Difference Between Law And Justice, Effects Of Penal Populism, And Community-based Sanctions

Difference between Law and Justice

Law and justice are the two sides of the same coin. Many a times they are used as synonyms. Law is the instrument or tool to deliver justice. Law denotes the rules and regulations, which are to be followed to maintain order and discipline in a civilized society. Law and justice, even though have certain similarities and quite a few dissimilarities, they have a significant part to play in the legal system of every modern country. Law is the instrument or tool that we use and have been using for thousands of year as a method to seek justice (Hart, 2017). It has been a long way since the Hammurabi code and the Babylonian law, the concept of law and justice has evolved and has taken a solid shape in today’s world. The outlook on the concepts of law and justice has reformed. Nevertheless, the crux of the matter is that whether society and legal system has gotten nearer to the sublime phenomenon that is ‘Justice’. Law and Justice both are a part of the society as they embolden morality and ethics in people and eventually strikes a balance in the community. According to Plato, the Greek philosopher, law should ensure justice and inner harmony in the state. He said that law and justice is nothing but a moral educator of the people and society, at large. They are supplementary to each other, as one cannot exist in absence of the other (Goldman and Cropanzano, 2015).

It is the process or the way of attaining them, that keeps them different from each other. Laws are written codes, rules or regulations that strive to achieve peace and order in the society by keeping men far from wrong and deviant behavior. Some laws have a universal appeal, while some other have cultural influences. Traditionally, law have been an instrument of the government to ensure obedience and compliance from the people of the society. Laws can be partial and derogatory as they are nothing but sanctions backed by the government, police and court, which are the three pillars of the society, which is the legislature, the executive and the judiciary (Okafo, 2016). On the other hand, the legal system, which includes the courts and the lawyers, is dependent upon the concept of Justice.  Justice means fairness. It refers to being right, just and fair in every sense. Although justice is seemed to be delivered in a court of law, however, it has a broader sense than that. The judgment passed by the court of law must seem fair and right, not just lawfully correct (Sampford and Zifcak, 2016). Therefore, it can be concluded that law is a tool or an instrument to serve justice, while justice means fair and right. Justice is the other name for ethics and morality that are constant through eternity, while law denotes the written enactments, which can be amended and repealed as per choice. Law has e concrete tangible structure; on the other hand, the concept of justice is abstract. Therefore, justice is often related to the divine pronouncement while laws are just mere rules and regulations laid down by the government.

Effects of Penal Populism

Penal populism is the phenomenon where political parties of a country compete with each other to adopt harsh and deterrent measures for crime. The concept of penal populism refers to the disenchantment perceived by a specific section of the society. It is the crime victims and their family members or their representatives who feels to be left out and forgotten by the justice system that focuses more on the offender than on the victim. Prison population increases in those countries where penal populism makes its way. Developed countries like the USA, UK, New Zealand, Canada and Australia have a strong presence of penal populism. Government bodies propagate penal policies in accordance with their aspiration and commitment towards common people rather than focusing on the concept of fair justice. In today’s world, common public as well as policy makers largely depends on the highlights of the media pertaining to crime. With the growing media and public consciousness, concepts like penal populism is evolving and taking a strong shape as well. It has changed the face of criminal sanction theories and opinion of common people on crime and punishment. It has laid down new policies and agendas relating to crime (Freiberg and Gelb, 2014).

In Australia, prison numbers increased in the 70s due to the advancing crime rates, however from the 90s, things changed due to the growing concept of penal populism. Although it did not mark a change on the judicial sentencing system, but there was a significant increase of the prison numbers. Nevertheless, since early 90s reform activities started to take place and in 1991 a Labour Government struck down ‘remission’ to establish ‘truth’ in sentencing even though the effects were not significant enough. A Conservative Government between 1993 and 1999 introduced some policies and regulations for recidivist, violent and sexual offenders. These policies helped enhancing the rigidity of the prison climate. The labour Government extended the punitive trend in between 2000 and 2010. It implemented some progressive and evidence-based approach to decide on cases, yet it did not give in to the idea of moderate sentencing. A number of laws and policies pertaining to sexual offences were treated on a serious note. Sentences for serious crimes were delivered without a delay. The National Coalition Government continued with the penal populism policy in 2010 that focused largely on crime, criminals and the victims. It introduced and implemented reforms emphasizing on sentencing, which had a swift and significant impact on prison population, and sentencing. The 2010 Coalition opposition’s campaign was strongly based on the notion that Victorians were done with ‘soft’ sentences even for heinous crimes (Weatherburn, 2018.). The opposition threw light on the growing rate of crime as a menace and a concern of the society. While the Coalition government put forwarded that it intends to get ‘tougher’ on crime and criminals. The government proposed its intention to enhance the severity of sanctions and the use of prisons as the primary and fundamental crime-control method. In September 2014, it abolished suspended sentences and home detentions (Tubex et al., 2015). Parole has been restricted ever since the ‘Willie Horton’ incident. Two forms of presumptive sentences based on baseline sentences and presumptive minimum terms were initiated. A poll in 2013 showed that only 27% of the population thought that public safety, law and order have improved since 2010, while 29% thought that it had got worse and 41% believed that it had remained the same (Abs.gov.au, 2018).

Community-based Sanctions

Community based sanctions also known as intermediate or alternative sanctions is a popular form of punishment spread all over the western society. Introduction of community-based sanction has been one of the significant development in sentencing system in most of the developed countries.  It has up-turned the outlook on the concepts of crime, criminals, crime victims, sentencing and the community as a whole. It paved its way into the legal system due to the ever-growing prison population because of the increasing crime rate and the intensity of the crimes. While a few other reasons are pointed out as well for the emergence of community sanctions. It is often put forwarded that prison fails to rehabilitate offenders or create deterrence in the offender’s mind (Alrc.gov.au, 2018). Most of the times it has been seen that a first time offender has greater risk to fall into the crime world and become a habitual offender. Therefore, community sanction, which is a positive alternative for jail sentences, works better for juveniles or first time offenders (Alarid, L.F., 2016).

It is important to segregate offenders as per their offences as that would help in installing better reformative changes in the inmates. Possible sex offenders need to be treated cautiously, understanding their psychological issues by using a compassionate and counselling approach. Therefore, sex offending should be treated within the ambit of public health domain. Similarly, incarcerating mothers should be prescribes alternative sanctions as their children are dependent on them. Therefore, such women should either be give a shorter sentence or a community service one, which would let her be with the children. While parents that adversely affect the children should be sent for probation to serve in a community service (Hedderman and Jolliffe, 2015). As for petty crimes like drinking driving or substance abuse or petty theft, community based sanctions prove to be better than prison sentencing as they do not brand the offender as a criminal, rather it give them a chance to improve and go back to normalcy. In case of Juveniles, it is substantial to direct them into community service rather than throwing them into jails. They have a clean and bright future ahead, which might be lost forever in the darkness of a prison cell once the minor comes in contact with habitual offenders. Cases involving drug abuser needs special attention. Residential drug abuse programs enables abusers to get sober and released quicker by getting rid of their addiction. Young bloods who are first time offenders should be treated with compassion and must be given a chance to repent. In such instances community based sanction is considered more appropriate than prison sentencing (Bazemore and Schiff, 2015).

References:

Abs.gov.au. (2018). 4517.0 – Prisoners in Australia, 2017. [online] Available at: https://www.abs.gov.au/ausstats/[email protected]/mf/4517.0 [Accessed 13 Aug. 2018].

Alarid, L.F., 2016. Community based corrections. Cengage Learning.

Alrc.gov.au. (2018). Alternative Forms of Sentencing | ALRC. [online] Available at: https://www.alrc.gov.au/publications/21.%20Aboriginal%20Customary%20Laws%20and%20Sentencing/alternative-forms-sentencing [Accessed 13 Aug. 2018].

Bazemore, G. and Schiff, M., 2015. Restorative community justice: Repairing harm and transforming communities. Routledge.

Freiberg, A., & Gelb, K. (2014). Penal populism, sentencing councils and sentencing policy. Willan.

Goldman, B. and Cropanzano, R., 2015. “Justice” and “fairness” are not the same thing. Journal of Organizational Behavior, 36(2), pp.313-318.

Hart, H.L.A., 2017. Positivism and the Separation of Law and Morals. In Law and Morality (pp. 63-99). Routledge.

Hedderman, C. and Jolliffe, D., 2015. The impact of prison for women on the edge: paying the price for wrong decisions. Victims & Offenders, 10(2), pp.152-178.

Okafo, N., 2016. Reconstructing law and justice in a postcolony. Routledge.

Sampford, C. and Zifcak, S., 2016. Rethinking international law and justice. Routledge.

Tubex, H., Brown, D., Freiberg, A., Gelb, K. and Sarre, R., 2015. Penal diversity within Australia. Punishment & Society, 17(3), pp.345-373.

Weatherburn, D., 2018. Australian imprisonment 2002–2016: Crime, policing and penal policy. Australian & New Zealand Journal of Criminology, p.0004865818757585.