What Should Punishment Achieve in our Criminal Justice System?


By Emily Meller

The rate of imprisonment in Australia is at an all time high, doubling in the last 25 years alone. It’s the harshest form of punishment in our judicial system – and it’s expensive, with some estimates stating it costs $100, 000 to incarcerate a person for a year. So perhaps it’s a good time to ask – what is the point of criminal punishment at all?

Broadly speaking, the aim of criminal punishment is to reduce crime rates. That’s fairly obvious. But what is surprising is that there is no single aim for punishment in our criminal justice system – and very little consensus on what that aim “should” be.

It is often the subject of much debate. After all, as it was found in the 1989 case of Hoare v R, the punishment should be proportionate with the crime.

Often, this “fit” is based on the level of “wrongness” of a crime – murder is accepted to be a far worse crime than exceeding the speed limit on a clear road, for example. Therefore, one is punished with imprisonment, and the other often addressed with a fine. But there are far more grey areas, and this adds a lot of complexity to the debate. One thing is obvious: there are different goals for different types of punishment.

The three main aims of punishment are generally (1) retribution, (2) deterrence and (3) reformation. Each has a role to play in the criminal justice system.

Retribution

Retribution is the idea that if a person does something wrong, they should be punished – even if that punishment would serve no apparently useful purpose.

It is also argued that retribution prevents citizens from taking the law into their own hands, by inflicting punishment within an organised system rather than through blood feuds of vigilantism.

Of course, the biggest problem with purely retributive punishment is that it depends on drawing a clear line between “right” and “wrong”, and this line is often blurred.

Deterrence

This argument is largely accepted as a valid aim of punishment criminal justice. Simply, that by punishing someone it will prevent future crimes from occurring – both by stopping the individual who was punished, and stopping others from copying their crime for fear of punishment.

The great C18th legal philosopher, Jeremy Bentham, is largely responsible for expounding this theory. Basically, people try to achieve pleasure and avoid pain – so setting up a punishment that is painful (by removing freedom, or costing money, for example) will ensure people won’t risk the “pain” of punishment for the “pleasure” of committing a criminal act.

But there are huge problems with this theory, the most important being that it almost completely abandons the idea of “right” and “wrong”. If Parliament, for example, decided they wanted to stop a crime, they simply need to impose a punishment that is more severe than the benefit the criminal gets.

This ignores factors such as socio-economic status, desperation or mental illness, all of which are highly relevant to criminal behaviours.

For example, it would take a very harsh punishment to deter a starving person from stealing a slice of bread. By contrast, it wouldn’t take much to deter a rich person from committing fraud to get more money.

But, under the theory of deterrence, the punishment for the former would be much harsher than the latter. Does that seem just?

Of course, deterrence is still a useful idea for certain punishments. Speeding fines, for example, are almost purely deterrent. But they prove to be an effective mechanism because the punishment of a hefty fine is generally seen as proportionate to the crime of breaking the speed limit.

Deterrence also has a very important role in maintaining law and order generally – if you know the punishment is harsh in advance, it will impact your decision to commit the crime.

If nothing else, at least it provides a framework for most citizens to judge whether or not committing a crime is “worth” it, and in an ideal world the answer will always be “no”.

Reformation

Also known as “rehabilitation”, this kind of punishment has a different aim to the others. Rather than purely reducing crime, it views criminal behaviour as a social disease, one that individuals can be cured of.

The biggest problem, of course, is that the reasons for criminal behaviour are often highly complex and unpredictable. Equally, the risk of re-offending is very difficult to predict.

Should there only be one aim when it comes to criminal punishment?

Clearly, this is complex. One of the most controversial areas currently being debated in relation to this question is around drug offences.

The biggest increase incarceration rates in Australia over the last decade are from drug-related crimes. Generally, the aim of imprisonment is to deter future criminals, but the effectiveness of sending people to prison for drug offences has been called into question.

As Christine Wheeler QC told the ABC:

“Deterrence works for people like you and me, who think about consequences and would not commit the offences anyway. It doesn’t work for drug addicts, it doesn’t work for alcoholics, it doesn’t work for people who are mentally ill.”

So when thinking about what the aims of punishment “should” be, it is probably best to stick to the basic idea that the punishment should fit the crime.

This means understanding that imprisonment and deterrence is not the only – or the best – solution in all cases. It’s certainly not the cheapest.


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About Ugur Nedim

Ugur Nedim is an Accredited Specialist Criminal Lawyer and Principal at Sydney Criminal Lawyers, Sydney's leading firm of criminal and traffic defence lawyers.
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