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BP023P16 Criminal Justice
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BP023P16 Criminal Justice
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Course Code: BP023P16
University: Royal Melbourne Institute Of Technology
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Country: Australia
Question:
Discuss About the Phenomenon as Old as Human Civilization?
Answer:
Introduction
Policing is a phenomenon, perhaps, as old as human civilization. It defies the fundamental constitutional and international law principle of freedom of movement because of practices like incarceration. Policing and privatization have been designed by the justice system through the limit the right of movement due to reasons such as national security, morality and by public order (International Covenant on Civil and Political Rights article 12(3)). In the early eighteenth century private policing in Australia was defined by slavery (O’Toole 2006). The convicts would work for masters and would be entitled to a basic pay. This traditional form of private policing system has been christened ‘prisons without walls’ because it is comparatively different from the modern day form of private security which is defined by sophisticated equipment. Privatization of policing institution including is a growing trend in most jurisdictions although the reality is that the majority of the offenders in prisons are not first time offenders. This study questions on whether the increasing dominance in privatization is a beneficial precept in dealing with offenders by creating fear, averting criminal risk and curbing insecurity. In discussing privatization, risk, fear and insecurity this essay will major on the imprisonment and whether it achieved the goal of deterrence.
Privatization of Policing Institution: Criminal and Civil Aspect
The rate of recidivism has incredibly increased and soon there will be no room for more offenders and this has created the need of more private prisons and policing. The traditional approach to criminal law is that the offender of a crime should be punished. A crime is regarded as a wrong that is committed against the society and which is punishable by the state (Blackstone’s Australian Legal Words and Phrases). An individual who goes against the standards of behavior that have been set by the society is deemed top have committed a crime. In criminal law such an offender is quarantined from the other members of society because of their unwanted character. This kind of separation is what is regarded as imprisonment in the legal sense. The prominent view is that imprisonment only occurs in cases where one is found guilty of a crime and fails to pay a fine where there is such an option. It however, seems facile to suggest that imprisonment may also occur in civil cases.
Accounting to Flynn (1998) imprisonment was during the common law era ethos used to enforce debts. There has been a magnanimous legal discontent among scholars with some arguing that an imprisonment that has followed a civil case is incongruous and unjust. Ordinarily a jail terms is associated with criminal matters while in civil matters liable plaintiffs are ordered to pay damages. It thus begs the critical question whether imprisonment following civil actions shares its objectives with imprisonment in criminal law actions. The international community has come out strongly to advice nations against civil jail. Pursuant to the International Covenant on Civil and Political Rights (ICCPR) (1966) under article 11 civil jail has been prohibited in matters relating to failure to meet contractual obligations. The argument in international law perspective is that the objective of a civil jail appears to be more severe and a torture of the contracting party.
Does Privatization of Policing Institution achieve Averting Risk, Instilling Fear, and reduce Insecurity?
Traditionally prisons are viewed as places of punishment rather than a correctional facility to correct the offenders. It has been argued that a majority of the prisons are hiding under the guise of rehabilitating prisoners but the real intention has been to punish them. The result of such actions has been manifested by statistical research that has been conducted showing that 52% of criminal that are released usually go back to the society with advanced criminal tendencies and they find themselves back to prison again (Australian Bureau of Statistics 2009). Society becomes stuck a mare’s nest not comprehending the real intention of imprisonment.
The most blatant position taken by any criminalist is that Imprisonment creates fear and prevents offenders from committing crime. But is this really the case. According to Freiberg and Ross (1999) there been a rapid increase in the number of prisoners in prisons. It has been argued that between September 2009 and September 2010 there has been recorded to be a 3.8% increase in the number of prisoners in Victoria (Australian Bureau of Statistics, 2010a, p. 11). The conundrum here is that rather than deterring crime imprisonment appears to encouraging more offenders. Following a study conducted by Green and Winik (2010, p. 359) it has since been concede that imprisonment has a very minute or no impact all on the likelihood that a person will commit the crime again and therefore the deterrence role it is expected to play becomes extinct.
The questions that begs an interpretive answer is whether the intention of the state is that persons who are imprisoned should be subjected to harsh and devastating living conditions as a form of punishment. This notion appears to be what states do in practice but theoretically they claim that prisons are a rehabilitation center. Some prisoners are usually imprisoned for very short terms but upon their release we learn that they have been traumatized by the living conditions in there as others come out with lifetime diseases and infections that they may never have the financial muscle to treat. It boils down to the fundamental issue on whether actually imprisonment of offenders is helpful.
It has also been contended that imprisonment leads to psychological complexities of the prisoner and this makes the prisoner hate the government and the people (Haney 1997). The prisoner will hate the government because they believe that it has inflicted the pain and torture on him by locking him within a limited premise. Hatred toward the people is brought about by the fact the prisoner believes that the people have failed to help and that persons who are not imprisoned will be treated different by the community. When such thoughts grow in the encephalon of the prisoner the ripple effect is that when they are released they are likely to be hostile and resort to crime on the basis of revenge.
Persons who have been imprisoned for lesser offences usually interact with capital offenders in prison and they end up learning other shrewd means to commit crimes. This experience that is learnt in prison is later taken back to the society because the minor offenders do not longer periods in prison. The effect of imprisonment then becomes negative to both the released prisoner and the society. It has also been argued that juvenile offenders who are imprisoned with the expectation that they will positively change sometime acquire better skills in criminal activities form other offenders while in prison. As such when they are released they grow to be a menace in the society and they continue to circumnavigate the justice system.
Violence and brutality has also been on the rife in prisons. It has been argued that there is a considerable number of prisoners who have committed suicide while in prison because of the physical torture that is inflicted upon them by other inmates and sometimes the prison warders. A recent research that has been conducted has revealed that the prisons in Victoria have the most violent inmate (Ashlynne 2015). This has made the concept of imprisonment unsafe as vulnerable and weak prisoners are more likely to be harassed and bullied by the hardcore criminals. While discussing the negative aspects of imprisonment it also imperative to note the plight of mothers (women) capital offenders who end up serving long terms in prisons. The children of such mothers are also likely being involved in crime activities because of the lack of the parental care and are forced to learn values from people who misguide them (Greene, Haney& Hurtado 2000). The psychological torture that is left on the children of such mothers is without a doubt one that eats into their emotions for a lifetime (Alison & Linda 2004). In Australia the increasing number of prisoners has been argued to be very costly to the taxpayer because the state funds the prisons and as the prisoners increase more funds are needed.
In view of the above it can be generally observed that with such an upsurge in negative effects of local public imprisonment, the modern rehabilitation and punishment objective of prisons lose meaning because they end up being torture chambers. Other potential offenders living in the society also do not become deterred by some imprisonment sentences. As a matter of fact there are offenders who run criminal cartels while in prison and have some of their team members livingly freely in the society as they perpetrate their criminal activities. Such criminals who have been imprisoned normally have a high monetary influence to bribe anyone. Prisons have thus been described as academies of high crime.
According to Valier (2002) punishment is necessary as it reinforces fundamental values to the society. It has also been argued that punishment of offenders leads to moral development in a society (Garland, 1990). Michael Ignatieff (1983) borrows a jurisprudential argument from Jeremy Bentham that asserts that inflicting harm on the body as a form punishing offenders is cruel and inhumane and should be replaced with more humane punishments such a imprisonment. Imprisonment could be more helpful to the society because it separates the offenders from the society and ensures that the other people stay in e peace.
The Death penalty has been held also to be cruel, inhumane and a travesty to the constitutional principle right to life. It bears noting that private prisons and private policing have abolished the concept of death penalty because it intrudes on the sanctity of life and the dignity of the human life. It is utterly preposterous and abhorrent to connote that the death penalty as a form of punishing the offenders has many negative impacts to the society and it does not create any fear or reduce insecurity among the people. Since the death penalty was abolished in Australia it has been argued that the life imprisonment which is a concept of private prisons has more positive effects because there is a low likelihood that the offender will recommit the same crime if released because of factors like old age (Potas & Walker 1987). Thus life imprisonment creates fear among offenders who kno that they will have to spend their life in prisons until natural death. The idea of transposing the death penalty with life imprisonment has been seen as a better measure to control crime in the modern private policing and imprisonment practice and has since gained an overwhelming prominence in myriad of jurisdictions. To the contrary, critics in other jurisdictions which still practice the death penalty have launched a scathing attack on the concept of death row syndrome which is sentencing to death but indefinitely imprisoning the sentenced offenders as they wait to die. Such a form of imprisonment has also been argued to be to be a psychological torture of the imprisoned individuals and does not conform to the modern vie of reducing crime management(Smith, 2008).
In Australia private imprisonment and policing has revealed a sustained and rigorous commitment in ensuring that the offender change their character and ethical conduct while in prison coming by with rehabilitation programme in prisons (Howells et al. 2004). As a matter of course the offenders in are usually given education on how to change and get new skills in life. It gives added relevance to state that there has been a growing body of evidence that divulges that rehabilitation programme has in the prisons been a success (Andrews & Bonta 2010). The idea inherent in the precept of rehabilitation is that the offenders will not be sentenced fro the same offence again when they are united to the society they will be able to impart the knowledge and skills acquired during the rehabilitation to other members of the society.
The dominant view is that the rehabilitation in private policing has the goal of ensuring that the live a life without making any offences anymore (Day & Casey 2010). As such there is frequent monitoring of the offenders during the programme period and after to ensure that the skills acquired are reinforced into the individual. The fact that the offenders are being rehabilitated does not in any way imply that the government is sympathetic on the offenders but rather they are transforming the character of the individuals for better society. Accordingly, rehabilitation causes the offender to embrace a plausible disposition the leaves the societies with no any better option than to than accept them back to the society.
Conclusion
In closing, it can be conceded with absolute certainty that although privatization of imprisonment appears to be the most prosperous invention that ever set foot within the legal rubric to fight against crime in society it is also entirely not effective. It does not absolutely create fear and avert risk of crime in the society. Whether imprisonment has a deterrent, rehabilitative or penal effect is still a riddle among criminologists. As has been demonstrated in the discussion above, it is apparent that Australia is lost in between the three objectives of imprisonment and policing with a blurred perspective of which one hold sway of the other. The overcrowding cases of prisons in Australia present an enigma to the judiciary on whether to offer alternatives from of punishment of offenders rather than imprisonment.
References
Alison, C., & Linda, B., (2004) Invisible Victims: the Children of Women in Prison, Retrieved from https://www.voicesforchildren.ca/report-Dec2004-1.htm
Andrews DA & Bonta J 2010. Rehabilitating criminal justice policy and practice. Psychology, Public Policy and Law 16
Ashlynne, M., (2015) Victorian prisons most violent in Australia, data shows Retrieved from https://www.abc.net.au/news/2015-03-15/victorian-prisons-the-most-violent-in-australia/6319186?pfmredir=sm
Australian Bureau of Statistics, Prisoners in Australia (2009)
Australian Bureau of Statistics, (2010)
Blackstone’s Australian Legal Words and Phrases
Day, A., & Casey, S. (2010). Maintenance programs for forensic clients. Psychology, Crime and Law 16
Garland, D. (1990). Punishment and Modern Society: A Study in Social Theory. Oxford: Clarendon Press.
Green, D., & Winik D.(2010). Using Random Judge Assignments to Estimate the Effects of Incarceration and Probation on Recidivism among Drug Offenders. Criminology,
Greene, S., Haney, C., & Hurtado, A. (2000). “Cycles of Pain: Risk Factors in the Lives of Incarcerated Women and Their Children,” Prison Journal,
Haney, C. (1997). Psychology and the Limits to Prison Pain: Confronting the Coming Crisis in Eighth Amendment Law,” Psychology, Public Policy, and Law,
Howells, K., Heseltine, K., Sarre., R, Davey L & Day A. (2004). Correctional offender treatment programs: The national picture in Australia. Canberra: Criminology Research Council. Retrieved from https://www.criminologyresearchcouncil.gov.au/reports/200203-04.html
Ignatieff, M. (1983) State, Civil Society and Total Institutions: A Critique of Recent Social Histories of Punishment. In S. Cohen and A. Scull. (1983). Social Control and the State. Oxford: Martin Robertson.
International Covenant on Civil and Political Rights (ICCPR) (1966)
Flynn, N. (1998) Introduction to Prisons and Imprisonment. Winchester: Waterside Press.
Freiberg, A., and Ross, S. (1999). Sentencing Reform and Penal Change: The Victorian Experience. Annandale: Federation Press.
O’Toole, S. (2006). The History of Australian Corrections; University of New South Wales Press
Potas, I. & Walker, J. (1987). Capital Punishment, Trends and Issues No 3, Australian Institute of Criminology, Canberra.
Smith, A. (2008). Not Waiving But Drowning: The Anatomy Of Death Row Syndrome and Volunteering For Execution’, The Boston University Public Interest Law Journal
Valier, C. (2002). Theories of Crime and Punishment. Harlow: Pearson Education Ltd.
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