SOC 130: CRIME AND PUNISHMENT

These Lecture Guides should serve merely as study guides and should enable
you to read further

Introduction to the course

1. SEARCH FOR AN UNDERSTANDING OF HUMAN BEHAVIOUR

✓ As old as humanity
✓ A question of human intellectual curiosity since the beginning of time.
✓ Indeed older than sociology as a discipline
✓ Sociology is a 17th C phenomenon borne out of the aftermath of the French Revolution,
Industrial Revolution and the Enlightenment period.
✓
• French Revolution (Political)
A watershed event in modern European history, the French Revolution began in 1789
and ended in the late 1790s with the ascent of Napoleon Bonaparte. During this period,
French citizens razed and redesigned their country’s political landscape, uprooting
centuries-old institutions such as absolute monarchy and the feudal system. Like the
American Revolution before it, the French Revolution was influenced by
Enlightenment ideals, particularly the concepts of popular sovereignty and inalienable
rights. Although it failed to achieve all of its goals and at times degenerated into a
chaotic bloodbath, the movement played a critical role in shaping modern nations by
showing the world the power inherent in the will of the people.

• Industrial Revolution (Economic)

The era known as the Industrial Revolution was a period in which fundamental changes
occurred in agriculture, textile and metal manufacture, transportation, economic
policies and the social structure in England. This period is appropriately labeled
revolution, for it thoroughly destroyed the old manner of doing things; yet the term is
simultaneously inappropriate, for it connotes abrupt change. The changes that occurred
during this period (1760-1850), in fact, occurred gradually. The year 1760 is generally
accepted as the eveof the Industrial Revolution. In reality, this eve began more than two
centuries before this date. The late 18th century and the early l9th century brought to
fruition the ideas and discoveries of those who had long passed on, such as, Galileo,
Bacon, Descartes and others.

Advances in agricultural techniques and practices resulted in an increased supply of

food and raw materials, changes in industrial organization and new technology resulted
in increased production, efficiency and profits, and the increase in commerce, foreign
and domestic, were all conditions which promoted the advent of the Industrial
Revolution. Many of these conditions were so closely interrelated that increased
activity in one spurred an increase in activity in another. Further, this interdependence
 of conditions creates a problem when one attempts to delineate them for the purpose of
analysis in the classroom. Therefore, it is imperative that the reader be acutely aware of
this when reading the following material.

• Enlightenment Period (Intellectual)

The Age of Enlightenment (or simply the Enlightenment or Age of Reason) was a
cultural movement of intellectuals in the 17th and 18th centuries, which began first in
Europe and later in the American colonies. Its purpose was to reform society using
reason, challenge ideas grounded in tradition and faith, and advance knowledge through
the scientific method. It promoted scientific thought, skepticism and intellectual
interchange and opposed superstition,[1] intolerance and some abuses of power by the
church and the state. The ideas of the Enlightenment have had a major impact on the
culture, politics, and governments of the Western world.

✓ Comte’s Law of Three Stages. For Comte human thought develops through three major
phases theological, metaphysical and the positive stage in the evolution of the
understanding of human behaviour

The history of punishment

Why do we have a penal system? Why does punishment take different forms in different
societies and at different stages in history? Why for example, have penal ideas and practices
altered over time in the West.

The Sociology of Punishment is the area of inquiry which seeks to answer questions like these.
The answers put forward are often controversial. Like many areas of Sociology, the Sociology
of Punishment lends itself to (radically) differing approaches which provide explanations of
penality. We shall be using the word “penality” to include ideas about punishment as well as
concrete penal practices. Again like other fields of Sociology, these approaches can be f located
within competing traditions which each owe their orientation to one of the great ‘founding
fathers of the discipline of Sociology: Karl Marx, Emile Durkheim and Max Weber.

The Marxist tradition

Karl Marx (1818-1883)

His massage was that societies had to be understood in terms of their economic structures, and
in particular their social relations of production and the conflicts between the different
economic classes which exist as a result of those relations. He claimed the capitalist society
was polarizing into two great hostile camps: the bourgeoisie and proletariat. The bourgeoisie
or capitalist class (the ruling class under capitalism) is the class of people which owns the
means of production (including factories, industrial machinery etc. in an industrialised society),
while the proletariat or working class comprises of those who need to sell their ‘’labour power”
(their ability to work) to the capitalists in order to live. The struggle between these two classes
was for Marx the key to understanding modern society and its future, which he envisaged as
the revolutionary overthrow of capitalism by the proletariat leading ultimately to a classless
communist society.

In a key passage Marx wrote (177:389):

“The sum total of these relations of production constitutes the economic structure of society,
the real foundation, on which rises a legal and political superstructure and to which correspond
definite forms of social consciousness. The mode of production of material life conditions the
social, political and intellectual life process in general. It is not the consciousness of men that
determines their being, but on the contrary their social being that determines their
consciousness.

Marx described the consciousness of people in a situation of class conflict as ideological,

meaning that although they might represent and believe their ideas to be objective and of
universal validity, in reality these ideas express and serve class interests. In particular, Marx
claimed that “the ruling ideas of each age have ever been the ideas of its ruling class” (Marx,
1977:236).

Marxist penology applies this method of analysis (known as “historical materialism”) to the
study of penalty. It relates punishment to the economic structure of the society in which it takes
place and to the class interests furthered by penal practices and ideologies. A general point is
that punishment is inflicted by the state for breaches of the law. Marxists see both state and
law as operating in the interests of the ruling class rather than society as a whole. Punishing
people for disobeying the existing laws- which maintain the status quo and the position of the
ruling class- functions to reinforce the power and privilege of that class.

Economic Determinism: Georg Rusche and Otto Kirchheimer

Rusche and kirchherimer attempted to demonstrate that the penal practices in any society were
directly connected to the mode of production. “Every system of production tends to discover
punishments which correspond to its productive relationships” (1939:5). For example “it is self
evident that enslavement as a form of punishment is impossible without a slave economy; that
prison labour is impossible without manufacture or industry, that monetary fines for all classes
of society are impossible without a monetary economy”. Punishment could therefore be used
to “fill the gaps in the labour market”. Rusche and kirchherimer argued that the choice of
methods of punishment is largely influenced by fiscal interests, such as how much a
punishment costs to administer.
The Durkheimian tradition

Emile Durkheim (1858-1917)

Durkheim distinguishes between simple, pre-industrial societies in which there is little division
of labour (sometimes referred to as Gemeinschaft societies ) and more advanced
(Gesselschaft) societies in which people perform specialised jobs. The central question for
Durkheim was social solidarity, or “the bonds that unite men with one another”. In both kinds
of societies, Durkehim saw punishment as playing an important role in the creation and
maintenance of the solidarity which was a necessary condition for social order and the
continued existence of society.

Durkheim said that simple societies were held together by “mechanical solidarity through
likeness”: people were united by the similarity in the labour and the general social roles they
performed, which also gave rise to a homogeneous conscience collective (collective
consciousness) and means “the totality of beliefs and sentiments common to average members
of the same society”. Durkheim therefore argues that, “an act is criminal when it offends strong
and defined states of the collective conscience” Durkheim, 1960: 79-80). Criminal acts call
forth a collective hostile response in the shape of punishment, and the punishment serves to
restore and reinforce the outraged conscience collective. So punishment is not primarily
deterrent or reformative, it is produced by collective retributive emotions and has a useful
denunciatory effect. Its true function is to keep social cohesion intact.

In the Division of labour, Durkheim claimed that the conscience collective played only a small
part in maintaining social cohesion in more advanced, industrial societies. Differentiated labour
meant that people now differed from each other to a greater extent, including in their
consciences. Social solidarity was now “organic”, deriving from the interdependence of people
who were no longer largely self-sufficient as a result of their labour alone. The conscience
collective became weaker, vaguer, less religious and more humanistic in character. Punishment
would consequently also dwindle in importance as the division of labour progresses, and
punitive law would come to be replaced by “restitutive law” which requires law breakers to
make reparation to their victims rather than suffer retributive punishment.

The Weberian tradition

Max Weber (1864-1920)

Weber recognised the importance of economics in shaping social reality, but was concerned
with demonstrating that culture and religion influenced economic development just as much as
economics influenced culture. He insisted that individual human beings and the meanings they
use to interpret their social world are of prime importance in understanding society.
CONFORMITY AND DEVIANCE

✓ Two major forms of human behavior, conformity and deviance

✓ Conformity is behavior that is consistent with society’s norms, values, beliefs and is
acquired through socialization
✓ Deviance is behavior that deviates from society’s norms, values and beliefs
✓ Crime is thus a type of deviant behavior- behavior that deviates from society’s criminal
law. There is thus criminal deviance and none criminal deviance.
✓ Crime has four elements- law, offender, victim and place.
✓ Are three major theories of crime and deviance biological, psychological and
sociological (labeling, learning, anomie,)

EXTENT OF CRIMINAL BEHAVIOUR

✓ No one knows just how much crime there is in society

✓ Rely on official statistics police, courts and prisons
✓ How are Crime Statistics collected?
✓ Although the police detect some crime themselves crime statistics are mainly based on
crimes reported to them and recorded by them
✓ Are weaknesses in this
✓ Not all crime is reported, detected or recorded
✓ Where it is reported, it is not always that it is recorded, investigated or leads to a charge
or leads to a prosecution or conviction
✓ May thus not become part of the statistics.
✓ There are 3 ways of measuring crime statistically

Official Criminal Statistics

• Recorded by the police or is a record of decided cases in the Administration of Justice

and published by Statistics Botswana each year

• Sociologists use these statistics as secondary forms of data

• Useful in identifying trends in recorded crime over time • Useful in identifying trends
in particular crimes over time – has violent crime gone up or down • Useful in
identifying trends in recorded crime over time between areas.

• Crime Probability of each Crime being included in the Official Crime Statistics
Probability of crime being NOTICED Probability of crime being REPORTED
Probability of crime being RECORDED by the police Reporting rates based on
2007/2008 British Crime Survey (Victim Survey) 1 Car Theft 2 Bank Robbery 3
Vandalism 4 Shoplifting 5 Common Assault 6 Stealing from Work 7 Illegal Drug
Possession 8 Prostitution 9 Rape 10 Domestic Abuse 11 Racial Harassment 12 Tax
Evasion 13 Murder.
• Official crime statistics gathered thus do not measure the true extent of crime.

✓ Victims Surveys
 • The survey hopes to record crimes that have not been recorded by the police, by
asking people what crimes they have been a victim of. The survey aims to count
crimes that have not been recorded by the police for whatever reason. These
unrecorded crimes are called the ‘DARK or GREY FIGURE’ OF CRIME – they
are like the part of an iceberg below the water, invisible but very important.

✓ Self-Report Studies
• Are another way of trying to get a more accurate picture of crime, by asking people
which crimes they themselves have committed

Criminal Justice System

✓ Represents society’s response to crime and criminal offenders

✓ System, processes, procedures and institutions
✓ Police, who have the gatekeeping function to the system.
✓ Courts, do the adjudication and punishment function
✓ Prisons, punishment function.

WHAT IS PUNISHMENT?
Is about imposing of an undesirable or unpleasant outcome upon a group or individual
meted out by an authority. Has these elements
✓ Imposed
✓ Has elements of Hardship and inconvenience
✓ Defined by those that impose it
✓ Aims at achieving certain objectives- incapacitate, deter, retribution or
restoration/restitution

NIGEL WALKER’S FEATURES OF PUNISHMENT

✓ Infliction of something unwelcome or unpleasant

✓ Infliction is intentional done for a reason
✓ Those inflicting it are regarded as having a right to do so
✓ Is occasioned by an action or omission which infringes on a law, rule or custom
✓ Offender has played a voluntary part in the infringement

THE HISTORY OF PUNISHMENT IN BOTSWANA

(Please read! A history of Botswana through case law: By Bojosi Otlhogile)

The focus is on the administration of justice in Bechuanaland during the colonial period. Legal
developments and the administration of justice in Bechuanaland reflected the official British
policy at different periods in the governing of the territory of Bechuanaland.
Britain ran a parallel rule in Botswana-with customary and Roman-Dutch law operating side
by side. Each legal system embodied its own values.
Sentencing Patterns
Sentencing in Bechuanaland courts seemed to have been greatly influenced by the general
colonial policy. Whether an accused person would get a suspended sentence, fine, custodial
sentence or otherwise depended upon the prevailing government policy and also of the
accused's race. Discussion would be limited to sentences of hard labour, custodial and
indeterminate sentences.

Hard Labour
Hard labour was common for most accused sentenced to custody. It accompanied a variety of
offences-murder to theft-and was compulsory for most convicts. The official line was for the
convicts to be employed on public works. However, the official opinion was not always
positive. As one District Commissioner indicated 'Prisoners are often employed on public roads
and other unproductive tasks. Since the majority of those sent to prison were Africans, hard
labour became predominantly a preserve of the Africans. Hard labour, therefore, did not only
serve as punishment but also helped keep the minimum administrative expenditure on public
works. The courts stopped ordering hard labour as a part of the sentence during the 1950s and
even then the administration proposed that prison-diet be decreased since the prisoners were
no longer doing anything meaningful. After all, why should the administration in punishing the
convicts actually spend more in supplying their wants?

Custodial Sentence
Imprisonment is one of those typical western concepts introduced in Africa during the colonial
era, the deprivation of liberty as a form of punishment apparently never occurred before. But
exactly when the first prison was built in the Protectorate is not c1ear. Seven years after the
establishment of the Protectorate the administrators considered a lock up at Gaberones. In 1893
official correspondence indicates the desire to remove two long sentence prisoners to South
African prisons. What is clear, though, is that by 1906 a lock up was already in existence. Only
in 1930s is there clear evidence of any official prison structures. These were run by District
Commissioners addition to their other duties including magistracy. By the end of the 1930s
almost every reserve had a lock-up of one sort or the other. Even then there was no clear official
policy on the role of these prisons or for that matter or their effect on the local population. It
must, however, be stressed that some judges still argued that first offenders should be kept
outside as much as possible and prison be resorted to at very last. It was also apparent that the
majority of prisoners were defaulters on revenue laws. It made no sense sending them to prison,
at governmental expense, nor in imposing stiffer fines.

THE SOCIAL AND PHILOSOPHICAL JUSTIFICATIONS OF PUNISHMENT

MODELS OF JUSTIFYING PUNISHMENT

The basic moral question about punishment is an old age one: what justifies the infliction of
punishment on people? There is always need for us to justify why we punish people, since it is
almost always something that is harmful, painful or unpleasant to the recipient. Imprisonment
for example causes physical discomfort, psychological suffering, indignity, and general
unhappiness along with a variety of other disadvantages (such as impaired prospects for
employment and social life). It is true that in some cases the recipient does not find the
punishment painful, or even welcomes it. For example, some offenders might find prison a
refuge against the intolerable pressures of the outside world. The two mostly cited justifications
of punishment are:
Retribution and reductivism: Retributivism justifies punishment on the ground that it is
deserved by the offender; Reductivism justifies punishment on the ground that it helps to
reduce the incidence of crime.

RETRIBUTION
✓ It is based on the principle that criminals willingly commit crimes to gain unfair
advantage. They are aware of the costs and benefits of their actions
✓ When punishing them, the system must therefore take this into account

REDUCTIVISM

REDUCTIVISM is a forward-looking (or ‘consequentialist’) theory: it seeks to justify

punishment by its alleged future consequences. If punishment is inflicted, it is claimed, the
incidence of crime will be less than it would be if no penalty were imposed. Crime levels would
go down as a result of the punishment
Reductivism arguments are supported by the moral reasoning known as utilitarianism (Jeremy
Bentham: if punishment does indeed reduce the future incidence of crime, then the pain and
unhappiness caused to the offender may be outweighed by the avoidance of unpleasantness to
other people in the future). Punishment according to the utilitarian point of view is morally
justified.

Rehabilitation

✓ This philosophy assumes that criminals commit crimes because of pressures within
their social, and economic environment. They are pushed into crime by their life
circumstances
✓ The system of justice should aim at reforming the criminals into law abiding citizens

Deterrence:
✓ The certainty of punishment: people will desist from committing crime because of the
fear of a possibility of punishment. Thus, they will THINK TWICE BEFORE THEY
OFFEND

Deterrence is the simple idea that the incidence of crime is reduced because of people’s fear of
apprehension of then punishment they may receive if they offended. There are two kinds of
deterrence: individual and general deterrence.

Individual deterrence occurs when someone commits a crime, is punished for it, and finds
the punishment so unpleasant or frightening that the offence is never repeated for fear of more
of the same treatment, or worse. Unfortunately the idea seems not to work too well in practice.

General deterrence- this is the idea that offenders are punished, not to deter the offenders
themselves, but pour encourager les autres. General deterrence theory is often cited to justify
punishments, including those imposed on particular offenders. If for instance, on-the-spot
execution were to be introduced for parking on a yellow line, there might be a significant
reduction in the rate of illegal parking. Similarly, studies have found little evidence that
jurisdictions with harsh levels of sentencing benefit as a result from reduced crime rates. This
does not mean that deterrence never works, but it does mean that its effects are limited and
easy to overestimate. There are several reasons for this;
1) Most people most of the time obey the law out of moral considerations rather than for
selfish instrumental reasons.
2) People are more likely to be deterred by the likely moral reactions of those close to
them than the threat of formal punishment
3) Again, potential offenders may well be ignorant of the likely penalty, or believe they
will never get caught.
4) The offender may commit the crime in a thoughtless, angry or drunken state

There is some good evidence that general deterrence can be improved if potential offenders’
perceived likelihood of detection can be increased but little to suggest that severer punishments
deter any better than more lenient ones.

REHABILITATION/REFORM

Reform (or rehabilitation) is the idea that punishment can reduce the incidence of crime by
taking a form which will improve the individual offender’s character or behaviour and make
him or her less likely to re-offend in the future. It was a popular notion in the 1950s and 1960s,
when penological thought was dominated by “the rehabilitative ideal”. Many proponents of
reform (known as positivists) have favoured a particular strong version of this ideal called the
‘treatment model’. This views criminal behaviour not as freely willed action but as a symptom
of some kind of mental illness which should not be punished but treated like an illness.

INCAPACITATION

Incapacitation simply means that the offender is (usually physically) prevented from re-
offending by the punishment imposed, either temporarily or permanently. The practice in some
societies of chopping of hands of thieves incapacitates in this way (as well as possibly deterring
theft). Similarly, one of the few obvious valid arguments in favour of capital punishment is
that executed offenders never reoffend afterwards. Lessor punishments can also have some
incapacitatory effects. E.g disqualification from driving does something to prevent motoring
offenders from repeating their crimes.

Restorative Justice
Main assumptions of the Restorative justice model
✓ Crime has a direct harm and impact on the victim of crime
✓ It destabilizes their lives and creates a crisis of confidence
✓ There is therefore a need to “restore” shattered sense of security, safety, and confidence
on the one person whose life has been affected by crime

The central objective of restorative justice program is

✓ Healing
✓ Forgiveness
✓ Community involvement
FACTORS INFLUENCING THE FORM OF PUNISHMENT
Several factors influence sentencing. Among these being
• Limits of the law
• Offence gravity
• Criminal history of the accused
• Needs of the offender
• Systems or judges philosophy

ALTERNATIVES TO CUSTODY

Non-custodial measures
These are sentences meted out in a court of law that requires supervision of those sentences
outside of prison. They serve as diversion measures away from the prison

Thus, it is punishment other than imprisonment

During the 1960s and 1970s it became apparent that the English system could not contain the
prison numbers crisis, and it was in this context that suspended sentence of imprisonment and
community services orders were introduced and steps were taken to encourage the use of
compensation orders. The switch from imprisonment was intended to emphasize the
government’s initial desire that non-custodial measures should be seen as demanding penalties
in their own right, and therefore appropriate for all but the most serious of offenses. This too,
was intended to make them more attractive to sentencers for the less serious offenders whom
the government at that time wished to see being diverted from custody. This was the policy of
“PUNITIVE BIFURCATION” since, although it is based on a differentiation between serious
and not so serious offenders (bifurcation), it also involves a more overtly punitive approach
across the whole range of punishments, lest the non-custodial options be seen and dismissed a
s a “soft option”.

LEVELS OF PENALTY

There are three levels of penalty:

The highest level-custodial sentences (Level three) - is normally reserved for offenses which
are “so serious only such a sentence can be justified”.

At the second level “community penalties” more restrictive non-custodial penalties - such
as probation and community service) are to be reserved for offenses that are “serious enough
to warrant such a sentence”, and any restrictions on liberty that are associated with a particular
community penalty should themselves be commensurate with the seriousness of the offense”.
Subject to this overriding “proportionality principle”, sentencers are also obliged to what type
of order (s) would best meet the needs of the individual offender, so there is still some scope
of rehabilitative aims to be pursued by sentencers.
At the lowest level (level 1) of this desert-based hierarchy of measures, the least serious
offences are intended to be dealt with mainly by means of either financial or warning penalties.

In the next section we examine the principal penalties that are currently available to the courts
when dealing with adult offenders in the English penal system.

LEVEL 1: NOMINAL AND WARNING PENALTIES

Absolute and conditional discharges

When a court is satisfied that it would be “inexpedient to inflict punishment”, it may discharge
an offender instead. This discharge can take two forms. The first is an absolute discharge which
is the most lenient response a court can make following conviction it requires nothing from an
offender and imposes no restrictions on future conduct. Absolute discharges are rarely used,
and account for only around 1percent of disposals. In part this may be because cases that are
likely to be dealt with by means of a purely no final penalty tend to be discontinued or dealt
with by means of caution instead of being prosecuted.

Most discharges are conditional, which means that the offender is required not to commit a
further offense within a given period, which is specified by the court, and may be up to three
years in duration. If this condition is breached the offender may be dealt with not only for the
fresh offense but also in respect for the one for which the conditional discharge was originally
imposed. In essence the conditional discharge represents a threat, or warning of future
punishment and the sentencing aim with which it is mostly closely associated in this deterrence.
Indeed, of the two forms of discharges, conditional discharges are far more frequently used by
sentencers.

Since the popularity of the conditional discharge over the years appears broadly to have been
inversely related to that of the fine, one explanation for this might be that conditional discharges
are seen as useful substitute for financial orders in respect of unemployed offenders,
particularly since the use of the fine itself also appears to have been sensitive to the prevailing
rate of unemployment.

LEVEL 1: FINANCIAL PENALTIES

THE FINE

Those convicted of an offense are ordered to pay a stipulated amount of money depending upon
their ability to pay and the seriousness of the offense the have committed. The judges usually
pronounce that if the offender fails to pay the fine within the stipulated period; then they will
be sent to prison for the duration determined by the amount of the fine and gravity of the offense
they are convicted of.
The fine is by far the oldest of the regular non-custodial penalties available to the courts, and
in terms of its impact on the rate of imprisonment, has almost certainly had the greatest effect
over the years. Throughout history however, its potential impact in performing this role has
been limited both by the poverty of most offenders, which renders them almost unable to pay
a substantial fine, and by the fact that the ultimate sanction for non-payment is imprisonment.

Food for thought: What are the advantages/disadvantages of the fine?

COMPENSATION AND REPARATION

Reparation, or making amends for the damage that has been caused by the offense, is an aim
of sentencing which in recent years has been given much greater prominence following a long
period in abeyance. Reparation can take various forms, but mostly it involves the payment of
financial compensation either instead of, or in addition to, some other form of punishment.

As far as compensation is concerned, the needs of victims were for a long time seriously
neglected by the criminal justice system. Until lately, the power of the courts to award
compensation was limited, and consequently few orders were made. Where both a fine and
compensation are felt to be appropriate but the offender has insufficient means to pay both,
courts are directed to give preference to compensation. In theory, this means that courts are
obliged to consider compensation in every case where there has been loss or damage to personal
property or personal injury. E.g cases of marriage wrecking and defamation of character.

LEVEL 2: COMMUNITY SERVICES

The accused is closely monitored and supervised within the community and away from the
prison. In this case, the accused is ordered to render their service or labor for free to a public
agency for the duration stipulated by the courts. The accused does not get paid for the work
they do for the public agency.

Community penalties have become very common in recent years. All community orders are
subject to a ‘seriousness threshold’; that is, the offense must be serious enough to warrant such
a sentence. Examples of community services include.

Probation (community rehabilitation orders)

Any probation order entails some restriction on an offender’s liberty by virtue of being placed
under the supervision of a probation officer, with a duty to report as required and receive visits
at home for a prescribed period of between six months and three years. Over the years,
however, there has been a tendency for the range of conditions which may be imposed by the
court to be extended, and for the restrictions which they impose on an offender’s liberty to be
intensified.
The community service order (community punishment order)

A community service order requires an offender to undertake (in the English system) between
40- and 240-hours unpaid work in the community within a twelve month period. The work is
provided by an approved agency and is organized and supervised by the probation service. It
may consist, for example, of outdoor conservation projects, construction of adventure
playgrounds, or decorating houses and flats for elderly and disabled people. It can be highly
tailored to the individual offender, as in the case of footballer Eric Cantona, probably the best-
known recipient of a community service order to date, who was ordered to help coach local
children as his penalty for assaulting a spectator. Failure to attend and perform the work as
directed can lead to the offender being ‘breached’, i.e taken back to court and penalised for
non-compliance with the order. Although it was introduced as a promising alternative to
custody, there has never been any legal stipulation that community service order should only
be used as an alternative to custodial sentence.

Discharge
Based on the age, health, mental condition, the gravity of the offense and the criminal history
of the accused, the judicial officer may decide to let the accused free with a caution or
reprimand. This is called a conditional discharge.

Corporal punishment
The judicial officer may give an order for the accused to receive a specified number of
strokes/lashes on the buttocks as punishment. The accused is usually tested medically to
ascertain that they are in a fit condition to receive the punishment. This punishment is only
used for males under 40 years of age. The accused may not receive more than 12 strokes at a
go, in the case of which they have to be meted out in installments.

Compensation and Restitution

The accused may be ordered to return stolen property to the rightful owner or to financially
compensate them.

Advantages of non-custodial measures

• Minimize the harmful effects of imprisonment especially on young and first time
offenders
• Reduce the costs of imprisonment and other forms of punishment
• Help address prison crisis and all the problems afflicting the prison such as
overcrowding and associated problems.
• Some non-custodial measures are re-integrative i.e. they allow the offender to re-settle
smoothly into the community and reduce the stigma attached to imprisonment

Disadvantages of non-custodial measures

• The community may be placed at risk by allowing potentially dangerous criminals to
remain in their midst
 • The community may lose confidence in the protective role and effectiveness of the
criminal justice system

NB: non-custodial sentences are only used for minor offenses, mainly young offenders, and
first offenders. Where the accused poses danger to their victim or any member of the public,
they may not be given a custodial alternative despite the less serious offense they may have
committed.

LEVEL 3: CUSTODIAL PENALTIES

In the English system, under the 1991 sentencing framework, the third and most severe level
of penalty is custody itself. Strictly speaking, custody comprises of not only immediate
imprisonment (or detention and training orders in respect of those under the age of 18) but also
suspended sentences of imprisonment (which are only available in the case of adults). The
suspended sentence was introduced in the confident expectation that it would relieve pressure
on the prison population.

The suspended sentence

Courts may, in certain circumstances, suspend the activation of any prison sentence of two
years or less for a prescribed period- known as the ‘operational period’- which may be between
one and two years. If during this operational period, the offender commits a further
imprisonable offense and is convicted, the court is then obliged to activate the suspended
sentence in full unless it is of the opinion it would be unjust to do so.

The accused may be given a prison sentence of say 2 years wholly suspended for 1 year. If,
during the suspension the accused commits a similar offense or a different one, then suspension
will be lifted and replaced by the prison term.

Capital punishment

Comparative research compares the murder rates in jurisdictions that have abolished the death
penalty with the rates of those that employ the death penalty. Studies using this approach have
found little difference in the murder rates of adjacent states, regardless of their use of the death
penalty; capital punishment did not appear to influence the reported rate of homicide.

Constitutions around the world limit laws that are overly cruel. Whereas the use of the death
penalty may be constitutionally approved, capital punishment would be forbidden if it were
used for lesser crimes such as rape or employed in a random haphazard fashion. Cruel ways of
executing criminals that cause excessive pain are likewise forbidden. One method used to avoid
“cruelty” is lethal injection.
Custodial sentence (Imprisonment)

Imprisonment is the most severe sentence available to the courts.

Custodial sentences are reserved for the most serious offences and are imposed when the
offence committed is “so serious that neither a fine alone nor a community sentence can be
justified for the offence”.
A custodial sentence may also be imposed where the court believes it is necessary to protect
the public. The length of the sentence depends on the seriousness of the offence and the
maximum penalty for the crime allowed by law. It is opposed to a deterrent sentence, which
doesn't impose confinement, but serves as a warning through alternate punishment, such as
community service or a fine.
Types of custodial sentence
There are a number of different types of prison sentence available to the courts
Mandatory
Maximum
Minimum

The emergence of the modern prison

Imprisonment is the most dominant method of punishment within the English penal system.
Imprisonment has been used as the standard “default sanction” for example for persistent
offenders for whom pervious non-custodial options are perceived to have failed, or when an
offender is in breach of a non-custodial measure such as probation, or community service.
Indeed, until recently it was also used as the standard default sanction in the case of fine
defaulters, even though the original offence may not have been serious enough to warrant
imprisonment.

Yet custody is the most expensive of all penal measures. This contribution to the “crisis of
penological resources” is just one reason why the problems of imprisonment are so acute that
they must form a central part of any account of the current penal crisis.

Functions of imprisonment

The social functions of imprisonment

Historically, the birth of the modern prison was part of a much broader movement in which
‘institutions’ of various kinds came to be adopted as the solution to a wide range of social
problems, especially during capitalism.

An interesting radical explanation for the continued existence of the prison has been put
forward by Nowegian penolist Thomas Mathiesen. Mathiesen suggests that the reason why
prison remains the dominant mode of punishment has to do with the important social functions
which it performs within advanced capitalist societies. The following are the functions
according to him;
 1. The expurgatory function- Those who are both unproductive and disruptive of the
normal processes of production are liable to find themselves being “contained” in
prison where they can do least damage.

2. The power draining function- since those who are contained in this way are not only
prevented from interfering with normal process of production but are also denied the
opportunity to exercise responsibility. The institution they are confined to is designed
to function on the basis of minimal practical contributions from the prisoners
themselves.

3. Symbolic function- refers to the stigmatization effect of imprisonment, which allows

those in the outside to distance themselves, in terms of their own moral self-perceptions,
from those who have been publicly labelled in this way.

4. The diverting function- Here Mathiesen draws attention to the fact that the
commission of social harmful acts is by no means the prerogative (right/privilege) of
one particular section of society. Rather he suggests that ‘socially dangerous acts are
increasingly being committed by individuals and classes with power in society. But
because the ultimate sanction of imprisonment tend to be reserved for a highly selected
group of offenders, drawn mainly from the lower working class, concerns in the media
and in the population at large tends to focus on the fairly narrow band of offenses which
such offenders are most likely to commit (for example personal violence, and relatively
petty property offences). This has the effect of diverting public attention away from
much more serious forms of social harm such as those resulting from major acts of
pollution, or the deliberate compromise of safety standards in pursuit of profit. Those
who are responsible for these harms are not seen as appropriate subjects for the ultimate
sanction of imprisonment, since they are not only powerful individuals in their own
right, but are also engaged in the process of production themselves

5. The action function- because prison has the highest profile of any sanction in common
use, it plays an important part in reassuring people that ‘something is being done’ about
the problem of law and order, and the social threats which they are persuaded to take
most serious.

Perhaps, however, imprisonment is not functional to modern capitalism as Mathiesen suggests,

for there is a heavy price to be paid, not only in terms of resources and human suffering, but
also in managing the increasing tensions that are associated with the steadily worsening penal
crisis.
 OFFICIAL AIMS OF IMPRISONMENT

In the early nineteenth century, the chief official aims of imprisonment were the imposition
of deterrent and retributive justice on offenders, while not ruling out the possibility of
reform and return to society. By the turn of the century, the twin imperatives of deterrence
and reformation had been adopted as official policy, and the subsequent ascendency of the
“treatment model” was soon enshrined in the prison rules themselves. By the 1960s the
main purpose of the training and treatment of convicted prisoners was encouraged, and they
were assisted to lead a good and useful life.

Today emphasis is on the “effective execution of the sentence of the courts so as to reduce
re-offending and protect the public”. In support of this general aim, the prison service has
the following two more specific objectives:

1. To protect the public by holding those committed by the courts in safe, decent and
healthy environment.
2. To reduce crime by providing constructive regimes which address offending behaviour,
improve educational and work skills and promote law-abiding behaviour in custody and
after release.

According to Lord Justice Woolf, it is not enough for prisoners to be treated with humanity,
they should also be treated with justice, and this should be reflected in the prison systems of
the world.

Consistent with their responsibilities to uphold law and order, prisons should do more to
minimise the prospect of prisoners reoffending after release.

When speaking of the need for security, Woolf made clear that this encompasses far more than
a preoccupation with physical containment.

Finally, Woolf made it clear that in his view the attainment of the prison services statement of
purpose require appropriate balance to be stuck between the three elements of Security, Control
and Justice, and made no attempt to hide his strong feelings that for too long the requirements
of justice had been neglected by an over-zealous concentration on the other two concerns.
Getting the balance right, according to him would provide a “challenging, constructive and
worthwhile role for the prison service.”

Pains of imprisonment

• Gresham Sykes first propounded this theory in 1958 in his work “ Society of Captives:
The study of a maximum security prison”

Loss of liberty
• As a free person in the outside world, every individual has the liberty to do all the things
they like as long as they are legal.
o Dress style
 o Profession
o Association
o Family
o Hobbies
o And social status

• As soon as a custodial sentence is pronounced on a convicted offender, all these things

are lost at the blink of an eye.

• Loss of contact with the outside world

✓ Contact reduced to censored letters and supervised associations with the loved ones

• Loss of identity
✓ Prisoners are expected to identify themselves with a prison number they are given as
soon as they are booked into prison.

✓ Their personal clothes are replaced by prison uniform and this takes away a very
important aspect of individual identity.

✓ Part of a person is taken away with their personal clothes as these represent an important
aspect of individuality

✓ Sometimes their heads have to be shaven

• Loss of status
✓ Parental and other responsibilities and roles that contribute to an individual’s status and
position in the society

✓ Professional status

✓ Loss of adulthood status

o Person decision-making responsibilities are also stripped off individual
prisoners
o Everything is directed from the top and one has to do exactly as they are told

✓ Everything one does is part of the prison rules, regulations and regimes for prisoner,
and they do it at a time specified by prison officials

Loss of heterosexual relationships

(Except in prisons where they have conjugal visits as part of their prison policy and regime
especially for long term prisoners.
 • Loss of privacy
✓ Perpetual contact with other prisoners even at a time when you would rather be alone

✓ Continual surveillance especially for serious offenders or those offenders in a high

security prison

✓ Cell searches as part of the routine to maintain order and discipline, especially under
the prison policy of drug control

• Loss of self-esteem
✓ The humiliation and embarrassment prisoners have to endure at reception and during
cell searches

• Loss of security
✓ Housed with all sorts of prisoners some of them dangerous prisoners

✓ Sexual violence and exploitation a common feature of imprisonment

✓ Physical violence also common (prisoners goading one another)

• Monotony and boredom

✓ Every activity is closely monitored and controlled by a strict time table that is made
more for administrative convenience than for the sake of prisoners

✓ Recreational facilities are not always fully utilized sometimes due to shortage of staff
and other reasons

✓ Even the training provided in prison can be boring as it bears no relevance to ones
profession and employment on the outside

Prisoners escape this monotony in one of several ways

✓ Fantasy

✓ Homosexuality (which increases sexual violence and exploitation)

✓ Drugs

✓ Mental disorder (especially psychosis)

Physical violence (prison gangs and the subculture of violence)

✓ Violence is countered with more violence to induce fear and establish control over
fellow inmates

✓ Violence as a survival tactic

✓ Violence as a cry for help i.e. attention seeking

 Suicide and self mutilation mostly as a cry for help.

Prisons Social organization

• Prison as a total institution
• Prisons as a social system
• Symbolic interactionist approach

Costs of imprisonment
• national treasury
• the individual
• the community
• society

Functional changes in the use of prisons

• prisons as holding facilities to await punishment
• prisons as punishment
• prisons and rehabilitation
• prison reform
• prison privatisation

Global Imprisonment Statistics

• Worldwide prison statistics (Useful source is the International Centre for Prison
Studies)
• There have been massive increases in the global prison populations and incarceration
rates across all continents resulting in prison overcrowding, outstretched resources,
major security issues, major health challenges,
• Global Penal crisis. The more inmates a system has the more stretched its facilities
• Overcrowding and the global penal crisis has led to a look for alternatives to alternatives
to imprisonment.

Impact of imprisonment
• economic, psychological, social
• on the individual-
• family
• community
• society

Arguments for or against custodial sentences

Arguments for or against non-custodial sentences

Imprisonment in Botswana
• history of Botswana Prison Service
• key problems- overcrowding, rehabilitation challenges, health challenges,
• alternatives to imprisonment
• prison reforms
PRISONS AND THE CRISIS IN PUNISHMENT

Today, it might not seem controversial to claim that the penal system is in a state of crisis, nor
most people imagine that this ‘penal crisis’ is new or sudden. For many years, in most countries,
media reports have acquitted everyone with the notion that rocketing prison populations,
overcrowding, unrest among staff and inmates, escapes and prison riots, add up to a deepening
and severe penal crisis. The term ‘crisis’ has been common currency in both media and
academic accounts of the penal system for well over 20 years now, the word recurs in
newspaper headlines and in the titles of scholarly books and articles. Recent years (globally)
have seen embarrassing escapes from high-security prisons, dramatic sacking of high-ranking
prison officials, scandals about the manacling of pregnant and dying prisoners when they
receive treatment in hospitals, record numbers of suicide in prisons, planned and sustained
attacks on inmates by prison officers and the disturbing racist murders that occur in prisons.

The orthodox account of the crisis

The orthodox account of the penal crisis is probably the kind of analysis most often
encountered in the mass media to explain phenomenon such as prison disturbances. Using the
account, the crisis is seen as being located specifically within the prison system- it is not seen
as a crisis of the whole penal system, or of the criminal justice system, let alone as a crisis of
society as a whole. The immediate cause of the crisis is seen as the combination of different
types of difficult prisoners- what has been called the ‘toxic mix’ of prisoners- in physically
poor and insecure conditions which gives rise to an ‘explosion’.

The orthodox account points to the following factors as implicated in the crisis:

1. The high prison population (or numbers crisis).

2. Overcrowding.
3. Bad conditions within prisons (for both inmates and prison officers).
4. Understaffing.
5. Unrest among prison staff.
6. Poor security
7. The ‘toxic mix’ or long term and life sentence prisoners and mentally disturbed inmates.
8. Riots and other breakdowns of control over prisoners.

These factors are seen as linked, with number 8- riots and disorder-being the end product which
shows there is a crisis. The different factors interact according to the orthodox account. The
high prison population is held responsible for overcrowding and understaffing in prisons, both
of which worsens the bad physical conditions within prison. The combination of poor
conditions and inadequate staffing has adverse effect on staff morale, causing unrest which
(through industrial action, for example) serves to worsen conditions still further. The four
factors of bad conditions, overcrowding, understaffing and staff unrest are blamed for poor
security. Finally, the combination of the ‘toxic mix’ of prisoners with these deteriorating
conditions within which they are contained is thought to trigger off the periodic riots and
disturbances to which the prison system is increasingly prone.

The high prison population (the number crises)

It is widely agreed that the number of prisoners in most countries are alarmingly high and
rapidly rising. There are several factors involved in this increase in prison numbers in recent
years. The most crucial is the pattern of decisions by the courts. The most important of these is
the sentencing decision -whether convicted offenders should be sent to custody, if so, for how
long- which is seen as the “crux of the crisis”. Also important, however, are decisions about
which courts defendants should be tried in and whether they should be remanded in custody in
the meantime. The court decisions can in their turn be greatly influenced by government
policies and actions.

Overcrowding

Overcrowding prisoners are not spread evenly throughout the prison system, so focusing only
on statistics would not do justice to the overcrowding problem. The top-security “dispersal
prisons” (maximum prisons) are frequently not filled to capacity, while overcrowding is
concentrated in local prisons (which predominantly house remand prisoners and those on short
term sentences). As a result, prisoners would sleep two to a cell designed for a single inmate.

Bad conditions

Overcrowding, of course, contributes to bad physical conditions of prisons. Many prisons are
old and decaying, and newer prisons have often turned out to be so badly designed that they
are not a noticeable improvement. The particular issue of sanitary facilities in prison (or the
lack of them) is something of a cliché. The fact that many prisoners routinely have to spend
long periods in their cells without access to a toilet, or having to use chamber pots and queue
up to “slop out” is an indication of inadequacy of prison facilities. The poor conditions in
prisons affect staff as well as inmates, contributing to low staff morale and unrest.

Understaffing

Wages/salaries of prison officers in any country do not match the risks and conditions
associated with their work environment. If prisons are understaffed, this affects conditions.
Prisoners may be left locked in their cells for longer, because there are no officers to supervise
their out-of cell activities or to escort them from place to place. Visits to prisoners may be
restricted or cancelled. And prison staff may become restless.

Staff unrest

In England for example, for many years the relationship between the prison staff and the home
office has been one of simmering discontent. Industrial action by prison officers has been a
recurrent event. For example 1986 saw the most alarming disruptions: protest action including
a national overtime ban by prison officers over the issue of staffing levels sparked off the worst
sequence of riots by inmates that had occurred up to that date. The situation in England has
been exacerbated by developments which prison staff sees as threatening, such as budget cuts
and privatization of prisons.

Security

Security lapses always seem to have the potential to create more public uproar than any other
event surrounding the penal system especial if the most dangerous criminals escape from
custody. The word ‘security’ is often used in a different sense, to refer to the degree of control
exercised over prisoners. Particular concerns raised in this regard are the use of illicit drugs
and assaults by prisoners on prison staff and on other inmates.

Toxic mix of prisoners

It is often said that one important constituent of the so-called ‘toxic mix’ is lifers- prisoners
serving sentences of life imprisonment, such prisoners are often said to have ‘nothing else to
lose’. There is widespread consensus that there are many mentally disturbed people in prison
who would be better off in hospital. The surveys which find the highest incidents of mental
disorders among prisoners tend to include not only mental illness but also diagnoses over
‘personality disorder’ and alcohol and drug misuse. It is therefore clear that, many prisoners
suffer a disproportionate amount of mental distress and disturbance, hence the need to
strengthen the quality of psychiatric services to adequately meet the needs of prisoners.

GENDER AND PUNISHMENT

Members of the oppressed group (women) are distinctly under-represented in the criminal
statistics. Only a few number of women account for the prison population almost in all
societies, despite comprising just over have of the populations of those societies. Women are
also under-represented in the criminal justice system, though to a certain extent.

The question arises as to whether this difference is due to a real difference

in offending behaviour between the two sections of the population, (males and females). With
very rare exceptions, commentators agree that females do, in fact, commit fewer offences than
do males, although the difference may be much smaller than the official figures suggest.
Moreover, female offenders generally commit less serious offences than their male
counterparts, and have committed fewer offenses previously: the typical detected female
offender is “a young gal, a first offender charged with shoplifting”. Explanations for this state
vary positivist explanations exist which claim that differing male and female biologist are
cause: girls may not literally be made out of sugar and spice and all nice things, but their
hormones lead them to be more law-abiding. More plausible are theories which emphasize the
different social experiences of males and females. Girls are socialised to be more passive and
conformist than boys, and throughout their lives girls and women may find themselves subject
to greater informal social controls; they may also have less opportunity to commit certain types
of crime.

Whatever the explanation, if we accept that women and girls do in fact commit fewer (and
generally less serious) offenses than men and boys, then the bare statistics say nothing about
whether there is any bias operating in the criminal justice system either in favour of women or
against them. There have traditionally been two rival schools of thought on this issue, one
holding that female offenders are dealt with more leniently than males and one asserting the
reverse.

The first view- The Chivalry Theory

Claims that chivalry leads police and sentencers (who are predominantly male) to afford
women less harsh treatment. For example in a case reported in the Daily mirror in January
1978: ‘Judge frees “inhuman “mum’. A mother who flogged her eight-year-old son with a belt,
gave him cold baths and forced him to stand naked for hours at night…..was saved from prison
because she has another child to care for. In this case, it is clear that the sexism takes the form
of condescending “chivalry” which may benefit some female offenders but is hardly likely to
advance the general cause of female social equality.

The evil woman theory

It asserts that women who offend will receive harsher treatment from the criminal justice
system.
This is because women who commit crimes are seen as “doubly deviant”: they have offended
not only against the law, but also against deeply ingrained social norms about how women
should be, so they are perceived as being particular depraved. For instance, rebellious anti-
social behaviour on the part of a young man may be reprehensible, but it is less disturbing
because such behaviour is after all masculine….”boys will be boys”. Similar conduct on the
part of a young woman is far more unsettling because it is unfeminine.

More over there is a tendency for female criminality to be “sexualised” in a way that male
offending is not. The result is that women’s crimes evoke an especially punitive response. This
punitiveness may be overt, or it may be disguised as paternalistic concern for the woman’s
welfare. The woman’s disturbing deviance may be rationalised away as sickness, leading to a
positivist treatment measure which could be more intrusive than the sentence a male offender
would receive for a similar offence.

Youth justice

The image of a “young thug” is a perennial for fear, hatred and periodic “moral panics”, and
this sometimes leads to particular punitive measures being devised for young offenders. On the
other hand our attitudes towards “children in trouble” can also be infected with the
sentimentality evoked by children, which can lead to less punitive measures being
countenanced for them. Currently, the trend towards harsher treatment for youthful offenders
is still underway, but at the same time there are some developments pointing in a more humane
direction.
Young people and crime

There hardly seems to be a time at least since the early nineteenth century, when the criminal
activity of young people has not been a cause of major public concern, we seem to be repeatedly
told that crime among young people is a serious and ever worsening problem, often to a
previous golden age (typical located 20 years in the past) when youth posed no great threat to
public order and safety. If we check the historical record, however, we find that at the time of
the supposed golden age people were saying the exactly the same things.

It is true that adolescents do appear to commit a disproportionate number of crimes compared

with their elders. research studies suggest that most young people commit at least some minor
offences, which in the main go undetected, while even the ones who are repeatedly caught
offending in their teens typically ‘grow out of crime’ as they progress to adulthood. And yet
young people continue to contribute substantially to the ‘numbers crisis’ in the custodial
system.

In general, young offenders represent a crucial facet of the penal crisis. For while, on the other
hand, concern about young offenders has played an important part in fuelling the ideology of
law and order and thereby worsening the crisis, recent experiences of dealing with young
offenders successfully has also indicated some ways in which the crisis could be defused if the
right lessons could be learned and applied.