Theories of Punishment
By: Bianca S. Joniova
Tags: Criminal Justice Reform, Crime, Punishment, Criminal Justice, Prison Reform

Theories of Punishment

Photo Credit: The Costa Rican Times

‘’Punishment is the infliction of some kind of pain or loss upon a person for a misdeed (i.e., the transgression of a law or command). Punishment may take forms ranging from capital punishment, flogging, forced labour, and mutilation of the body to imprisonment and fines.’’ (Zedner, 2004)

For centuries punishment has been debated by philosophers, lawyers, and political leaders. They have developed various theories and philosophies of punishment, each of them trying to state the proper objectives and justify the practice of punishment in some form (Hudson, 2003).

The modern theories of punishment started in the eighteenth century as a result of the Humanitarian movement in Europe where the dignity of the individual was emphasized along with his rationality and responsibility. Punishment was reduced in severity and quantity and the prison system was improved. Moreover, an attempt was made to study and understand the psychology of crime, therefore distinguish and divide the classes of criminals (Garland, 2011). During the nineteenth and twentieth centuries, the offender was considered to be a result of social conditions and punishment was inflicted and justified as an aim at the moral regeneration of the criminal and the protection of society by removing the criminal permanently or temporarily. However, by the end of the twentieth century, the western countries rejected this form of punishment by claiming that the punishment places too little responsibility on the criminals for their offences and it undervalued the deterrent effect deriving from severe in comparison to moderate punishment and was ignoring or cancelling the society’s ostensible right to retribution (Zimring, 2003).

There are two main justifications of punishment: Retribution and Reductivism.

Retribution

The retributive theory of punishment was based on the expression lex talionis — ‘an eye for an eye, a tooth for a tooth, a life for a life’ (Exodus 21:23–25). The justification behind punishment is that the offender simply deserved to be punished. Kant and Hagel claimed that individuals are rational beings and that they freely choose a life of crime. Therefore, punishment is the rational individual’s right and it honours the individual’s rational status (Easton & Piper, 2005).

Radical critics argued that this approach fails to take into consideration the social condition that results in criminality and that this theory is over-rationalising and individualising criminal behaviour. Retributive theory justifies punishment through the moral duty of the offender to make amends for the caused harm in the society. Retributive theorists, like Cesare Beccaria, suggest that the severity of punishment should be proportional with the severity of the offence itself. This was followed by criticism stating that while this view might be helpful in regard to some offences (murder), it doesn’t provide any guidance for the appropriate punishment for other types of offences, such as white collar, fraud and blackmail (Lacey, 1988).

Following Kant, retributivists claim that punishment should be the end itself and not the means to an end. Many retributivist theorists hold that punishment should only be inflicted on an individual if he/she is found guilty of an offence. The retributive theory suggests that punishment should never be used as a means to achieve a social objective, such as to set an example for other offenders or to make the offender a law-abiding citizen by imposing the punishment.

On the contrary, Lacey (1988) claims that the theory pays scant on the notion that punishment can be imposed only on an individual accountable for an offence, regardless of the presence or lack of mens rea behind the offence.

Retributivists claim that the punishment of the offenders serves as a kind of expiation where offenders undergo punishment for their own interests in order to discharge their guilt and become acceptable in the society again. In addition, the punishment also serves as a means to satisfy the society’s natural desire for justice and it helps and prevents the victims from seeking revenge through direct violence (von Hirsch et al, 1999).

Photo Credit: BZI Romania

On the other hand, critics argues that retributivism can be easily subverted by punitive and repressive political intentions.

The new retributivism emerged in the 1970’s under the name ‘just desserts’ and it was a result of the failure of rehabilitative approaches of punishment (von Hirsch, 1976). Known as the ‘back to justice movement’, this approach was based on the principle that punishment should always be linked to the nature of the offence and it should be proportionate. Therefore, two elements of proportionality emerged: ordinal proportionality and cardinal proportionality. The first is concerned by the need to rank the type of offences hierarchically and in accordance with their gravity. The later, refers to the overall scale of punishment.

According to von Hirsch (1993), proportionality was divided in three steps. Firstly, it is necessary for the state to express closure. Second, the state will only express censure in relation to an offence already committed and it is not concerned with any future offending. Ultimately, the state will order sanctions, in a schedule (tariff) according with the gravity of the offence. Desert theorists claim that, when punishment is proportionate, it will also be certain and fair.

Contrary to the just desert theory beliefs, multiple issues relating proportionality occurred. In regard to ordinal proportionality it was clear that although it is easy to rank particular offences in relation to each other, it is not as straight forward when it comes to other offences, particularly minor offences. Regarding cardinal proportionality, the issues concern the basis on which these decisions are made.

Hudson (2003) claimed that ‘the problem is that desert theory can do nothing to tell us what those anchoring points should be’. As a result, the cardinal proportionality tends to be considerably influenced by political considerations.

Moreover, the question of the proportionality as the main aim for sentencing emerged. Is it appropriate? Critics argued that there are isolated cases where matters of public protection should outweigh individual rights. Furthermore, criticism regarding the clear and just ranking of offences and factors that might serve as mitigating and aggravating factors.

The retributive philosophy is considered to be backward-looking rather being concerned with the future good. This approach implies the imposition of punishment as a consequence of already undertaken actions (Newburn, 2007). In contrast, utilitarian and consequentialist approaches have a tendency to justify punishment on a longer-term basis. This approach has its focus on preventing future offending and it is considered to be a forward-looking approach. These theories are based on the utilitarianism and on the principle that the good resulted from punishment must be greater than the pain caused by the offence.

The utilitarian and consequentialist approaches are based on Jeremy Bentham’s principle of ‘greatest happiness of the greatest number. The aim of punishment within these approaches it to prevent and reduce criminal activities. Three main theories emerged as a means to reduce and prevent crime: deterrence, rehabilitation and incapacitation.

Following Betham’s (1789/1973) principles, deterrence was divided into two categories: general deterrence and individual deterrence (specific or general deterrence). Individual deterrence is aiming to deterring the offenders from re-offending whereas general deterrence has its aim of imposing punishment and by doing so, the deterrence of other individuals to commit offences. As Jeremy Betham claimed, ‘The punishment suffered by the offender presents to everyone and example of what he himself will have to suffer, if he is guilty of the same offence’ (quoted in Hudson, 2003).

General deterrence has been the predominant justification of punishment and it benefits from having intuitive appeal. By punishing individuals for their crimes, the state is showing that, that kind of behaviour is unacceptable. Based on his belief that individuals are rational beings and their actions were based on rational choice and are not influenced by social or personal conditions, Bentham argued that the extent of punishment should be reduced or limited and aiming to prevent crime and that the punishment system should be constructed do fit the gravity of crime and not the criminal’s nature.

On the other hand, critics asked if and how can these offences be properly assessed and what should be done in cases involving significant degree of emotion. This approach had faced considerable criticism and potential difficulties. Questions on how can one establish the severity of punishments in order to deter other individuals from committing offences occurred. Moreover, is the level of severity appropriate for all types of individuals, or is everyone deterred by the same things? And ultimately, how will the state know that all individuals will be aware of the punishments imposed and be deterred by them? (Beyleveld, 1979; quoted in Hudson, 2003)

Following a review made by the Home Office (1970) on studies of deterrence, scholars claimed that no scientific basis for expecting a deterrence policy that won’t interfere with human rights exist. Therefore, the information required to create a morally acceptable policy is non-existent. On the other hand, there is some convincing evidence that suggests that specific legal sanctions in some areas have actually exerted deterrent effects, but these are not applicable to other areas. Ultimately, based on the present knowledge, adopting a deterrent policy would be ‘a shot in the dark’ or just a political attempt to ‘pacify public sentiment’ (Beyleveld, 1979; quoted in Hudson, 2003).

Photo Credit: Slate

Further on, individual deterrence is another modern justification of punishment. Following the implementation and failure of electro-shocks in 1983 in boot camps for young offenders and the raft of ‘three strikes and you’re out’ sentences, numerous questions and criticism have occurred (Wilson et al, 2005). Question of acceptability and efficacy were asked and Hudson (2003) noted three moral objections; The allowance of the innocent to be punished, the allowance of punishments to be imposed in excess of the harm done (i.e: in California, a twice-convicted individual received the third strike and sentenced to 25 years for stealing a slice of pizza). In addition, the allowance of punishment for crimes not yet committed.

Furthermore, along with the moral issues, the evidence for the effectiveness of deterrence is very weak or non-existent. Robert Martinson (1970) claimed that the knowledge regarding the deterrent effects close to nothing and there is no possibility to actually know if it is effective or not.

Rehabilitation

Following the deterrence philosophy in the eighteenth century, during the nineteenth and twentieth century, a new philosophy of punishment emerged, respectively rehabilitation. As a result of industrialisation, urbanisation and the developing of positivistic-influenced sciences, scholars started questioning the view where crime is a rational choice and started focusing on pathology and seeking to distinguish criminals from non-criminals by physical features. Zedner (2004) noted that punishment was used as a means to rehabilitate and restore the offender through various programmes, psychotherapy, counselling, drugs and shock treatment. However, treatments were not designed to meet a certain type of individual and were not taking in consideration individual differences.

The rationale behind this approach is to prevent further crime committed by the individual through rehabilitation. This approach faced considerable criticism and numerous shortcomings were identified. Previous to the 1970’s, the belief that all offenders can be cured and rehabilitated became uncertain and considerable doubt was thrown towards these claims. Labelling theorists noted that the criminal justice process is criminogenic and the contact with such entities will not reduce or rehabilitate the offender but be counter-productive. Furthermore, considerable criticism was aimed at the undetermined sentencing and the ‘welfare-oriented interventions’ due to their inequitable and punitive nature (Morris and Giller, 1987). The rehabilitative approach was also criticised for having an overly-determined view of behaviour and for paying too little attention on the abilities of the individuals to make decisions and choice and too much attention on cultural and social conditions. Although the rehabilitative approach faced criticism in the past thirty years, Ward and Maruna (2007) noted that the wrong question was asked during this entire time. They suggest that instead of asking ‘what works’, scholars should ask the more realistic question of ‘what helps people go straight?’

The faith in rehabilitative punishment declined substantially and the approach was attacked by both political ends. The liberal left presented an increasing concern regarding the excesses and inequities of indeterminate sentencing. The indeterminate sentencing meant that the length of the sentence was left at the discretion of the one passing the sentence. This was a necessity for the rehabilitation of the offender in order to be moulded after the type of treatment that the individual required. This was seen by many individuals as an inappropriate basis for sentencing. In addition, the lack of clarity in relation to the length of the sentence resulted in inequities and, in some cases, prisoner unrest. Ultimately, the criticism regarding rehabilitative approaches increased due to its ineffectiveness and the new right party started asking for tougher incapacitative sentences.

The incapacitation theory emerged as a result to the failure of the general deterrence and rehabilitative approaches. This approach holds no assumptions regarding the probability or possibility to rehabilitate offenders, it does not seek reform nor is concerned with the harm caused by a crime other than the displeasure cause by the imposition of punishment. If deterrence and rehabilitation were considered ineffective or difficult to obtain, the protection of potential victims from crime by known offenders through physical incapacitation is perhaps a more plausible outcome. This approach has at heart the assumption that the state is obliged to ensure protection, and in the absence of more effective approaches, this protection can be assured through different forms of incapacitation. In 1988, the Home Secretary, Michael Howard claimed that prison works. In contrast to the other approaches of punishment, he did not suggest that prison works due to its ability to rehabilitate or deter offenders from reoffending but stated that :

‘Prison works and it ensures that we are protected from murderers, muggers and rapists — and it makes many who are tempted to commit a crime think twice.’(Home Office, 1988)

Critics have suggested that some of the various forms that the incapacitation can take can be dangerous and violate basic human rights. There are still many countries that use the death penalty as the ultimate form of incapacitation, although Britain has abolished the death penalty in the 1960’s. Another form of incapacitation that faced considerable debate is the ‘surgical castration’ or chemical castration. There are countries that are still adopting these forms of incapacitations against sex offenders. These forms of incapacitation are considered by many individuals as a violation of the human rights (Garland, 2001).

Photo Credit: EuroActiv

Moreover, the belief that the crime rate will decrease if individuals who habitually offend would be kept in prisons was shown to be lacking accuracy. A study by Hagell and Newburn (1994a) has shown that that the problem lies in practice, not in logic. They claimed that the process of finding the habitually offender is problematic. The study demonstrated that it is impossible to identify a group of persistent offenders and that any given definition of persistence would be arbitrary (Hagell and Newburn, 1994b). This finding also discovered that a constant issue with incapacitation is the ‘false positive’ difficulty. Norval and Morris (1974) stated that even if a dangerous group of convicted offenders is selected and those considered as high risk are detained, for every three incapacitated, there will be only one that will in fact commit a serious crime if the three would be released. They suggested that as a matter of justice, individuals should never have power over an offender that is based on unreliable predictions of his future offending or dangerousness.

This false positive issue raises practical and moral issues. It cannot be proven to work, unless a substantial collateral damage is used but it also faces issues in justifying the imposition of harsh punishment on individuals who are highly likely to stop offending or not offend in the future.

Ultimately, the incapacitative sentencing became very popular among contemporary political parties and has had a crucial role in the increasing populations in Britain’s prisons and more (Newburn, 2007; Zimring et al., 2003)

Photo Credit: The Economist

In conclusion, the aims of punishment can be several, but they can also conflict. Many of the philosophies of punishment faced considerable criticism and had their limitations and opposition from the public. Moreover, in many cases, scholars were not able to test if the justification is actually efficient in some areas, although overall, it seemed to have failed.

Ultimately, the justifications of punishment can be easily manipulated by political interests and by personal agendas.