Punishment and Sentencing in the Criminal Justice System






Punishment and Sentencing in the Criminal Justice System


















There is no straight forward answer to the question what is crime. Even the central ideas of what are a crime and who is a criminal has no definite answer. This is because of ideological issues: any theory or explanation of crime obviously has several dimensions built into it from the start. Even the most scientific or neutral theory will reflect to some extent the existing ideological or political sentiments of the day. At the very least, according to Bull (2010), most criminology theories can be classified as conservative, radical or liberal or some analytical combination of the three.

A conservative perspective of society tends to be supportive of the legitimacy of the status quo and generally accepts the traditional way of doing things and that the role of institutions is to preserve the dominant order of the good of society generally. A liberal perspective on society accepts the limits of the status quo but encourages limited changes in societal institutions. This approach tends to avoid questions relating to the whole structure of society, instead advocates the need for action on particular limited social problems such as: racism, poverty, and sexism (Collins, 2011).

The radical perspective on society wishes to undermine the legitimacy of the status quo. It looks at society as a whole but sees social conflict as the control concern. The key issue is who holds power and resources in a particular community? It is important to understand these perspectives as they influence the Criminal Justice System and penal policy. This essay focuses on punishment and sentencing. It looks at the structure and sentencing process, factors of sentencing, and punishment (Rex, 2012).

The structure and sentencing process encompasses the participation of various bodies that work together to maintain law and order and also to dispense justice. These include; the police force, and the courts. In order to have a proper sentencing structure, a number of critical issues have to be addressed. It has to determine who bears the responsibility of sentencing, the resources at their disposal, the limitations that should be placed on the body, and the issue of the sentencing framework that guides the decisions. Sentencing is structured so as to put into consideration its effects on the accused, and the community as a whole. In regards to the offender, sentencing should be aimed at rehabilitation. In the words of Bull (2010), the structure of sentencing should be such that it is not purely punitive. It should incorporate and the aspect of rehabilitation.

The community too must be taken into consideration in the sentencing structure. Human beings do not exist in a vacuum. They are part of a community. In sentencing an individual, the effects of the sentencing on the community should be a factor for consideration. To be more specific, the structure of sentencing has the following effects on the community; the first is retribution. This means that the punishment given should fit the criminal act committed. In sentencing, the judge hearing the case must consider the impact the crime had on the victim and those close to him such as his family and the community. Sentences aimed at retribution are often severe such as long periods of incarceration.

Secondly, according to Easton and Piper (2012), sentencing should play a deterrence role. Sentencing should have the effect of deterring members of the community from committing crimes. The principle of deterrence is not only based on the severity of punishment but also on rapid detection of crime and subsequent arrest. Secondly, sentencing structure should also serve the purpose of protecting would-be victims of crime by incapacitating offenders. An effective sentencing structure should strike a balance between rehabilitation and releasing a dangerous offender back to society. The structure should be such that the period of incarceration should be commensurate with the crime and rehabilitation time (Bull, 2010).

The sentencing process starts with the arrest of a suspect. This is where the police come in. part of their obligation under law is to arrest offenders and gather enough evidence that lead to the conviction of the offender. The manner in which the police conduct an investigation heavily influences the sentence that is imposed on an offender upon conviction. The efficiency of a police force is measured by the number of offenses they have identified and the number of convictions. This has established a notion of arrest and conviction as the main objective of the police (Collins, 2011).

The prosecutor is tasked with the responsibility of prosecuting criminal cases in respective jurisdictions. The prosecutor is therefore, and officer of the court and an overseer of justice. The prosecutor job should not only be viewed in regard to convicting offenders. He must exercise a great deal of discretion to seek justice in the dispensation of his responsibility. According to law, the prosecutor must be a lawyer and conduct himself with professionalism and follow the code of ethics (Rex, 2012). In his job, the prosecutor majorly depends on the police to furnish him with the requisite information to enable him prosecute a case.

However, the prosecutor also has an independent duty to investigate any acts he deems illegal. In relation to sentencing, a prosecutor should not measure his success in a case by the severity of a sentence. He should strive to see to it that the trial was fair and that the judgment was fair and in conformity with the law. He also has to make sure that there are no disparities in the sentencing and that the decision was informed by the facts of the case (Easton & Piper, 2012). In the case of Rompilla V. Beard, No. 04-5462 (2005), it was established that it is important to consider factors that have not been brought to the attention of the court that may influence sentencing, such as mitigating factors.

Punishment can be distinguished from other forms of pains or sufferings which are not a response to our misdeeds such as; painful medical treatment. Punishment rests on moral reasons and is the expression of moral condemnation in response to rule infringements. Punishment is reflective and based on reasons. It stems from an authoritative source usually the state.

Sentencing is also concerned with questions of equality, fairness and justice which must also be considered within the policy such as whether some groups are selected for harsher punishment or if apparently neutral policies have differential impact, for example, discrimination against race or economic means or the mentally disordered, women and children (Rex 2012). In the 1954 case of Brown v. Board of Education of Topeka, the principle of equality was established. Justices was to be was to be done fairly, regardless of one’s race, religion or ethnic affiliation. The notion of justice is not clear cut but embodies fairness to all members of the community including victims and offenders and sticking a balance between their competing interests. This is as the cornerstone of the current criminal justice system.

According to Collins (2011), human rights have implication for both the theory and practice of punishment in justifying specific punishments in assuming the justice of punishment and in improving standards in penal institutions, respect for sponsors, treatment of remand prisoners, bail, right for fair trial, and presumption of innocence.  This principle may act as a control on judicial discretion and inhibiting disparities in sentencing.

According to Bull (2010), there are also influences on sentencing which may reflect the political and ideological principles underpinning the penal policy. Political dimensions raises questions about power, how much power a government has to implement policy through enhancement of law. In economic terms, crime punishment is costly in financial terms and has a significant influence of penal policy. Cost of processing offenders is enormous, therefore there is increasingly a move to cut costs by introducing alternatives such as; community penalties and when deciding what to punish, some offenses may be uneconomic to punish, such as minor infringement and sometimes it is better to use lighter sentences (Bull, 2010).

Influence of public opinion on penal policy and sentencing. It is a key variable in shaping the response to crime and disorder. It can be expressed through electoral choice. Sentences that have subject to public policy include hanging and lethal injection. Public opinion is gathered through; public opinion polls, letter of compliance and judges who see themselves as dispensing popular justice as representative of the public (Rex, 2012). For the criminal justice system to be effective, it must have legitimacy in the eyes of the republic. Sometimes, this causes a problem where a government’s response to moral panic is by giving harsher sentences, which do not succeed in controlling crime. It is also sometimes difficult to identify accurately the public opinion on issues of crime and punishment (Bull, 2010).

The prison population is increasing in number and there is a need for alternatives to custodial sentencing such as community penalties and fines. However, this requires public awareness and information on crime levels, sentencing decisions and policies. The public has to be convinced that alternative to custody will be effective and to be aware that the greater use of imprisonment will only marginally affect crime rates (Easton & Piper, 2012).

After conviction, punishment is then prescribed. It can on various forms. The first is caution. This relates to minor offenses or cases involving minors. The police are empowered to caution offenders in relation to certain offences. If the offenders are minors and the offence is not violent or minor, then a police can simply give caution to the offender. This does not mean that the offense is not recorded. It is recorded on one’s personal record. Another form of punishment is fines (Collins, 2011). Fines are monetary and are imposed by a court. It is an alternative to custodial sentencing. The court simply determines and amount of money one will pay for their offence. Fines are not imposed arbitrarily, they are prescribed by law.

An offender can also be given a bond. A bond has the effect of limiting one’s conduct for a certain period of time. While on bond, the offender must act within the ambits of the bond of risk its revocation. The terms may also stipulate that one do extra things like visit a probation officer regularly or take drug tests. This is one of the more severe punishments that the courts impose. The law sets the minimum and maximum imprisonment periods. The judges in such cases have the discretion to determine the length of the imprisonment. Based on Collins (2010), such acts as the Drug Misuse and Trafficking Act of 1985 prescribe maximum penalties for offenders.

Capital punishment is also prescribed in law. The death penalty has been in existence for a long time. There are several crimes that attract the death penalty. The United States Code of Justice in section 3591 provides for the death sentence. It provides that acts such as intentional killing of another human being, inflicting serious bodily harm, the intention to take human life or use of lethal force, and engaging in acts that create risk that could lead to death. For these offences, the law allows the death penalty. In the Supreme Court case Kennedy v.  Louisiana 2008, the petitioner was sentenced to death for the aggravated rape of an 8 old girl, who was his step-daughter at the time.

In conclusion, sentencing and punishing is not a purely a legal concept. There are other factors to be considered in building an effective criminal justice system. The principles underlying punishment should evolve to fit the current day justice demands. The Judicial systems call for integrity and personal values for effective running. These are complemented by the professional code of ethics that is prescribed by law. Punishment should encompass several aspects to fully serve its purpose. It should consider that the offender will re-enter society after serving his term. For this reason, punishment should adequately be punitive and also strike a balance between its punitive role and its rehabilitative role. Punishment and sentencing remains a critical aspect of the judicial system and the community as a whole.





















Bull, M. (2010). Punishment & Sentencing: Risk, Rehabilitation and Restitution. Oxford: Oxford                       University Press.

Collins, S. (2011). Legal Aid, Sentencing and Punishment of Offenders Bill. New York:   Routledge

Easton, S., & Piper C. (2012). Sentencing and Punishment: The Quest for Justice. Oxford:         Oxford University Press.

Rex, S., & Tonry, M. (Eds.) (2012). Reform and Punishment. New York: Routledge.


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