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.

English prisons

The punishment of criminal and political offenders by confining them in prisons is a modern practice, but prisons as places of detention are common to most societies through­out history.

The use of prisons, not as a means of punishment in them­selves, but as a way of ensuring safe custody, was established in Roman Law by Justinian in the fifth century, BC. The typical Roman prison was an underground cellar to which ac­cess was made from a small grating covering the top. An example of this kind of prisons still exists in Rome.

Imprisonment as a form of punishment was used in a few cases in Saxon England. The laws stipulated at that time that a person convicted of murder should be thrust into prison for one hundred and twenty days before he might be claimed by his kinsmen. A penalty of imprisonment for perjury in a Grand Assize was introduced by Henry II, and Henry III instituted a punishment of one year’s imprisonment for in­fringement of the forest law. In the last half of the thirteenth century Edward I used imprisonment extensively, but mainly to induce confession or to ensure the payment of fines.

In the middle of the eighteenth century most county au­thorities were responsible for the prisons in their capital towns, but almost as many were in private hands. No ques­tions were asked when a prisoner died. Indeed, for many of those who escaped capital punishment, death might have seemed preferable to the utter misery of mind and body which constituted existence in prison.

Attempts to improve this state of affairs were not un­known before Howard came on the scene. But John Ho­ward’s influence on the design and administration of prisons is quite unrivalled, and his proposals greatly influenced the way in which the large walled prisons of nineteenth century England were administered and designed.

Millbank, one of the most famous of the old London pris­ons, was the only national penitentiary to be erected under the provisions of the so-called "Hard Labour Act" passed in 1779. But five years before building work began at Millbank, in 1806, another prison was being erected: Dartmoor. This prison was far better in design than any county gaol or House of correction in England.

The Act of 1823, introducing the classification system at Millbank, was the first statute effecting a general reform of prisons to be enacted by Parliament. Now for the first time Justices were ordered to supply the Home Secretary with quarterly reports "upon every department of their prison administration".

By the Prisons Act of 1877 the Home Secretary was given full ministerial responsibility for everything concerning the English prisons.