Legal punishment is such a universal convention that few would envision its use as being morally problematic. Nevertheless, ethicists and/or moral philosophers would argue that punishment does require justification, even though it is legally authorized. The basis for this position is that punishment involves behavior that in any other context would be deemed cruel and barbaric. After all, it involves the intentional infliction of pain on another.
Four justifications of punishment have emerged as dominant: retribution, deterrence, rehabilitation, and incapacitation. These justifications are commonly understood as the goals of criminal justice and corrections, but they are much more than mere system objectives. They are also philosophies that prompt debate on what is moral and ethical by raising questions that have seemingly self-evident answers: What right does the state have to punish a perpetrator? and why punish? The first question reflects the belief that individuals are free autonomous agents governed by the principle of liberty. Any state infringement on that liberty demands a justification, even when a crime has occurred. The second question challenges the notion that suffering or deprivation is the natural and right response to wrongdoing. Conceivably, another response to crime, such as forgiveness or mercy, might be just as appropriate.
These four justifications have been classified as either utilitarian or nonutilitarian. Utilitarianism is a concept associated with the Enlightenment of the 18th century and was a guiding principle in the founding of the American legal system. Utilitarianism is premised on the belief that humans are hedonistic, rational, and purposeful and that if the laws and policies governing society are to be effective, they must heed this law of human nature. In effect, laws and policies must serve a rational purpose or end goal. Enlightenment utilitarianism defines that goal as the greatest good for the greatest number or maximizing the sum of human happiness. This standard or ethic for judging law and policy is known as “social utility.” Applied to punishment, this ethic means that penal laws and policies are justifiable only if they benefit or maximize the happiness of the majority of the population.
Deterrence, rehabilitation, and incapacitation are generally regarded as utilitarian, though some scholars reserve the term utilitarian for deterrence alone. This is because rehabilitation and incapacitation do not share the same Enlightenment underpinnings. These two philosophies are dubbed “reductivist” instead. More important than this semantic distinction, however, is what the three have in common; namely, all justify punishment as necessary for crime reduction. By contrast, the philosophy of retribution is neither utilitarian nor reductivist.
The utilitarian ethic is fully expressed in the philosophy of deterrence. This philosophy, like every other, subscribes to a certain belief about human nature. Deterrence rests on the theory that humans are hedonistic, engaging in a relentless pursuit of pleasure. Yet, this theory also holds that humans are ultimately rational, employing a cost-benefit calculus as the basis for all decisions. Thus, rational self-interest becomes the primary motivation behind all behavior, including crime.
According to this assumption, crime can be prevented or deterred by attaching a cost to criminal activity that is greater than the benefit derived from this activity. Punishment justified by the goal of preventing future criminal behavior by a convicted offender is called “specific deterrence.” Here, reoffending ideally is prevented through memory of the pain from the penalty imposed. The goal of dissuading others from ever committing crime through the example of another’s punishment or foreknowledge of a prescribed punishment is known as “general deterrence.” In this instance, crime is supposedly reduced or averted through threat or fear of a penalty being imposed.
Specific or general, deterrence assumes that punishment must be certain, swift, and severe in its administration in order to be effective. Yet, Enlightenment thinkers, such as Jeremy Bentham, cautioned that punishment should never be excessive in severity; sanctions should be just severe enough to deter. Bentham and his like-minded contemporaries maintained that punishment was intrinsically evil and that any excess of punishment surely lacked utility. Deterrence-based punishment adheres to the utilitarian ethic, then, only when the aggregate benefits accrued from its strategies outweigh the aggregate costs or suffering associated with its use. Overall, laws or policies aiming to increase the certainty, swiftness, and/or severity of punishment must achieve a surplus of positive outcomes for the majority of society.
Despite providing a rational defense of punishment, deterrence philosophy has acquired a number of critics. A primary objection to deterrence is its potential to escalate penal severity beyond what is necessary and proportionate. Critics contend that to be truly effective at preventing crime, sanctions would have to rise to immoral levels of severity.
Opponents also point out the problem known as the “reciprocity of perspectives.” Under a deterrence model, sanctions are to be calibrated according to the offense committed and applied equally regardless of one’s social standing or circumstances. However, this ethic overlooks the fact that what counts as pain or suffering is fairly subjective; what deters one person may not deter another. Individuals who have nothing to lose or have no stake in social conformity may not find incarceration or other penalties sufficiently painful to act as a deterrent.
Finally, deterrence has been attacked for allowing an individual to be used as a means to an end or as a sacrifice. This criticism applies to general deterrence, which justifies punishing the guilty as a warning to others. For example, imagine a situation in which the justice system is certain that a particular criminal will never reoffend; however, because the system fears others might similarly offend in the future, the criminal is punished nevertheless. The sacrifice in this scenario is that the criminal is being punished for what others might do in the future.
Rehabilitation avoids the problem of offenders being used to achieve ends that are of no benefit to them. Unlike deterrence, rehabilitation serves the interests of society and the offender. This mutual benefit outcome stems from the belief that offenders are in need of reform, and once reformed, they and society will be better off.
The starting point of rehabilitation is that crime is the product of certain sociological, biological, and/or psychological forces in one’s life history. These forces are considered deterministic in that they “determine” the course of individual behavior. Various theories of crime view these forces as defects or abnormalities located in one’s genetic makeup, brain functioning, social and familial environment, learning patterns, or cognitive processes.
The philosophy of rehabilitation justifies punishment as an opportunity to overcome these crime-inducing forces. It is argued that treatment interventions, not increases in penal certainty, swiftness, or severity, will reduce or eliminate crime. The offender is to be normalized through theoretically informed programming that cures deviant attitudes and dispositions. Punishment is morally justified because the offender and community will benefit from the investment in rehabilitative programming; all will enjoy the fruits of hard work, self-sufficiency, increased educational skills, and a changed lifestyle.
Because rehabilitation is grounded in individual explanations of crime, it advocates a case-by-case approach to punishment. The sentencing and sanctioning schemes under rehabilitation are structured to allow the characteristics of the offense and offender to be taken into account. Both sets of characteristics are examined when deciding what kind of punishment is most suitable. Depending on the risks and needs of the offender, the punishment may be served in the community or in prison.
Yet, no matter where the sentenced is served, the offender is expected to be an active participant in his or her punishment. If in prison, to be released on parole, an offender must demonstrate their reform via participation in programs that will change their ways and equip them for reintegration. If supervised in the community, the offender is expected to complete programs, such as substance abuse or anger management, and be engaged in prosocial activity, such as employment. To do otherwise is to risk being sent to prison for failure to comply or reform.
This forced or coerced aspect of rehabilitation has been the subject of considerable concern. Critics object to rehabilitation as it has been traditionally practiced because it denies authentic choice on the part of the offender. It is argued that the offender, whether in prison or the community, will only comply with rehabilitative expectations to avoid violations or be free of correctional supervision. Consequently, rehabilitation offers a tainted moral defense of punishment because it is just as likely to foster pretense as genuine change.
Rehabilitation has been additionally criticized for its paternalistic or patronizing view of offenders. Because offenders are viewed as defective due to forces beyond their control, they are essentially treated as helpless and incapable of moral choice. This suggests offenders are childlike in that they lack the ability for right living unless some entity or the state intervenes. The idea that science has produced sufficient understanding of criminality to guide such intervention is a further source of contention. Critics of rehabilitation maintain that the science of human behavior is too limited and/or faulty in its conclusions to guide any kind of legal requirements. Doing so would only invite interventions that are ineffective or perhaps harmful.
Rehabilitation has been denounced as a justification not only due to uncertain success with offender reform, but also for being inconsistent with the demands of justice. It is asserted that rehabilitation’s aim of curing criminality permits unwarranted discretion, particularly by sentencing judges and paroling authorities. Discretionary decision making in the name of treatment is regarded as problematic because discriminatory or unqualified disparate treatment of offenders by the system is far more likely.
The philosophy of incapacitation does not require that criminal behavior be fully understood in order to reduce crime. In fact, unlike deterrence or rehabilitation, incapacitation makes no claims about altering future behavior. This makes incapacitation unique as a reductivist philosophy in that it assumes that crime can be reduced by just denying the opportunity for its commission. The idea is to make an offender incapable of committing future crime by way of physical restraint; the ability to circulate in society is to be so restricted that criminal activity becomes impossible or highly improbable.
The notion of crime reduction through control and containment is profoundly commonsensical, especially when incapacitation is equated with prison. As the thinking goes, if someone is in prison they cannot commit crime. However, the philosophy of incapacitation is not exclusive to the institution of prison. Offenders can be nearly incapacitated through electronically monitored home confinement or global positioning satellite monitoring. The latter technology can document exactly where a person is at any moment and emit electrical signals to warn an offender when they are near a prohibited zone.
Though incapacitation could imply a virtual kind of incarceration, it is more often linked to literal incarceration, as in selective and general incapacitation. General incapacitation involves the incarceration of more offenders for longer periods of time, under the reasoning that as greater numbers of offenders are removed from society to serve lengthy prison sentences, crime will be reduced. Selective incapacitation aims to be more cost-efficient in this regard by targeting the smaller percentage of the offender population that is most recidivistic. These habitual criminals are targeted for even lengthier or lifetime sentences.
In order to distinguish between or predict who will be a habitual and nonhabitual offender, patterns of offending and risk factors must be identified. Incapacitation-based policies may not depend on knowing why people commit crime, but they do depend on knowing the dynamics of offending. These dynamics include the following elements: the frequency or average rate of offending for an individual or class of offender (e.g., sex offenders, drug offenders) and the age at which the average criminal career begins and ends (i.e., duration). When studies yield accurate estimates of how many crimes are committed over the span of an average criminal career, aggregate savings in crime prevented due to incapacitation can be computed. Using research on criminal careers and risk factors to guide decisions about whom to incarcerate and for how long is a strategy that aims for high returns in crime reduction, without the high cost.
This reductivist philosophy has an intuitive appeal, but many claim it offers a weak moral defense of punishment. The most obvious objection is that incapacitation is unconcerned with changing the offender during their incarceration or community confinement. Consequently, when the offender is released from custody or supervision, they are no different than they were, and the community suffers the effects of correctional indifference.
Justifying lengthy sentences as a preemptive strike against future crime also has the effect of punishing offenders for offenses they have yet to commit. Moreover, predictions or assessments of who will reoffend in the future have produced false positives and negatives with a regularity some would consider unacceptable. It is argued that punishing on preventive grounds can also lead to more severe sanctioning of less serious offenses. For example, research suggests the offending patterns of habitual offenders are not as likely to include rape, murder, or robbery; these more serious offenses occur with far less frequency over the life course. Finally, use of lengthy prison sentences in the name of public safety can also result in the incarceration of offenders beyond their crime-prone years. As offenders age in prison, health care costs and overcrowding create huge fiscal burdens and a diminishing-returns effect to long-term incarceration.
Retribution, a nonutilitarian philosophy, justifies punishment on grounds of deservedness as opposed to crime prevention. Conceptually, deservedness reflects the moral culpability of the offender and the severity of the offense committed. The significance of moral culpability stems from the belief that humans possess free will and that every person may seek happiness in the way they choose as long as it does not infringe on the rights, autonomy, or happiness of another. Retributive philosopher Immanuel Kant insisted that humans are sacred and have the unique value of dignity, which is based in their capacity for moral choice. In contrast to rehabilitation’s notion of determinism, retributivism maintains that humans are responsible moral agents and not helpless victims of social or other forces.
Culpability also rests on the assumption of the “antecedent position of choice.” This concept invokes the notion of a social contract, which holds that citizens have consented to being governed by the democratically established laws of the state. Therefore, if punishment is imposed on a citizen, it is justified because they have consented to the pre-existing arrangements that allowed the punishment to be administered. Consequently, retributive philosophy advances the interesting claim that morally autonomous agents will their own punishment. The offender has willed or invoked their right to be punished because as a member of society they are aware of and have, at least theoretically, consented to the laws.
As a rule, retributive philosophy always looks to the past and what was done to justify punishment. Retribution is not concerned with preventing crime and so rejects the tendency to punish with future offending in mind. Nevertheless, different strains of retribution posit somewhat different justifications for why punishment is deserved. One strain, known as the “balancing of benefits and burdens” perspective, holds that offenders should not profit from their wrongdoing; profit can mean either the real tangible gain of property or the intangible gain of not having to burden oneself with the restraint exercised by the law-abiding in the face of temptation.
Punishment nullifies the gain or profit from crime and restores the balance. Punishment creates evenness or equilibrium in the sense that it brings things back to zero. This idea is akin to the language of settling accounts as seen in the scales of the marketplace. The harm, pain, and suffering created by the offense are weighed on one scale, while the other scale holds the punishment needed to bring the scales into balance. This evenness symbolizes that the debt incurred by crime has now been paid or satisfied.
A second strain of retributivism emphasizes the communicative function of punishment. Here punishment is justified because wrongdoing must be denounced. Punishment, as opposed to other legal restrictions, communicates blame, condemnation, and disapproval. This official pronouncement is considered necessary for a couple of reasons. First, the punishment upholds the moral order and legitimacy of the law. Second, it honors victims by affirming that was what done to them was unacceptable.
For these reasons, retribution is often associated with extreme vindictive punishment. However, retributivist scholar Andrew von Hirsch argues that principled punishment exhibits the virtues of fairness and proportionality. Fairness requires that like offenders are treated alike, wherein likeness is determined by the offense committed. Desert requires that an offender deserves punishment because they are morally culpable for their wrongdoing. More specifically, “just deserts” requires that an offender be punished in strict proportion to the severity of the offense. Proportionality does not mean extreme equivalency, however, as in “an eye for an eye.”
Despite setting limits on penal severity, retribution is often criticized as a primitive and unsophisticated justification for punishment. This is because retribution justifies punishment that does not have to accomplish anything in the way of crime reduction. Consequently, it is accused of keeping company with such emotions as resentment, hate, anger, and vengeance, or what is known as “intrinsic retribution.” Intrinsic retribution refers to the deeply held sentiment that the guilty or wicked deserve to suffer, which may increase the desire for revenge. Some perceive this sentiment or thirst of the wronged for harming those who wronged them as uncivilized and, ultimately, futile. Rather than stopping offenses, it is said to fuel them through an ongoing cycle of retaliation.
Retribution’s regard for deservedness and other abstractions has prompted other challenges as well. Many question if moral desert can ever really be established when it depends on knowing the state of a person’s heart and motives. The notion of antecedent choice is also attacked for being more hypothetical than real. Similarly, the idea of moral autonomy is seen as somewhat dubious given the harsh realities of life. Critics doubt the assertion that individuals are truly autonomous beings, immune to the influences of biology, life history, or current surroundings.
- Hudson, Barbara. Understanding Justice. Buckingham, UK: Open University Press, 1996.
- Miller, William Ian. Eye for an Eye. New York: Cambridge University Press, 2006.
- Montague, Phillip. Punishment as Societal Defense. Lanham, MD: Rowman & Littlefield, 1995.
- Tonry, Michael, ed. Why Punish? How Much? New York: Oxford University Press, 2011.
- Zimring, Franklin and Gordon Hawkins. Incapacitation. New York: Oxford University Press, 1995.
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