The use of Capital Punishment, the lawful infliction of death, by certain societies as an effective retributive, incapacitate deterrence has also attracted fierce debate (see appendix 2). In relation to incapacitation, the use of capital punishment obviously removes the offender out of society completely, prevents recidivism and is more economically beneficial than a term of life imprisonment. However, is life imprisonment adequate enough in addressing the elements of retribution and deterrence, especially when considering the possible outcome of executing an innocent person?
The deterrent effects of capital punishment are difficult to measure. Some studies have found that the use of capital punishment has been a successful deterrence. In an empirical study by Dezhbakhsh, Rubin, and Shepherd (2004:344-76), between 1977 and 1996, higher arrest, sentencing, and execution probabilities combined, all lower the murder rate (18 fewer murders). Shepherd (2004:159-201) shows, moreover, that even "domestic" homicides and other "crimes of passion" may be deterred. Less studied, has been the effects of execution methods alone, on murder rates, although Zimmerman (2003:163-93.
) has shown that executions conducted through electrocution have a significant effect on deterrence. However, does this deterrence extend to all forms of murder such as the before mentioned "'crimes of passion"? Without the element of 'rational thought', the detersive effects of capital punishment in this case would possibly be minimal or even non-existent. Contrary to this perspective, modern evidence clearly suggests that even murders regarded as "passionate" may contain a large rational element in their calculation and therefore may be deterred (Shepherd, 2004:159-201).
Since electronically monitored curfews were introduced and implemented throughout England and Wales, their use has increased dramatically, from 9,000 cases in 1999 to 53,000 in 2004-05. In 2004-05, the Home Office spent i?? 102. 3 million on the electronic monitoring of curfews (N. A. O, 2005-2006). The primary purpose of electronic tagging is to monitor a curfew and reduce the opportunities for offenders to commit further crimes during their sentence and the monitor of offenders as part of their community punishment.
However, an offender fitted with an electronic tagging device may be incapacitated during a specified time, often during the night, but this does not prevent the offender from potentially deviating during the day. This is someway supported by the findings of a recent study conducted by National Audit Office, titled "The Electronic Monitoring of Adult Offenders" (2005/2006:3). The study revealed that out of a sample of 103 offenders on curfew orders, 10 per cent of Home Detention Curfew cases had been reconvicted for an offence committed during the period of their curfew, as had 42 per cent on Adult Curfew Orders.
Analysis also showed that those who breached their curfew were more likely to have committed an offence whilst on tag than those who had complied with the curfew (N. A. O, 2005-2006, 3:1). In addition to this, some offenders have tampered with or removed their tagging device. This increases the risk of a breach and the subsequent risk of re-offending. Despite the various criticisms, electronic tagging is more cost beneficial compared with incarceration (i?? 1,300 for 90 days compared to i?? 6,500 for the same period in custody).
In relation to incapacitating disqualified drivers, many studies have highlighted the level of recidivism associated with offenders whose licenses are revoked. What is known, most notably in "The Criminal Histories of Serious Traffic Offenders" (Rose, 2000), is that many traffic offenders are likely to be involved in other types of crime. Approximately 50% of dangerous drivers studied in this report had a previous conviction and a quarter, were reconvicted within a year. The enforcement of road traffic law therefore has a potential impact on other types of criminal behaviour.
By definition, punishing offenders is generally taken to imply the imposition of some form of hard treatment (Von Hirsch, 1993). Official purposes of imprisonment described in the Prison Rules, 1967, states that the purpose of the training and treatment of convicted offenders shall be to encourage and assist them to lead a good and useful life, with emphasis on dignity and self-respect (Doherty, 2000), the later suggests an element of rehabilitation. However, imprisonment can only be effective if the sentence passed is of considerable duration.
Contrary to this, recent legislative reforms have witnessed a general emphasis by the criminal justice system on reducing the number of offenders receiving prison sentences and increasing the use of non-custodial, community-based strategies of punishment, enforced by the Criminal Justice Act, 2003. The primary aim of the Criminal Justice Act, 2003 is to ensure that custody be given where the offence was so serious that only such a sentence can be justified, arguably to tackle the issue of overcrowding..
Other possible reasons for this new emphasis on encouraging community-based sentences is that they are regarded as fulfilling two principle aims of punishment (rehabilitation and restoration), their relatively low cost and their effect on reconviction rates in comparison to custodial sentences. A recent study conducted by Cuppleditch (et al, 2005:7), shows that 63% of offenders given a community sentence re-offend within two years compare with 67% of people given custodial sentences.
However, the same study showed that Drug treatment and Testing orders (DTTOs) present the highest incidence of re-offending (at just under 90%) which suggests that these forms of rehabilitation based treatment programmes are largely ineffective. Roberts (2004:2) suggests that community penalties "appear to lack the denunciatory power and the punitive elements of imprisonment. Despite their potential as an alternative to custody, judges are sceptical of their use particularly when regarding the adequate supervision of offender (ibid: 3).
To overcome the contemporary 'crisis' experienced within the prison system (see appendix 1), community-based sanctions need to be the primary administered sentence. David Garland (2001:14) has observed that the prison has become a massive and seemingly indispensable pillar of contemporary social control. Another theoretical approach to punishment aimed to deter crime is that of 'rehabilitation'. Be definition, rehabilitation is a strategy of punishment associated with 'positivist' approaches to criminology. Offenders are understood to be sick; the state attempts to cure them of their ills and reintroduce then into society.
The main principles of the theory focus on the reformation of an individual opposed to addressing the actual offence. If an offender can be reformed in his attitudes and behaviour, then he is less inclined to commit further offences. Rehabilitation is also enforced during incarceration, in the form of training programmes and more recently- cognitive skills courses (Reasoning and rehabilitation: Enhanced Thinking Skills) (Clarkson, 2001). They are predominantly aimed at young offenders, before a pattern of behaviour has developed.
In relation to their effectiveness on reconviction rates, Pawson and Tilley have observed with respect to social programmes in general, that these become effective 'if subjects choose to make them work and are placed in the right conditions to enable them to do so' (1994: 294). Although, some recent studies have reported no differences in the one-year and two-year reconviction rates between treatment groups and matched comparison groups, it has been argued that it would be premature to take such findings as evidence of programme failure (Falshaw et al. , 2003; Cann et al.
, 2003),(cited in Clarke et al, 2004:41). From these findings, it is clear that the use of rehabilitation programmes are complementary to incarceration, however, their effect on recidivism can be hampered by the offenders willingness or lack of, to become involved and the sustaining of this involvement. In support of this, Clarkson (2001) is of the view that it is generally agreed that rehabilitation is a desirable by-product of punishment and that controversy arises when it is asserted that rehabilitation is one of the main purposes of the institution of punishment.
In other words, rehabilitation is beneficial to, but should not be the sole purpose of punishment. Conclusion The aim of the essay was to discuss the various theoretical approaches underpinning punishment and their beneficial elements. Retributive justice is the favoured approach to punishment contemporarily, however, there is a possibility that retribution could be confused for revenge. This is a response to the wrongs committed against innocent victims and the amount of personal hurt incurred.
Punishment in this respect would fail to uphold the principles of proportionality and consistence. In relation to general deterrence, by punishing crime, we hope to deter others but the potential offender has to be aware that detection is a reality and that there is certainty of punishment. The benefits of specific deterrence are hindered when applied to individuals who have become institutionalised through repeat offending and sanctioning.
It is clear that the value of punishment in the prevention of crime as being generally confirmed, although, the purpose of incarceration as an effective crime deterrent has been the topic of much debate. First, although incapacitation may decrease crime in the short term, it will not challenge the causes of offending behaviour and will increase pressure on over-stretched custodial provision. In addition, to prevent offending, it is imperative to address the social factors which lead to crime rather than simply improving the range of custodial accommodation available.
Incapacitation through electronic tagging and disqualification from driving are obviously more cost effective than custody and help to relieve rising prison populations but such measures are seen to be an ineffective tool of denunciation and provide the opportunity to re-offend during a term of punishment. It is this problem which reduces their legitimacy. Imprisonment has always been the favoured punishment as it is seen to provide a combination of retribution, denunciation, incapacitate.
Despite this, it is clear another solution is needed because of its inability to deter. The variety of 'Community based' sanctions, attempt to relieve the current prison crisis by offering an alternative to custody and encompass a range of principle aims of punishment. Recidivism rates are more promising than custody, despite the ineffectiveness of particular rehabilitation-based programmes and provide an opportunity for reintegration and the maintenance of the social bonds of the criminal.
Although, some may argue that the interests of the offender should not be the central objective of the disposal of punishment. Appendix 1 In 1995, there were 9. 8 detections per officer. This rose to 10. 7 in 2002/03, and then fell to 10. 4 in 2003/04. In 2004/05 the number of detections per officer has remained stable at 10. 4. Excluding the Metropolitan Police and the City of London (the two forces which had the lowest number of detections per officer), there were 11. 4 detections per officer.
Five forces had 14 detections or more per officer, but otherwise the figures were within a relatively narrow range (Nicholas et al, 2005:126). Appendix 2 In Britain, the death sentence was mandatory for persons found guilty of murder, up to 1957 and of capital murder from 1957-1964. The last executions were carried out in 1964 and the abolition of capital punishment was enforced by the Murder (Abolition of Death Penalty) Act 1965. On an international scale, in 2004, lethal injection replaced hanging and shooting as the two most common methods of execution followed by beheading.
Lethal injection, which is almost universal in America, is also used extensively now in China, the Philippines, Thailand and Guatemala. Electrocution and the gas chamber are used only in America and seem to be disappearing. Stoning for sexual offences, including adultery, may still occur in some Islamic countries. China, with a quarter of the world's population, carries out the most executions for a wide variety of offences (Capital Punishment U. K. , 2006). Appendix 3 Overcrowding is a big issue for our present prison system and has been for the last decade.
More than half of the prisons within England and Wales are officially classed as overcrowded (80 out of 138). In 2003, over 16,000 prisoners were doubling up in cells designed for one (H. A. S. C, 2003). On 24 October 2003, the prison population in England and Wales stood at 73,987. By 2 July of 2004, this figure had risen to 74,700. According to the Prison Reform Trust, the prison population in England and Wales reached its highest ever level of 75,544 in April of this year (Prison Reform Trust, 2005).
Most of the rise in the prison population over the last decade can be explained by the significant increases in the proportion of offenders sent to prison and the length of sentences, particularly, the increased number of long-term prisoners. Arguably, to address this issue and to save on the cost of trial, "judges are being asked to reduce sentences by up to a third for those offenders who plead once a trial date has been set, and a tenth to defendants who confess after their trials have begun" (Jay, 2004:3) The effects of overcrowding on the welfare of inmates have been well documented.
The annual report for England and Wales for 2002/2003 by the Chief Inspector of Prisons published a graphic report. On the conclusion, the report found that the explosion in prison numbers was directly related to a staggering rate of suicides and self-harm in English and Welsh prisons (Reydt, 2004).
There was a contract between Patrick and Sally. The contract contained the price and the obligation to sell so the main terms were agreed and certain. Real Estate contracts must be in writing17, which this apparently was. If the contract was not the standard form real estate contract for sale in NSW there will be a rebuttable presumption that the parties did not intend to be bound until after exchange.
There are vitiating factors. Patrick approached Sally as a counsellor. This is similar to a doctor/patient relationship which is a recognised category of influence, so there may be a presumption of undue influence. Alternatively there was a relationship of "special trust and confidence"18 because Patrick became dependant on Sally's si?? ances for even trivial decisions after the death of his mother.
"There is no presumption of undue influence unless there is evidence that the transaction was wrongful – that it amounted to taking an unfair advantage of the other person even though there may have been a relationship of influence and/or confidence. "19 There is evidence that Joanna took unfair advantage of Patrick as she purchased his house well below market value. Assuming the relationship is one of special trust and confidence, the onus of proof is on Sally to prove there was no undue influence.
Patrick was vulnerable and unhappy; this affected his ability to look after his own interests, so he was in a position of special disadvantage20. Sally was aware of this and took advantage of the situation by encouraging him to sell the house to her at undervalue, claiming the advice was from Patrick's mother. Thus Sally's conduct was unconscionable. Sally may argue that the advice was from Patrick's mother, but the court may not accept this since the advice about the house was unsolicited, unlike the earlier advice.
In any event, Sally took unfair advantage of Patrick's circumstances by persuading him to sell the house at such an enormous undervalue. Patrick will be able to establish both undue influence and unconscionable conduct. Patrick can seek restitution so the property would be returned to him on repayment of the $30,000 and he would recover any other expenses such as stamp duty. If this was not possible (for instance if Sally had on sold the property) or if Patrick did not want it, he could sue Sally for the $170,000 difference in market value.