The sentencing or imprisonment is one of the remedies

Running Head: IMPRISONMENT
PRISON IS INEFFECTIVE BECAUSE MOST PEOPLE COME OUT WORSE THAN THEY
WENT IN
Name of the Student
Name of the University
Author’s Note

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The theories of punishment mainly focuses on three principles: Deterrence, Rehabilitation and
Restitution. It means that the sentencing of a convict should be such that as per the first theory,
should set an example to instill fear about the consequences of such offense, as per the second
theory, should focus on the improvement of the person’s thought and his or her change of mind
about the committing of such offence and as per the third theory, should focus in making the
person gel up with the society and incline him or her towards its protection. However, each
theory has its own viewpoint and is contradictory to each other.
The sentencing or imprisonment is one of the remedies offered by the criminal law.
criminal law is strict in nature due to the type of offences covered in it. It covers the offences
against the state or community as a whole and its violence decides its punishment or mitigation.
This thesis aims to bring out the pros and cons of imprisonment as a form of punishment
and the consequences of its abolition. In case, the abolition is allowed, the alternatives of such
punishment is discussed in a form of critical analysis.
Imprisonment is a very old form of punishment and also the most severe form which has
been imposed by a court in Victoria. However, in 2009-2010, it has been noticed that the number
of people being imprisoned has increased by 3.8% as per Australian Bureau of statistics 2010a,
p11. The most effective and the most important achievement of imprisonment is deterrence.
Other sanctions like fines, correction orders, community-service orders are not the form of
deterrent form of punishment (Codd 2013). Section 5 (1) of the Sentencing Act (Vic) states that
only purpose to imprison a person shall be to punish such person, recognize denunciation and
facilitate rehabilitation and protect community from such offenders. Section 5 (1)(b) states that
imprisonment is the form of punishment which creates fear or deterrence among similar

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offenders. According to Winch vs. The Queen [2010], it has been held by the court that
effectiveness of deterrence is what hinders the offenders from committing similar offences. It is
like a threat to punishment and the fear instilled accounts for the hindrance to commission of
such crimes. However, referring to juveniles in Children’s Court, in H vs. Rowe [2008], it was
held by the court that such offenders do not constitute as threat to the community and hence, in
such cases involving juvenile offenders, general deterrence is not required. Hence, the sentencing
in Children’s Court is different as their scope is different.
Hence, the Common law principle regarding sentencing and imprisonment lays down that
the sentencing should be quantum to the gravity of the crime committed by the person and its
effect upon the community (Hart Jr 2014). The situations involving youth offenders operates
under specific deterrence to be created in specific class of offenders. However, general
deterrence is mostly for the violent crimes, which imposes threat upon the community as a
whole.
The prison abolishment movement is a random network of groups and activists seeking to
reduce to eliminate the imprisonment as a form of punishment. Such abolition shall be replaced
by the punishment forms focusing on rehabilitation and restitution (Shaw 2009). Those who are
in favor of prison abolition also thrive to abolish all forms of prison system including solitary
confinement, death sentence, and the orders to construct new prisons in future (Berger, Kaba,
David 2017). According to Davis 2000, the prison form of industry should be strongly criticized
on the ground of history stating that like mass incarceration is not the solution to unemployment,
similarly, prison is not the solution to punish somebody for crime committed. According to Beth
2012, it is the victims belonging to the community of color, poor, minorities, transgender,
domestic violence and so on are the ones who are suffering from the effects of imprisonment.

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However, according to Cunneen et al. 2016 the abolition of imprisonment has been strongly
criticized because it is the people who develop sympathy for people who are imprisoned and the
development of globalization has led to numerous crimes which are way beyond the application
of restitution method of punishment. Further Minkowitz 2014 the approach to imprisonment as a
punishment has been critically analyzed and the conclusion has been drawn by her that the
imprisonment as a punishment is a deterrent form of punishment and it would be required only in
cases of serious crimes. However, restitution method can be adhered to for petty crimes which
only involves the ethical value of right or wrong. Therefore, it can be explained that punishment
can be categorized and applied depending upon the situation analysis of the gravity of the crime
committed and the type of punishment required for the guilty to understand his crime and repent
for it. Crimes like rape, murder, robbery, theft and all are grievous crimes and the mens rea of the
guilty cannot be assessed so lightly. The mental state of the guilty has been fully aware of his act
or omission of act leading to the particular crime and hence, the situations where there is no
chance for the innocence of a criminal to exist, such situation should be dealt deterrently and
hence, imprisonment is required in such cases. In case of petty criminal cases, the gravity of the
consequence of the crime should be assessed by the court and confirm the innocence is still
existent within the mind of the convict. Hence, there is certain chance of improvement and
rehabilitation and hence, such situations would require implication if any punishment other than
the deterrent form like imprisonment and death penalty.
In cases where the prison system is abolished, the court should adopt alternate methods
and approaches to reform the criminal. According to Doran 2013, the focus of rehabilitation
method of reformation mainly deals with the state of normal behavior being adopted by the
inmates of a prison and the similar methodology is certainly preferred by the criminologists and

4IMPRISONMENT
the psychologists. As per Erwin 2014, the act of imprisonment satisfies the gap between the
crime committed and the punishments imposed. Thus, the alternatives to the proposed
imprisonment abolishment plan includes substitution or release of a convict after thorough
supervision of his reformation and restitution to victims or community work. Further, the
alternative methods include reduction in the imprisonment term by abolishing compulsory
minimum term of imprisonment. The third alternative with respective to the penal reforms
include the reduction of ethnic discrimination and conflicts among prison inmates. Further
reformation alternatives include the condition pertaining to the process of imprisonment should
be reduced or minimalized so that the inmates are given a scope of reformation. A very famous
saying goes as prevention is better than cure and the same should be applied in this situation. The
adaptations of law should be such that the people refrain from committing a crime and not that
the people are punished for committing a crime. There are specific areas of crime which are in
abundance among the inmates of prison. Like the crimes against drug trafficking, gun control.
Sex work and so on. There must be programs initiated by Government and other social work
organization to aware people about the consequences of such crimes and its implication on the
society, their family and their peers. There have been a situational analysis of wrongful
convictions and in the recent times it is at largely committed by the mistake of the governments
and the courts. In case the person is wrongly convicted, their morality is hurt and they tend to
turn revengeful to the legal system of the country or the state. Wrongful Convictions lead the
people who have been wrongly convicted earlier lose their moral values and the society is such
that it does not gel up with people who have once been convicted. Such people are forced to join
unlawful means of employment and underworld activities. They lose morality and thrive for
survival.

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Thus, it can be concluded from the above analysis that imprisonment is a bifurcated
situational analysis wherein, the serious crimes attract serious methods of punishments and petty
crimes should be dealt with leniency. However, the punishment should not be abolished as a
whole because punishments tend to lead the person to rehabilitation ot any means of self-
assertion about the acts committed by the convict who has been punished irrespective of the
strictness or the lenience of the punishment.

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Reference:
James, Erwin (2014-11-26). "Prison is not for punishment in Sweden. We get people into better
shape"
Larson, Doran (2013-09-24). "Why Scandinavian Prisons Are Superior". The Atlantic.
Minkowitz, T., 2014. Rethinking criminal responsibility from a critical disability perspective:
The abolition of insanity/incapacity acquittals and unfitness to plead, and beyond. Griffith Law
Review, 23(3), pp.434-466.
Cunneen, C., Baldry, E., Brown, D., Brown, M., Schwartz, M. and Steel, A., 2016. Penal culture
and hyperincarceration: The revival of the prison. Routledge.
Richie, Beth E. (2012). Arrested Justice: Black Women, Violence, and America's Prison Nation.
New York, NY: New York University Press. p. 17.
Davis, Angela Y.; Rodriguez, Dylan (2000-01-01). "The Challenge of Prison Abolition: A
Conversation". Social Justice. 27 (3 (81)): 212–218.
Berger, Dan; Kaba, Mariame; Stein, David (August 24, 2017). "What Abolitionsts Do
Winch v The Queen [2010] VSCA 141 (17 June 2010).
H v Rowe [2008] VSC 369
Codd, H., 2013. In the shadow of prison: Families, imprisonment and criminal justice. Willan.
Hart Jr, J.S., 2014. The Rule of Law, 1603-1660: Crowns, Courts and Judges. Routledge.

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Shaw, Robin F (2009). "Angela Y. Davis and the Prison Abolition Movement, Part
II". Contemporary Justice Review. 12: 101–104.