Purposes of Criminal Law Introduction The question as to what the criminal law aims to accomplish is one that cannot be easily answered as criminal law has a wide variety of purposes that work individually to manage different aspects of society. These purposes are split into two categories, instrumental and non-instrumental that together aim to accomplish a healthy balance between justice and equality for both criminals and citizens (Daly 2012, 390).
In saying that, criminal law does serve a number of purposes that vary considerably in regards to their effectiveness and importance as well as who they are targeted towards, but ultimately these varied purposes all work towards the same goal that criminal law seeks to accomplish. This essay will identify and critically analyse two different purposes of the criminal law as well as evaluate their effectiveness and importance in relation to what the criminal law seeks to accomplish.
They then will be compared and contrasted with each other to identify their similarities and differences to illustrate the vast differences criminal law purposes have to one another yet still work towards the same end goal. Deterrence One such purpose of criminal law that is seen as fundamentally important to what criminal law seeks to accomplish and to the foundation of the criminal justice system (CJS) is deterrence (Kennedy 2009, 1-4). Deterrence is an instrumental concept that is founded on the belief that people will not commit crimes or inhibit criminal behaviour from fear that their action will result in punishment.
This concept is aimed at deterring those who have not yet committed crimes (general deterrence) and those who have already been punished for committing criminal offences (specific deterrence) (Paternoster 2010; Schulz 2014). Deterrence is important to what criminal law seeks to accomplish as it represents one of the two original purposes of law enforcement i. e. to apprehend criminals and assure citizens that there are consequences to committing offences (Johnstone and Ward 2010, 7-8). Additionally, the idea of deterrence is important as it is the criminal justice system’s main argument for justifying punishment (Schulz 2014).
This argument is backed up with rational choice theory, that theorises that individuals will always make decisions that provide the greatest benefit to themselves (Paternoster 2010). Without holding on to the idea that deterrence through punishment is necessary to deterring people from committing crimes, the notion of punishment would come into question more frequently. Although the idea of deterrence is a noble purpose of criminal law, research suggests that it is highly ineffective in reducing adult offending and is inconclusive in regards to juveniles (Buonanno and Montolio 2008; McGrath 2009; Ghasemi 2015).
There is very much a romantic view of what people believe deterrence mechanisms do to deter potential offenders and the wider community for committing crimes as well as how effective they really are (Kennedy 2009, 10-12). As pointed out above, the idea of deterrence is based on rational choice theory, yet this theory has not taken into account the irrational side to crimes i. e. those that are instinctive or unexpected (e. g. king hits). These sort of crimes have been seen to be highly unfazed by the notion of deterrence because of the unexpectedness of the situation (Sentencing Advisory Council 2011).
Studies by Ghasemi (2015) as well as Buonanno and Montolio (2008) concluded that deterrence variables have little to no influence on individuals who commit violent crimes and minimal influence of those committing non-violent offences (e. g. property crimes). Additionally, a study by McGrath (2009) questioned juveniles on their experience dealing with the CJS and whether they found it a deterrent. The study concluded that juveniles who felt stigmatised by the experience and had prior convictions did not ind it a deterrent and were likely to reoffend in the future, whereas those who do not feel stigmatised and accepted their sentence felt the CJS acted as a deterrent and were more likely to not reoffend. The question over whether deterrence is effective or not is debatable as we can see from these studies. On one hand deterrence is effective in deterring non-violent minor offenders and some juveniles but on the other it is ineffective at influencing violent serious offenders and leads juveniles through stigmatism to reoffend.
Public Retribution Another purpose of criminal law that dates back to 11th century Europe and the emergence of criminal law is retribution. Originally retribution was understood as methods of vengeance and revenge, dealt with in villages or between just the victim’s family and offender’s family in private matter. These matters usually (depending on the severity) settled with compensation of money or asset (Johnstone and Ward 2010, 30-32). With the rise of the Crown’s involvement and criminal law institutions, the understanding of private matters transitioned into a statecontrolled matter with set solutions for offences.
This, in turn, introduced this notion of public retribution dealt with by the state (Johnstone and Ward 2010, 35-36). In today’s society victims receive retribution in the way of their offenders being punished for their wrongdoings i. e. through incarceration or community services and in some cases through money compensation (Konigs 2013). Retribution is seen as a noninstrumental purpose of criminal law as it is protecting society from itself through a system of public justice i. e. eeping people from seeking out revenge/retaliation and beginning a cycle of violence (Daly 2012, 389-390). In regards to the importance of retribution to criminal law, without some form of retribution, people would result back to the notion of vengeance and take matters into their own hands (Carlsmith 2006). Additionally, if there is no appropriate form of retribution, victims and the wider community will begin to lose faith in the justice system and in turn not report crimes as often, resulting in the collapse 5 of criminal law institutions (Konigs 2013).
The idea and application of retribution through criminal punishment is one that is strongly considered to be ineffective to its aim and what criminal law seeks to accomplish (Castella et al. 2011). Many victims feel that they have not received adequate retribution for the crimes committed against them (e. g. no conviction, minimal sentence period etc. ) and feel that some injustice has been put upon them (Englebrecht 2011). This has led to people question whether the current functions of criminal law provide just retribution to be delivered.
This is considered especially in regards to court proceedings as prosecutors are employed by the state and solely aim to convict offenders, usually resulting in victim’s voice not begin heard (Wemmers 2009; Englebrecht 2011). This in has led to victims holding onto unresolved issues about the crimes and remain fearful or angry with the situation and offender (Daly and Marchetti 2012, 461). Due to the pronounced ineffective work of state-run retribution, programs such as restorative justice conferences are now contemplated by victims to resolve issues that they have with the crime or their offender.
This has been found to reduce victims’ fear and anger in a constructive way (King 2008; Daly and Marchetti 2012, 456-460). Similarities and Differences As illustrated in the introduction, the various purposes implemented by criminal law vary in importance and effectiveness to what the criminal law seeks to accomplish and who they are target towards. This can be further demonstrated when comparing deterrence and retribution as criminal law purposes.
In regards to their importance to what criminal law seeks to accomplish both purposes are similar in their level of importance, as deterrence is important to the foundation of law enforcement and the justification of incarceration, without the notion of deterrence, the establishment of law enforcement and means of incarceration would be called into question. Similarly, retribution in the form of punishment is equally important as it provides victims with means of receiving retribution and justice from their offenders without having to take matters into their own hands.
Without this form of retribution citizens would lose faith in criminal law and stop relying on their institution for assistance, leading to the collapse of the CJS. In regards to their effectiveness, deterrence and retribution are similar but different when it comes to their effectiveness. Deterrence has been found to be, for the majority of cases, ineffective at preventing individuals and repeat offenders from committing crimes, mostly due to the stigma brought upon offenders. leading them to reoffend. Retribution on the other hand has been found to be both ineffective and effective in its time.
As per it’s definition, retribution does serve to effectively punish wrongdoers and provide retribution for their victims but only to an extend as many victims are not satisfied with the outcomes and don’t feel they got what they deserved, leaving them with resentment, fear and anger. Finally, in regard to who they are targeted towards, these purposes are on opposite sides and are very different. Deterrence is aimed at helping the potential offender and pronounced offenders from entering the CJS whereas retribution is aimed at helping victim punish their offenders by making them enter the CJS.
Conclusion Even though both deterrence and retribution are very different in their aims, the way they approach these aims and who they are targeted toward, they are both ultimately working towards the same end goal as criminal law. Although it can’t be said for certain the specific goal of criminal law, we can take an educated guess and say it involves the purpose of preventing and reducing crime in the form of deterrence as well as protecting society from itself and working towards ensuring justice is dealt out appropriately for both victims and offenders in the form of retribution.
