Philosophies of Punishment

Topics: Crime, Criminal justice, Punishment Pages: 9 (3309 words) Published: May 18, 2013
The principle of proportionality – that penalties should be proportionate to the severity of the defendant’s criminal conduct seems to be a basic requirement of fairness. However, the last two decades have witnessed continuing debate over the rationales for punishing convicted offenders (Hirsch, 1992). Whilst retributivist views punishment as ethnical principles, which are morally justified because it is deserved and it is inherently right that the guilty suffer for their wrongdoings, others such as utilitarian’s, view punishment as beneficial consequences in that it reduces occurrences for further crimes. Punishment may reduce the rate of bad acts through fear, by discouraging those contemplating criminals acts, or through moral education; the salutary effect of punishment on the moral personality of the individual punished (Lessnoff,1 971:141). This essay will be focusing on the Criminal Justice System and whether their main focus is to punish an offender or reform them. This will be done through exploring various theories of punishment. Retributivist theory of punishment maintains that criminal guilt benefits or deserves punishment regardless of the concerns of social utility. Such theories put forth, that first, a person should be punished if and only if the offender has voluntarily done something morally wrong, secondly, the punishment should commensurate with the seriousness of the crime (Montague, 1812:13). If the harm is great, the punishment should be severe, if the harm is minor, the punishment should be lenient. This in turn implies that punishment should be administered ‘to the extent, and only the extent, that it is deserved’. Disproportionate penalties – severe sentences for minor crimes or lenient sentences for serious crimes are undeserved (Hirsch, 1976:66). Suffice to say, punishment should never be directed simply as a means for endorsing other good, either with regard to the criminal as an individual for society, rather, punishment should only be enforced because the individual has committed a crime and it is deserved. Punishment should therefore be administered in so far as to not scapegoat innocent individuals or for the purpose of fulfilling the means to an end (Kant, 1887:144). Unlike Utilitarian theory which argues that punishment should be augmented to promote social results such as deterrence, restraint or reform, retributivist argue that punishment ‘should fit the crime’. It should be appropriate in the sense that punishment should neither be more nor less than what is justly ‘deserved’ (Hadley, 2001:39). From a Kantian point of view, each man makes certain sacrifices such as sacrifice for sovereignty and autonomy and consent of punishment (Beck, 1972:435). Once an individual makes certain sacrifices which hinder or affects the solidarity of society – E.g. disobeying the law, it is only fair that punishment is owed to the offender since and the offender rationally willed and consented to this punishment (Murphy, 1979:83). As Durkheim argues, the reason why the punished must be punished is to make the disapproval communicated as clear as possible. This demonstration is partly edification of the criminal, but mainly for ourselves. Durkheim further argued that we should not punish in order to deter the would-be criminals; rather we should punish a wrong-doer because his or her crime weakens faith in the rightness and the authority of the law (Turner, 1993:77). From this perspective, punishment is conducted for its own sake and not for principles of vengeance. It is simply an eye for an eye. Refraining from giving the offender what is deserved, is to deal with the offender as a means to an end (using offenders to deter others). A simple retributivist explanation provides a philosophical account equivalent with this argument: someone who has violated the rights of others should be penalised, and punishment brings back the moral order than has been broken. This idea was also captured by Kant (1790) who...
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