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The British Journal of Criminology 41:77-100 (2001)
© 2001 Centre for Crime & Justice Studies (formerly ISTD)
Separating the Allocation of Punishment from its Administration
Theoretical and Empirical Observations
Senior Lecturer in Criminal Law and Sentencing, Law School, University of Western Australia, Australia. This is a revised portion of a paper presented to the 12th Annual International Congress on Criminology held in Seoul, Korea, 24–29 August 1998. The feedback of George Zdenkowski and the comments of the anonymous reviewers are gratefully acknowledged.
Given that private prisons are now on the correctional scene, there is an important theoretical and practical issue governments must consider when introducing the private sector into custodial corrections. This paper will explore the source of the power to punish, the boundaries between the allocation and administration of punishment and the appropriate regulatory and accountability arrangements to achieve a satisfactory separation of those functions, particularly in light of research undertaken in Queensland. It will be argued that the theory of social contract provides the most useful way to justify a distinction between the allocation and administration of punishment. Significant writings from Australia, the UK and continental Europe will be evaluated. Hence, it provides a more sophisticated understanding of the historical development of this distinction and groundwork for a jurisdictional approach. It maintains that an Australian understanding can only be based on an analysis of its nature and scope in other Anglo-Saxon jurisdictions.
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