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  This module is a resource for lecturers  

 

Key issues

 

Common principles relied upon in making sentencing decisions include proportionality, deterrence, rehabilitation, incapacitation, and reparation. These principles express the purpose and objectives of criminal sentencing. (Albanese, 1984; Frase, 2013; von Hirsch and Ashworth, 2005).

Proportionality: A sentence should be proportionate to the offender, the harm imposed, and the benefits derived from the criminal activity. This is sometimes called retribution, holding that the more serious the crime, the more serious the punishment should be. The harms involve the individual victim, family, the economy, the legitimacy of government institutions, or the community at large. The principle of proportionality is explicitly recognized in article 11 of the Organized Crime Convention.

Article 11. Prosecution, adjudication and sanctions

1. Each State Party shall make the commission of an offence established in accordance with articles 5, 6, 8 and 23 of this Convention liable to sanctions that take into account the gravity of that offence.

Deterrence: As a purpose of sentencing, deterrence aims to prevent crime through the example of offenders being punished. General deterrence is directed at preventing crime among the general population, while specific deterrence is aimed at preventing future crimes by a particular offender. Deterrence is also explicitly recognized in article 11 of the Organized Crime Convention.

Article 11. Prosecution, adjudication and sanctions

2. Each State Party shall endeavour to ensure that any discretionary legal powers under its domestic law relating to the prosecution of persons for offences covered by this Convention are exercised to maximize the effectiveness of law enforcement measures in respect of those offences and with due regard to the need to deter the commission of such offences.

Furthermore, prevention is also included as an objective in article 31 of the Organized Crime Convention.

Article 31. Prevention

1. States Parties shall endeavour to develop and evaluate national projects and to establish and promote best practices and policies aimed at the prevention of transnational organized crime.

Rehabilitation: This principle, sometimes called reformation, views criminal behaviour as the product of shortcomings that can be overcome. The purpose of the criminal sentence would be to correct these shortcomings to prevent future crimes.

Incapacitation (or preventive custody): This sanction is intended to prevent future crime by physically restraining the offender from engaging in future misconduct. The primary method of incapacitation in criminal justice is incarceration.

Reparation/Restorative Justice: The sanction is imposed on the rationale that it will restore the imbalance created by the crime by returning the victim to the place they were before the crime was committed. The primary forms of reparation are compensation and restitution. The Organized Crime Convention, in article 14, encourages countries to use the confiscated assets to give compensation to victims of crime.

Sometimes the purposes of sentencing are specifically stated in national legislation. In other cases, they are implied, but they always include some combination of the five principles.

The sub-pages to this section provide a descriptive overview of the key issues that lecturers might want to cover with their students when teaching on this topic.

 

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