The problem of punishment

Compared with other aspects of the Criminal Law, the question of punishment is one of peculiar difficulty. For the lawyer it is a question which presents special problems for a variety of reasons. In the first place, although the task of imposing penalties is that of a subsection of the legal pro­fession, the punishment of a criminal is a combined operation of Parliament, the courts, and the administration. The range of penalties which may be imposed is in most cases set by the legislature, which fixes the maximum sentences for dif­ferent offences. In exceptional cases there may be a fixed or fixed minimum penalty. For the vast majority of offences, however, only the maximum penalty is prescribed by law, so that the court is left free to select in each actual case the appropriate sentence. After the court has selected what sen­tence seems suitable, the carrying out of this sentence falls to the lot of those who administer the penal system: prison governors and prison officers, those who are in charge of borstal and other detention institutions, and probation offi­cers, all of whom work under the aegis of the Home Office. Consequently, the part played by the courts is only one part of the whole operation of punishing the offender.

One result of this is that once sentence has been passed the courts are no longer concerned with the offender’s fate; their task is concluded. This means that the effect of the sentence can be seen less by the courts themselves than by those whose function it is to see that the sentence is carried out and by those who study the social effect of punishment. For tins reason those who actually pass sentence on the of­fender must to some extent work in the dark, unless they are willing to accept the guidance of those who study the effects of punishment.

Another difficulty confronting the lawyer in this field is that the problem of selecting the appropriate sentence is not one which can be solved by normal legal techniques. Purely legal problems he must tackle by threading his way through statutes, reported cases, and so forth in order to discover the legal rules relevant to his problem. The meaning of these rules must be established, and the rules must be applied to the facts of the problem in hand.

Дата добавления: 2015-09-01