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.