Jeremy Bentham Criminal Justice

5 May 2017

Jeremy Bentham’s Influence on the Criminal Justice System: Past and Present The delivery of punishment has changed significantly over the centuries. Up until the 19th century in England, imprisonment was not regarded as a punishment, it was merely used while the offender waited to be sentenced to their ‘real’ punishment (Bull, 2010; Hirst, 1998). Corporal punishment such as flogging, branding and mutilation, death by hanging, and transportation to other continents such as America and Australia were common punitive measures through the ages, until well into the 1800’s (Newburn, 2003).

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Although these extreme penalties are no longer acceptable or practised by criminal courts in England or Australia, in some ways, the past has shaped delivery of sanction at present. In fact, Australia was founded with Britain’s intention to send their worst criminal there Oackson, 1998). Theorist Jeremy Bentham (1748-1832) was particularly influential to the cessation of the controversial tactic of transportation to Australia, and catalysed the beginning of the modern day prison systems (Bull, 2010). Bentham was a philosopher who rigorously opposed the transportation of convicts to other continents (Bentham, 1789).

He had strong ideals relating to criminals and the best way for them to be punished. Forming the criminological theory of Utilitarianism, Bentham argued that incapacitation, rehabilitation and deterrence were the three pillars essential to fghting crime (Hopkins Burke, 2011). In the course of this essay, Bentham’s philosophy on punishment and the reasons why he opposed transportation will be discussed. Furthermore, an examination of Bentham’s specific contribution to the end of transportation and the continued influence his ideas have had on shaping our contemporary punishment practises will be conducted.

Bentham’s understanding of crime and criminals was simple. His perspective classed people as rational beings, whose behaviour is influenced by their perceived pleasure and pain (Brunon-Ernst, 2012). If the perceived pleasure, or positive outcome (for example the thrill of stealing, the acquisition of money) of an action outweighs the perceived pain or displeasure of the consequences (punishment, risk of injury), the person may be inclined to do it (Brunon-Ernst, 2012).

In other words, a person may be tempted to commit a crime if there not a strong enough deterrent in place. Hence, Bentham’s solution to crime control was to address this pleasure/pain response by imposing strict penalties proportional to the seriousness of the crime committed to discourage people from offending (Von Hirsch, 1992). Although he did not support the death penalty, punishment for committing crime was considered by Bentham as the lesser of two evils, necessary for the health of society and the duty of the government to impose (Bull, 2010; Hudson, 2003).

Punishment, for Bentham, was a way to ensure “the greatest happiness for the greatest number” (Rosen, 2003, p 221). Bentham rgued that prevention, both general and specific, is paramount in controlling crime. The imprisonment of the offender serves the purpose of specific prevention. Specific prevention involves three tiers: incapacitation, reform/rehabilitation and deterrence (Hopkins Burke, 2011). Firstly, incapacitation is achieved by physically removing an offender from society, rendering them unable to reoffend (specifically, by placing them in prison).

Secondly, rehabilitation seeks to take away t e esire o ottend teaching the offender that any wrongdoing against society will certainly result in real unishment (Bentham suggested strenuous and repetitive labour and solitary confinement). Finally, and most importantly, deterrence is reached by making the offender afraid to reoffend because of the inevitable consequences of the action (namely, returning to the conditions of prison [Von Hirsch, 1998]). Additionally, Bentham conceded that the prison ought to be open for the public to observe as a means of general prevention (Hopkins Burke, 2011).

Prisoners would be made an example of in order to deter potential offenders from committing the same crimes: it ould be known to all that if one were to commit a crime, they would endure to the same fate. Transportation did not align with Bentham’s perspective regarding the solution to crime (Rosen, 2003). He argued that sending offenders toa far away place would not deter anyone from offending or reoffending. In short, Australia contained an uncertain fate for those sentenced to transportation (Bull, 2010).

If and when the offender survived the long and treacherous Journey across the ocean from England to Australia, they were awarded far more freedom and independence than Bentham thought they deserved. Bentham argued that offenders would not be deterred from committing crime if the consequences were not strict, certain and undesirable (Bull, 2010). Furthermore, the lack of public exposure of the consequences of crime failed to meet Bentham’s guidelines for general prevention, if they were to be implemented overseas.

Overall, Bentham considered transportation as a punishment to be markedly inferior to imprisonment Oackson, 1998). Instead, he recommended that offenders be kept under surveillance in a prison which he designed, called the panopticon Oackson, 1998). Brunon-Ernst (2012, p. ) described the panopticon as “a circular building with a central tower from which an inspector can see the inmates at all times… without being seen”. With this design, inmates would not know when they were being watched, therefore, it would encourage them to behave at all times (Rosen, 2003).

Bentham used England’s previous history of transporting convicts to America as a platform to argue against penal transportation to Australia (Bull, 2010). After gaining independence following the Revolution in the 1770’s, America refused to accept any more convicts from England (Maxwell-Stewart, 2010). England was required to find another penal solution, and considered New South Wales, Australia, to be the perfect location. It was at this time that Bentham urged the government to follow his suggestion to build the panopticon instead (Semple, 1993).

However, despite the support Bentham received for his ideas, transportation did not cease during his lifetime, with the final convicts landing in Australia in 1870 (Maxwell- Stewart, 2010). Nevertheless, it was Bentham’s ideas and his theory of utility which lead the reform to stop the transportation era (Bull, 2010). The lasting effects of he utilitarian theory can still be observed in the criminal Justice arena today (White, Haines & Asquith, 2012).

Utilitarianism laid the foundations for the classical movement which drastically influenced modern day penal processes and criminological thought. Classical theory closely resembles the theory of utility: free will and choice are a major contributors to the commission of crime (presently reflected by the notion of mens rea [the guilty mind]); criminals must be punished; sanction ought to act as a deterrent; and the prevention of crime is more important than than punishment (Vold Bernard, 1985; Von Hirsch, 1998).

Concurrent with Bentham’s ideals, proportionality is reflected in present day criminal sanctions in order to have the most effect. A modern day example of this includes the ‘Just deserts’ approach to sentencing, which proposes a few simple principles (as outlined by White, Haines & Asquith, 2012): no one, other than the person found guilty of a crime, should be punished for that crime; a person found guilty of a crime must be punished for it; punishment must be proportional to the seriousness of the crime (no more, and no less serious than the crime itself).

The ‘Just deserts’ approach intends to provide structure and consistency to the sentencing process, consequently, it is employed by criminal Justice systems all over the Western world, including Australia, Canada, the United Kingdom and the United States (White, Haines & Asquith, 2012). In summary, Jeremy Bentham had a profound effect on the criminal Justice system as we know it. Leading the reform which stopped the transportation of British criminals to Australia in the 19th century, Bentham also campaigned for long term incarceration to replace capital punishment.

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