Sample Criminal Justice Paper on Punishment and the State

Punishment and the State

1 In studying the history of punishment, how does power change between its visible and invisible manifestations?

Criminal justice is a social construction that was created to address the prevailing social structures and norms. In the traditional setting, there was no incarceration since there were no prisons.  What guided the society were the rules of morality and the community norms. As time passed, whipping and branding as well as mutilations were common. As a result, those people who were considered to be repeat capital offenders were banished. The colonies where the communities lived were either theocratic or autocratic. As the people increased, there was need to lead the people more objectively. The arrival of immigrants as well as the industrial revolution leads to the decline the homogeneity and this led to the need for alternative options for social control. The existing law, therefore, needed modification to meet the needs of the increasing population. The social construction led to a reform of how law and order was maintained, thus leading to the creation of the criminal justice. All in all, the invisible hand entailed the psychological torture that an offender receives once convicted and include shame, rebuke and segregation (Morris & Rothman, 1998). The visible hand in this case manifests itself as a direct impact to deter an offender from repeating the mistakes and compensating for past mistakes. The visible hand at the same hand manifests itself through retribution, rehabilitation and incapacitation. The visible hand has more impact than the invisible hand as it impacts direct physical consequences to the offenders.

2. Briefly explain the major points and criticisms of classical theory and positivism.

Classical theory is based on the assumptions that people usually exercise free will and therefore are responsible for their actions. They argued that human behavior was motivated by hedonistic rationality. This included criminal behavior where the perpetrators weigh the benefits gained against the possible pain that was associated with a given action (utility) (Kirst-Ashman& Hull, 2009).  Classical theorists believe that punishment should only be used to deter a person from committing crime because there is a social contract between an individual and the community (Henry & Einstadter, 2006). The authorities should therefore enact laws that were simple and unbiased, educate the public as well as eliminate corruption and reward virtues.  Some of the criticism of the classical theory includes the fact not all offenders are alike. The classical believed that all offenders should be given the same form of punishment, thus ignoring juveniles and adult offender’s treatment. At the same time,

In explaining crime, the positivism assumes that human behavior is predetermined and that it is not a matter of free will at the same time, they argue that criminals and non criminals are different fundamentally and therefore behave differently given the same scenario or environment. They also argued that crime is caused by several factors and that the society is not based on social contract but on consensus. The criticisms that the school of thought faced while trying to pass their theory was that saying that criminals are basically different from non-criminals, they failed to account ad ignore he processes by which behaviors become illegal (Vito & Maahs, 2012). At the same time, they stereotyped that all people agree on most things about criminals when they said that the society is based on consensus. Other criticisms include, believing that actions are determined by other factors other than an individual’s free will. Their believe about the scientists being objective in their work was also criticized.

3. Outline the three main goals or aims of punishment.

Many theories have been bought up explaining the purpose of punishment. All in all, it can be said that all these theories tried to focus on the compensation for crimes and wrong done in the past as well as incorporating measures that would prevent future crimes. These two approaches therefore justify the reasons as to why punishment should be inflicted on the offender.  Specifically, punishment aims at accomplishing three purposes which include retributive stance, utilitarian position and a humanitarian perspective. Retribution is the punishment done to offenders in proportionate measures of their crimes (Duff, 2001). This is done on the old saying “tit for tat”. This notion focuses on the past mistakes done by the offender claiming that the offenders deserve to be punished and therefore suffering should be instilled. The retribution theory follows the principle of proportionality, though it is not a justification but a constraint on the type of punishment that it should be administered to. Under the utilitarianism approach, punishment aims at maximizing the net expected benefits for all the parties and that it prevents a greater harm (Cole, Smith, & DeJong, 2014). This being the case, punishment under this theory punishment is used to deter an offender from performing future crimes. Deterrence may take the form of general deterrence; an act prevents the society from committing a given crime as a result of the consequences or specific deterrence where individual persons are dissuaded from committing a crime (Braswell, McCarthy R., & McCarthy J., 2010). At the same time, punishment incapacitates an individual from performing future crimes. Once a person is punished, the humanitarian perspective sees punishment as a form of rehabilitating the offender as well as addressing the many shortcomings facing the offender. 

4. Explain the differences between Durkheim’s view of punishment in regard to modern ‘organic’ societies, and more traditional societies.

Durkheim was a functionalist who believed that punishment should be awarded as it serves in the best interest of the society. In his arguments, he indicated that punishment reinforced the social solidarity of the community while at the same time strengthened the moral values (Garland, 1991). In his view, the reaction of the society is stronger in serious crimes like murder. His theory contradicts the traditional and modern organic society in that the former used retributive justice or revenge to punish an offender. In this, the punishment was severe and harsh with no mercy. His approach calls for a punishment that will be able to transform the offender while at the same time compensate the society. Durkheim’s theory contradicts with the traditional setting also in the role of punishment. The traditional form tried to reinforce the capitalist system and to terrorize the poor in society.   Usually, the offenses by the wealthy are ignored or are punished lightly. A view not shared by Durkheim is that the purpose of the courts and the police was to execute the agenda of the working class and that prison were designed to be dumping grounds for the poorest in society.

5. Compare and contrast the ‘hidden functions’ approach with abolitionists.

Abolition in the criminal justice setting is that attempt to do away with the punitive responses that are awarded to the criminal problems. In other terms, it can be described as the act of doing away with the institutions of the state which are felt to be illegitimate. Abolitionists argue that crime should not be set apart from other non criminalized social issues, but should be treated within the context that they occur and the solutions and reactions should be towards reintegrating the offender rather than secluding them.   The abolition point of view is that crime occurs as a result of the criminal justice systems rather than the individuals in that they offer no solutions to the fundamental problems. This leads to a condition of penal reconstruction. Abolitionists argue that imprisonment is indefensible and morally reprehensible and therefore should be done away with.  They also believe in reconciliation rather than punishment. They also are non-members of the already established justice system, though they work with the justice system. They believe that crime occurs as a result of the social deconstructions in the society and its structure contrasts with the hidden function approach. They also believe that the people have the sovereign powers to abolish the justice system and empowering the prisoners and ex-prisoners can lead to prison system change. In this, acts like death penalty should be abolished.

6. In what ways does Foucault differ from Marxists in terms of their understanding of punishment?

Both Marxists and Foucault have at some points shared similar views on punishment, but at the same time have had different views on the same.  Marxists arguments indicate that the society punishes a crime when it is not in their favor, meaning that at certain times like in war, crime is not punished especially if the working classes are involved. This explains and acknowledges the power of the ruling class. Foucault on the other hand, uses power to exercise social control in the community.  Using the panoption model, the concept of power is viewed differently. Foucault views power as concentrated within the penal process while Marx believes that power is built within society, and is set within different production modes. To Foucault, power produces knowledge which then reinforces power (Smith, Vromen, & Cook, 2012). This therefore explains how the correctional institutions inform knowledge. Marx believes that power exists within different social classes and this determines the forms of punishing. In terms of normalization, Foucault believes that supreme control should be applied within the least amount of force. This contradicts Marxists view where the lower social class persons are punished. He depicts punishment to be a political tactic that emanates from technology and power. To Marxist, power is a possession which may be held and /or transferred, but to Foucault, it has networking characteristics and it can extend everywhere.

7. Does attention to victim’s rights change the nature of criminal justice system?

Victims’ rights are the legal rights that are awarded to the victims of a given crime. These rights include the rights to restitution, the right to be given an opportunity to talk/speak during a criminal proceeding or the right to be included in the proceedings. Attention to the victim’s right may alter the nature of the criminal justice system. One of the supporting facts that the victim’s right may affect the nature of the criminal justice system lies in the fact that the participation of the victims may lead to the focus on vengeance and personal emotions. This may derail the process while at the same time may compromise the decision of the ruling of the judges. At the same time, the victim may seek ‘closures’ which may lead to diverse options like retribution and forgiveness. This may sound complicated to the justice system who would be torn between which side to take. The presence of the victim may directly undermine the right of the defendant to defend him/herself appropriately. The presence of the victim may also lead to negative consequences between the prosecutor and the defendants as well as the judges. In other instances, the victims’ rights may lead to a condition whereby the victims lobby or advocates for higher compensation as a way of retribution. The victim’s right reduces the freedom of the offenders more than how it increases the victim’s freedom, thereby constituting an acceptable right (Hall, 2012). It also may legitimize a punitive stand against the offender thereby affecting the jury’s sentence.

8. What are the central characteristics of actuarial punishment?

Actuarial punishment is a theoretical model in criminal justice that uses the concepts of actuarial mathematics to evaluate risks and dangerousness of offenders as well as their treatment programs.  It involves crime prevention strategies as well as policing services. This form of justice is done by using past statistical data to calculate the likelihood of a future crime. One of the characteristics of actuarial justice is that deviance   is normal and is as a result of the living conditions in the society. Since there are possibilities that it will happen, strategies for preventing and minimizing the consequences should be therefore methods and ways of eliminating it should not be devised. The concept of risk is another characteristic of actuarial justice. The actuarial justice reconstructs an individual and the social phenomena as risk objects. It therefore follows that one risk profile should be undertaken to identify the level of risk. Another characteristic is that of managing rather than transforming. In this, managing the individual risks that the offenders represent. Another characteristic of actuarial justice is that it focuses on the future rather than the past. Actuarial punishment has the primary role of estimating and finding preventive measures on the occurrence of forthcoming behaviors instead of focusing on the past causes.

9. What is ‘net-widening’? How does it occur with punishment in the community?

Certain correctional facilities offer community correction models that have options like parole and probation among others.  These services are only allowed if judges make community placement decisions on the offenders. The judge in this may offer intermediate community services like day reporting, restitutions, alcohol and substance treatment or counseling. For this to occur the offenders are evaluated and decisions are made. Net widening concept occurs when there are some people who are still in prison, but could be out of prison on probation. These people who fail the program to be out on probation and remain in prison are said to be widening the gap.

In the community, it occurs when the offenders are placed in more restrictive sanctions than their offense warrants (Caputo, 2004).  It has negative effects in that it increases the burden to the offender; it also increases the correction costs and also fails to reduce the prison and jail capacity. It occurs when there is an intensive supervision programs (ISP) that enhances widening the net as a result of  offenders moving to the ISP coming from the regular probation as well as parole population (Caputo, 2004). Another reason why net widening occurs is as a result of front end ISP, back end ISP as well as cost effectiveness.

10. Contrast the criminal justice system and social welfare as forms of social control.

Social control refers to the social and political, mechanisms that regulate individuals and group behaviors in the attempt of gaining compliance and to conform to the rules governing a given community, social group or a state. Social control takes two forms, including informal mean and formal means.  These two forms contrasts in a number of ways, including the following

The social values that an individual possesses are byproducts of the informal control and are exercised by the community through customs and morals. The individuals in the society internalize these norms either through indoctrination or conscious. It is mostly practiced by the traditional societies and is embedded in culture. The social welfare sanctions include shaming, ridiculing, sarcasm as well as disapproval which may prompt an individual to stray back towards the required norms. In the extreme situations, social discrimination and exclusions are awarded.   The reward or punishment for social welfare adherence varies from place to place and from individual to individual. This contrast with the formal means of social control which entails the criminal justice in that external sanctions are enforced by the state through the justice department. Unlike the social welfare, the criminal justice exists to prevent the onset of anomie in the society (Blomberg, 2003). The rules and regulations to be followed are inscribed in the constitutions as well as in other criminal justice departments. Harsh fines for crimes including imprisonment and fines are imposed.

References

 Blomberg, T. G. (2003). Punishment and social control. New York: Aldine de Gruyter

Braswell, M. C., McCarthy, B. R., & McCarthy, B. J. (2010). Justice, crime, and ethics. Elsevier.

Caputo, G. A. (2004). Intermediate sanctions in corrections (No. 4). University of North Texas Press.

Cole, G., Smith, C., & DeJong, C. (2014). The American system of criminal justice. Cengage Learning.

Duff, A. (2001). Punishment, communication, and community. Oxford University Press.

Garland, D. (1991). Sociological perspectives on punishment. Crime and Justice, 115-165.

Hall, M. (2012). Victims of crime. Routledge

Kirst-Ashman, K. K., & Hull, G. H. (2009). Generalist practice with organizations & communities. Belmont, CA: Thomson Brooks/Cole. Henry, S., & Einstadter, W. J. (2006). Criminological theory. Lanham: Rowman & Littlfield publishers, Inc.

Morris, N., & Rothman, D. J. (Eds.). (1998). The Oxford history of the prison: The practice of punishment in western society. Oxford University Press.

Smith, R., Vromen, A., & Cook, I. (Eds.). (2012). Contemporary Politics in Australia: Theories, Practices and Issues. Cambridge University Press.

Vito, G. F., & Maahs, J. R. (2012). Criminology: Theory, research, and policy. Sudbury, Mass: Jones & Bartlett Learning.