Punishment and Sentencing Principles
Colonial Beginnings and Transportation
Australia's colonial beginnings involved penal settlements populated by transported offenders from England and Ireland.
Early penal settlements are often portrayed as brutal, but transportation was sometimes less harsh than poverty in the British Isles.
Assignment, tickets-of-leave, and emancipation softened the deterrent effect of transportation by the early 19th century.
English authorities believed this system granted convicts too much liberty.
Shift to Penitentiary
By the 1840s, the penitentiary emerged in England as a dominant form of punishment.
Opposition to transportation due to its uncertain nature and colonial resistance led to a decline in transportation sentences.
Jeremy Bentham and Utilitarianism
Jeremy Bentham (1748–1832) was an English jurist, philosopher, and legal/social reformer.
He advocated utilitarianism: the moral worth of an action is determined by its contribution to overall utility.
Utilitarianism falls under consequentialism: the value of an action is determined by its outcome.
Utilitarianism informs theories of punishment focused on preventing future crime.
Retributive Justice
Retributive perspectives aim to exact retribution from offenders.
Central to retribution is placing moral blame on offenders; future conduct is not the concern of punishment.
Chapter Overview
This chapter introduces philosophies influencing punishment in Australian society.
It explores utilitarian principles and Bentham’s ideas, explaining their role in ending transportation.
It maps the impact of reformist ideals on sentencing and punishment in the 20th century.
It examines the challenge to consequentialist approaches by calls for ‘just deserts’.
The chapter concludes by relating these principles to managerialism and communitarianism.
Bentham's Utilitarianism and the End of Transportation
Bentham critiqued existing laws and advocated for legal reform.
His utilitarianism evaluates actions based on consequences, particularly overall happiness.
Bentham’s Penal Theory:
Punishment is evil and should only be used to prevent greater evil, such as suffering from further offenses.
Punishment alters the pain/pleasure balance for potential offenders.
Prevention of future offenses by example is fundamental.
Reform and incapacitation are secondary, affecting only those who have offended and suffered.
Emphasis on example could justify excessive punishment or punishing the innocent to prevent future offenses.
Bentham's Opposition to Transportation
gBentham opposed transportation, considering it an uncertain and therefore poor punishment.
In the 1770s, he deemed transportation to American colonies as ‘unexemplary’.
Uncertainty in pain inflicted made it a lesser punishment than death, yet death could occur during transport.
Variations in transportation sentences could not be scaled to match the offense.
Bentham argued deterrence is more effective with precise and certain punishment.
Transportation, being an uncertain fate, was a poor deterrent.
Even if pain inflicted was equal, distance weakened its deterrent effect.
Reformation and Transportation
Bentham believed the second purpose of punishment was to reform the offender.
Transportation rated poorly in this aspect, as any reform was accidental.
The priority in the colonies was extracting labor, not improving morals.
New South Wales Settlement
The NSW settlement was established after the American Revolutionary War ended transportation to American colonies.
Bentham opposed the decision to send convicts to NSW, seeing the interruption in 1776 as a chance for penal reform.
Intellectual opinion favored imprisonment with hard labor.
Reports from the colony reinforced Bentham’s case against transportation.
Between 1791 and 1802, he campaigned to abandon the NSW penal colony.
His case was detailed in Panopticon v New South Wales (1802), arguing it served none of the proper ends of penal policy.
Deterrence is best achieved by making an example of convicts in a strictly run penitentiary.
NSW was too remote to serve as an effective deterrent.
'The moon was then, as it continues to be, inaccessible: on earth there was no accessible spot more distant than NSW' (1843/1995, p. 186).
Panopticon
Bentham contrasted NSW with the panopticon, a penitentiary where punishment could vary in length and intensity.
The public would have free access to enhance deterrence.
Inmates would be kept at labor under constant, unseen surveillance.
Discipline and chaplain work would ensure reformation.
Ending Transportation
Bentham’s panopticon project failed, but his ideas influenced the end of transportation to NSW.
From the 1810s, Romilly, Mackintosh, and Brougham advocated for criminal law reform in the English House of Commons.
They attacked transportation using Bentham’s arguments.
Their views gained support among new ministers when the Whigs replaced the Tories in the 1830s.
Deterrence
Deterrence is a utilitarian rationale of punishment focused on preventive consequences.
It assumes offenders calculate the cost of their actions: if the risk of detection is high and the penalty outweighs the benefit, crime will be deterred.
Distinctions:
Individual (or Special) Deterrence: Preventing a specific person from reoffending.
General Deterrence: Deterring all people from committing a particular type of offense.
The distinction is complex because penalties meant for general deterrence are experienced by actual offenders.
True individual deterrence requires indeterminate sentences tailored to the individual.
Problems with Deterrence-Based Sentencing:
Difficulty in defining deterrence.
Lack of empirical evidence that it is effective, with ambiguous results from evaluations of harsh penalties like the death penalty.
Reliance on potential offenders' knowledge of detection risk and penalty magnitude.
Not all offenders are rational calculators; some are impulsive, opportunistic, or overly optimistic.
Justification of exemplary sentences, potentially leading to disproportionately harsh punishment or punishing the innocent.
Punishment and Reform: Offenders as Broken Machines
In the 18th century, imprisonment evolved from holding people awaiting trial to being a mode of punishment.
It was introduced as an alternative to death/transportation due to growing recognition of population value.
Death/transportation removed offenders from the workforce, while older punishments did not enhance their ability to be productive, law-abiding citizens.
Reform became a primary concern in the penal system during the late 18th and early 19th centuries.
Penalties aimed to instill a desire for work and self-discipline suited to factory labor routines.
The 1840s saw new prisons built in England, with the penitentiary becoming the dominant mode of punishment.
Australia laid the foundations for its prison system infrastructure in the 19th century.
Shift in Australia
Mid-1800s: Frontier society with a convict-dominated population and high crime rates.
End of the century: Decreased crime rates, with convicts increasingly integrated into a law-abiding society.
Punishment shifted from disposing of prisoners as ‘enemies of the state’ to a harsh disciplinary regime.
Imprisonment became the most common sanction for minor offenses.
Reform Movement
Initially, Australia’s prison systems were brutally severe.
By the end of the 19th century, a reform movement gained momentum.
Increased prison admissions in the early 1890s led to reassessment of incarceration’s function.
Debate focused on whether prisons were reformative or deterrent institutions.
The difference between deterrence and reform (rehabilitation):
Deterrence: Concerned with whether offenders commit further crime.
Reform: Aims to help offenders become better, more productive people.
By the late 1890s, imprisonment shifted from harsh punishment to reform and rehabilitation.
Prisoners were seen as 'broken or damaged machines' needing moral repair.
Prisons were envisioned as 'moral hospitals' providing a 'cure from crime.'
Penal Reform
Interest in penal reform extended from sentencing to institutional design.
Reformatories and prison farms were established to classify prisoners by social characteristics.
Women’s prisons were founded to address the specific needs of women, though they often diminished inmates' adult status.
Early critics noted limited work opportunities, treating women as children.
19th-century reform was unsophisticated, acknowledging only basic differences between prisoners.
Human sciences (psychology, physiology, sociology) drove change.
Criminology emerged to aid the state’s corrective efforts.
Reforming offenders involved classifying them into types, with diagnosis and treatment supplementing work/penance.
20th Century Influence
In Australia, this influence became apparent in the 20th century.
Penal institutions aimed to prepare prisoners for reintegration into society.
Larger jurisdictions multiplied the types of ‘corrective’ institutions.
By the 1950s, NSW had at least fourteen separate penal establishments.
The apparent failure of prisons to reform offenders encouraged decarceration and community programs in the late 20th century.
Rehabilitation in the 1960s
Rehabilitation and its features (individualization, treatment, conditional release, remissions) were important in sentencing.
By the early 1970s, disillusionment and the rise of just deserts led to a decline in support.
Concerns about rehabilitation:
Threat to political freedom from state intrusion.
Vulnerability to manipulation.
Conceptual vagueness.
Conflation of coercive and voluntary techniques.
Lack of proof of efficacy.
Conclusions about its lack of efficacy are controversial; programs were never properly funded, evaluated, or targeted.
Rehabilitation never fully disappeared, and since the 1990s, there has been a revival of the rehabilitative goal.
Rehabilitation Defined
Rehabilitation is based on utilitarian philosophy that is forward-looking.
In contrast to deterrence theory, it views offenders as needing help/support.
The aim is to prevent crime by changing the offender through treatments, education, skills training.
Rehabilitation may focus on attitudes, behavior, education, or job skills.
Key consideration: perceived needs of the offender rather than the severity of the offense.
Needs are assessed by experts (e.g., probation officer, psychiatric report), and the sentencer decides the form of treatment.
Operation of the Rehabilitative Model
Leads to indeterminate sentences until a ‘cure’ is achieved as judged by experts.
Problems associated with rehabilitative approaches:
Limited empirical evidence of success, although recent meta-analyses suggest positive results in favorable circumstances with selected offenders.
Lack of due process: indeterminate sentences place release decisions in the hands of authorities without firm criteria or appeal avenues.
Disregard for individual rights: compulsory state intervention may be disproportionate to the crime committed.
Potential for net widening: even minor offenses may lead to extended state control.
Incapacitation
Incapacitation is a background theme intertwined with deterrence and rehabilitation.
It is the third cornerstone of utilitarian punishment theory: preventing future crime.
Bentham argued punishment reduces crime through example and reformation, but when these failed, the focus shifted to reducing the convict’s physical power to re-offend.
Transportation to NSW was key for the British government because it made it physically impossible for convicts to commit further crimes in England.
The government was unconcerned about convicts' behavior post-release as long as they did not return.
Reforms of the Late 19th Century
Designed to prevent some people from reaching prison and ensure longer detention for others.
The shift away from deterrence involved:
Diversion of minor offenders from prison.
Rehabilitation linked to narrowing the definition of who should be in prison.
'First offenders, old feeble vagrants, diseased and friendless incapables, inebriates, lunatics and juveniles' were to be kept out of prison.
'Criminals' would be subjected to longer imprisonment.
Prisons were seen as moral hospitals that discharged inmates after a set time.
Indeterminate Sentencing
The Habitual Criminal Act 1905 (NSW) introduced indeterminate sentencing for habitual offenders.
The aim was to protect society and rehabilitate citizens.
Similar legislation was introduced in Victoria (1907) and Western Australia (a decade later).
Victoria’s Indeterminate Sentences Act targeted repeat offenders and first offenders with multiple charges.
Classification systems for prisoners had a rehabilitative rationale but also managed rebellious prisoners.
Post-War Period
Criminological enthusiasm for rehabilitation led to prisoner programs and probation/parole systems.
The objective was to create useful citizens, but containment remained the cornerstone of punishment.
Sentencing and punishment involving incapacitation aimed to make offenders incapable of re-offending for extended periods.
Selective Incapacitation
Selective incapacitation is based on the idea that a core group of persistent offenders commits a significant proportion of crime.
Proponents argue for identifying recidivists and their long-term incarceration.
Includes measures like mandatory three-strikes laws, indefinite imprisonment, and preventive detention.
While supported in the US, Australia uses such techniques more modestly.
Habitual offender legislation has been either abolished or fallen into disuse, however, indefinite sentences are authorized in various forms.
For example, legislation allows courts to extend prison terms indefinitely for serious offences with judicial review.
Such sentences are imposed if the offender is a serious danger to the community.
Protective Orders
Protective orders imposed via preventive detention have attracted criticism.
Such orders are not a response to a criminal offense; rather, they provide the authority to detain someone because of apprehended future danger.
Introduced in NSW and Victoria in the 1990s ad hominem (directed at a specified individual.)
Legislation did not require a crime or conviction.
Allowed the Supreme Court to order detention if satisfied the person was likely to commit a serious violent act.
Critics cited lack of constitutionality, violation of human rights, lack of due process safeguards, discriminatory nature, flawed assumptions, and problems predicting violence.
The law has since ceased in both states.
Selective incapacitation can also include capital punishment, severing of limbs, driving disqualification, curfews, and management of sex offenders, for example restrictions on movement or chemical interventions.
Indefinite incarceration costs outweigh the benefits.
Attempts continue to focus on identifying offender target groups more effectively.
Incapacitation Revisited
Incapacitation is rooted in consequentialist utilitarian philosophy.
Defined as obstructing or reducing the offender’s capacity to commit new crimes.
Achieved through confinement, removing the offender from social circulation.
Two Types:
Collective Incapacitation: Containment of particular categories of offenders.
Selective Incapacitation: Containment of individuals.
Benefits of Selective Incapacitation
Likely re-offenders can be identified to protect against future crime.
Reduction in crime by removing high-risk offenders.
Prevention of excessively punishing lower-risk offenders.
State expenditure kept down by not over-punishing the majority of offenders.
Community protection is cited as the key justification for selective incapacitation.
Proportionality principles give way to the greater good of public safety.
Due process concerns are addressed by using suitable criteria, expert assessment, and strict forms of proof.
Problems with Selective Incapacitation
Over-prediction of serious repeat offenders, with a false positive rate reaching two out of every three.
Morally indefensible because one offender’s liberty is sacrificed for others’ safety.
Violation of human rights through arbitrary punishment.
Violation of proportionality in sentencing.
Lack of relevant expertise to make the assessments required.
Absence of appropriate procedural safeguards.
Discrimination against the disadvantaged.
Just Deserts and Retribution
Just desert theory is a modern form of retributive philosophy.
Retributive penal systems, like the lex talionis (an eye for an eye), have existed throughout history.
Called for equivalence between punishment and crime.
Before the 1970s, retribution was largely viewed as vengeance.
Dissatisfaction with rehabilitative penalties and disparities in sentencing led to the 'back to justice' movement.
Rise of Just Deserts
In Australia, the emergence of ‘just deserts’ sentencing principles in the 1980s and 1990s was in reaction to the upheaval and reform in the 1960s and 1970s.
As a result of significant riots, prisons became sites of political struggle, resulting in governments questioning the penal system.
Criticized prisons as brutal, counterproductive, stigmatizing, and recidivism-producing.
Community service orders were introduced as alternatives; however, these came under attack.
A counter-response emerged in the 1980s arguing problems in the prison system were a result of lost discipline.
The concept of prisoners' rights obscured prison's fundamental role of punishment.
Hirst and the Failure of Utilitarian Aims
Constant talk of the failure of the prison to fulfill utilitarian aims of deterrence and rehabilitation created an opportunity for those who argued that these aims were misconceived: the only function of the prison was to punish.
Confusion and contradiction between sentencing objectives highlighted the need to adopt a single “coherent” rationale. This included factors like deterrence and rehabilitation. and they looked to just deserts.
In North America, clear sentencing guidelines (like the Minnesota grid) prevented the disparities of the rehabilitative ideal.
Australian jurisdictions resisted changes challenging judicial discretion.
The sentencing Act 1989 (NSW) adopted just deserts and ‘truth in sentencing’ by abolishing executive remissions.
Lack of guidance given to sentencers.
This led to increasing prison sentences, contributing to a 50% increase in the NSW prison population (1989-1995).
A more structured system, with legislative guidance on sentencing, was introduced in Victoria.
Adoption of Just Deserts
In the 1980s the Australian Law Reform Commission described the adoption of justice deserts in Australia as having a primary emphasis on justice deserts for the offender and reparation for the victim.
Deterrence, Rehabilitation and incapacitation were giving lesser priority.
The approach aimed to accommodate rehabilitation by reconceptualizing rehabilitation through rational offenders who could cooperate in their own long-term interest.
Continued Influence
Justice Deserts has continued to influence sentencing policy and practice through treating offenders with fairness.
Just Deserts vary because:
There are no absolute scales, which causes judgements about offense severity to vary culturally.
There is an ongoing debate about the role previous convictions should play in just desert theory.
No modern just desert theory completely excludes utilitarian considerations of sentencing.
Just Deserts Definition
Just deserts-based punishment communicates official censure chiefl y to the offender, but also to the victim and society at large.
While general deterrence is a subsidiary element, it operates only within the censuring framework.
The primary principle of just deserts is that punishment should be commensurate with offense.
The modern version interprets commensurate as proportionate rather than equivalence.
Most serious punishments should be reserved for the most serious offences, and penalties should be graduated according to the gravity of the offence.
Possible future offending is not a consideration; however, previous convictions are taken into account.
Reductions in sentence are allowed for fi rst offenders because just desert is derived from the seriousness of the offence and from the culpability of the offender.
Intentionality, or mens rea , is part of the idea of punishment being imposed to the extent that it is deserved.
Problems Associated with Just Deserts
The difficulty of ranking offences in terms of seriousness whose views of seriousness should be taken into account?
The difficulty of ranking punishment in order of severity—in other words, the concept of proportionality is also in contention.
An over-reliance on the court to remedy injustices.
A lack of attention to the biases inherent in the criminal justice system.
A disregard for the effects of social deprivation and disadvantage that are consistently correlated with the commission of crime.
Managerialism
Economy, efficiency, and effectiveness have recently come into play to shape penal systems.
As governments have scrutinized expenditure programs, they have assessed offender sentences.
One reason Non-custodial measures is the development of new forms.
Enthusiasm for 'What works' approach and cost effectiveness.
Managerialism and Penal Systems
Zdenkowski describes managerialism effect on the Australian criminal justice system at the beginning of the twenty-first century in terms of ‘pragmatism in the punishment process’ .
Policies and practices subordinate, rapid expansion discounts for guilty pleas.
Administrative sanctions have been used increasingly for significant cases of corporate fraud, and administrative regulation is now commonplace in both the private corporate world and the public sector
This approach is not without drawbacks, namely the scope for inconsistent use of such remedies and potential for anomalies and capricious justice, the erosion of due process and reduced accountability because of invisibility, and the lack of deterrence. Recently, there has also been greater use of infringement notices (that is, on-the-spot fi nes) that allow offenders to discharge their liability by paying a fi xed sum.
New Managerialism According to Bottoms
This systemic approach glosses over dissonance to emphasize systemizing criminal justice in agencies.
Managerial Agencies create and actively monitor information about the system and its function, paying attention to key performance indicators that measure effi ciency and effectiveness.
Rationality
Peters argues that this amounts to a shift in focus in the criminal law, which is no longer driven by distinctions between right and wrong according to the retributionist principles, or the treatment of offenders pushed by the ideal of rehabilitation.
Actuarial Dimensions of Feeley and Simon
The aggregation tendencies of managerialism lead to an 'actuarial language of probabilistic calculations'.
Traditional justice concerns are challenged by the instrumental assumptions of the actuarial approach.
consumerist Dimension:
The pressure for the effective delivery of individuals’ entitlements—together with an increasing pressure from legislative and executive branches of government for effi cient service delivery, greater productivity and so on—encourages service providers to adopt a managerialist approach because it seems to be the most successful method of meeting these kinds of demands.
Restorative Justice and Communitarianism
In the twentieth century, major criminal justice emerged from the recognition of needs of victims . the changed profi le of victims in the domain of sentencing and punishment is evident in two ways.
The fi rst is the increased attention given to victims’ rights generally in the criminal justice system. This has included granting victims the right both to make a factual statement to the court about the offence and, in some jurisdictions, to make a submission before sentencing. The second is the growing number of restorative theories of criminal justice.
Victims Responses and Welfare
Welfare services have consisted of witness assistance, information, prosecution liaison, counselling referral services and compensation.
Procedural Rights - potentially include: the right to be consulted on (or to veto) the decision to prosecute; the right to be consulted on the acceptance of a plea; the right to make submissions to sentencing or parole authorities.Victim impact statements have been widely embraced, and are intended to enhance the court’s understanding of the seriousness of the offence.
Another important development is restorative justice theories and schemes involving victims based on such theories.
Restorative Justice Defined
Barbara Hudson (2003a) explains that restorative justice is advocated by those concerned with making criminal justice more responsive to the needs and the suffering of victims.
promoted as a way of making victims central to criminal justice without further undermining offenders.
has also been promoted by many ‘First Nation’ groups who wish to retain the values and traditions of their justice processes.
These groups challenges processes of white justice that have continually resulted in over representation of minority groups in prosecution and imprisonment rates.
Reintegrative Shaming
Braithwaite argued that responses to crime should use reintegrative shaming (inclusive shame focused on the offence, not the offender), rather than stigmatic shaming of offenders (shame that censures and excludes).
Argued that while the criminal acts should be denounced, individuals ought not to be denounced or stigmatised. Reintegrative shaming aims to separate bad acts from potentially good individuals.
The Range of Programs Linked to Restorative Justice
Van Ness explains the purpose of restorative justice as ‘[t]he restoration into safe communities of victims and offenders who have resolved their confl icts’. . The key is an emphasis on process as much as outcome; on victims, offenders and communities; on relationships; and the forward-looking consequentialism of the approach.
Zehr, for example, proposes that restorative justice emphasizes ‘right relationships’ rather than ‘right rules’.
Limitations of Restorative Justice
Victims, offenders and their supporters may not all be prepared for restorative ways of thinking and acting.
There are legal constraints on the process; restorative justice does not have a fact-fi nding or investigating mechanism, and it cannot replace established criminal justice.
There are court restrictions, and restorative justice is principally used for youth as opposed to adult cases, compromises the justice experience of offenders.
Other Innovations in Justice
Indigenous Justice:
Refers to Justice practices and processes in which Indigenous people have a central role in responding to crime.
Indigenous Justice responds to the destruction of cultures and and addresses over-representation of Indigenous people in the criminal justice system caused by Colonialism.
They aim to reduce Indigenous incarceration, increase systems participation, and help communities resolve disputes with offenders.
Commonalities of Indigenous Justice
Some form of input from Indigenous groups or communities in sentencing decisions: advice arising from degrees of control, indigenous justice practices in Australia usually include some form of input from Indigenous groups or communities into sentencing decisions.
Practices complete imposed from white justice, from diverse groups from indigenous people and some or all decisions of indigenous justice.
Support and Criticisms of Indigenous Justice
-Indigenous groups feel there is better communication with the courts, reliance on indigenous knowledge, and more penalties because of their involvement
-Critics argue the policies are tokenistic, and and bureaucratic. A from of Apartheid justices one for a indigenous and another for non-indigenous group
Therapeutic Jurisprudence
Refers to the extent to which substantive rules, legal procedures and the roles of lawyers and judges produce therapeutic or anti-therapeutic consequences for individuals involved in the legal process.
Therapeutic jurisprudence practices are based on knowledge derived from social sciences.
evolved concept from a set practices with judicial case management, intervention, and collaborations from community based and government organizations, to shift the cultural shift is the application application of treatment .
Effectiveness and Conflicts of Therapeutic Jurisprudence
Traditional roles and law enforcements is at stake. It necessitates clarity of purpose and openness of communication .
Sentences have varying from behavioral, and expectations from other courts as well
Jurisprudence allows cases to take a hands-on approach for, develop, law-abiding,self-governance,. Participation is taken for positive, however, there is a attrition for entry graduate.
Therapeutic jurisprudence is deployed not only in the context and administrative tribunals and appellate procedures. provides a distinct forum for the application of this principle .