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 claimed that an island society about to separate should still execute its last murderer. Society has the right to punish who deserves punishment as well as having a duty to do so because it is owed to the offenders, and offenders have the right to suffer for the moral evil done (Bedau, 1978:603). Therefore in theory, not only are practices of punishment reasonable because society should render harm to wrongdoers, but it is justified because it reflects the idea of an ‘an eye for an eye, a tooth for a tooth’ (Brody and Acker, 2009:7). On the whole, from a retributivist perspective, the focus of punishment is not on how to deter others by ‘setting an example’ but instead carrying out deserved punishments legally prescribed by the system (Thomas, 1999:440). However, there are limitations with this retributive way of thinking. Particularly, the difficulty in determining which offences is more serious or least severe and what is a ‘just’ punishment? The proposal that the punishment should fit the crime brings into focus a principle of proportionality. That is, it requires that various offences should be rank-ordered by reference to their relative seriousness (Cragg, 1992:14). However, this concept has proved difficult to implement from a retributivist perspective. There has been one main reason for this: there is no true appreciation of what factors are relevant to the seriousness of an offence. It has been suggested that this is gauged solely by reference to the amount of unhappiness caused by the offence, which, it is often difficult to implement simply because pain and unhappiness is a subjective concept (Bagaric, 2001:190). Additionally, the old adage, ‘an eye for an eye’ requires ‘imposing harm on a criminal identical to the one he imposed on the victim’ (Shafer-Landau, 773). The problem is, it is often difficult to apply many offences identical to the offence caused. Such as how do we punish the counterfeiter, the hijacker? One convicted for rape? It is self-evident that promoting retributivist theory of punishment entails considerable amount of conflicts. Whilst the retributivist argues that punishment should be administered to the extent that it is deserved, and punishment is only justified because it is proportionally owed to the offender, utilitarian theories of punishment argues otherwise. According to Bentham (1970), punishment should only be justified if it achieves enough good significance to outweigh this harm (Brody and Acker, 2000:8). Thus, punishment should fit the crime as far as possible to outweigh the profits of the crime committed (Beccaria, 2009:1). The greater the offense, the greater the punishment. Offences should be graded so that it results in greater benefits for society: deterrence and rehabilitation. Where the retributivists argue that harshness of a punishment should be in proportionate to the degree of wrongdoing, utilitarian’s such as Bentham argue that a penalty, from a utilitarian perspective, should impose a degree of pain in excess of the degree of pleasure derived from committing the crime as it involves intentions infliction of pain on the wrongdoer to promote deterrence (LaFollette, 2002:1). A guilty man, on this theory, is being punished not only because it is deserved but also because of the powerful value the action of punishment will have in the future. He is being used as a means to some future good. Those with a Kantian perspective would object this view on the grounds that offenders are being used as instruments (Simmons, 1995:5). This utilitarian perspective entails a forward-looking (or consequentialist) theory: it seeks to justify punishment by its alleged future consequences. Punishment is justified because, it is claimed, it helps to control future crime and create lateral effects on those who haven’t committed crimes (Cavadino and Dignan, 2007:37). Where in a retributive system, the measure of proportionality determines the amount of punishment to right the wrong, in a utilitarian system; the measure of deterrence determines the amount of punishment needed (Pollock, 2008:105). The utilitarian’s does not endorse the principle that the punishment should be administered as to the extent that it is deserved, rather argue advocate punishment severely to maximise utility. This might involve administering a severe punishment on an offender in order to discourage the offender and others from committing the same offence. Therefore, in contrast to the retributivist theory of punishment, the utilitarian argues that punishment should only be administered if it results in beneficial consequences. Retributivists, on the other hand, say that an offender should never be punished more severely than could be justified and by the amount of his wrongdoing. Under this principle, a person should not receive more punishment than deserved, even when that might be useful. Whatever his degree of guilt, the offender should not receive unproductive punishment. Bringing the two perspectives together, it is apparent that the retributivist theory of punishment holds their theory of punishment much stronger than the utilitarian approach since all offenders are given a proportionate measure of punishment. The utilitarian’s approach to punishment tends to sacrifice the principle of proportionality in their justification for punishment. If offenders are punished according to the amount needed to deter citizens, then there is no logically clear limit imposed on punishing any particular individual (Ransom, 2011:2). Utilitarian’s puts across the idea that unrestrained punishments would not be effective and might impact in the lost of deterrence if sentences are not proportionality graded – however, overly severe penalties might make criminals less receptive to rehabilitative efforts (Hudson, 2003:56). Therefore the main flaw in Utilitarian theories is the lack of limit to the amount of punishment that may be inflicted in pursuit of crime reduction. This follows on to argue that Utilitarian’s allows for, and may even require, the sacrifice of some members of society in order to increase overall happiness of others – which do no justice for proportionality (Janzekovic, 2006:34). As Marx himself puts it: ‘what right have you to punish me for the amelioration or intimidation of others? (Murphy, 1979:93). Hart (1968) argued that there are substantial dangers with punishing offenders for purely utilitarian reasons, since it will turn offenders into hardened enemies of society (Cragg, 1992:51). Apparent to the limitations, it is evident that the retributivist comes closer to justifying punishment when they say that there is a degree of proportionality between gravity of crimes and severity of punishments. Unlike utilitarianism where it fails to protect basic individual rights and interests, retributivists only confine the wrongdoing by ensuring that no person is sacrificed for the good of others (Bagaric, 2001:47). Additionally, the fundamental principle of the utilitarian approach (useless punishment should be avoided) may lead to selective or exemplary punishment through choosing one of a number of offenders for the imposition of penalties. Imposing unequal punishment on similar offender has elements of unfairness and may violate norms of uniformity or equality in the treatment of culpable offenders. Apart from that, a major problem with deterrence based theories, such as utilitarism, is that it assumes that all punishments will deter all citizens, Utilitarian theories commit us to the morally repugnant view that the criminal may be used as a means towards benefiting society, especially by the way of deterring others from breaking the law. Retributivism, at least in its more plausible version, justifies punishment as a mechanism by which a proper balance of burdens and benefits among the members of society is restored. At least with the retributivist justification of punishment: Punishments are deemed as deserved, and forgiven. Retributivists consider the harm done and punish accordingly. They only look back to the crime for the justification of punishment and look ahead (Adler and Laufer, 1999:250). In Britain, the use of Punishment has changed over time. In 17th century Britain, transportation was a basic form of secondary punishment and the system was very simple to use. Offenders were not permitted to return to Britain after their sentence, as the state thought it to be best that convicts kept away from society. Another system used was capital punishment which resulted in death of the offender (through hanging). However this method does not exist in today’s criminal justice system which demonstrates that the main purpose of the System is to reform and change the convict through coaching. In 1991 the Criminal Justice Act presented a simple method to decide the seriousness of an offence. Three categories were created: a fine, a warrant to community punishment depending on the seriousness of the crime and finally imprisonment if the crime is severe (Hudson,2003:45). This appears to be a simple approach in deciding the appropriate punishment for the relevant crime committed. However, it still leaves the question as to how does one rank the seriousness of a crime? Therefore, it may seem that the retributive view is unfair due to the unethical method of causing harm to another and suggests primitive claim for revenge rather than understanding the offenders action. This is problematic because it entails the offender to be punished regardless of whether the convict has understood the severity of their actions. They may be unlikely to commit the crime again. Another theory of punishment is deterrence, where the role of the current Criminal Justice System is to punish in order to stop convicts from re-offending. The Criminal Justice System aims to stop re-offenses by ensuring that the punishment for committing a crime is greater than the pleasure of committing the crime. Bentham differentiates two types of deterrence; individual deterrence and general deterrence. Individual deterrence is where known individuals are targeted with certain specific deterrence in order for them to be unable to take part in criminal activity. This process persists of completely removing the convict out of society, which eradicates the desire of offending by making them afraid of ever committing a crime (Hudson, 2007) .The Criminal Justice System then places criminals in prison. Imprisonment constructs a sense of fear for the convicts, making them less likely to reoffend. Thus, this theory supports the use of punishment as the main goal is to remove an individual from society and place them in an environment where they are completely powerless of committing a crime as they are constantly being monitored by the prison officers as well as reducing the longing to commit a crime because being locked away makes it much more difficult to be focussed on targets. General deterrence is intended at the general population to set an example which portrays that the Criminal Justice System uses general deterrence to discourage the public, by making the offender central in the picture and generating a bad image in order for them to receive punishment which in turn brings about fear. If the criminal justice system were not to use the method of punishment towards those who break the law and not abide the law, then there is a higher chance people would engage in some sort of criminal activity because there would be no fear of consequence of their actions. Therefore, the deterrence theory seems like a better idea as it stops re-offending, but even this theory has some flaws. This theory focuses on the utilitarian perspective that all people are likely to be involved in actions where the pleasure outweighs the loss. General deterrence theory needs to be further developed due to its openness, as this sometimes does not apply to all offenders. Some offenders may not have the thinking capacity to look at the balances of committing a crime, some are not capable of balancing the risk and pleasure of committing a crime. An alternate theory needs to be produced which concentrates on the psychological as well as the sociological reasons on why human behaviour engages in criminal activity. This represents that the criminal justice system acts on punishing offenders. Restitutions view is that the Criminal Justice System does not punish the offender but rather on how the offender should compensate the victim for the damages caused through monetary payments or services. Retributivist’s view is that the Criminal Justice System does not focus on the victim’s rights and that they are more concerned with taking away offenders rights rather than viewing the act which is prohibited. In turn the victim’s rights have also been removed which creates an imbalance between the offender and victim and in order for justice the offender needs to be punished. One of the key strengths of the retributive theory is the interrelation of all the theories with this theory. This is due to the fact that the process of restitution is definitely needed in the current criminal justice system. Recently, there has been a shift in focus, more towards the victim, which has increased the offenders to make some form of compensation to the victim rather than be punished (McLauhlin and Muncie, 2001). However, a negative point to this system is that it lacks penal values such as offender preventing re-offending which means that the victim has to depend on the offender to be caught and convicted in order to receive a payment (Ashworth 1986). The introduction of state compensation schemes has also resulted in giving better restitution to the victims, however there is a limit to the amount of payment. This shows that the Criminal Justice System focuses on helping the victim rather than punishing the offender. Overall, this essay has tried to outline an understanding of the current criminal justice system and that their main role is to punish offenders. Many people would agree towards the retributivist view that punishment is deserved by the offender. Others would support the restitution theory as it focuses on the victim’s rights, resulting in monetary payment from the offender, whilst others would support the deterrence method which focuses on the prevention of crime itself by placing some kind of social order against offenders, for example, by removing them from society completely so that they do not reoffend. Conclusively all these three theories interrelate as they all centre around the offender because after all they are the ones who have committed a crime, gone against law and regulations which therefore results in something being required from them. In deterrence and retributivist theory the offender is placed in prison where their rights are deprived, which in turn is punishment towards them. In the restitution theory the convict is obligated to give the victim a monetary sum for the damages initiated, where the offender makes loses their money as they may not want to pay, but have to which is also a kind of punishment. This is clear that the main goal of the Criminal Justice System is to punish so that others are prohibited from committing a crime.
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