scientific approach to predicting crime, as Muncie J (2004) states establishing a ‘cause and effect’ when particular criminogenic factors can be identified, also the belief that crime is not chosen by the offender therefore attempting to limit the rationale to commit crime in a bid to eliminate anti-social behaviour. In a study by Muncie J (2004) it is suggested with regard to the believes of positivists that human beings, including criminals, do not act of there own free will but are compelled to act by powerful internal or external forces and by circumstances beyond their control, thus if behaviour is the result of antecedent causes then the individual cannot be held responsible for their actions. This shows that positivism is in favour of rehabilitation rather than the retribution or deterrent theories of classicism.

Hudson B (2003) states that the objective of reform or rehabilitation is to reintegrate the offender into society after a period of punishment, and to design the content of the punishment so as to achieve this. Rehabilitation is believed to have been introduced because of the industrial revolution. This provided the need for extra labour and the opportunity to introduce offenders back into the community. Another factor in the introduction of rehabilitation is described by Hudson B (2003) as the growth of human sciences, which admitted the idea of criminal behaviour as caused by psychological or environmental factors susceptible to change. Reform/rehabilitation is therefore associated with ‘modernism’ and ‘positivism’, which most simply, means belief in the possibility of a change and improvement through the application of science to human behaviour, as well as to enterprises such as public health and engineering (Hudson B 2003). There has however been wide spread critique of rehabilitation, in a study by Muncie J (2004) whist referring predominantly to the work of Martinson, it is suggested that critique of rehabilitation came from evaluations which suggest that different types of treatment made little or no difference to the subsequent reconviction rates of offenders. This critique is based on actual research. Hudson B (2003) supports this by suggesting what that success cannot be guaranteed, and that there is no programme that has proved successful with all kinds of offenders. Further to this it is suggested by Hucklesby A (2004) that crime rates have continued to rapidly increase despite the money being spent on the rehabilitation of offenders. It is not just the lack of efficiency of rehabilitation that is the subject of arguments, but the positivist concept of crime being undesirable that is largely discussed. These contrasting views, and the large support for the incompetence of rehabilitation make it an unclear rationale for punishment.

It is suggested by Hudson B (2003) that deterrence and rehabilitation both carry a necessary possibility of being unsuccessful, because whether or not potential offenders offend, or actual offenders reoffend, is up to them. Freedom of choice remains, and therefore the possibility of offending remains. If deterrence and rehabilitation are deemed unachievable, then another option is physical incapacitation, which would either render the offender harmless or removing them from society. Methods of doing so consist of the death penalty or life imprisonment. However Hudson B (2003) suggests that like deterrence and rehabilitation, incapacitation also provokes the familiar objections of effectiveness and moral principle.

Garland D (2002) whilst acknowledging the classical and positivist schools of criminology as playing a small but significant role in shaping the horizons and reference points of contemporary criminology states that it makes little sense to claim that these eighteenth century thinkers possessed a ‘criminology’, given that they made no general distinction between the characteristics of criminals and non-criminals, and had no conception of research on crime and criminals as a distinctive form of inquiry. Garland D (2002) gives the positivist school a little more credit by suggesting that they at least they have the merit of having been the self-description of a school of criminologists. Garland’s study would suggest to the author that these supposed universal theories of crime are somewhat irrelevant, however Buckland et al (2004) believes that Garland’s definition of criminology, as an empirically grounded scientific understanding is too restrictive. Garland’s critique is of classicism and positivism are of when they were at their foundation stage and these theories have developed somewhat as we have moved into the era of modern criminology.
Garland’s statement is very broad in its context, and can be interpreted and argued in different ways, this essay has demonstrated that there is good merit for Garland’s argument and has agreed fully with his statement. The first part to the statement was shown and understood through the use of modern prisons. The essay demonstrates the problematic issues in punishment through prison overcrowding debating the problems it can cause through lack of rehabilitation and increase violence with inmates. Brief solutions were discussed such as the privatisation of institutions, however the argument continues further with the age long critique of how prisons are not fully effective methods of crime prevention. To further discuss the problematic issues surrounding punishment today the probation service has briefly been discussed noting mainly that that it is inconsistent with its results. Garland’s ‘barely understood aspect of social life’ statement is demonstrated through the work of functionalist criminology mainly referring to the work of Emile Durkheim. The underlying principle of the argument outlined here was the belief that crime shapes social cohesion. The argument has been debated many times by criminologists with the result namely being in favour of Garland’s statement, and this is how it has been interpreted for this essay. The rationale for punishment in this essay is demonstrated largely through the relationship between modern views of punishment and the view of the thinkers of positivism and classicism theories of deterrence, retribution, and rehabilitation. These methods are all contrasting in some way or have been given criticism to some extent. Deterrence has many implications; it has been classed as a working hypothesis, and also has issues, which concern impulsive offences that make deterrence obsolete. Rehabilitation has widespread critique largely concerned with its ineffective results. Rehabilitation is the antithesis to retribution meaning that the Criminal Justice System must find a simultaneous solution to crime control. The essay has also demonstrated a brief critique by Garland D (2002) outlining flaws to the theories of positivism and classicism. They have both been criticised for the era of which they are developed and mainly being based around assumptions rather than that of any real research. The analysis and critique presented here is evidence enough for the author to fully agree with Garlands ‘by no means clear’ statement.


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