Rose Ayugi (Criminology & Penology)

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Criminology & Penology

Criminology & Penology

Criminology looks at theories around crime commission. Criminology looks at theories around crime commission.

Penology deals with how society looks at and responds to crime. Penology deals with how society looks at and responds to crime.

There are many types of crimes and criminals e.g. rapists, murderers, etc and all crimes must be There are many types of crimes and criminals e.g. rapists, murderers, etc and all crimes must be addressed specifically and then tied down to theories.

addressed specifically and then tied down to theories.

How the media report crime does and what makes them report the way they do? E.g. the post How the media report crime does and what makes them report the way they do? E.g. the post election violence. What are the influences?

election violence. What are the influences?

Bias in the criminal justice system in criminology. The assumption is that it is working in a just Bias in the criminal justice system in criminology. The assumption is that it is working in a just and fair manner. USA has the issue of blacks and whites and Kenya has blue and white collar and fair manner. USA has the issue of blacks and whites and Kenya has blue and white collar offenders. Some offenders get priority by judges. How do judges deal with offenders? Is there offenders. Some offenders get priority by judges. How do judges deal with offenders? Is there  bias?

 bias? Do Do we cowe consider white nsider white collar crimes? collar crimes? Why Why are there are there so so many wmany weapons eapons in in the the crimes? Is crimes? Is itit deliberate or not? Internet and technology is the new order of crimes.

deliberate or not? Internet and technology is the new order of crimes.

How is crime statistics formulated? Petty thievery and murder, what does that suggest How is crime statistics formulated? Petty thievery and murder, what does that suggest about society? The response to crime will depend on this. Police reports on crime statistics and about society? The response to crime will depend on this. Police reports on crime statistics and trends are they true or false? What is the motivation in lowering or hiking the figures? How are trends are they true or false? What is the motivation in lowering or hiking the figures? How are they interpreted? The figures can be flawed to support a given target.

they interpreted? The figures can be flawed to support a given target.

The three areas we will focus on

The three areas we will focus on include;include;

a)

a) White collar crimes.White collar crimes.  b)

 b)  New ways of breaking the law e.g. kidnapping and cyber crime. New ways of breaking the law e.g. kidnapping and cyber crime. c)

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Library-CRIMINOLOGY A READER. Library-CRIMINOLOGY A READER. Criminology Criminology What is criminology? What is criminology?

Crimen means crime. Logos means rational speech/science concerning crime. It is the discourse Crimen means crime. Logos means rational speech/science concerning crime. It is the discourse concerning crime and the methods by which society deals with crime.

concerning crime and the methods by which society deals with crime.

An author, Wayne Morrison in his book “Theoretical Criminology from modernity to An author, Wayne Morrison in his book “Theoretical Criminology from modernity to Post modernism” 199

Post modernism” 1995 @ pg 5, he argues that given the topic, it is not surprising that5 @ pg 5, he argues that given the topic, it is not surprising that criminology is a broad area , cov

criminology is a broad area , covering a large set of discourses and divering a large set of discourses and diversity of materials.ersity of materials.

Materials which may at times verge on the political, sociological, philosophical, rhetorical and Materials which may at times verge on the political, sociological, philosophical, rhetorical and the technical.

the technical.

Criminology has also been defined to include the study of: Criminology has also been defined to include the study of:

i)

i) Characteristics of a criminal.Characteristics of a criminal. ii)

ii) Extent of crime.Extent of crime. iii)

iii) Effects of crime on victims and society.Effects of crime on victims and society. iv)

iv) Methods of crime prevention.Methods of crime prevention. v)

v) Attributes of criminals.Attributes of criminals. vi)

vi) Characteristics and workings of the Criminal Justice System (Penology).Characteristics and workings of the Criminal Justice System (Penology). vii)

vii) Types of crimes.Types of crimes.

Critical questions in criminology. Critical questions in criminology.

Given the first area of concern, a number of queries have arisen; Given the first area of concern, a number of queries have arisen;

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Library-CRIMINOLOGY A READER. Library-CRIMINOLOGY A READER. Criminology Criminology What is criminology? What is criminology?

Crimen means crime. Logos means rational speech/science concerning crime. It is the discourse Crimen means crime. Logos means rational speech/science concerning crime. It is the discourse concerning crime and the methods by which society deals with crime.

concerning crime and the methods by which society deals with crime.

An author, Wayne Morrison in his book “Theoretical Criminology from modernity to An author, Wayne Morrison in his book “Theoretical Criminology from modernity to Post modernism” 199

Post modernism” 1995 @ pg 5, he argues that given the topic, it is not surprising that5 @ pg 5, he argues that given the topic, it is not surprising that criminology is a broad area , cov

criminology is a broad area , covering a large set of discourses and divering a large set of discourses and diversity of materials.ersity of materials.

Materials which may at times verge on the political, sociological, philosophical, rhetorical and Materials which may at times verge on the political, sociological, philosophical, rhetorical and the technical.

the technical.

Criminology has also been defined to include the study of: Criminology has also been defined to include the study of:

i)

i) Characteristics of a criminal.Characteristics of a criminal. ii)

ii) Extent of crime.Extent of crime. iii)

iii) Effects of crime on victims and society.Effects of crime on victims and society. iv)

iv) Methods of crime prevention.Methods of crime prevention. v)

v) Attributes of criminals.Attributes of criminals. vi)

vi) Characteristics and workings of the Criminal Justice System (Penology).Characteristics and workings of the Criminal Justice System (Penology). vii)

vii) Types of crimes.Types of crimes.

Critical questions in criminology. Critical questions in criminology.

Given the first area of concern, a number of queries have arisen; Given the first area of concern, a number of queries have arisen;

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(1) As to whether the material can be read as having a central core or as a coherent domain, orAs to whether the material can be read as having a central core or as a coherent domain, or whether it is totally unstable. A mass of perspectives which tease the reader of an article into whether it is totally unstable. A mass of perspectives which tease the reader of an article into thinking that the discourse encountered has sensed, but negates this as soon as various other thinking that the discourse encountered has sensed, but negates this as soon as various other articles are read.

articles are read. (2)

(2) There is another tension between criminology as a special discipline in its own right with itsThere is another tension between criminology as a special discipline in its own right with its own topic i.e. the analysis of crime and regarding criminology as a synthesis of social own topic i.e. the analysis of crime and regarding criminology as a synthesis of social sciences such as jurisprudence, sociology, anthropology, psychology etc, of which they may sciences such as jurisprudence, sociology, anthropology, psychology etc, of which they may  be uncertain as to their own constitution.

 be uncertain as to their own constitution. (3)

(3) Modern criminology work is purported to be factual and based on scientific study. Therefore,Modern criminology work is purported to be factual and based on scientific study. Therefore, criminology = science which is factual, and study that records information often in statistics, criminology = science which is factual, and study that records information often in statistics, arrives at results of studies and embodies the conclusions drawn from such results and arrives at results of studies and embodies the conclusions drawn from such results and therefore is readily capable of proof or disproof. (It is objective, empirical). There are two therefore is readily capable of proof or disproof. (It is objective, empirical). There are two valid view points on this question;

valid view points on this question;

-- There is one group that upholds that criminology is not a science because a science has toThere is one group that upholds that criminology is not a science because a science has to  be

 be stable stable i.e. i.e. firmly established firmly established and and homogenous. homogenous. If one If one person person tests tests and and everyone everyone doesdoes the

the same same test, test, the the results results must must always always be be the the same same e.g. e.g. (H+ (H+ O2 O2 H2O) H2O) and and since since crimecrime is neither stable nor homogenous, it cannot be a science. A man known as George Wilber is neither stable nor homogenous, it cannot be a science. A man known as George Wilber argues that antisocial behavior in society cannot be scientifically interpreted. Other argues that antisocial behavior in society cannot be scientifically interpreted. Other schools argue that since criminology has not developed its own scientific methodology, schools argue that since criminology has not developed its own scientific methodology,  but borrow heavily from others it is not a science.

 but borrow heavily from others it is not a science.

-- The other viewpoint is that criminology is a science and bases the argument on the factThe other viewpoint is that criminology is a science and bases the argument on the fact that even amongst the natural sciences, like botany and zoology deal with facts which are that even amongst the natural sciences, like botany and zoology deal with facts which are not strictly speaking unique and individual and which do not deal with general not strictly speaking unique and individual and which do not deal with general

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 phenomena. Further, that criminology is based on other social sciences just like medicine is based on anatomy, physiology, physics, chemistry etc. that neither medicine nor criminology is purely the identical, they have a meaning which derives from their  practical approach. The justification for medicine lies in the therapeutic and public health,

that of criminology lies in penal reform, penology and prevention of crime.

Importance of Criminology

a) It is important for the understanding of the individual and the best way to treat and reform him/her.

 b) For lawyers; to allow them to better understand their client and their particular circumstances for purposes of giving proper legal advice and pursuing a logical line of defense.

c) For judicial officers to be able to understand the offender for the purpose of awarding appropriate sentencing and also understand the society’s perspectives and emotions on a two given offence.

d) For law enforcement for purposes of investigation, prosecution, surveillance and crime  prevention.

e) For prison officers, social workers, psychologists, etc to understand the criminal better or more.

f) To enhance official understanding of criminology, the types of offences, the prevalence of offences committed generally or specifically by a class of people or in certain localities. This kind of understanding is supported by the date which is important for crime detection and control.

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g) For the vocational criminologist, he will also be concerned with research that will lead to alternative theories that can lead to improving the immediate practices of the criminal justice system, to bring about reform of some kind e.g. a program, an institution or strategy. Often, the goal is to solve an administrative difficulty within the existing system.

h) For the critical or analytical strand of criminology, the research or study will be aimed at making major changes within the existing institutional frameworks of the criminal justice system. The approach looks into the deeper philosophical questions of the day and also the  bigger questions as to why do we continue to have and use institutions such as prisons when we do not work to prevent offending or re-offending? The approach here is not to suggest improvement, to the existing penal system; but to question whether it is valid or viable to  begin with. Indeed, on informed opinion might simply advocate. Both approaches are

however, relevant.

1) Defining Crime

There is no straight forward answer to the question ‘what is crime.’ Even the central ideas of what are a crime and who is a criminal has no definite answer. There are two numbers of reasons why it is difficult to define crime;

Ideological issues: any theory or explanation of crime obviously has several dimensions

 built into it from the start. Even the most scientific or neutral theory will reflect to some extent the existing ideological or political sentiments of the day. At the very least, most criminology theories can be classified as conservative, radical or liberal or some analytical combination of the three, yet, in theory, two specific explanation of some phenomenon including one of crime and criminals is supposed to be value-free uncontaminated by

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emotions and political circumstances; but in reality if the research is funded by an arm of government, it may tend to serve the interest of the government.

A conservative perspective of society tends to be supportive of the legitimacy of the status quo and generally accepts the traditional way of doing things and that the role of institutions is to preserve the dominant order of the good of society generally and also that the values and institutions should apply equally to all people regardless of social background and historical development.

A liberal perspective on society accepts the limits of the status quo but encourages limited changes in societal institutions. This approach tends to avoid questions relating to the whole structure of society, instead advocates the need for action on particular limited social  problems (tokenism) e.g. racism, poverty, sexism etc. Without any fundamental changes to

the economic or social structure. (AFFIRMATIVE ACTION- Problem never really addressed).

The radical perspective on society wishes to undermine the legitimacy of the status quo. It looks at society as a whole but sees social conflict as the control concern. The key issue is who holds power and resources in a particular community? The focus of the radical  perspective is fundamental change in the existing social order. Specific issues such as  poverty are explained in rational terms e.g. between the poor and the rich, and the solution is seen to involve dealing with the structural imbalance and inequalities that led to the problem in the first place. It would therefore be quite apparent that politics play a central role in criminology and there is therefore, no value-free criminology and conservative, liberal and radical values are embedded in the criminology enterprise. Therefore, the political orientation of the particular approach has major implications for how crime is defined e.g. the radical

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view of crime (pg.6 of outline) would categorize crimes into crimes of the powerful which would be mostly economic crimes like pollution, violation of labor laws, state brutality, corruption and violation of civil rights.

The other category is crimes of the less powerful like work place theft, fraud, prostitution, rape, murder, etc, whereas the conservative approach would categorize crimes by emphasizing the so-called crimes of the powerful. They do not see it as two power issues, but as a social issue.

2) Objectives and methods used in Criminology reflect certain underlined ideas and concerns of

the writer. In reading criminology material, it is important to examine the assumption of the writer, the key concepts they use, the methods on agreements used to support their theory and also the sentences in a particular theory i.e. what questions are not being asked and why not.

3) It is important to consider the social relevance of the theory or perspective. What does it tells

us about our society and the direction that our society is or ought to be heading.

4) Ideas, perceptions and conceptions regarding what constitutes criminal behavior keep

changing. To a certain extent, both crime and criminology are uncertain in the sense that one’s definition of crime is dependent upon one’s particular interest and world view.

5) There are competing views on crimes as crime is always socially defined. This of course can

lead to debate e.g. should crime always be defined by law? Or could it instead be based on moral or social conceptions such as social harm. Is crime something only legally defined by law? Or can it be something else? Like moral wrongs such as adultery not being criminal by law, yet it is normally wrong. If the definition is purely and legalistic one, i.e. purely and creation by law, how can social science study it? Should criminology subject matter be restricted to conventional legal definitions?

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An activity becomes criminal due to the social response which leads to it being classified as a crime, therefore, colonialism was a social phenomenon and there was a feeling that slavery was wrong, but there was no law to it and people consider whether to make it a crime against humanity.

To illustrate the differences on defining crimes, consider the following;

(a) Why some behaviors which are defined as criminal while others which may also be damaging are not.

(b) Why are certain people who have committed crimes convicted, while others allowed escaping conviction?

(c) In Nazi Germany, there are Germans who assisted the Jewish people despite the law  prohibiting such assistance.

(d) Who defines the law? Al-shabab passed a decree/rule/law/proclamation on that no woman should wear bras People are now committing crimes by wearing brass.

What about cases where people may actively break the law in the name of social justice? There are unjust systems in the world. It may well be the case that many legal definitions are built on highly contentious and unjust or unfair prepositions.

Definition of Crime.

It follows therefore, that there are very many diverse conceptions of crime, each of crime, each of which reflect a different scientific and ideological viewpoint.

It is important to note that the variation in definition as real consequences upon how different types of behavior are dealt with at a practical level. According to the author Rob White, crime is

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not inherent in an activity. It is defined under particular material circumstances and in relation to specific social processes e.g. the prohibition in drinking alcohol; killing al-capone who sold alcohol illegally. A crime was created and many people were engaged in selling illegal alcohol and many people were killed. Then the prohibition was uplifted.

Kenny defines crime as a wrong whose solicitation is punitive and which is no way remissible by any private person but is remissible by the crown.

Keeton-crime is an undesirable act which the state finds most convenient to correct by the institution of proceedings for the infliction of a penalty rather than leaving the remedy to the discretion of the injured person.

Sutherland- Criminal behavior is behavior which is a violation of criminal law. No matter what the degree of immorality, reprehensively or indecency of an act, it is not a crime unless it is  prohibited by law.

For much of its history, criminology has accepted the legalistic definition of crime as human behavior which is punishable by sanctions specified by the criminal law, but more recently, this automatic link between crime, the criminal law and liability for punishment has not  been universally accepted by criminology. This is in part because what can be defined as a crime  by the powerful agencies of store varies over time and place. The struggle to find a method by which the criminologists could specifically define an object of study (crime deviance) has been an on-going feature of criminology since its modern formulations.

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There are many diverse conceptions of crime, each of which reflects a different scientific and ideological view points. A man known as Hogan J. in his book ‘modern criminology’ defines at least 6 broad approaches to the definition of

crime:-a) A formal legal definition of crime is one which says that what the state identifies as a crime

is a crime i.e., if something is written into the criminal law and is subject to state sanctions, in the form of a specific penalty, then that activity is a crime.

b) A social harm conception of crime involves both criminal offences such as assault and civil

offences such as negligence so that each type of action or inaction brings with it some type of harm so each should therefore attract some sort of penalty. (Looks at the impact of harm that should therefore have a penalty).

c) A cross cultural universal norm argument states that crime is essence does not vary across

different cultures, thus murder is murder regardless of society and we can therefore postulate conduct norms that are across diverse cultural backgrounds.

d) A labeling approach to the definition of crime argues that crime only really exists where

there has been a social response to a particular activity that labels that activity criminal. If there is no label, there is in effect no crime.

e) Human rights approach says crimes occur whenever a human right has been violated,

regardless of the reality or otherwise of the action. Such a conception also expands the definition of crime to include oppressive practices such as racism, sexism, tribalism and class-based exploitation.

f) A human diversity approach which defines crime in terms of the language, post moderns

school that looks at things as a science which itself is biased. Criminals’ voice is not listened to when establishing what a crime is. They must accept human diversities as a right. Thus,

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criminology study and research looks beyond the formal legalistic approach to conceptions of crime in as much as this is also acknowledged.

Criminology perspectives.

As we have indicated, there are competing definitions of crime. This produces kinds of responses to crime. Criminologists vary in how they approach the study of crime. For the sake presentation, it is useful to present ideal types of the various theoretical strands within criminology. Of course an ideal type does not exist in the real world, rather the intention behind the construction of an ideal type is to obstruct exaggerate these elements in order to highlight the general tendency or themes of a particular perspective. So, an ideal type is an analytical tool, not a moral statement about what it ought to be. It refers to a process of identifying different aspect of social  phenomena and combining them into a typical model.

There are tree broad levels of criminology explanation;

a) Individuals  b) Situational

c) Social-structural

Different theories within criminology tend to locate their main explanation for criminal behavior at one of these levels. Occasionally, a theory attempt to combine all three levels in order to  provide a more sophisticated and comprehensive picture of crime and criminality.

a) Individual; The main focus is on the personal or individual characteristics of the offender or

victim. The study may consider e.g. the influence of appearance, dress, public image or things such as tattoos. This level of analysis tends to look at the psychological or biological

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factors which are said to have an important role in determining why certain individuals engage in a criminal activity. The key concern is to explain crime or deviant behavior in terms of the choices or characteristics of the individual person.

b) Situational;  The main site of analysis is the immediate circumstances or situations within

which criminal activity or deviant behavior occurs. Attention is directed to the specific factors that may contribute to an event occurring such as how the participants define the situations, how different people are labeled by the others in the criminal justice system and the opportunities avail for the commission of certain types of offences.

c) Social-structural; this approach tends to look at crime in terms of the broad social

relationships and the major social institutions of society as a whole. The analysis makes references to the relationship between classes, sexes, different ethnic and racial groups, the employed and unemployed; and various other social divisions in society. It can also involve the investigation of the operation specific institutions such as indication, family, work and the legal system in the construction of social responses to c rime and deviant behavior.

Criminology Schools of Thought.

A school of thought is a point of view held by a particular group or a belief or system of belief accepted as authoritative by some group of school.

1) Classical Criminology; is a label used to make sense of a period of writing in the 18th  and

19th  Centuries which reformed the system of investigation and punishing of criminal offenders. A reasonable coherent rational intellectual structure was developed which legitimated the creation of a system of criminal justice which predominates today. This  period was known as the enlightenment and it introduced a recognizably modern form of

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analysis of the study of crime and stressed the role of reason and free will in human affairs. The enlighten represented the development of a whole range of thought concerning the nature of human beings and their relationship with each other, with institutions, society and the state. The writer of the enlightenment were concerned with social conditions and they responded to the ideas of the African and French Revolutions which prompted changes in ideas concerning Human Rights (people wanted a new order, there was a lot of crime in the society due to taxpaying etc at these eras). Classical criminology can be given a wide or narrow reading. Most textbooks give it a narrow reading as it sees it as concerned with setting up a rational framework for a modern system of criminal justice. However, it is also  part of an attempt to provide answers to the question of structuring of government. When

man is in a social situation devoid of a foundational touchstone such as God. There were many writings during the period, but Beccaria, Bentham and John Austin are fairly representative of this enterprise.

Cesare Bacceria (1738-1794), in this book on crimes and punishment, Bacceria considered crime as an injury to society. It was this injury to society that was to direct and determine the degree of  punishment. The role of the law was to lay out minimal rules of social life which would bind the

society and guide it by laying out clear and rational rules. Bacceria proposed that torture, execution and other irrational activity be abolished and in their place, there was to be quick and certain trials and in the case of convictions, carefully calculated punishments. He proposed that accused persons be treated humanely before trials. It is often said that classical criminology ignores the causes of crime. But Bacceria certainly held that economic conditions and bad laws could cause crime and that property crimes were committed primarily by the poor and mainly out of necessity. He suggested that every night and facility be extended to enable accused persons

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 bring evidence on their own behalf. He called for a swift and sure punishment. This meant that there would be a punishment prescribed and therefore would be certainly of that punishment that had to be written, thus the penal code. He was of the view that a carefully matching of the crime and its punishment is keeping with the general interest of the society could make punishment a rational instrument of government. This is circled around the severity of the punishment to the crime, likewise the crime to the punishment, such that small crimes would not carry too severe  punishments. He discovered that with a system being presumed unfairly reads to no trust in the

system. People will commit more crime as people feel less motivated to be part of that society. When punishment exceeds the degree of crime, it is torture.

Bentham (1748-1832). He was a radical utilitarian. He believed in the greatest happiness for the greatest number of people. This that what the society wants would be the law. What of the minorities then? Acts could then be measured in terms of goodness or badness, right or wrong. He believes that prevention of crime was the only justifiable purpose of punishment. He recommends that penalties be fixed so as to impose an amount of pain in excess of the pleasure that Bentham believed would deter crime. He argued that capital punishment should be restricted to offences which in the highest degree shock the feeling. He also attempted to radicalize imprisonment as an institution then used to hold persons awaiting trial for debtors as an instrument of correction. He argued for the establishment for the office of the Public Prosecutor and he furthered the nation that crimes are committed against society rather than against individuals.

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Social contract theories like Thomas Hobbes and John Locke believed in the idea that legitimate government is the artificial product of the voluntary agreement of free moral agents and that there is no such thing as natural political authority as asserted by the monarchial regimes. The rise of all sovereigns is derived originally from the consent of every one of those who are to be governed. John Locke developed the concept of the general will i.e. citizens have to be a collective interest in the well being of the community. He traced the foundations of law and  political society in the idea of the general will. The basic concepts of the classical theory are  premised upon the notion of individual rights of human capacity to reason and the rule of law. The theory assumes a particular view of human nature i.e. that human beings are self seeking and self interested individuals with free will and individual choice, therefore we are seen as being ultimately responsible for choosing what to do with our time and energy and for the consequences that may arise from our actions, i.e., the classical theorists believed in volunteristic view of human nature.

Secondly, the theory emphasizes the status of human beings and rights holders, individuals are deemed to have an equal capacity to reason and to act in accordance with what is rational from the point of view of their own self interest. Institutionally, each individual is to be given guaranteed equal rights under law. The fundamental objective of the law is to protect individual rights and to allow the free exercise of choice among individual as far as is possible without leading to social harm.

Thirdly, to guarantee both individual rights and some semblance of order, classical theory considers the role of the state to be central, i.e. the notion of the social contract between right holders and the state. There is an implied consensus or agreement that individuals give up certain rights to the state in return for the protection of their rights and security of their person and

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 property from other individuals and from the state itself. Hence, the role of the state is to regulate human interruptions and to be a site where rights in general can be protected by not allowing their infringement in specific instances. Fourthly, the legal manifestation of the social contract is expressed in the phrase “the rule of law,” meaning that everyone is to be treated equally without fear or favor in the eyes of the law i.e. equal protection of rights and that even the law makers are  bound by the law, set down for the general population.

Further, the law is seen as intrinsically good and t o reflect the reasoned benefits and value of the law makers i.e. the theory assumes a consensus in society of good and bad. This is reflected in Criminal Law. Crime is therefore, defined as a violation of the law. Criminality is seen as primarily a matter of making the wrong choices by violating the law.

Individuals are to be held responsible for their actions. The social contract is mentioned in practice through the use of punishment of deterrence of individual and state at large. The response of the justice system is focused on criminal acts.

 New Classical School

Arose out of the attempt to apply the principles of the classical school. There were a number of challenges.

 To make such general principles serve the interests of justice and equality when faced with a

specific defendant in court. (Laws applied to everyone equally). Some defendants clearly do not conform to the abstract concept of being rational and equal e.g. children and people with mental illness. To cope with this “reality of life” rules were developed to deal with specific circumstances where individuals could be deemed not to be totally responsible for their actions.

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 The second challenge to classism comes from vested rights. Those in positions of power

viewed classism as a challenge to their entrenched authority. The codification of legal  principles threatened the autonomy of the aristocracy who naturally resisted changes, therefore, in some countries what ended up being put in place e.g. U.K. and Australia are high breeds of classical and pre-classical models.

The new classical school therefore primarily represented the modification necessary for administration of criminal law based on practical experience. It presented no particular break with the basic doctrines of the classical school.

Examples of perspectives in contemporary Justice System;

a) Classical thinking is evident in the legal in the legal doctrine that emphasizes conscious intent or choice i.e. the notion of mens rea or guilty mind.

 b) It is evident in sentencing principles e.g. the idea of culpability or responsibility.

c) It is evident in the structure of punishment e.g. the grading of penalties according to the seriousness of the offence.

d) It is evident in the approach to sentencing is the use of just desert approach (get what you deserve).

Just deserts approach

a)  No one other than a person found to be guilty of a crime must be punished for it. (Standard of  proof has to be beyond reasonableness).

 b) Anyone found guilty of a crime must be punished.

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d) Punishment must not be less of a degree commensurable to or proportion to the nature of gravity of the offence and culpability of the criminal.

Critique of the Classical Theory.

a) Problem of fairness in individual cases because despite reforms this still remains a problem where system focuses on the offence and not the offender.

 b) People are not endorsed with equal capacity to reason. The decision to offending or may not  be the result of an irrational choice and the theory gives the insight into how to deal with

cases where offending results from an incapability to reason.

c) If as espoused by the theory offending results from a temporary irrationality, how is it that distribution of crime is not spread equally through the social structure. Most studies place the  bulb of offending among those with low income. These findings suggest that for some  people, offending may be entirely rational in a manner that not amendable to the deterrence resulting from punishment. In a world of deep social inequalities, universal inequalities cannot be realized by treating everyone equally before the law. Rational choice may lead some to afford precisely because of social inequalities. Equality before the law masks this reality.

d) It has long been recognize that there are clear differences between formal (written) law and substantive law (practiced). The way the law is written tends to assist some individuals who understand it know how to exploit it; while disadvantaging others who do not have the same access to lawyers who know a powerful individual or organization appear able to avoid the spirit of the law while complying with the letter of the law.

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that in turn affects how they are dealt with by the justice system. Furthermore, punishments may be proportionate to the crime but will be experienced in markedly different ways. The rich may retain their income and wealth while the poor lose out on income and future work opportunity. Despite these problems, in conclusion, the classical theory had a real and  positive effect on the justice system which promoted a more open systematic approach to  justice when compared to previous systems which were based on arbitrary whim of aristocracy. Classical principles argue for rights of an individual in a system and places limits on judicial discretion. Finally, it espouses a humanity approach to punishment when compared to barbaric practices of previous eras.

2)Contemporary Biological Positivism Research.

There are two major strands to be found on contemporary examples of biological positivism:

a) Forensic Psychiatry  b) Forensic Psychology

The second strand are the theories which have to a greater or lesser degree taken a m ore academic turn i.e. the bio social explanations that link biology, environment and psychological facts in explaining criminal behavior.

The pre-dominant concern of forensic Psychiatrists and psychologists is in the provision of services in the criminal justice system.

Alongside this practical role, they have developed a range of theories not only to assist rehabilitation of but also to interpret culpability of the offender of the court as well as to predict

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 possible re-offending. In the court, the other role is to provide pre-sentence in and to act as expert witness.

In the corrections area, their role is to manage and treat offenders as well as to provide expert advice concerning parole decisions.

The most contagious application of forensic psychiatry and psychology is application in police investigations as criminal profilers which is claimed and pinpoints the personality profile of an at large offender as part of their investigation process or even identify the likely area where the offender lives.

Contemporary positivists see a dynamic relationship between biological factors i.e. inherited pre-disposition and environmental factors i.e. external inputs that modify behavior. Nevertheless, within this more open and less deterministic framework, there has been a resilience of interest in explanation of crime that lean heavily towards the biological. Recent research has focused on  biological characteristics that result from genes and are inherited or those that are genetic mutation or those that are as a result of environmental injury or inadequate diets which are neither genetic not inherited.

A. Family Studies

Children tend to resemble their parents in appearance, mannerism and dispositions. In 1913, Goring’s  study concluded that crime is committed in as much as any of the other physical traits and features. His research was said to be flawed because he underplayed it role of social and environmental factors when he concluded that there was a high correlation  between the frequency and length of imprisonment of parents and their children. Other

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attempts to study criminal genes or to believe that crime tends to run in the family have  produced a little valuable evidence.

B. Twin and Adoption studies

Investigators have attempted to address identical and non-identical twins. Jonas Lange, 1924, found that in identical twins, where one twin has been imprisoned there was a 77% chance that the other twin had also been imprisoned but only 212 degrees chance in fraternal twins. Grove in 1970 undertook a study of identical twins reared up shortly after birth. Other studies were also taken and there was evidence that antisocial behavior and psychopathy could also  be inherited on a probability of about 15% by twins reared away from psychopathic parents, including other disorders such as alcoholism, drug abuse and criminality. Other studies conducted between 1972-1989 found significant evidence or hereditability of crime and anti-social behavior.

C. Genetic Structure

This category of theories is linked to the concept of hereditary abnormalities in genetic structure such as abnormalities in the sex hormones.

Males with klinefelter's syndrome are sterile, have low intelligence and increased stature. They have an extra chromosome and exhibit high incidence of criminal behavior. They are overspray amongst homosexuals, transsexuals and transvestites. Men with an extra Y chromosome are more aggressive, abrasive, and unstable and offend from a very early age despite coming from families with no history of criminology.

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There are chemicals that allow for transmissions of electric impulses within the brain and in the basis of the brain processing information. They underlie all types of behavior including antisocial behavior.

At least 30 studies have linked neurotransmitters to antisocial behaviors such as violence and drug abuse. Antisocial behavior people have lower levels of serotonin than normal people and they are said to be excessive and compulsive. Since their levels of serotonin are low, they receive neurological highs from antisocial behavior.

Research suggests that these levels can be increased by use of drugs such as lithium carbon  by improved environmental conditions and less stress free conditions.

E. Hormones

Recent attention has been paid to hormone levels and aggressive or criminal behavior as a result of either testosterone or female pre-menstrual cycle.

Studies have had mixed results due to a number of factors such as determining the cause path e.g. does high testestorone levels cause aggression or does aggression cause high testosterone levels.

How about people with normal levels but who react aggressively in certain types of situations?

Also, there is a strong link between high testosterone levels leading to reduced social integration associated with high levels of defiance. For females, biological changes during ovulation have been linked with irritability hostile and aggressive behavior during period.

F. Central nervous system

The CNS contains neurons and systems that exist within the brain and spinal cord. The cerebral cortex is of importance to research on aggression and violence. Research has been

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done using a number of measures both direct and indirect such as brain imaging techniques, Magnetic Resonance (MRI). These are used to detect structural and functional abnormalities in the lobes studies show that those with frontal lobes dysfunction are characterized as violent offenders, while those with temporal lobe abnormalities are characterized as sexual offenders; violent offenders also have EEG abnormalities.

G. Automatic nervous system.

The Automatic Nervous System controls the body’s involuntary functions such as  blood  pressure, heat, internal activity and hormone level. It is modulated by another system known as the limbic system in the brain that control motivation, mood, anger, aggression, etc. the AUS is active in fight-flight situations by increasing the heart rate and stimulating the sweat glands. How well one’s ANS functions is dependent on the level of socialization. Most children fear punishment and the anticipation of this will keep children in time. Where one’s fight-flight response is slow or at low levels then the child will be difficult to socialize. Eysenck (1964) examined this matter based on Carl Jung’s concept of Introversion and Extroversion as the major attitude or orientation of personality.

Introverts are oriented towards the inner subjective world. They are serious, reliable and controlled. Extroverts are connected towards the external world, social, care-free, aggressive, they are craving excitement, take chances and lose temper easily.

Introverts are characterized by high levels of excitation also referred to as stimulus and for low levels of inhibition, whereas extroverts are op posites and therefore a stimulus hungry.

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Introverts seek stimulus avoidance because the possibility of punishment makes them experience high anxiety reactions.

Extroverts experience low anxiety (arousal) because they are less sensitive to pain and readily seek prohibited activities in their search for stimulation.

Eysenck argued that psychopaths are extreme extroverts and that they failed to develop adequate conscious because of the way their ANS functions. It seems that such defects also  play a role in antisocial behavior.

H. Environmentally induced Biological components of behavior.

There are many possible types of relationships between drugs, alcohol abuse and violent  behavior. These could be biological, psychosocial, socio-cultural and economic. Alcohol

increases aggressive behavior in lower doses because of its disinhibiting effect or it may increase the production of endocrine system (testestorone) although there is little evidence of this. Other believes in a genetic link between alcohol and violence, but this area also remains quite unclear. The use of and withdrawal from drugs such as cocaine, opiates and other hard drugs can cause aggressive and violent behavior. Studies have also shown a link between nutrition, toxins and antisocial and aggressive behavior, although there also been shortcomings in methodology. Studies have been done on sugar, cholesterol and lead levels and hypoglycemic (low blood sugar) and these defects have been found to be common in violent criminals.

Exposure to lead in diet and environment has been shown to negatively affect brain functioning bringing out learning disabilities, hyperactive attention deficit disorder in children and may increase risk for antisocial behavior although research is still ongoing in this area.

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Studies have found a coloration between head injury and criminal and antisocial behavior e.g. Nedrick in his study between 1959-1961, found a link between brain damage and violent  behavior amongst juvenile. Lewis in 1981 found a strong association between criminality and the presence of serious medical problems in their children. She suggested that delinquency among children with criminal parents might reflect the combined physical and psychological effect of parental neglect and battery rather than any genetic factors.

Pregnancy and other birth complications can also lead to CNS defects linked to aggressive  behavior. There is a link that has been established between allergies, irritability and aggressive  behavior with reactions to food, drugs, etc. Such people are said to be emotionally immature and antisocial. In relation to diet, there is a theory on bio-chemical importance whose basic premise is that bio-chemically, each individual has a unique internal bio-chemistry. We all vary in our needs for the 40,000 nutrients to stay alive. Disease is preventable and treatable proper diagnosis and supplementation of individual needs to avoid illnesses arising of deficiency e.g. Vitamin B3 (Niacin) has been used to treat schizophrenia or some functional psychosis such as a split  personality, hallucinations, etc. further, there is a research that addiction to both drugs and

alcohol may relate to unmet biochemical individual needs.

I. Biological positivism and treatment of offenders

Central to the positivism concept of crime is the notion that criminality arises from physical disorders within the individual offenders. It is thus argued that a course of treatment can cure the individual predisposed to criminality. However, this could be applied with caution. Examples are things such as surgical interventions such as lobotomy (drill hole and remove some parts), castration or medical therapy such as chemotherapy (use of drugs in treatment) for control

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 purposes such as ant abuse for alcohol and heroin addicts, stilboestrol drugs for sex offenders; chemical castration, sedatives and tranquilizers to keep potentially troublesome prisoners under control and electro control through telemetric observation and remote automatic punishment or disablement. All these should be used with caution, because although we speak of curing criminality, we are venturing into the realm of removal of choice and the infliction of highly intrusive, often damaging against individual wishes. A vast ethical minefield arises, populated with intensely problematic terms such as INFORMED CONTEST (full determination and information about treatment given to make an informed decision), compulsory treatment, human rights, dignity and significant risk to the public. Some of these treatments are experimental have  potentially disastrous side effects. Moreover, since it has already been established that biological causes of crime may not highly be significant on their own, it must certainly be questioned to address criminal behavior with biological methods. However, nobody can afford to have a closed mind to any area or any avenue of explanation if the aim is to seek a clearer understanding of antisocial and criminal behavior. It is not necessarily the case that meets intervention or intrusive methods must be the outcome. The information could be used to discrete which types of environmental interventions might be the most effective to deter/pinpoint criminal behavior such as pinpointing the effective types of social learning. There some positive factors that may arise out of the medicalization of criminality as sick individuals may be blameless. This has to clear effect society and the individual would hopefully benefit from improved behavior and there will  be no offending.

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Penology

Penology comes from the Latin word poena which means punishment and it is concerned with an in-depth examination of the formal institutions of criminal justice such as police, courts and corrections. It is concerned with the process devised and adopted for punishment, prevention of crime and treatment of prisoners. Sentencing and punishment are currently increasing profile  policy issues. They have generated debate and proposals for new procedures, criteria, social life. This is a policy area that is also complex and issues of criminal justice practice and the administration are continually with the public domain. The modern society has attempted to address the problem of increased crime by building more and more prisons but the futility of incarceration is apparent, calling for renewed debate on how best to counter this. Sentencing and  punishment are by no means mere academic matters. Policy and practice impact on actual and  potential victims of crime if they fail to prevent or limit reoffending. They affect the offender and family and friends and also leads to a large expenditure on courts and prisons. These are also topics where they are strong personal and popular feelings about what should happen and how  justice should be done. Policy and practice in this area are also contingent on and influenced b y a

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in the broader development of penal policy but are also relevant to the particular circumstances of individual offenders and their experience of punishment.

Understanding factors influencing penal policy

1. Punishment can be distinguished from other forms of pains or sufferings which are not a response to our misdeeds e.g. painful medical treatment. Punishment rests on moral reasons and is the expression of moral condemnation in response to rule infringements. Feinberg J (1994) in an article called “The expressive function of punishment refers to censure or condemnation as to the defined feature of punishment “it has  a symbolic significance. It is a conventional device for the expression of attitudes of resentment and indignation. A key feature of punishment is that it rests on a moral foundation expressing a moral judgment. It is reflective and based on reasons. It stems from an authoritative source usually the state. A key question that has been asked is why some acts are criminalized and not others and why society deals harshly with some wrong doing and lightly with others. the most common questions posed

are:--

What particular response is made to an action or behavior and why? I.e. what to punish.

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If the response is penal which particular penal option is selected? I.e. how to punish.

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What is the particular level of penal response? I.e. how much to punish.

2. Penology is also concerned with questions of equality, fairness and justice which must also be considered within the policy e.g. whether some groups are selected for harsher  punishment or if apparently neutral policies have differential impact. e.g. discrimination against race(s) or economic means or the mentally disordered, women and children etc the notion of justice is not clear cut but embodies fairness to all members of the

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community including victims and offenders and sticking a balance between their competing interests. This is as the cornerstone of the current criminal justice system. 3. human rights have implication for both the theory and practice of punishment in

 justifying specific punishments in assuming the justice of punishment and in improving standards in penal institutions e.g. respect for sponsors, treatment of remand prisoners,  bail, right for fair trial, presumption of innocence etc this principle may act as a control

on judicial discretion and inhibiting disparities in sentencing.

4. There are also influences on penal policy which may reflect the political and ideological  principles underpinning the penal policy. Political dimensions raises questions about  power, how much power a government has to implement policy through enhancement of law. In economic terms, crime punishment is costly in financial terms and has a significant influence of penal policy. Cost of processing offenders is enormous, therefore there is increasingly a move to cut costs by introducing e.g. community penalties and when deciding what to punish, some offenses may be uneconomic to punish, such as minor infringement and sometimes it is better to use lighter sentences.

5. Influence of public opinion on penal policy. It is a key variable in shaping the response to crime and disorder. It can be expressed through electoral choice e.g. hanging, lethal injection, public opinion polls, letter of compliance and judges who see themselves as dispensing popular justice as representative of the public. For the criminal justice system to be effective, it must have legitimacy in the eyes of the republic. Sometimes, this causes a problem where a government’s response to moral panic by giving harsher sentences, which do not succeed in controlling crime. It is also sometimes difficult to identify accurately the public opinion on issues of crime and punishment.

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6. Prison population: these are increasing in number and felt that there is a need for alternatives to custody such as community penalties and fines. However, this requires  public awareness and information on crime levels, sentencing decisions and policies. The  public has to be convinced that alternative to custody will be effective and to be aware

that the greater use of imprisonment will only marginally affect crime rates.

Influence of theory on penal law and practice

1. Principles from criminology and penology: These principles are the justifications of

 punishment and they include; retribution, rehab, social protection and none recently restoration of social harmony. Together, they constitute the store of knowledge regarding what is theoretically the best response in dealing with offenders, because theorists from oppressing conditions may agree that punishment is necessary but different in their news of the best response, the type of punishment may depend on which theory, which purpose of  punishment is explicit or implicit in policy. It may also depend on which philosophical ideas

underpin the chosen punishment. E.g. where the individual is seen as autonomous or  possessive, free will or whether their actions are determined by their surrounding

environment or genetic makeup.

2. The so called ‘new penology’:  This has also influenced penal law. It draws on the new

managerialist focus on value for money which is reflected in new public management. It applies private sector method to public sector incorporating a concern with efficient use of resources e.g. to consider whether punishing certain types of minor infringements is cost effective. It uses actuarial (statistics to manage, predict, etc) to manage the risk of offending and reoffending. The new penology according to Simon 1992, embraces both a theory and a

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hope for is to control crime and risk through actuarial policies and technocrat forms of knowledge, internally generated by the penal system. This approach focuses on categories of  potential and actual offenders rather than an individual on managerial aims rather than

management and transformation of the offender. Its focus is on actuarial incapacitation as a way of managing risk and removing persistent offenders from society. Prison is used to warehouse offenders at high risk of reoffending and because of managerial cost concerns are , prisons will be reserved for the rest risk categories. Actuarial justice provides means of selecting the target population to be imprecated. This approach has been a significant influence of penal policy in USA and UK.

3. Classical theories of punishment:  The principle justification of punishments is clearly

associated with distinct traditions or schools. Retribution was influence by the late 18th Century philosophies and received in the 1970s and 80s. The rival tradition is which includes the justification of , social protection or incapacitation or

. Both theories accept that punishment can be justly inflicted but differ in their views of what constitutes the justice of a particular punishment. Both seek to limit to use of discretion of sentencing in favor of a more vigorous principle approach and both address issues of proportionality. Both approaches have had a strong impact of penal policy in recent years. One major influence of penal and sentencing policy has been a particular reattribute idea of just desserts. Justice will be served to better through a more consistent approach in sentencing so that convicted aims get their just and deserts which is the calculation of seriousness and the consideration of a sentence proportionate to it.

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received renewed support. In the 1990s in the USA and UK saw a marked increase in the use of punishment and incapacitation with focus being a proportionate punishment rather than treatment or deterrence per say. Trends in the past 20 years or so have seen the emergence of law and order as key. In the UK, more policies focus is being shifted towards the heed to rebalance the system in favor of victims, witnesses and communities and to give paramount importance to protecting the public and resting public confidence in the aim justice system. The aim is to increase the rights of victims even if this means fever rights of the defendants.

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Sentencing and Discretion

In a principle sentencing system, the exercise of discretion by the sentence must be controlled.

The purpose of this section is to examine the ways in which it is done through the law, guidance and also the use of justificatory principles as a constraint. As we have seen, what is construed as fair or just depends on the charging ideas of social justice and theoretical approach that is taken to understanding the notion of punishment itself.

However, there is a consensus that it would be unjust if an agency or individual could use its powers to impose and implement whatever punishment it wished to impose. Justice in sentencing then requires at the very least that those individuals who undertake the sentencing of convicted criminals are constrained by a set of principles be they moral, legal or religious and by a framework of rules. Further, in a democracy, sentencing may not be perceived as just if those rules and principles are not acceptable to the electorate.

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criminal justice because it is so important and yet as difficult to define. If we consider discretion to be operating on a continuum from complete to no discretion, he/she would follow the penal code for the word, almost like a robot. Where he has total discretion, it may be unfair. At one extreme, sentencing is unjust because there are no constraints whatsoever on the sentence who can then make decisions if he so wishes based on personal prejudices and whims. Discretion can  become a major source of injustice if not confined, structured and checked. At the other end of

the spectrum is the sentence who has no discretion whatsoever, because the rules and the  principles are so highly drawn with all potential factors accounted for that the sentence is simply the technician who fills in the date and reads off the answer, in this case, the sentence. These two might be viewed as potentially unjust in that it would not take into account only individual circumstances that had not been foreseen. The logical conclusion is that justice is to be found  between the two ends of this discretion spectrum. Constraints are placed on the sentence because totally free discretion is inherently unjust. There is an expectation that the rule of law will be upheld so that the citizens can have confidence in the law and institutions of the state, without that confidence, the criminal justice system will be legitimacy and will not attract the moral allegiance of the citizens putting the system and the government at risk.

In democratic states, then judges should not just do what they might want to do when sentencing. There are rules that to a greater or lesser extent guide them in the exercise of their discretion. However, there are those who still criticize the idea of sentencing guidelines as contributing to higher rates of custody because it reduces the discretion of the individual judge. How far rules should constraint the sentence is then a matter of debate. There are also constitutional matter about the independence of the judiciary on one hand and the implementation of democratic decided policy on the other.

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However, discretion is also seen as bad because a wide sentencing discretion leads to inconsistency of sentencing in which similar cases may be treated similarly. Differential treatment of offenders allows space for discrimination whether institutional or personal to occur for example, based on race, gender, ethnicity, geography, class, etc. even if this discrimination does not occur except as a perception the legitimacy of the sentencing process may still be undermined in the eyes of the public. A further argument against wide discretion is that it diminishes the possibility of accurately practicing sentence outcomes. Sections cannot give a clear deterrent massage to past or potential offenders and advocates are unable to advise their clients effectively. Also, if judges tend to sentence at the top end of what is legally permissible over sentencing occurs. This can lead to a crisis of resources for the government. Too wide, sentencing discretion could also make it difficult for a democratically elected government its desired sentencing policy.

Structuring sentencing Discretion

Trends in structuring sentencing discretion show that a number of changes in penal policy and legislation have incrementally seen the widening of choices of penalties for courts while narrowing the discretion to choosel The number of sanctions have increased to include probation  borstal training, preventive detention for the mentally disturbed, rehabilitative and community  based penalties, fines, suspended prison sentences, absolute or conditional discharges, community service orders, compensation orders, confiscation of proceeds of crime, mandatory minimum custodian sentences, extended post custody supervision etc. these can be termed as statutory constraints to the exercise of discretion. They are the so-called traditional constraints i.e. penalties available to the sentenser. Judges can only impose a penalty which is legally

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with respect to the amount of punishment they can impose in relation to the available penalties. There are restrictions on the upper amount of sentence that can be legally imposed, the maximum laid down in legislation whether in terms of sentence length for custody or community penalty or financial penalty. The statutory maximum is meant to be used only for the gravest instances of the offence that could occur. Courts have therefore established their own normal range of  penalties to which in practice sentenser refer.

Further, not all these penalties are available to all sentensers and offenders. There are several different sorts of limits which apply in addition to statutory maxims. There are limits on sentencing powers of magistrates’  courts that cannot impose sentences above certain set thresholds, e.g. there are certain penalties that may not be available for young people and children.

2) Secondly, there are also extra legal factors that influence either the amount of discretion the

sentencing court can exercise or the outcome post sentencing. These include allocations of resources especially in relation to community sentences e.g. if funding does not allow for the establishment of community punishment schemes it can lead to custodian sentences. Also the relevant government official, the President or the Parole Boards can exercise administrative or executive powers which can affect the length of custodial sentences served.

The government may also give guidance by way of circulars with the message of the report be that prisons should be used as little as possible.

Finally, the role of public opinion and the media is also a factor in sentencing policy.

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effective punishment e.g. community penalties, fines. There are policies based on these concerns to limit use of prisons and new techniques have been used to structure discretion in line with the policy aim. These are;

(a) The incorporation in legislation in new hurdles for the imposition of custodian and community sentences e.g. in the UK, the Criminal Justice Act (1982) imposes statutory hurdles in relation to a custodial sentence on a first time offender especially juveniles and young adults.

(b) Using mandatory sentences is another method for example life sentence for murder and more recently, what is known as the three strikes and you are out legislation in several states in the USA. It severely limits judicial discretion in regard to specific offences and repeat offenders e.g. in the USA, under the Criminal Sentences Act (1997 where one has  been found guilty of drug trafficking offences a 3rd time, there is a minimum 7 years term

imposed or the offender may be subjected to a dangerous offend hearing or indeterminate sentence for public protection.)

(c) Discretion is also constrained by various forms of guidance to help sentences apply the sentencing framework as consistently as possible. This can be through the CA decisions or through sentencing guidelines. These guidelines consider the sentencing factors and give indication of proper range of sentences, the interpretation of sentencing legislation and endorse or establish particular factors as legitimately aggravating or mitigating the seriousness of the offending and the level of the punishment. In the UK, a sentencing advisory panel has been set up to help the CA make proposals for new guidelines. Indeed, they have even gone further to set up a sentencing guideline council and they may set up

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