Philosophies of Punishment
Professor D. Chise
How many times have we watched the news and the headline story involves a man being arrested for a violent crime? And let’s say that the crime is forcible rape. Our first thoughts are, “Oh man, they need to castrate that joker!” or “They need to put that guy in the same cell with Big Bubba!” Don’t lie! We have all had those thoughts. We especially take offense if the crime involves a child, an elderly person, or a disabled person.
In our legal system, we have five philosophies of punishment. The first one is retribution. This is the one that is commonly confused with revenge. The one we “feel”. It dates back to the Biblical times of an “eye for an eye, tooth for a tooth” and so forth. This is the one that makes us want to put the child molester in the cell with big Bubba. But retribution is not revenge! Retribution is the theory that the punishment must fit the crime. It differs from revenge because it includes a formal penal sanction (court sanction), equity, and just deserts. (Alarid & Reichel, 2013)The purpose is to inflict punishment on a person who has infringed upon the rights and safety of others. (Carruthers) For example, a murderer should get the death penalty.
This is the only theory/philosophy of punishment that concentrates on the punishment of the criminal and not deterrence of the crime. The rationale is that criminals should be punished because they deserve to be. It is simply a response to crime. This is one advantage of this theory. Another advantage is that it involves court sanctions. It is a binding contract between the court system and the corrections system. This insures that the offender’s punishment will be carried out as the court has dictated. (No vigilantism)
As with anything, you will also find disadvantages. One disadvantage is if society doesn’t deem the punishment harsh enough, vigilantes are born. Let’s say an offender is let off on a technicality. Evidence is piled against him but maybe he wasn’t read his rights or something. Society or someone in the victim’s family decides to carry out their own justice. We know the ending to this. The offender is dead. The vigilante is now going to jail/prison. This may seem extreme, but I can see it happening.
Another disadvantage is: Who decides which penalty a crime deserves or merits? What punishment is just for a particular crime? (Alarid & Reichel, 2013)One element of retribution is equity. This means that similar criminals committing similar crimes should be treated the same. Even using the ladder that Nigel Walker came up with does not completely alleviate the problem of crime seriousness to “just deserts”. (Alarid & Reichel, 2013) His ladder method uses the rung on a ladder to describe crime and punishment proportionality.
I think the ladder idea of Walker is a very good crime control strategy. It just needs some fine tuning. But given that fine tuning, it would be a very good strategy to implement across the board to help standardize sentencing. I also think a review of misdemeanors versus felonies is in order. Maybe if we make some current misdemeanors into felonies, we could alleviate some of the problems in our prison system like overcrowding.
The next philosophy is deterrence. This theory concentrates on using fear to deter criminal behavior. There are two principles. The first is general deterrence. This refers to discouraging the would-be offenders from committing crimes. The second principle is specific. This is to prevent the already convicted offender from committing crimes in the future.
The rationale of deterrence is to prevent criminal behavior through fear of punishment. This is done by providing speedy, severe and certain punishment. The most likely effective punishment would be cruel and unusual. (For example, dismemberment) But in the US, we can’t do that, so we have to think of other ways to deter would-be offenders.
One way, is the use of media. By publicizing the crime, even the smallest infraction, and the punishment that goes with it, maybe a would-be offender will think twice before committing a crime.
One advantage to deterrence is that, if we can find a way to utilize the speedy, severe and certain punishment concept, if would cut down on the overcrowding in our prisons. It would also cut down on the overcrowding in our courtrooms.
However, the disadvantages are that the present overcrowding in the courtrooms make it impossible for a speedy trial. It is very difficult to achieve the key elements of speed, severity and certainty of punishment. (Alarid & Reichel, 2013) The problem of speed is only likely to occur if we restrict due process that is currently provided to defendants. The problem with severity is the sheer definition. What one person defines as severe, another person may define as mild. Next we have certainty of punishment. This is problematic because society is not willing to be monitored constantly so law enforcement can know about all crimes being committed and therefore be punished. (Alarid & Reichel, 2013)
Crime control strategies such as neighborhood watches can be implemented to monitor the public. This way society is being “monitored”, but they don’t feel like their every move is being watched by big brother. We can also make more crimes public knowledge. If we air the crimes, the public becomes aware of what can happen if you commit certain crimes. (Alarid & Reichel, 2013)
The next philosophy is rehabilitation. The purpose of rehabilitation is to reduce the number of criminal offenses. The rationale is to change the behavior, thus reduces the number of crimes committed. This can be done by mandatory (1013) sentences to rehabilitation facilities for alcohol addiction, drug addiction, etc. if the crimes were committed while the person was high on something. If the person shows signs of mental health issues, the same can apply to them. In these facilities, the offenders go through programs designed to help them overcome whatever issues brought them there. The advantages are that their needs are addressed and dealt with. They develop skills that will help them when they are released. (Job training, education, etc.) The disadvantages are that some jurisdictions lack the knowledge to adequately help the offender. These programs can also be expensive and some jurisdictions don’t have the funding to do them the right way. (Gebelein, 2000) Crime control measures that could be implemented would be to let the offender in a drunk driving accident (or equivalent) meet face to face with the victims or their families and express their feelings. How did the incident affect them? Another program would be a neighborhood watch.
The fourth philosophy is incapitation. This one is the “lock ‘em up and throw away the key” theory. The rationale is that if the offender is confined, he/she cannot be out on the streets committing more crimes. This rationale protects members of society from offenders who might do them harm. (Territo, Bromley, & Halsted, 2004) The type of punishment that would go along with this sentence would be traditional imprisonment. But it could also be electronic monitoring, chemical castration, or chemical organ surgery. (Alarid & Reichel, 2013) The advantage of this theory is that it increases public safety by getting offenders off the street. It also reduces prison overcrowding if electronic monitoring is used. The disadvantage is locking someone up does nothing to stop them from committing future crimes when they get out. In other words, it only works as long as the offender is locked up. It is also expensive to keep someone in prison. (Territo, Bromley, & Halsted, 2004) I think a solution would be to utilize electronic monitoring more on people with less violent crimes, longer sentences for people of violent crimes, and a review of misdemeanor and felonies.
The last philosophy is restorative justice. This is also known as community justice. The purpose is to promote healing and reconciliation through restitution and community participation in an attempt to assist the victim. The rationale is to restore a sense of well-being to the victim, their family and the community. It requires the offender to make restitution. He/she is a part of making the sense of well-being come about. This is done through community service, reparative probation, family group conferencing, and victim-offender mediation. (Carruthers) The advantages are that the community/victim decides how the repair is conducted through community reparation boards or through citizen circles. (A reentry process) The victim has a part in their healing process and the offender gets to feel a sense of retribution. The disadvantages are that some feel this is too lenient, does not deter criminal activities, and they fail to see how the community is protected. Some also feel that this promotes discrimination among offenders. (Alarid & Reichel, 2013) I think that one way to implement crime control using this theory is, again, the neighborhood watch. (Or something similar)
Alarid, L. F., & Reichel, P. L. (2013). Corrections. Upper Saddle River: Pearson Custom Publishing. Carruthers, P. (n.d.). Sentencing Trends: Anaysis and Recommendations. Retrieved from Council on Crime and Justice: http://www.crimeandjustice.org/ Gebelein, R. S. (2000, 05). Sentencing and Correctiions: Issues for the 21st Century. Retrieved from U.S. Dept Of Justice: www.ncjrs.gov Territo, L., Bromley, M. L., & Halsted, J. (2004). Crime and Justice in America: A Human Perspective, 6th Edition. Upper Saddle River: Pearson Prentice Hall Education, Inc.