When looking at Braithwaite and his contributions to debates on crime I will concentrate on criminological aspects of the discourse and theories of punishment. Ideas range from the feminist perspective, which views law and all aspects of punishment as a way of suppressing women. The Marxist perspective, which views punishment as an effective way of further suppressing the proletariat, to desert theorists who view punishment as something that is deserved and should be metered out to befit the crime.
Generally speaking however we can divide the more specific camps into two theories Utilitarianism and Retributivism. John Braithwaite’s contribution has been to look at punishment from a completely different perspective in conceptualising his theory Republicanism. At the very least the implications of his theories are to provide a new perspective with which we can look at punishment of criminals. At most his ideas could pave the way for a complete reformation of the criminal justice system, as we know it.
It can be said that there are six aims of punishment; Deterrence – on an individual and community wide level. * Incapacitation * Desert * Rehabilitation * Denunciation * Restitution Utilitarians emphasise the importance of Deterrence, Incapacitation and Rehabilitation. According to Nigel Walker utilitarian theorists see punishment as a deterrent to avoid future crime1. Deterrence is aimed not only at the individual but also the community. In this sense utilitarian theory is seen as consequentialist in that it looks at future offending as well as immediate issues of how to deal with current offenders.
This links to the notion of incapacitation. In theory this disables criminals from committing crime (at least for the duration of their sentence. ) Deterrence and incapacitation would be ineffective however if there was not a programme of rehabilitation in place to provide training and support for existing offenders. According to utilitarians this is to be achieved primarily through education. There are elements of utilitarian theory throughout the criminal justice system in this country, most notably with reference to rehabilitation.
The probation service, social workers, drug and alcohol programmes are all examples of agencies the state uses to try and reform people who are referred to it. Whilst our system has adopted some elements it is clear that in practice utilitarianism is not a faultless discourse. Deterrence can be said to rely on all criminals acting in a rational and pre-meditated fashion. It does not account for spontinaity. David Reily pointed out that there is no actual evidence supporting deterrence as an effective justification for punishment.
Reily looked at drink driving offenders where his research suggested that many thought that they were not over the limit, had not committed and offence or would not get caught2. With attitudes like these the concept of deterrence is going to have little effect. Anathor criticism of deterrence is that it works disproportionately. In some areas tactics have been very successful, for example surveillance camera systems in shops and more recently in busy shopping streets in central London, or speed cameras and their part in reducing speeding.
These are fairly minor offences. As the offence gets more serious deterrence appears to have little or no effect, for example the death penalty in relation to murder. Studies suggest the death penalty is totally ineffective as a deterrent and is solely purposeful in relation desert theory. This links to, and is possibly supported by the earlier criticism that deterrence does not account for, or have any bearing on spontaneous crime. More serious offences like Murder or GBH may have a greater connection with spontinaity than less serious offences.
Finally, the actual effect of deterrence, not only on the criminal mind but on those who have not committed offences can never be fully appreciated or quantified. We cannot psyco-analyse people and determine what makes them stop committing crime or what makes them not want to commit crime in the first instance. Incapacitation has been criticised also. It is assumed by utilitarians that incapacitation will stop crime at least for the duration of the sentence. This is simply not true. Crime is committed in prsons.
Sexual assualts, violence, drug offences happen in prisons on a daily basis. It has been suggested that incarcaration can actually contribute to an inmates resolve to commit crime by providing them with the right contacts and expertise, or by alienating them from society through stigmataising them. There are also questions about how long we can incapacitate a person. How do we know they are truly repentant or rehabilitated? If we are wrong then we are depriving a person of their freedom or unleashing a potentially dangerous individual on society.
Is it justifiable to incapacitate perople on the basis that we may be protecting society from harm? Should the state could psyco-analyse everyone and inprison those who are considerd a potential threat. This is not necessarilky what utilitarians are advocating but this is the extreme of what their theory lends itself to. Criticisms of rehabilitation have focused on its effectiveness and how it can be seen as the “soft option”. During the 1970’s studies were undertaken comparing offenders who had been put into rehabilitation programmes and those who had been given custodial sentences.
The conclusion in one report carried out by Martinson was that there was no difference in reoffending rates. These negative studies led to a loss in public confidence as to the effectiveness of rehabilitation programmes. There has also been criticisms that rehab has been used to effectively extend sentences by ordering a combination of prison sentences and rehabilitation programmes following release, or that they can amount to indeterminate sentences where release is permitted only when the offender is perceived to have been rehabilitated, for example under the Mental Health Act.
These potential violations of the intended purpose of rehabilitation raise issues of human rights. Retributivist theory turns on the notion of deserved punishment. In punishing the guilty a symbolic message is deliverd to society as a whole. Nigel Walker asserts that retributivist theory is superficially attractive as it offers certainty where utilitarianism does not. All retributivism asks for is a suitable punishment to be awarded to a crime, it does not entertain the more difficult and intangiable psychological factors present in utilitariansim.
Retributivism concentrates on Desert, Denunciation and Restitution these focus on the offence and not the offender. Desert is the simple principle of punishing an offender in proportion to the offence. Society serves an offender his “just deserts”. The principle is vengeful. Clasically the principle was simplified into the notion of “an eye for an eye”. Modern retributive theory talks of the concept of proportionality between offence and punishment. Proportionality has been divided into two catagories by leading theorists Andrew Von Hirsh and Andrew Ashworth.
Ordinal Proportionality is seen to be the ranking of the offences whilst Cardinal proportionality is the parralel ranking of the penalty. There is no guide offered as to how offences are to be ranked or what the corresponding sentencing ratios should be This is not to say that mitigating circumstances are not considered by retributive theorists, mitigating circumstances are considerd at the sentencing stage. The consequence of this standpoint is that in theory anyway, any person who commits an offence is convicted of the correct offence but leniencey is shown when it comes to handing down sentence.
Advantages of the concept of proportionality are that it promotes consistency in sentencing. By having an agreed framework it places boundries on discretionary powers of the judiciary. This combats the problems in utilitarian theory which have the potential to impose unfair or indeterminate sentences on people. This in turn protects the rights of the offender. It addresses offender vulnerability. Denunciation serves a symbolic function similar to the utilitarian deterrence. It is seen as important even if punishment is ineffective.
It is a tool used to shape moral concepts in society and enable the community to distinguish between right and wrong. This in turn promotes community consensus and cohesion. Denunciatioin if followed by restitution whereby the offender is released back to the community after serving their deserved sentence. Criticisms of retributive theory are as strident as those towards utilitarianism. In relation to desert theory some see its vengeful roots as inappropriate. Some might say uncivilised.
Proportinality presents problems too in that Ashworth and Von Hirsh do not elaborate on limits or bounderies that should be considerd when settingm out the poarralel rankings of offence and punishment. We can assume that the offence ladder will be set out in a logical manner but when considering the Cardinal rankings there is not help offerd as to the sentencing gap between offeces, minumum punsihmetns or maximum limits. This means that other principles have to be considerd by thise drawing up the comparanle tables.
These new principles may conflict with those of desert. Questions ar erasied as to the fairness of opunishing thos with social problems. This stem from mitgiatiojg circumstances only being considerd at sentencing stage. How do we measure harm and culpability? Since the theory os soley based on these principles we need a way which ensures that these are beingm measuyred fairly, doies such a system exist? Retributivist theory assumes that society operates on siome form of consensus and that this can be furtherd through denunciation in particular.
We live in a pluralistic society. Is consensus possible? In addition it is assumed that society en mass understands crime, sentencing, the criminajustice system. There is strong evidence which suggests that communities are confused and contradictory when it comes to their assessment opf crime. The British Crime Survey 2000 asked what perople thought of the sentences being handed down to offenders. 79% said that sentencing was too lenient. At the same time it was observed that these people underestimated what sentences were actually being imposed.
Evidence has suggested that on poles conducted wehyere the public has beena sked to choose a sentence they were actually mor lenient than the courts. Given these examples, is sensible to make assumptions about society? None the less it can be said that elements of retributivism, partiuculary desert theory are omnipresent on the British judicial system. The concept is assosicated particulary with conservative ideals whioch dominate the stablishment. Lets briefly touch on the ‘third way’, Eclecticism.
This is simply an immalgimation of utilitarian and retributivist theory. It can be said that this is what the U. K conforms to this theory we use ideas from both narratives. Braithwaite, in his assessment of crime and punishment has looked at ho0w we should deal with criminals from a fundamentally different viewpoint, in that it is optimistic not pessimistic like ‘failed nineteenth-centuary theories’3 Republican theory essentially seeks to use processes of shaming followed by re-integration into the community and to maximise what Braithwaite has termed as dominion.
Lets start with dominion. This is central to Republican theory as it not only affects the offender but is also central to the ideas of community which are so important to this theory. Whilst hard to define dominion is loosely the liberties, autonomy, and protection one is entitled to as a member of a community. Republicanism seeks not to prevent crime but to maximise dominion, the notion of parsimony. A welcome aside may be the reduction of crime but braithwaite asserts that this may not be possible given resources available.
Dominion effects all concerned because the opffenders dominion has to be maintained as does the communities. Here we can see similarities with restitution and rehabilitation as in the oprigional six aims of punishment. Dominion is centrakl in assessing what should actually be considerd a criminal act. All acts which threaten dominion should be considerd to be criminal. Victimless crimes like drug abuse should be subject to what he calls ‘social controls’4 informal and society led shaming. The crux of Braithwaite’s theory however is the notions of shaming and re-integration.
Both of these rely on the community to create an effective forum in which to shame offenders and then to be ready to re-accept these people. In describing shaming braithwaite has split it into two catagories. Stigmatising and Re-integrative. Stigmatising shaming according to braithwaite is counterproductive causing resentment and possible rebellion whoch contributes to formatiomns of criminal sub-culture. If he is correewct in his analysis we could loook to prison rotis as proof of his assertions. Republican theory supports re-integrative shaming which attaches shame to the wrong.
If effective it is argued that this will lead to a higher sense of conscience amongst offenders which in turn will promote self regulation through moral reasoning. Re-integrative shaming relies heavily on family and community, in doing so it serves a deterrecnt function whereby people do not want to be sunject to the shaming process and so are deterred from crime. In support of using shame as a punishemtn Bratithwaite looks at the most numerous crimes. His conclusion is that these crimes are committed most often because they are disproportionately shamed.
An example he looks at is white collar or corporate crime. Large companies commit crimes daily but there is little said or done by the community. Anothor example is drink driving. Previously it was not seen as a bad thing by communities to drink drive and so committal of the offence was not accompanied with community wide shaming. Once the offece became faux-pas committal reate fell. Braithwaite uses these examples in relation to Australia. Shaming is followed by re-integration. The offender is accepted back into the community in order to restore their dominion so as not to unjustifiably punish them.
If the community can be seen to have had their “pound of flesh” so to speak, and then to have forgiven the offender it is hoped that they will have taken on board the emotional lessons of the shaming process and re-integration allows them to become a functioning part of the community again. Unlike other theories Braitwaite’s is comprehensice. He recognises that one can’t simply look at one area in isolation. A change in one area may well have an effect on different parts of the criminal justice syustem and society as a whole, which may be counter-productive in the lomg run.
For example, longer prison sentences will result in a higher prison population, which will affect the probation service and prisons. This in turn will require more financial backing which may be of more use elsewhere and the longer sentences could be ineffective anyway. In answer Republican theory seeks a communicative and connecetd system, which links traditional elements of the criminal justice system as well as communities and other agencies for example education authorities. Republican theory has not been accepted without criticism.
In Not Not Just Deserts5 Ashworth and Von Hirsh point out many areas where braithwaite has failed to fully develop his theory. They argue that republicanism, in its rejection of sentencing structures and use of imprisonment when it is sent hat the crime can only be befitted by jail, could lead to a lack of sentenc parity. Therefore it is possible that criminal collegues could be sentenced differently. The obviopus issue which arises from this is that of fairness. Anbothor is that the theory assumes a strong community and family relationship.
This, as is pointed out, in our day and age may be somewhat of a utopian view. Those who have decided to effectively divorce society, or have dysfunctional families may not fiond the sha,ming process on whioch republican theory hinges, so enlightening. Other criticsisms rest predictably and understandably with the notion that this is somewhat of a soft option. Dominion is upheld for both the offender and the community to the point where Braithwaite argues it may be necessary that crime rates increase. This is within the decree,meatal sentencing strategy.
The criticism here is that it is not fair on the community to have to accept criminal behaviour and that, in line with desert theory (ashworths and von hirsh’s preferred school) criminals negate theier right to certain priviledges. Criticisms aside it is clear that Braithwaites contributions, which strech far beyond republican theory at the very least have broken the norm of looking at punishment from a pessimistic point of view. He has been accused of taking the best parts of utilitarianism and retributivism and molding them into one theory but I think he goes further than that.
Yes, there is a strong element of rehabilitation and of deterrence in republicantheory, but any theory which seeks to re-integrate a criminal back into the community must undertake these roles inborder for it to be successful. The policy implication of his theory are largely dependant on dominat political thinking and public perception. On paper republican theory looks very attractive, but in reality it is unlikely that a governbemtn, or a community is going to be ready to instigate it. When it comes to punishment it can be said that we are still driven by vengeful attitudes.
However, there is no reason why elements of braithwaites theory should not be included in the criminal justice system today and they could possibly have a very positive effect in areas he has looked at such as juvinille, diomestic violence, drink driving and white collare crime. We should not close the door to his nption of re-integrative shaming companies cannot perform without the support of communities and except for the minority who wants to feel the wrath of their families and the community?