Download presentation
Presentation is loading. Please wait.
1
Chapter 6: The Purpose of Criminal Punishment
2
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.
3
What is Punishment? Discussion will utilize very specific definition of punishment Flew (as cited in Bean, 1981) Argues punishment, in sense of sanction imposed for criminal offense, consists of five elements: Must involve an unpleasantness to the victim Must be for an offense, actual or supposed Must be of an offender, actual or supposed Must be work of personal agencies Must not be the natural consequence of an action Must be imposed by authority or institution against whose rules offense has been committed Or act is not one of punishment but simply a hostile act Similarly, 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.
4
Theoretical Approaches to Punishment
Fundamental 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 others Concept theorized by many Banks, Criminal Justice Ethics. © 2017, SAGE Publications.
5
Why Punish? The Philosophical Approach
Philosophical 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 offender Banks, Criminal Justice Ethics. © 2017, SAGE Publications.
6
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.
7
Deterrence: Two Types Individual deterrence
Deterring someone who has already offended from re-offending Boot camps General deterrence Dissuading potential offenders from offending at all Banks, Criminal Justice Ethics. © 2017, SAGE Publications.
8
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 markets Ecological 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 Find self reported criminality lower among those who view sanctions Risks and costs higher Banks, Criminal Justice Ethics. © 2017, SAGE Publications.
9
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.
10
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.
11
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 offender Is strictly applied Retributionists believe wrongdoers deserve to be punished and that punishment should be proportional to offense Banks, Criminal Justice Ethics. © 2017, SAGE Publications.
12
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 offender Some argue punishment is morally justified because it gives satisfaction Denunciation theory Banks, Criminal Justice Ethics. © 2017, SAGE Publications.
13
Justifications for Retribution
Feinberg (1994) Punishment expresses more than disapproval Morris (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.
14
Justifications for Retribution
Punishment as communicative practice Asserts punishment communicates to criminal a response appropriate to crime committed Punishment can be formal conviction, or type of harsh punishment Problem is unrepentant offender Offender 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.
15
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.
16
Just Deserts Desert advocates focus on just two dimensions
Harm involved in the offense Defendant’s culpability Focus 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.
17
Just Deserts Fundamental weakness is that no principle determines properly commensurate sentence (Hudson, 1996) Instead, deserts determined by scale of punishment that fixes most severe penalty Other criticisms: It does not account for unjustness of world Ignores social factors such as poverty, disadvantage, discrimination Fails to take into account multiple discretions in sentencing power Banks, Criminal Justice Ethics. © 2017, SAGE Publications.
18
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.
19
Rehabilitation More complex than previous two theories Brooks (2012)
Punishment should aim at reformation and assistance for offender to transition to law abiding citizen Involves 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.
20
Rehabilitation Indeterminate sentences gave effect to perspective
Release decisions given to institutions and operators in system Had wide political support until abandoned in 1970s Article by Martinson (1974) “Nothing works” No examined treatment programs successful at preventing recidivism Martinson later acknowledged some do work, for some offenders Effectiveness of theory assessed almost entirely by reference to official recorded offenses Banks, Criminal Justice Ethics. © 2017, SAGE Publications.
21
Rehabilitation Day (2011) Argues many programs fail for reasons of competency and lack of staff commitment Argued it is only punishment that combines crime reduction with respect for offender’s rights State-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.
22
Incapacitation Approach involves placing offenders in custody, usually for long periods of time, to protect public from future offending Selective incapacitation Apply incarceration at specific offender who commit majority of crimes Two 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.
23
Restorative Justice Braithwaite (1998)
Theory seeks to restore victims, offenders, and community Origins 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 crime Victims, offenders, and communities should be permitted to actively involve themselves in justice process in timely and substantial manner Roles and responsibilities of government should be rethought and government should be responsible for preserving just order and community should be responsible for establishing peace Critics point to assumption of the possibility of obtaining agreement between offender, victim, and community Some argue it can cause possible trauma to victims Banks, Criminal Justice Ethics. © 2017, SAGE Publications.
24
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.
25
Why Punish? The Sociological Approach
Weber’s ideas on punishment are implied rather than explicit Identifies three types of authority Traditional, charismatic, and legal Promoted idea that legal authority is most appropriate form of rule for modern societies Marxist perspectives Institutions like law thought to be shaped to parallel relations of production and maintenance of capitalist system Also suggest conditions within prison must be worse than anything offender will experience out of prison Banks, Criminal Justice Ethics. © 2017, SAGE Publications.
26
Why Punish? The Sociological Approach
Michel Foucault (1977) Follows approach that studies issue from ground up through detailed examination Suggests disciplinary regulation is fundamental principle of social control in modern society and is most fully realized in form of prison Also emphasizes role of punishment in creating “right-thinking” citizen, or trained and disciplined individual (Hudson, 1996) Banks, Criminal Justice Ethics. © 2017, SAGE Publications.
27
Chapter Summary Purposes of punishment attempt to justify society’s imposition of punishment on offenders No clear conclusion on effectiveness of deterrence exists Retribution 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 behavior Restorative justice is relatively new and some suggest it lacks theoretical support Emphasis on community involvement has attracted many supporters Banks, Criminal Justice Ethics. © 2017, SAGE Publications.
Similar presentations
© 2025 SlidePlayer.com Inc.
All rights reserved.