Deterrence in Criminal Justice: Evaluating Certainty vs. Severity of Punishment - Essay Example

?Outline 0. Deterrence 2.0. Psycho-sexual development 2 Critique to the theory 3.0. Gendered pathways 3 Gendered context 4.0. Shaming 4 Re-integrative shaming 4.2. Disintegrative shaming 4.3. Comparison between re-integrative and disintegrative shaming 4.4. Contrast between re-integrative and disintegrative 4.5. Shaming in the US justice system 4.6. conclusion 1.0. Deterrence. This is a practice adopted by criminal law that seeks to discourage criminal offenders from repeating their crimes, and those in society from attempting to commit any crimes. This is achieved by instilling fear within people that they will be apprehended and brought to justice if they engaged in any criminal activity. Besides receiving punishment for their crimes, the practice also specifies that those convicted will be illegible for personal benefit for their crimes (Benson, Kim & Rasmussen, 1994). This idea is drawn from a theory on criminal laws that posit that criminal laws are passed with the intention that the punishment therein will serve to discourage a repeat of the offences by those convicted, and to deter others not to engage in crime. The extent to which justice systems serve as deterrents to further crimes is an issue open to debate by lawyers, judges, philosophers, and criminologists. For deterrence to be effective, the law offender needs to have some time to reflect on the legal repercussions of his crime. Only then can the effectiveness of deterrence be examined. Crime, however, in real life situations takes place too fast leaving the offender with no time to reflect on the repercussions. Because of this, the effectiveness of deterrence fails to be effectively examined. In criminal law, deterrence has different implications in law enforcement, judicial, and correctional practices. The implications of deterrence are highest in the correctional practices sector. The rates of crime generally depend on the fear that people have of the punishment they are likely to receive upon breaking laws. People tend to engage more in crime when they know that they will not be apprehended and when they know that they will, when they do not fear the punishment to be accorded to them. Knowledge of apprehension without possible punishment is not enough to deter offenders from repeating similar offences or first time offenders from engaging in crime (Martin, 2005). Correctional practices carry the heavier weight of the implications of deterrence because even though an individual may not be delineated from the rationale behind his offensive behavior, use of negative sanction can manage to scare the offender to compliance with the law. Examples of such corrective sanctioning include corporal punishment, shock sentencing, and mandatory sentencing for certain behavior as domestic violence. It is for these reasons that punishment must be accorded in an effective manner that will ensure deterrence on the part of the offender. Today’s most common method of correction is imprisonment. Studies, however, indicate that ex-convicts have a 63% probability of being re-arrested for similar offences. Despite this fact that imprisonment may not correct future behavior, it removes the offender from society, thus reducing his chances of committing more crimes. On the other hand, deterrence is weakest in its implications on the judicial practices. Research conducted to establish the extent to which prosecution deters domestic violence found out that it actually did not. A prosecution needs to be backed up by sentences and correction measures to have significant deterrence effect on offenders and future offenders. Sentences such as jail, monitoring, probation, and work releases have more impact on an offender than the more intrusive correction measures such as fines, which do not probate the offender. While correctional practices offer the offender a guarantee that he will receive some form of punishment, judicial practices do not have such a guarantee on the offender. Many criminals are let free through the judicial process, at times out of sheer ignorance by the judges or mistakes by the police investigating the case. Besides, there is the notion that one can actually buy justice by securing oneself with the best lawyers or corrupting the system. The judicial system has many loopholes and inconsistencies that may favor a law offender, making it a more flexible system through which one can manipulate to some extent. A criminal operating under rationality will fear the law enforcement officer, depending on the effectiveness of their efforts to apprehend law offenders, but will hope to attain lenience in the court of law by the judge’s voluntary actions or a mistake of facts. It is these reasons that make the system to be the weakest in its implication of deterrence on offenders (Wright, 2010). Although offenders fear the law enforcement practices, they like to buy their chances as the success of the practices depends on the effort and informed actions of the police in apprehending suspects. Just like the judicial system, one can either get away or be apprehended. The difference, however, with the judicial system is that this is the initial step to punishment, and scares most potential offenders who would rather avoid the threat all together. 2.0. Psychosexual Development. Sigmund Freud, through his theory of psycho sexual development posits that one’s adult life is shaped by his childhood experiences. Human behavior is characterized by three personalities: the id, the ego, and the super ego. The id is the naughty self that seeks gratification through breaking of rules and regulations. It seeks to satisfy one’s selfish needs and is the source of immoral behavior. The ego is the counter personality of the id. It is the self that seeks to achieve good through compliance with rules and set regulations. An individual will behave according to the amount of id and or ego controlling him (Berzoff & Flanagan, 2008). These two needs to be well developed from a tender age as a child grows so that the right balance of the two can be achieved to produce a well behave individual. According to the theory, development of behavior is governed by libido. Right from birth, a child possesses libido, in different parts of the body through. These parts, the erogenous zones, are the mouth, anus, and genital areas. During a child’s development, the libido moves from the mouth, to the anus, and finally settles in the genital areas. During these stages, the child must experience all the development at every stage before proceeding to the next. In the event that he skips one stage, the child is likely to become fixated later in life and will have to perform the stage skipped. Insufficiency of a given stage leads to frustration, while over-indulgence in one stage impedes the child’s progression to the next stage (Frank, 2005). The first stage is the oral stage that begins at birth. At this time, its libidinal energy is concentrated in the mouth and will often put things in his mouth. Unsuccessful completion of this stage produces an individual is pessimistic, envious, suspicious, gullible, or too optimistic. The second stage is the anal stage. At around one and half years, the child’s libidinal energy moves to the anus. A child takes pleasure in excretion and will do it openly and outside the toilet. A child who overindulges is likely to become messy, careless and defiant, while one who retains excretion will become neat, stingy, orderly, and obstinate. The final stage is the phallic stage when libido settles in the genital areas. The child develops the Oedipus complex, a desire to posses the opposite-sex parent and eliminate the same-sex one. 2.1. Critique to the Theory. This theory has been scientifically criticized for ignoring other variables that are significant to the development of an individual such as hormones and pheromones. Freud’s idea of the oedipal complex has also received wide criticism, with scholar arguing that his experiments to ascertain a child’s the male children’s fear of their father were largely manipulated to give subjective results. Freud argues that the ego and super ego develop much later with a child. New research has established that the ego and super ego do exist in infants. While many surveys concur with the various fixations as posited by Freud, no study has managed to proof that the fixations arise as a result of a child’s experiences. Some have been found to arise in persons in their adulthood, with no possible trace to one’s childhood experiences. The theory has also been criticized by feminist groups as being sexist. He failed to explain female desires in his study, talking about the oedipal complex in boys, for instance without an equivalence for the girls. Besides, his analysis of penis envy is one sided and does not indicate what the males were envious of in girls (Leach, 1997). I believe that the criticism is right and well deserved of the theory. The theory is limited on its focus, laying too much emphasis on sexuality as the sole determinant of behavior leaving out other important aspects such as genetics and hormones. These have been scientifically proven to determine one’s behavior. His propositions were not firmly supported and could be interpreted in reverse. For instance, one fails to establish what determines the other, is it the retention of excretion that makes a child stingy, or the fact that the child is stingy makes him retain his excretion. The other reason I agree to differ with his theory is because he carried out his experiments in an unscientific manner. They failed to capture objectivity and validity, important aspects in any inquiry that seeks to inform a theory. 3.0. Gendered Pathways. In the corrections facilities today, there is emerging trend that calls for a shift in the ways women offenders are treated. This is based on the arguments by feminist criminologists that certain disadvantages in life and social circumstances are responsible for making women result into crime. These factors are different from those which men are subjected to, and so women should not be treated similarly with men. These factors include economic problems, mental instability resulting from women’s emotional height, addiction, and unstable relationships with the opposite sex. These contribute in a substantial measure to a woman’s resolve to engage in crime (Evans & Jamieson, 2008). The pathway approach to crime in women examines the extent to which gender experiences influence women’s indulgence in crime. Salisbury (2007) suggests three paths to women’s offending. One is the pathway that begins with childhood abuse. This is responsible for historical and any forms of mental instability that may be present in a woman offender. The second path is the relational pathway whereby a woman’s dysfunctional relationships, often sexual, makes the woman a victim of abuse and dissatisfaction. Such a situation can make the woman to have a reduced efficacy, self esteem, leading to her current state of mental illness and instability. This leaves the woman susceptible to committing crimes because her rationality is hampered and limited. The third challenge is the social and human capital pathway. This includes financial challenges that a woman encounters in her life in terms of education, support from family, and even dysfunctional relationships that deny the woman a chance to find of hold on to a job. This woman becomes frustrated and is likely to engage in criminal activities as a way of earning a living. These pathways are often used to explain women’s offending and preferable interventions during correction to address these underlying issues. 3.1. Gendered Context. Societal views held about particular behavior and weaknesses and strengths in such behavior, responsibilities held by each gender, and every day roles carried out by each gender were and have continued to be thought to influence patterns of crime and responses to crime in both men and women. Differentiation in gendered crime is explained by two aspects: one is the different attitudes often held toward men and women at the same time, and a difference in the lives as led by men and women leading to different patterns of crimes by the two (Walker, 2003). According to gender prescriptions, men were assumed to be more violent, aggressive, and defiant. Because of this, men were perceived to be more threatening and most of their actions were translated to crime. On the other hand, women were expected to be more passive and emotionally sensitive, therefore, not prone to criminal activities. Women also committed lesser crimes compared to men because of the nature of the lives they led. Women were less likely to carry weapons and tools that could be used to cause harm as men did, they spent lesser time in drinking houses than men, and the fact that they spent most of their time confined to their homes means that they had less access to potential crimes. The differences in crime, therefore, according to the gendered context of crime, is as a result of the differences in the lifestyles of the two genders characterized in their daily activities. In the medieval times, the gendered context of crime would have succeeded as an explanation for women criminality because gender roles were highly differentiated than they are today. It was true then to claim that women had less access to potential crimes because of the nature of the lives they led. Today, things have changed a great deal so that gendered roles are less differentiated and women and men can participate in similar activities in equal measure. Today, women, as well as men can spend time in drinking places, carry tools, take up professions that require them to carry weapons such as security guards, exposing them to the potential of criminality. Women today have also become enlightened of their rights and do not seek to be passive anymore, especially on matters concerning their rights. They take part in elections, and are willing and ready to fight for equal positions and chances as their male counterparts. Because of these changes in gender roles, the gendered context of crime fails to give credible explanations for female criminality in the contemporary world. Most of its arguments are outdated and incapacitated to explain proliferation of women offenders. Instead, the gendered pathways to crime present a better explanation for female criminality. It captures factors facing women in the contemporary world and can be modified to accommodate emerging trends and factors that are likely to affect women in the changing times. Re-integrative Shaming. This is a sanction imposed by a criminal justice system, whose intention is to strengthen the bond of morality between the offender and his community. This theory, created by John Braithwaite in 1989 was a reaction to the labeling theory. The theory lies within the larger scope of unitive justice system that seeks to restore and reconcile an offender with his community rather than to punish and revenge. The shaming process can be done in two ways: through stigmatic shaming and re-integrative shaming. Stigmatic shaming is intended to severe the moral relations between an offender and members of his community. Re-integrative shaming, on the other hand, guides the offender back to his community and treats him as a law abiding citizen who made a mistake. Re-integrative shaming has proven to be useful to the justice system in combating crime in today’s society. Rather than creating more crime through disintegration or stigmatic shaming, re-integrative shaming attempts to deter further involvement to crime by offenders. Braithwaite argues that many offenders continue to commit crimes because they are not aware of society’s expectations and norms. Through shaming, the individuals are made aware of what society expects of them and how they should behave. The persons closest to the offenders should, therefore do the shaming because their significance has greater impact on them. The same persons involved in the shaming are the ones to re-integrate the offenders back and take them through the reconciliation process. One major weakness of this theory is that it lacks clear division between itself and stigmatic shaming. The system, in effort to shame and then re-integrate, could over do the shaming so that the individual feels stigmatized. Disintegrative Shaming. This can be said to be the opposite if integrative shaming. It seeks to create permanent stigma on the offender so that his relations and moral bond with his society are severed, permanently at times. This type of shaming has been found to have a higher prevalence of crime upon the offender as he indulges in sub-cultures of crime, where the offender seeks the acceptance denied by his society (Daly & Hayes, 2011). Systems that adopt disintegrative shaming perceive it to be a cheaper option to incarceration, which is deemed to be severe compared to the crime committed. They tend to think that the practice will induce the punishment, deterrence, and rehabilitation upon the offender, which are the desired effects of the entire process. These, together with other negative social sanctions are thought to deter the offender and others in society from future indulgence in crime. Comparison between Re-Integrative and Disintegrative Shaming. Shame, whether re-integrative or disintegrative, has similar effects upon the offender. The application of conspicuous label on the offender as a means of humiliating him has the overall effect of reducing the offender’s self-esteem and worth. Shaming, therefore, retains its punitive effect on the offender, whichever way it may be applied. The difference between the two partly and to a large extent lies in the offender’s reaction toward the shaming. Contrast between Re-Integrative and Disintegrative Shaming. While re-integrative shaming serves to reconcile the offender with society, disintegrative shaming cuts links between the offender and society, leading the offender to commit more crimes. The disintegrative method first identifies the offender and offence as violations to communal norms. The community and those taking part in the shaming process presume their activities to be legitimate and for the benefit of the community. This creates a gap between the offender and ‘lawful’ society. Re-integrative shaming, on the other hand, creates shame on the offender, before his friends and family members and forces the offender to apologize to his victims. This way, the offender is made to realize his mistakes, appreciate the amount of hurt he caused his victim, friends, family, and society a large. The offender is perceived as part of the community in spite of the offence and no gap is created between him and society. This leads to reconciliation between the offender, the victim, friends, family, and community. Shaming in the US Justice System. The US criminal justice system has for years applied the shaming practice in its justice system. The system was popular because of the need to reattach society to offensive behavior. The scarlet letter type of punishments (disintegrative shaming) were common among judges for offenders of crimes perceived to be socially immoral such as prostitutes and rapists. This trend has changed over the years because of calls by human rights activists who denounce the repercussions of such harsh a practice. The system is today, thus, characterized with a high prevalence of re-integrative shaming more than disintegrative shaming (Marvin, 1990). Shaming is generally preferred in the country as it offers a cheaper alternative to incarceration, thus saving tax payers money that is alternatively used in other areas more important than prisons. Re-integrative shaming, in particular, is preferred as it offers offenders a new opportunity to become better members of society rather than condemning them from the society. Professor Stephen Garvey of Cornell University adds on that the pressure from family and friends makes the offender remorseful of his actions, influencing his decision to turn away from crime. The system has, however, gained a lack of favour from many for allegedly employing traditional methods of punishments. In its place, the system is continually being taken over by punishments that are impersonal in nature such as incarceration. Those in favour of the practice argue that discarding the system has increased the cost of justice in the country due to increased incarceration. Besides, wrong doers have been deprived of their sense of vindication and do not feel remorse for their crimes any more like they used to through shaming. Conclusion. The practice of shaming was popular in the medieval times, especially in Europe as a way of punishing and humiliating law offenders. Re-integrative shaming gained more prominence than disintegrative shaming because of its ability to heal and reconcile offenders with society. It should, however, be taken into account that the two practices entail shaming the offender, although in different ways, therefore re-integrative shaming should be applied sparingly lest it disintegrates the offender from community. In the US, the practice of shaming was introduced by colonialists and was popular then. Disintegrative shaming gave way to re-integrative shaming, which is preferred by many, and eventually the practice seems to be dying off as many prefer punishment that does not affect an offender’s personal esteem or that takes tampers with his humanity. Reference List. Benson, B. L., Kim, I., & Rasmussen, D. (1994). Estimating deterrence effects: A Public Choice Perspective on the Economic of Crime Literature. Journal of Southern Economics, Vol. 61:45-63. Berzoff, J., & Flanagan, L. (2008). Inside Out and Inside In: Psychodynamic Clinical Theory and Psychopathology in Contemporary Multicultural Contexts. New York: Jason Aronson. Daly, K., Hayes, H. (2001). Restorative Justice and Conferencing in Australia. Journal of Australian Institute of Criminology, Vol. 186: 1-6. Evans, K., & Jamieson, J. (2008). Gender and Crime: A Reader. London: Open University Press. Frank, C. (2005). Sigmund Freud. 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