Regarding the aforementioned, the so-called 'crisis of legitimacy' of prisons is highlighted, in that the degradation of offenders right to be treated with dignity as human beings and the potential unsavoury consequences of possible hard drug addiction, where none may have existed prior to imprisonment, make the quest for legitimising the reasons for incarceration unpalatable Durkeim saw modern punishment as 'irrational, emotional and punitive. ' (Garland, D (2000).
This statement could transfer to contemporary society and the way it responds to transgression, which threatens the moral order that is generally held as a binding form of social cohesion which protects by defining boundaries, that if are breached, should be punishable. This view was shored-up by the earlier mentioned Daily Telegraph survey, in which most people tended to support the more punitive custodial sentencing over non-custodial. This is in response to a certain 'fear' of crime that attacks the aforementioned boundaries.
The way Durkeim expressed society's responses to crime run in opposition to the functionalism of the sociologist's 'social solidarity' paradigm, in which members of society should work interdependently for the equity of all. This can only be realised if mainstream society can learn to heal offenders, rather than hurt them. Non-custodial sentencing offers this opportunity through more 'acceptance' into society, as it does not exclude offenders from it.
It still remains punishment, as it is enforced by law, and restricts the individual's liberty to a predetermined extent. Additionally, community-based sentencing orders often incorporate opportunities to rehabilitate the offender and offer a second chance in society, rather than suffer the stigmatisation that usually stems from having been in custody, such as securing employment, accommodation and moral approval and acceptance by the wider society upon release. Weberians may argue that the manner in which punishment is administered has become rationalised.
The technical advances of, for instance, forensics and DNA profiling are tremendously advantageous in proving acts of criminality, sometimes with evidence so beyond any reasonable doubt, that it may influence sentencers to consider custodial sentencing as the only option, on the principle that the evidence is so strong – so must be the punishment. Technology may be guilty of removing the humanistic element of moral judgement, pleas of mitigation and human compassion when sentencing is being considered (Garland, 1990, pp. 188-1890).
Also, court procedure tends to deal only with facts that are considered 'pertinent' under the laws of evidence. Often social circumstances, physical and psychological factors are considered irrelevant from a legal point of view, and therefore omitted (Wright, 2002, p. 7). Such rationalisation tends to circumvent the need for philanthropy, whereas it is part of the ethos of community-based punishment, in which offenders can go at least some way to making amends for transgression by performing services to the community. Custodial sentencing or non-custodial sentencing? Both have their merits as this essay has attempted to reveal.
Above all implications for either – society and the Criminal Justice System have to critically consider all factors relating to sentencing, particularly those that might have rehabilitative outcomes that may reduce the likelihood of re-offending, sentences that punish, but have positive consequences. This is not to suggest that the only route to take is a non-custodial one, as the impact of imprisonment and its social consequences for the offender and his or her family can be an effective deterrent to committing crime – it rather depends on the individual concerned, as we cannot account for varying dispositions.
Current themes point to a prison 'population crisis' with the cost of incarcerating offenders spiralling out of control (Cavadino and Dignan, 2002, pp. 14-15). However, one must consider if it is right that the Criminal Justice System should lean towards non-custodial sentences if they might feel that custody would have been more appropriate. If this is the case then, the ethos and concept of justice becomes blurred as the Criminal Justice System is satisfying the demands of the public and politicians in trying to tailor jail terms to fit prevailing themes of social organisation (Brown, 2003,p.
1). Custodial sentencing has not proven to be an effective mechanism for reducing crime, so therefore, the next logical step appears to be to test the efficacy of community-based punishment as an alternative. Perhaps over time, it will at least prove to be a more humanistic and dignified response to crime that may yield more rehabilitative and reparational positives and reduce re-offending. However, whether to punish by custodial or non-custodial sentencing is unlikely to significantly reduce crime in society.
To paraphrase Durkeim: it is only mainstream society that embraces morality and a sense of duty, which is able to enjoy the rewards of conformity that can promote proper conduct on a consistent and regular basis (Garland, 2000, pp. 388-389). Durkeim relates to conformity and observing moral values in society, where people have to fit in with the norms and values of others or else they are on the outside of the moral and social order. Issues of social status, class, race and ethnicity can preclude access to this 'social and moral order.
' If on the outside, these benefits are often unobtainable by legal means, so crime can sometimes be the only alternative; the unequal distribution of wealth ensures this. Therefore, if crime control, or perhaps more desirably, crime reduction is to be fully realised, then society must not stigmatise or isolate, but embrace policies of healing, rather than hurting – for it is perhaps societal inequalities that act as a springboard for crime in the main.
Alternatives To Prison. A booklet produced by Rethinking Crime and Punishment, Courtesy of an Internet resource located at: http://www. rethinking. org. uk/facts/system. shtml (Accessed, 28/04/03) Brown, A (2003) 'The Debate with Tony Brown,' Criminological Research Institute, Courtesy of an Internet resource located at: http://www. thecriminologist. com/the_debate/ (Accessed, 29/04/03) Cavadino, M. and Dignan, J (2002) Third Edition, The Penal System: An Introduction, London: Sage Publications. Davis, G (1992). Making Amends: Mediation and Reparation in Criminal Justice, London: Routledge. Duff, R. A (1992). Alternatives to punishment – or alternative punishments? in Cragg. W (eds. ) Retributivism and Its Critics, Franz Steiner: Stuttgart.