Archive for November 29th, 2010
This week I have carried on my reading of Roger Hopkins Burke (2005).
In my earlier blog I talked about the rational actor model, however central to this is the classical school of thought. Ideas of the classical school argued that people are ‘rational creatures’ who look for pleasure while at the same time trying to avoid pain. Therefore, any punishment that is inflicted must significantly outweigh any pleasure that one might have achieved as a result of a criminal act, in order to deter people from committing crimes. The classical school can be thought of as having a significant impact on the influence on the modern day justice system because of the notions of ‘due process’ (Packer, 1968) and ‘just deserts’ (von Hirscg, 1976).
There were two key classical school theorists – Cesare Beccaria and Jeremy Bentham.
Cesare Beccaria (1738-94)
Was the author of an influential book that had a huge impact on European and US legal thought. He disagreed with inconsistencies in the government and public affairs Beccaria suggested that criminals owed a ‘debt’ to society and that the punishment for criminals should be in proportion to the seriousness of the crime. He recommended that capital punishments was no use and instead imprisonment should be extended, with the conditions of prisons to be improved. However, it is his theory of criminal behaviour that has provided the grounding for the rational actor model, using the concepts of free will and hedonism. Beccaria proposed that human behaviour is based on the pleasure-pain principle, so any punishment should reflect that. Beccaria’s ideas have had a significant effect on the modern criminal justice system and the doctrine of ‘free will’ can be seen today in the majority of legal codes, with a major impact on popular ideas of justice.
He attributed criminal behaviour to their incorrect upbringing or socialisation instead of innate inclinations to offend. Bentham considered criminals as ‘persons of unsound mind’ who have no self discipline to manage their passions. His ideas are similar to that Beccaria suggesting that people are ‘rational creatures’ who try to avoid pain while looking for pleasure. Likewise, similar to that before, punishment must outweigh any pleasure that is gained as result of committing a criminal act. However the law must NOT decrease the ‘greatest happiness.’ Bentham also believed in ‘free will,’ with his work proposing that criminality might be ‘learned behaviour.’
The influence of the Classical School
According to Hopkins – Burke (2005) the classical school is considered influential in legal doctrine that emphasises conscious intent or choice, (e.g. mens rea or guilty mind), in sentencing principles (e.g. responsibility), and in the structure of punishment (e.g. sentencing tariff). Particular this school can be seen in the ‘just deserts’ approach to sentencing. This includes four key ideas according to von Hirsch (1976):
• Only an individual found guilty by a court can be punished for the crime
• Anyone that is found to be guilty of a crime must be punished
• Punishment must not be more than the nature of the offence and culpability of the offender
• Punishment must not be less than the nature of the offence and culpability of the criminal
All of these are founded on the notion first suggested by Beccaria and Bentham. There is importance on the idea s of free will, and rationality, proportionality and equality, with an added importance on criminal behaviour that looks at the crime and not the actual criminal, in relation to the pleasure-pain notion to make sure that justice is done by equal punishments for crimes of the same nature.
According to Packer (1968) the criminal justice system is said to be founded on the balance between due process and crime control. Due process stresses that it is the role of the criminal justice to prove that the defendant is guilty beyond all reasonable doubt, however the state has a duty to prove the guilt of the accused (King, 1981). This is based around the idea of innocent until proven guilty. This model requires the enforcement of rules that are concerned with powers that the police have and the use of evidence. This due process system recognises that some guilty people may get off scot free and remain unpunished. But this is considered to be acceptable if it means that innocent people are not wrongly convicted and punished. On the other hand, a high rate of aquittal gives the impression that the criminal justice system is inadequate and not performing their jobs properly, and therefore failing to deter criminals.
Contrastingly, a crime control model places emphasis on achieving results with priorities on catching, convicting, and punishing the criminal. In this model there is what’s known as a ‘presumption of guilty’ (King,1981) and there are less controls to protect the offender. It is seen as acceptable if some innocent individuals are found guilty. In this model it is the interests of the victims, and society that are given the biggest priority rather than the accused. Criminals are thought to be deterred due to the shift processing nature of the system, therefore if a person offends they are likely to be caught quickly and punished – therefore what’s the point?! The primary foundation of the crime control model is to ‘punish the guilty and deter criminals as a way of reducing crime and therefore creating a safer society,’ (Hopkins-Burke, 2005).