Is death sentence a good way to punish the defendant for the culpable act? Or should it be substituted or held in terms of life imprisonment?
: Introduction: A crime may be define as an act (or omission or a state of affairs) which contravenes the law and which may be followed by prosecution in criminal proceedings with the attendance consequence, following conviction ,of punishment
The criminal law represents the rules of social control within a society. It is a reflection of corporate and social morality. The wrongdoing which the criminal law seeks to punish is that which threatens the fundamental values upon which the society is founded. While it is harmful to the individual to be robbed or assaulted, it is also harmful to the society as such behaviour threatens the security and well being of that society. The criminal law operates then as a form of social control both punishing the offender and re asserting the mores of that society. This will be seen more clearly when the possible purposes punishment may served are examined
(1) Retribution: A major purpose which punishment serves is retribution. Punishment is meted put to the offender because this is what he deserves in response to his infraction of criminal law. The criminal law proceeds upon the principle that it is morally right to hate criminals, and it confirms and justifies that sentiment by inflicting upon criminals punishments which express it. To some extent, therefore, retribution reflects society’s desire of vengeance. When people join together in a society governed by law, they relinquish their own right to retaliate to harm done to them in exchange for the protection which the law offers them. The bargain that is struck ,then, places a moral obligation on society to punish crime as it places a moral obligation on its members to refrain from breaking the law. Vengeance or retaliation is only one aspect of retribution .A further element id that of denunciation. The infliction of punishment signals society’s disapproval of criminal conduct and reaffirms the values the criminal law designed to uphold. This reflects the more modern view of the appropriate place for retribution in the criminal justice system. But the punishment inflicted must not represent a blind act of vindictive retaliation: it must be both reasoned and reasonable. The idea which has gained ascendancy in recent years is that of “just deserts”. A person who commits a crime has gained an unfair advantage over the other members of society. Punishment cancels out that advantage while, at the same time, it re-affirms the values of that society by visiting moral disapproval or relationship to the harm he has caused. Punishment can only be considered reasonable where the courts respect the concept of proportionality.
(2) Deterrence: A second purpose which the punishment may serve is that of deterrence, weather this be particular deterrence (i.e. Dissuading the individual criminal from re-offending in the future) or general deterrence (dissuading other possible offenders from offending by the example made each particular offender).But statistics has shown that different sentences have little effect in deterring offenders. Deterrence does not threaten those whose lot in life is already miserable beyond the point of hope It does not improve the morals of those values systems are closed to further modification, either psychologically or culturally. Thus the deterrent role of the criminal process is a limited one; those who are set on committing crime may not be deterred by the criminal law. For most members of society; however, the criminal law may serve to educate then on acceptable and unacceptable conduct creating thereby unconscious inhibitions against offend.
(3) Incapacitation: The third purpose which punishment may serve is that of incapacitation .If a term of imprisonment is imposed on an offender, the public are protected from further offences by him for so long he is in prison.
4) Rehabilitation: The pre-1960s penal debate was premised upon the idea of rehabilitation. Probation was introduced as a disposal following conviction to give effect to this rehabilitative ideal . In recent years there has been a movement away from rehabilitation as an objective of punishment .Similarly , rehabilitation as a basis for sentencing offenders led to disparity in punishment as the sentencer was looking to the needs of the offender rather than the offence committed as the starting point in determining the appropriate sentence..On the other hand , during the 1980s and early 1990s there was growing interest on the part of the Home Office in community sentences as these may be as effective as prison,both in terms of their retributive and deterrent value,and incur much lower financial and social cost as the prisoner can serve hsi sentence in the community.
(5) The current approach: Until 1991 there was no coherent basis for imposing punishment. After much speculation in 1990 the Government set out a White Paper that opted for retribution as the most cogent basis for sentencing ,The Criminal Justice 1991(CJA1991) was passed largely reflecting the views in the White Paper. Those provisions were subsequently consolidated in powers of Criminal Courts (sentencing) Act2000 (PCC(S)A2000).The main principle of “proportionality” in the consolidated provisions clearly demonstrated retribution to be the
guiding light of sentencing policy. Hence D would be excepted to receive a sentence that ‘commensurate with seriousness of the offence…’. (ss.80(2)(a) and 35(b) of the 2000 Act) and which was ‘the most suitable for the offender’ (s. 35(2)(a)).However in the case of violent or sexual offenders, the need to protect the public was given priority to that of proportionality where custodial sentence would be imposed. There were some further amendments made by CLA 1993 and CJPOA 1994 and in 1997 Crime(sentence) Act was passed importing harsher sentences for burglars and violent sexual offenders after much election and media campaign. The Act contained mandatory minimum sentence for certain repeat offenders that was consolidates in the provision of PCC(S)A 2000.hence repeat sex offenders,burglars and drug traffickers were brought under the more stringent provisions of punishment. Here greater deterrence and public protection became the theme of the time. Then came CJA 2003 containing numerous provisions for sentencing downgrading proportionality in the need for public protection and greater deterrence to stop people from reoffending. However it abolished the automatism life sentences for sex offenders , the minimum sentences for breach of community orders before they were actually brought to force. There were also changes to sentencing terminologies. Most importantly, for the first time there are now statutory guidelines for judges to have regard to the purpose of sentencing . These are (a) the punishment of the offenders; (b) the reduction of crime ; (c) the reform and rehabilitation of offenders; (d) the protection of the public;and (e) the making of reparation by the offenders to person effected by their offences (s.142,CJA 2003). The court is also required to consider recent prior, related convictions as aggravating factors while deciding the seriousness of the offence that may lead to an increment in punishment. Hence, though proportionality is retained some offenders end up getting disproportionate sentence due to these requirements.
Classifying offences:
Although there are now literally thousands of criminal offences, our concern is generally with the major offences (e.g. Murder, manslaughter, rape , assault , theft , burglary , criminal damages , deception) and the general principles underlying criminal liability. While most offences re now of statutory creation, the criminal law was originally laid down in the decisions of the judges. Some offences, such as murder and manslaughter ,are still common law offences lacking a statutory definition.
At common law ,crimes were classified generally as either felonies or misdemeanours. The former consisted of more serious offences for which there was general power to arrest without warrant and more severe punishment and the latter consisted of lesser offences with no power to arrest without warrant and lesser punishments. On conviction of a felony the felon (defendant/offender) was liable to forfeiture of his land and goods (abolished by Forfeiture Act 1870)and ,of Parliament had declared a crime to bee a ‘ felony without benefit of clergy’, the penalty was death .All distinction between felony
and msidemeanours were abolished by Criminal Justice Act 1967
A second mode of classification offences relates to the mode of trial. Summary offences, i.e. Less serious offences are tried in the magistrates’ court .Indictable offences , which are more serious offences ,are tried before a judge and a jury in the Crown Court. Many offences are triable either way , i.e. May be tried before a magistrates’ court or the crown court .There is a procedure to decide the venue which are not relevant for the present course.
Procedural Issues:
(a) Burden of proof and Standard of proof : In criminal cases the burden of proof is on the prosecution;
it is for the prosecution to prove the charge against D, which may also involve disproving any defence that D may rise. This will be a matter for the criminal procedure at trial. At the conclusion of all the evidence at trial the prosecution and defence will make their closing submissions and the judge will sum up to the jury, whose task to reach a verdict . The jury are only entitled to convict D if the prosecution has discharged the burden of proof and satisfied beyond reasonable doubt of D’s guilt. If the jury are left with a reasonable doubt as to D’s guilt they must acquit; they may not be satisfied that he is innocent, but if they are not sure of his guilt the case against him has not been proved .This principle is derived from the famous decision in Woolmington V DPP (1935)
While the overall burden of proof is upon the prosecution, D may have either an evidential burden of proof in respect of any defence he may seek to raise .If D’s is anything more than simple denial that he committed the alleged offence, he will bear an evidential burden to make it a live issue in the trial. In some exceptional cases however, a burden of proof is cast upon D is respect of certain defences he may wish to raise. The common law defence of insanity , statutory defences of diminished responsibility may be offered as examples. But where D has the legal burden , he has to prove the defence only on the balance of probabilites, which is the civil standard of proof and not the criminal standard of beyond reasonable doubt (Carr-Bryant [1943])
One of the offences that the Sentencing Guidelines Council has issued guidelines for is robbery. Robbery carries a maximum penalty of life imprisonment
Conclusion: In the conclusion it prove that law should be enforced by the government to keep harmony amongst the society .Criminal law is largely to set the parameters within which the criminal justice system operates . We have seen that criminal should be punished according to their culpable act weather it could be death sentence or life sentence but this will be decided by the judges and juries.