“It is generally taken for granted that those who break the law ought to be punished.” (McDonnell, C. 2008 – page 1). The form of punishment, however, is a topic for debate. This essay with critically evaluate the main philosophical justifications for punishment.
The philosophy of rehabilitation can be thought of as curing an offender of their offending behavior. Think of offenders as being physically or mentally unwell; the criminal justice system tries to end their criminal behavior by “curing” offenders of their illness (that of committing criminal offenses). (Meyer & Grant, 2003).
Two key theories of punishment are that of utilitarians and of retributivists. Utilitarian and retributive theories differ greatly; the retributive theory tends to focus on the crime itself, whereas the utilitarian theory focuses on the benefits to society. The retributive theory can be seen as looking backward, whereas the utilitarian theory can be seen as looking forwards.
“Retribution is concerned with the notion of deserved and undeserved punishments and rewards. When an individual does something good, it is ‘just’ that we reward him (i.e., rewards are due); and when he does something bad, it is ‘just’ that we punish him.” (Wittmann, D. 1974 – page 1). “Phrases such as ‘he got what was coming to him’ and ‘he deserves to be punished’ and ‘he is paying his debt to society’ are examples of belief in retribution.” (Wittmann, D. 1974 – page 1). The Retributive theory is one of the oldest forms of punishment. In its most primal form, retribution is vengeance ('an eye for an eye'). (Mitchell, 2012).
At first glance, the retributive theory can appear vengeful; “The instinctive reaction to criminal acts is retaliation by the injured person. It is vengeance, a way of releasing and expressing hostility towards the criminal and his conduct.” (Meyer, 1968 page 595). Consider the biblical phrase “an eye for an eye, a tooth for a tooth” (Exodus, 21:24); with other biblical phrases such as ****. Suggesting that an eye for an eye is not always the correct reaction to criminal behavior.
Arguments against the retributive theory are that it doesn’t focus on how the offender will be deterred from committing a similar crime in the future. It could be described as selfish; focusing on one victim’s desire for vengeance rather than society’s desire to be protected from future crimes.
Many supporters of the retribution theory argue that it is morally wrong to allow a guilty party to escape punishment. (Meyer & Grant, 2003).
The retributive theory is a popular theory of punishment and has been around for a very long time; however, there are criticisms of the theory. One example is that they do not appear to consider future crimes or rehabilitation of the offender.
On the other hand, the utilitarian theory of punishment seeks to punish offenders to deter any future wrongdoing. Utilitarians see punishment as a way of improving an offender’s character, thus reducing recidivism rates. In addition, utilitarians believe that punishment helps to protect society.
Deterrence is a utilitarian philosophy of punishment that has been in existence for hundreds of years. Deterrence is usually defined as the preventive effect that actual or threatened punishment of offenders has upon potential offenders. (Ball, J. C 1955-1956). Despite the deterrence theory being evident in society for a long period of time, its form has changed considerably; an example of this is in the thirteenth and fourteenth centuries when treason was punished with forms of post-mortem mutilation such as the spiking of severed heads and the exposure of dismembered body parts, (Royer, 2003). In present-day England, deterrence from criminal behavior has many forms including imprisonment and financial repercussions.
If, according to the Sentencing Council’s Sentencing Guidelines, custody is the most punitive sentencing option in England then, according to the utilitarian theory, custody must be perceived as a deterrent. An argument against the deterrence theory is that people are often not deterred by the thought of prison; in fact, research suggests that some offenders would prefer to receive a custodial sentence than a Probation Order, (Petersilia and Deschenes, 1994; Wood and Grasmick, 1999). Another criticism of the deterrence theory is that when an offender undergoes imprisonment, they no longer have a fear of the unknown; they have experienced what is considered the worst punishment one could receive in England and are no longer afraid to receive the same punishment again.
Under the utilitarian theory, punishments can be perceived as a general deterrence; which is where members of the public can see that crimes are being punished and are therefore less likely to commit crimes themselves.
Specific deterrent occurs when the offender themselves are deterred from committing a crime.
One of the key principles of the utilitarian theory is that one should always act to produce the greatest good for the greatest amount of people. They do not deny that each individual’s interests and thoughts count, but they are no more important than the interests and thoughts of anyone else. For example, if you had the opportunity to do something for the greater good, despite causing yourself a minor inconvenience then you should do it.
Jeremy Bentham (1748-1832) is widely regarded as the founder of modern utilitarianism. (Burns & Hart, 1996).
The utilitarian theory aims to protect the public. This is done by isolating offenders from society by committing them to custody. By incarcerating offenders, they should be deterred from committing crime again and the public, who witness the consequences of committing crime should be deterred from committing crime.
“The concept of deterrence is quite simple; it is the omission of a criminal act because of the fear of sanctions or punishment.” (Paternoster, 2010: pg 766).
A criticism of the deterrence theory is that countries that have capital punishment as a sentencing option for some crimes, such as the United States of America and China, do not have lower crime rates. The threat of capital punishment is not enough to deter individuals from committing crimes.
In 2010, 3.1% of convicted offenders in Finland were sentenced to imprisonment; in contrast, in the United States of America, in 2009, 73% of people convicted of crimes were sentenced to prison. (Tonry, 2017; Reaves, 2013). These statistics show huge differences, perhaps suggesting that crime levels are a lot higher in the United States of America, however, they are not; both Finland and the United States have crime patterns and rates that fall in the middle among developed countries. (Dijk, 2007).