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Probation is a Form of Punishment

Info: 2814 words (11 pages) Law Essay
Published: 6th Aug 2019

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Jurisdiction(s): UK Law

Probation is a form of punishment that allows ‘criminals’ to be placed back into society on specific conditions for example the condition that they keep in contact with their probation officer, this could include home visits and inform probation officers of any changes to living conditions, i.e. change of address. The Criminal Justice Act 1991 helped secure rehabilitation and protect the public from serious harm, this gave courts a general power to combine punishment with a financial penalty, which is essentially doubling the consequence for their action, this could in fact work as another deterrence effect – if offenders and potential offenders are made aware that even what the public view as petty crimes i.e. graffiti have strong consequences, they may see that the consequences outweigh the benefits by far . Feely and Simons (1992) ‘It’s a form of low-cost surveillance for low-risk offenders’. Probation has different perspectives depending on the crime committed, some persons may feel that probation is a way to rehabilitate criminals into society where they will change their ways and live a ‘normal’ life, whereas others may feel probation is a ‘soft option’ for criminals, and the lack of punishment will have no effect on their thoughts for re-offending. Around one and half million people being sentenced every year in the Magistrates court and the Crown court, 180,000 received supervised community sentence, with such a high figure in just 2002; what is this telling us about community penalties?

Deterrence, a ‘short, sharp, shock’ relates greatly to the Criminal Justice System, as it goes to great lengths to help protect the public. It is based upon an idea that committing a crime can be discouraged through the public’s fear of being punish whether this may be a fine, a prison sentence or a community order. Deterrence theorists portray offenders to be pleasure seeking, rational and pain avoiding persons, therefore the consequence may deter potential offenders. Beccaria’ believed that criminals decisions whether to commit a crime were based on a few simple factors, they have free will, to weigh up the outcomes, for example to benefits of their actions compared to the cost of the freedom if caught, this theory falls into the Rational Choice School Theory.

General Deterrence is not used to deter the offenders from recommitting but to use them as ‘an example’ to help discourage other potential offenders. General Deterrence is about making those aware that laws are not to be broken; if they are, there are consequences However what the public seem to fail to remember is that General Deterrence is in their everyday lives for example, tags of clothes, security cameras and private security, it has become the largest and most useful form of crime prevention. Specific ( Individual) deterrence can occur when an offender finds the punishment so upsetting and unpleasant they decided to not repeat the action or another action that could led them to be in that similar position, steering them away from re-offending. Jake J. Koppenhaver also stated their we’re two other ‘braches’ to deterrence; Absolute deterrence: an offender having the knowledge and experience of what will happen if they re-commit a crime and the willingness not to reoffend and Restrictive deterrence this however like the other forms of deterrence does not involve conditioning the offender or making them a subject to try and deter others from offending; it’s when the offenders modifies their means of committing a crime in order to not be caught.

Those in favour of community services as an alternative sanction don’t tend to see the deterrent effects that are produced, especially as it is difficult to see the consistency due to the many different types of services and the attitudes of offenders constantly changing. When looking at deterring crime, a key element to be remembered is that it may not be possible to deter offenders due to the slim range of offences that are being made an example of and that the crimes being used are low risk, which come with what is known as ‘softer’ consequences. It simply cannot be said if the punishment being used to deter potential offenders is currently outweighing its costs to society, this can include the medias views of the ‘potentially dangerous offenders’ being made to work in the area, offenders being given the ‘soft option’, the feelings of those who live in the area and the actually cost to tax payers.

As Beccaria stated offenders tend to weight up the benefits of the crime if they ‘get away’ with it and the cost of being caught, if the cost of a crime is a community order is it going to deter criminals or is it sending a message to the ex-offenders and potential offenders that depending on the crime committed you may only get a ‘slap on the wrists’. However ‘ A fundamental criticism is the underlying assumption that crime is committed as a rational choice, with the offender weighting up the possible consequences of their actions before deciding to offend’ Anne Worrall and Claire Hoy. In some cases this may be true however a proportion of crimes committed are impulsive or have developed from irrational thoughts and feelings.

Retribution is one of the two broad philosophies of punishment, in its simplistic form it believes that the offender should be punished as it’s what they deserve; this principle dates back from the antiquity, where for instances Code of Hammurabi was one of the first legal codes and introduced the phrase ‘an eye for an eye’ in 1750 BC in Babylon. This principle was first developed by Immanuel Kant and it became a highly influential and ‘looked-upon’ critique of utilitarian justification of punishment, which looks upon offenders ‘merely as means’ rather than entirely recognizing their humanity, the duty of punishment was a categorical imperative that restored the moral equilibrium. Kant introduced a crucial distinction between what it would be ‘good’ to do on the grounds of utility and what we have a ‘right’ to do, (Murray, 1994:49, as sighted in Carrabine, E.). The obligations on the punishers is to ensure, that the person being punished has realised they are guilty and if not, has been proved guilty and secondly that the punishment is proportionate to the seriousness of the crime. There has been a tendency to relate retributivism with measures that are principally punitive, such as imprisonment and corporal punishment, and to associate utilitarianism with rehabilitative measures. In Kantian terms justice is an issue of doing right rather than what would be good to do, nevertheless it was the increasing attraction of utilitarian justifications in the 19th and 20th centuries that led to retributivism falling from favour as it appealed to archaic and reactionary feelings of the revenge. The most recent development has been the revival of retributivist’s ideas under the guise of the ‘just deserts’

During the 1950s-1960s the penal system was mainly understood on the terms of being an important element in the Welfare states programmes of Social Engineering, that would help prevent crime by deterring potential offenders and incapacitating acting offenders. It was hoped by the Welfare State that the programmes introduced would help rehabilitate offenders. However the Welfare State went under scrutiny from political spectrums not only because of their alleged failure but also due to the moral costs. In addition to this the neo-conservative critics (Wilson, 1975 as sighted in Carrabine, E.). liberal thinking began to reassert the importance of justice over utility and individual rights against claims of the state (Rawls, 1972: Dworkin 1978 as sighted in Carrabine, E.). Therefore one important manifestation of the moral shirt was that theorists began to focus on the rights of the guilty as well as those of the innocent (Duff and Garland, 1994; 19 as sighted in Carrabine, E.). This gave new prisoners rights movement that chimed with broader conceptions of civil rights so that the need to protect prisoners and others from the arbitrary and discretionary powers of state bureaucracies became dominant (Fogel, 1975 as sighted in Carrabine, E.).

‘Retribution is a primitive instinct; it has no place in finding a solution to street violence’ Greg Barns..

The government White Paper Crime, ‘Justice and Protecting the Public’ (Home Office 1990a) explains that while serious offenders should still go to prison, the ‘less-serious’ offenders can be dealt with in a different manner that is still safe but also cheaper, this is by using community orders. However a criticism that seems to re-appearing is that Retribution does not seem to take into account the different circumstances for each offender i.e. the range of personal and social factors that surround the commission of crime and those who advise are often accused of being unfair and discriminating.

Retribution remains an important key element in contemporary penal practices’ however as any concept there are related issues, such as the moral philosophical basis for the claim that offenders deserve punishment and that punishment should be inflicted on an offender even when ‘no good’ will come from it. Two further problems that can occur from this is, firstly how to determine what quantum or amount of punishment would suit the crime committed and secondly how different offences and penalties were to be ranked.

Rehabilitation is an optimistic approach which stated that offenders committed crimes due to their biological and psychological make-up or due to their social upbringing, and with sufficient knowledge, treatment and patience offenders could be cured of their criminal tendencies. It looks into individual’s treatment via the treatment programmes introduced in the twentieth century in conjunction with the emergence of the welfare state (Garland, 1985 as sighted in Carrabine, E.). The programmes have resulted in recidivism rates for juveniles decreasing by 2 percent when using family counselling programmes, behavioural programmes studies gave a 24 decrease in recidivism, a 36 percent decrease when using programmes to help the offends secure employment, with an overall effective treatment programmes reducing recidivism rates by one in five for juveniles and one in ten for adults. Rehabilitation looks at the factor that punishment can stop offenders reoffending After World War II the rehabilitative model became the dominant public policy in the United States, treatment proposals were added to the prison staff with efforts being made to ameliorate prison conditions and successful rehabilitation became a basis for early patrols. It is known to be a cost efficient method to change offender’s way and to stop them re-offending. The crime prevention effects of successful rehabilitation programmes can validate the importance of imprisonment of offenders only to the degree that imprisonment is essential to their success, for example education or vocational programmes can be offered either inside or outside the prison. With the benefit of having an outside course available it may help deter petty offences and could help stop those who are tempting by committing a crime. There are also voluntary Rehabilitation programmes that are available that seem to be unproblematic this may be just because members may not feel they are being ‘forced’ to attend. Whereas drug treatment programmes that are compulsory can have issues depending on the offenders attending for example, some benefits do not seem to outweigh the harm done by restricting the offenders liberty.

In the 1950’s and 1960’s rehabilitation was at its strongest, and was backed by positivist criminologist, which viewed criminal behaviour as a symptom of a mental illness which infact should therefore be ‘treated’ like an illness. With this around the mid-1970’s it was heard of that many reform measures were chosen yet the research stated that ‘nothing works’ (Martinson, 1974 as sighted in Carrabine, E.). However this message became less accepted due to its validity and more so because it suited the way things were done in that specific time, there was a general move to the political right on both sides of the Atlantic and a repercussion against any form of welfares solutions to social problems. These ideas indicate that rehabilitation is undergoing some form of a revival, as there has been a recent attempts to find out ‘what works’ (McGuire, 1995; Hollin, 1999; Crow, 2001 – as sighted in Eamon). ‘Rehabilitation programmes are now seen as a measure that might ‘facilitate change’ rather than ‘coerce a cure” Cavandion and Dignan 2002: 38 as sighted in Carrabine, E.).

Arguably the notions of punishments have dominated the non-custodial penalties ever since the collapse of the Rehabilitative ideal in the 1970’s. Pragmatists argued that rehabilitation did not work. Martinson (1974: 49 as sight in Anne Worrall and Claire Hoy) concluded that empirical evidence ‘gives us very little reason to hope that we have in fact found a sure way of reducing recidivism through rehabilitation. Right-Wing critics argued that rehabilitation was soft and that what offenders actually needed was more control over their movements and more surveillance. It seems to be an obvious option to make sure that if offenders were to be kept out of prison the alternative hard to be a lot more tough, so they did not think it was the ‘soft option’. The Criminal Justice Act 1972 introduced community service orders which involved probation officers supervising offenders whilst they did the unpaid work set by the court. This seems to become a popular sentencing option in the courts and related in a dramatic decline in the use of probation orders.

Jack Straw, the Lord Chancellor and Secretary of State for Justice, said ‘probation was no longer a soft option and community punishment would be tough and highly visible’

The perception of community service as a soft option for criminals is to be challenged by a campaign which will promote the punishment as a positive alternative to jail. ‘Payback’, which was launched alongside Sir David Ramsbotham, the chief inspector of prisons, as they tried to persuade the public that non-custodial sentences can save money and benefit local environments.

It has however argued throughout the media that the public are not aware of what Alternatives to Prison includes and because of this, they feel it is the ‘soft option’ of punishment. Probation will always be viewed in different ways depending on how educated the member of public is about the conditions of the offenders probation. Probation has been seen to cut down number of prisoners and helps deter petty criminals and those who consider committing a crime. Even though Community Orders bring offenders into the public view at all times both the offender and public are being protected. The new Criminal Justice and Court Services Bill has made a major changed that will allow members of the public to take the Criminal Justice system more seriously; magistrates will be obliged to jail any offenders who fail to turn up for their community punishment appointments twice unless there are “exceptional circumstances”.



Carrabine, E., Cox, P., Lee, M., Plummer, K., South, N. (2009) Criminology, A sociological introduction ( 2nd Edition), Oxon; Routledge.

Golash, D. (2005) A case against punishment – Retribution, Crime Prevention, and the Law. New York and London: New York University Press.

Osler, A. (1995) Introduction to the probation services, Winchester: Waterside Press.

Worrall, A. and Holy, C. (2005) Punishment in the community ( 2nd Edition), Devon: Willian Publishing.


Summerfield, M. (2006) ‘A journey with an End’ www.associatedcontent.com/article/32600/Evaluation_of_Deterrence_crime_thoery.html.

(Accessed 9th November 2009)


BBC (2009) Community Penalties ‘Laughed at’, www.bbc.co.uk/1/hi/uk/7917958, (accessed 9th November 2009)

Deterrence Theory (2007) Deterrence Theory, four branches, www.scribd.com/doc/201802/deterrence-theory-four-branches, (accessed 9th November 2009)

Sage, Retribution is not justice, www.thesage.com.au/opinion/retribution-is-not-justice.

(Accessed 18th November 2009)

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