The Purpose of Criminal Punishment This chapter addresses questions such as Does society have the right to punish Is infliction of punishment morally justifiable Although law justifies use of punishment moral justification for punishment is separate issue ID: 622840
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Chapter 6: The Purpose of Criminal PunishmentSlide2
The Purpose of Criminal Punishment
This chapter addresses questions such as:
Does society have the right to punish?Is infliction of punishment morally justifiable?Although law justifies use of punishment, moral justification for punishment is separate issue
Banks, Criminal Justice Ethics. © 2017, SAGE Publications.Slide3
What is Punishment?
D
iscussion will utilize very specific definition of punishmentFlew (as cited in Bean, 1981)
A
rgues punishment, in sense of sanction imposed for criminal offense, consists of five elements:
Must involve an unpleasantness to the victimMust be for an offense, actual or supposedMust be of an offender, actual or supposedMust be work of personal agenciesMust not be the natural consequence of an actionMust be imposed by authority or institution against whose rules offense has been committedOr act is not one of punishment but simply a hostile actSimilarly, direct action by person who has no special authority not properly called punishment, and is more likely to be revenge or act of hostility
Banks, Criminal Justice Ethics. © 2017, SAGE Publications.Slide4
Theoretical Approaches to Punishment
F
undamental question raised by issue of punishment is “why should an offender be punished?” Number of answers can be given, such as:They deserve to be punished
Punishment will stop them from committing further crimes
Punishment protects society from dangerous or dishonest people
Some may conflict with othersConcept theorized by many
Banks, Criminal Justice Ethics. © 2017, SAGE Publications.Slide5
Why Punish? The Philosophical Approach
P
hilosophical debate surrounding punishment includes two main theories:Utilitarian theories Set the goal of punishment as prevention of future crime (deterrence).
Retributive theory
Seeks retribution from offender and focused on past actions of offenderBanks, Criminal Justice Ethics. © 2017, SAGE Publications.Slide6
Deterrence
People deterred from actions when they refrain from carrying them out because they experience an aversion to possible consequences of those actions
Although penologists believe that penalties deter crime, hard to determine whether kind of penalty or its severity has any effect on effectiveness (Walker, 1991)Some argue deterrence is morally unacceptable because if deterrent penalties are unsuccessful, punishment in name of deterrence is morally wrong
Supported by Cesare Beccaria and Jeremy Bentham
Utilitarianists
Banks, Criminal Justice Ethics. © 2017, SAGE Publications.Slide7
Deterrence: Two Types
Individual deterrence
Deterring someone who has already offended from re-offendingBoot campsG
eneral deterrence
Dissuading potential offenders from offending at all
Banks, Criminal Justice Ethics. © 2017, SAGE Publications.Slide8
Does Deterrence Work?
Empirical evidence suggests general deterrence does not work
In review of research on deterrence, Nagin (1998) identifies three types of studies:Time-series studies explore effectiveness of specific policy initiatives, such as crackdowns on specific drug marketsEcological studies look for negative association between crime rates and punishment levels and some studies have been able to isolate deterrent effect
Perceptual studies gather data from surveys
F
ind self reported criminality lower among those who view sanctionsRisks and costs higher
Banks, Criminal Justice Ethics. © 2017, SAGE Publications.Slide9
How much will deter?
Utilitarian theorists view punishment as bad in itself
Punishment is justified only if suffering it inflicts is less than harm caused by the criminal act that would have taken place had there been no punishment Follows that least punitive punishment should be utilized
Life imprisonment should be used instead of capital punishment if it can be determined that effect of both punishments are equal
Banks, Criminal Justice Ethics. © 2017, SAGE Publications.Slide10
Retribution
Retribution is theory that punishment is justified because it is deserved
Best known retributive theory is lex talionis of Biblical times
Calls for “an eye for an eye, a tooth for a tooth, and a life for a life” (Hudson, 1996, p. 38)
Retributivists do not question legitimacy of rules, but operate from consensus model of society where community acts “rightly” and criminal acts “wrongly” (Bean, 1981, p. 17)
Banks, Criminal Justice Ethics. © 2017, SAGE Publications.Slide11
Retribution
Historically
lex talionis did not operate as demand for retribution
Set limit on nature of retribution
Basic principle is punishment should inflict same on offender as offender has inflicted on victim
Should the state arrange for rapists to be raped as due punishment?Lex talionis also does not take into account any mitigating or aggravating factors or mental state of offenderIs strictly appliedRetributionists believe wrongdoers deserve to be punished and that punishment should be proportional to offense
Banks, Criminal Justice Ethics. © 2017, SAGE Publications.Slide12
Justifications for Retribution
Number of explanations used to justify retribution
Censure Important aspect of retributive thinking
von Hirsch (1994)
Defines censure as simply holding someone accountable for his or her actions
An expression of sympathy or remorse expected by offenderSome argue punishment is morally justified because it gives satisfactionDenunciation theory
Banks, Criminal Justice Ethics. © 2017, SAGE Publications.Slide13
Justifications for Retribution
Feinberg (1994)
Punishment expresses more than disapprovalMorris (1994)Punishment serves to teach offenders moral lesson
Some analogize punishment with penance
Dehumanization theory
Describes extreme form of denunciation as ‘animalistic dehumanization’Depicts offenders as less than human
Banks, Criminal Justice Ethics. © 2017, SAGE Publications.Slide14
Justifications for Retribution
Punishment as communicative practice
Asserts punishment communicates to criminal a response appropriate to crime committedPunishment can be formal conviction, or type of harsh punishment
Problem is unrepentant offender
O
ffender should be viewed as someone who has taken unfair advantage of others in society by committing crime and that imposition of punishment restores fairness (Ten, 1987)Banks, Criminal Justice Ethics. © 2017, SAGE Publications.Slide15
Just Deserts
Founded in retribution theory and became influential in 1980s (Hudson, 1996).
Important aspect was that although offenders should continue to receive treatment, defendants need not necessarily be incarcerated to do so (Morris, 1974)Intent of view of is to punish offender according to his or her treatment needs instead of seriousness of offense (Duff & Garland, 1994)
Proponents emphasize notion of proportionality
Often called tariff sentencing
Banks, Criminal Justice Ethics. © 2017, SAGE Publications.Slide16
Just Deserts
Desert advocates focus on just two dimensions
Harm involved in the offenseDefendant’s culpability
F
ocus on blame of offender is thought to encourage offender to recognize action as wrong, to feel remorse, and to refrain from such behavior in future
Offenses are ranked in terms of seriousness by judges, sentencing commissions, legislating sentencing schedules, and sometimes politicians or others (Zimring, 1976; 1994)
Banks, Criminal Justice Ethics. © 2017, SAGE Publications.Slide17
Just Deserts
F
undamental weakness is that no principle determines properly commensurate sentence (Hudson, 1996)Instead, deserts determined by scale of punishment that fixes most severe penaltyOther criticisms:
It does not account for unjustness of world
I
gnores social factors such as poverty, disadvantage, discriminationFails to take into account multiple discretions in sentencing powerBanks, Criminal Justice Ethics. © 2017, SAGE Publications.Slide18
Reconciling Utilitarian and Retributive Theories
For utilitarians, goal of punishment is to control future behavior and retributivists view punishment goals in terms of desert (Bean, 1981).
A strength of utilitarian argument is changes can be made according to societal changes, whereas retributivist theories allow no such fluctuation
Major objections exist to both theories on moral and empirical grounds
Many opt for hybrid solutions
Steffen (2012)Argues for “just punishment”Punishment should restore harmony and meet demand for justice against those who have “misused freedom”
Banks, Criminal Justice Ethics. © 2017, SAGE Publications.Slide19
Rehabilitation
M
ore complex than previous two theoriesBrooks (2012)Punishment should aim at reformation and assistance for offender to transition to law abiding citizenInvolves examination of offense and criminal as well as concern for offender’s social background and punishment
Supporters argue punishment should be tailored to fit offender and his or her needs, and not to fit offense
Bean (1981)
Suggests strength is emphasis on personal lives of offenders, treatment of people as individuals, and capacity to produce new thinking in otherwise rigid penal system
Banks, Criminal Justice Ethics. © 2017, SAGE Publications.Slide20
Rehabilitation
Indeterminate sentences gave effect to perspective
Release decisions given to institutions and operators in systemHad wide political support until abandoned in 1970s
Article by Martinson (1974)
“Nothing works”
No examined treatment programs successful at preventing recidivismMartinson later acknowledged some do work, for some offendersEffectiveness of theory assessed almost entirely by reference to official recorded offenses
Banks, Criminal Justice Ethics. © 2017, SAGE Publications.Slide21
Rehabilitation
Day (2011)
Argues many programs fail for reasons of competency and lack of staff commitmentArgued it is only punishment that combines crime reduction with respect for offender’s rightsState-obligated rehabilitation
Contends if state assumes right to punish, it should ensure no more harm is inflicted than intended when sentence was pronounced
Carlen (1994) and Matthews (1989)
States entitled to punish offenders because they act out of choice
Banks, Criminal Justice Ethics. © 2017, SAGE Publications.Slide22
Incapacitation
Approach involves placing offenders in custody, usually for long periods of time, to protect public from future offending
Selective incapacitationApply incarceration at specific offender who commit majority of crimesTwo basic objections to this type of punishment:
Predicting future criminality is difficult and will inevitably mean some offenders will be incapacitated even though they would not re-offend if left free
There is a moral objection that it is wrong in principal to punish offenders for what they
might do in future
Banks, Criminal Justice Ethics. © 2017, SAGE Publications.Slide23
Restorative Justice
Braithwaite (1998)
Theory seeks to restore victims, offenders, and communityOrigins lie partially in orders of restitution and community service
Van Ness and Strong (1997)
Three
core principles of restorative justice:Requires healing of victims, offenders, and communities injured by crimeVictims, offenders, and communities should be permitted to actively involve themselves in justice process in timely and substantial mannerRoles and responsibilities of government should be rethought and government should be responsible for preserving just order and community should be responsible for establishing peaceCritics point to assumption of the possibility of obtaining agreement between offender, victim, and communitySome argue it can cause possible trauma to victims
Banks, Criminal Justice Ethics. © 2017, SAGE Publications.Slide24
Why Punish? The Sociological Approach
Research suggests punishments depend less on philosophical attitudes and more on currents and movements of social thinking
Garland (1990)Argues role given to punishment in society will determine who, how, and when people are punished
Durkheim views crimes as actions that violate “conscience collective”
Also argues that purpose of punishment is to promote social solidarity through affirmation of values
Banks, Criminal Justice Ethics. © 2017, SAGE Publications.Slide25
Why Punish? The Sociological Approach
Weber’s ideas on punishment are implied rather than explicit
Identifies three types of authorityT
raditional, charismatic, and legal
Promoted idea that legal authority is most appropriate form of rule for modern societies
Marxist perspectivesInstitutions like law thought to be shaped to parallel relations of production and maintenance of capitalist systemAlso suggest conditions within prison must be worse than anything offender will experience out of prison
Banks, Criminal Justice Ethics. © 2017, SAGE Publications.Slide26
Why Punish? The Sociological Approach
Michel
Foucault (1977)Follows approach that studies issue from ground up through detailed examinationS
uggests disciplinary regulation is fundamental principle of social control in modern society and is most fully realized in form of prison
A
lso emphasizes role of punishment in creating “right-thinking” citizen, or trained and disciplined individual (Hudson, 1996)Banks, Criminal Justice Ethics. © 2017, SAGE Publications.Slide27
Chapter Summary
Purposes of punishment attempt to justify society’s imposition of punishment on offenders
No clear conclusion on effectiveness of deterrence existsRetribution theorists argue that punishment should be proportionate to offense
Just deserts theory lacks guiding principle that determines what amounts to properly commensurate sentence and ignores social factors such as poverty
Rehabilitation shows concern for offender’s personal circumstances and regards crime as social disease that should be cured through treatment
Incapacitation contends to keeping offenders incarcerated for long time protects public from future criminal behaviorRestorative justice is relatively new and some suggest it lacks theoretical supportEmphasis on community involvement has attracted many supporters
Banks, Criminal Justice Ethics. © 2017, SAGE Publications.