Purpose of punishment

103

Does society have the right to punish? Isthe infliction of punishment morally

justifiable? These complex questions will beaddressed in the following discussion of therationale, justification, and nature of punish-ment. Rules about punishment, such as howmuch punishment can be inflicted and forwhat kinds of behavior, are of course con-tained in laws and regulations, so in this senselaw justifies punishment. However, the moraljustification for punishment is a separate issuefrom the legal justification because, althoughthe law may provide for the infliction of pun-ishment, society’s moral justification for pun-ishment still has to be established.

In order to better understand the nature ofpunishment, it is first necessary to examine itsconceptual basis, and then consider the varioustheories that have been developed to morallyjustify society’s infliction of punishment. Thesetheories are deterrence, retribution, justdeserts, rehabilitation, incapacitation, andmore recently, restorative justice. As well, it isimportant to appreciate that there are three

perspectives about the issue of punishment:the philosophical, the sociological, and thecriminological. Each perspective representsa different and distinct way of looking atthe issue of punishment, and each will beaddressed in this chapter.

WHAT IS PUNISHMENT?

We use the word punishment to describe any-thing we think is painful; for example, werefer to a “punishing work schedule” or a“punishing exercise program.” We also talkof punishment in the context of parents orteachers disciplining children. However, inthis discussion we will consider punishmentin a particular sense. Flew (1954 in Bean1981: 5) argues that punishment, in the senseof a sanction imposed for a criminal offense,consists of five elements:

1. It must involve an unpleasantness to thevictim.

2. It must be for an offense, actual or supposed.

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3. It must be of an offender, actual orsupposed.

4. It must be the work of personal agencies; inother words, it must not be the naturalconsequence of an action.

5. It must be imposed by an authority or aninstitution against whose rules the offensehas been committed. If this is not the case,then the act is not one of punishment but issimply a hostile act. Similarly, direct actionby a person who has no special authority isnot properly called punishment, and is morelikely to be revenge or an act of hostility.

In addition to these five elements, Benn andPeters (1959 in Bean 1981: 6) add that theunpleasantness should be an essential part ofwhat is intended.

The value of this definition of punishmentresides in its presentation of punishment interms of a system of rules, and that it distin-guishes punishment from other kinds ofunpleasantness. Another definition of punish-ment proposed by Garland is “the legalprocess whereby violators of criminal law arecondemned and sanctioned in accordance withspecified legal categories and procedures”(Garland 1990: 17). This chapter will not beconcerned with punishment that takes place inschools, within families, or in other institu-tions, but instead will discuss forms of punish-ment that take place as the result of legalprocesses defined above. It will examine themajor arguments relating to punishment, illus-trate the ways in which those arguments relateto justice and the justice system, and examinehow that system would be affected should oneargument prevail over another.

THEORETICAL APPROACHESTO PUNISHMENT

Thinking about the issue of punishment givesrise to a number of questions, the most funda-mental of which is, why should offenders bepunished? This question might produce thefollowing responses:

• They deserve to be punished.• Punishment will stop them from committing

further crimes.• Punishment tells the victim that society dis-

approves of the harm that he or she hassuffered.

• Punishment discourages others from doingthe same thing.

• Punishment protects society from dangerousor dishonest people.

• Punishment allows an offender to makeamends for the harm he or she has caused.

• Punishment ensures that people understandthat laws are there to be obeyed.

Some of the possible answers to the questionof why offenders should be punished mayconflict with each other. This is because someanswers are based on reasons having to dowith preventing crime whereas others areconcerned with punishment being deservedby an offender (Hudson 1996: 3). When acourt imposes a punishment on an offender,it often tries to balance the sorts of reasonsfor punishment noted earlier, but sometimescertain purposes of punishment dominateother purposes (p. 4). Over time there havebeen shifts in penal theory, and therefore inthe purpose of punishment due to a complexset of reasons including politics, public pol-icy, and social movements. Consequently, ina cyclical process, an early focus on deter-rence as the rationale for punishment gaveway to a focus on reform and rehabilitation.This, in turn, has led to a return to punish-ment based on the notion of retribution andjust deserts.

The concept of punishment has beentheorized by moral philosophers, social theo-rists, and criminologists, and these variousapproaches will be considered in this chapterin order to provide a better basis for under-standing the place of punishment within thecriminal justice system and society in general.As Garland (1990) argues, punishment is acomplex concept, and an approach to punish-ment that is limited to a reading of moral

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philosophy fails to represent the full dimensionand complexity of the subject. For moralphilosophers, the “ought” of punishment is ofgreat importance and leads to a set of ques-tions including

• what should be the goals of punishment;• what should be the values contained in and

promoted by the criminal law;• what is the purpose of punishment?

In contrast to the philosophical view of pun-ishment, the sociological perspective is con-cerned with the “is” of punishment; that is,what punishment is actually intended for, andthe nature of penal systems (see Hudson 1996:10). The third perspective on punishment isoffered by criminologists and policy makers,who focus on penalties for offenses and policyconcerns relevant to the punishment of offend-ers. Some critics, such as Bean (1981: 9), arguethat criminology has tended to ignore themoral and sociological implications of punish-ment in favor of the social and personal char-acteristics of offenders, as well as the nature ofpenal institutions and methods of social con-trol. In the same vein, Nigel Walker (1991)points out that the practical ends of penalaction, particularly with the aims of sentenc-ing and the administration of prisons andprobation, are concerns that pay little atten-tion to the philosophy or sociology of punish-ment. The criminological perspective will bediscussed in Chapter 6 in the context of

corrections; this chapter will explore the philo-sophical and sociological perspectives.

WHY PUNISH? THEPHILOSOPHICAL APPROACH

In the philosophical debate about punishment,two main types of theories of punishment dom-inate: utilitarian theory and retributive theory.(Utilitarian theory is discussed more fully inChapter 9.) These philosophical theories havein turn generated further theoretical discussionsabout punishment concerned with deterrence,retribution, incapacitation, rehabilitation, andmore recently, restorative justice.

Theories that set the goal of punishment asthe prevention of future crime (deterrence) areusually referred to as utilitarian because theyare derived from utilitarian philosophy. Past-oriented theories (theories that focus on the pastactions of the offender) are referred to as ret-ributivist because they seek retribution fromoffenders for their crimes. The retributivist con-ception of punishment includes the notion thatthe purpose of punishment is to allocate moralblame to the offender for the crime and that hisor her future conduct is not a proper concernfor deciding punishment (Hudson 1996: 3).Theories of deterrence, retribution, just deserts,rehabilitation, and incapacitation as well as theidea of restorative justice will be considered inthis chapter. Each of these theories tries toestablish a basis for punishment as a response tothe question “why punish?”

The Purpose of Criminal Punishment 105

Box 5.1 Punishment and History

Before the installation of constitutional governments in most of western Europe in theeighteenth and nineteenth centuries, penalties were arbitrary, dependent on the whims ofmonarchs or the local nobles to whom they delegated authority to punish. There was verylittle proportionate graduation of penalties, with capital punishment available for every-thing from murder and high treason to fairly minor theft (as reflected in the old saying“one might just as well be hanged for a sheep as a lamb”). (Hudson 1996: 19)

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Deterrence

People are deterred from actions when theyrefrain from carrying them out because theyhave an aversion to the possible consequencesof those actions. Walker (1991: 15) suggeststhat although penologists believe that penalties

do, in fact, deter, it is hard to determinewhether the kind of penalty or its severity hasany effect on whether a particular penalty issuccessful. Some question whether deterrenceis morally acceptable. They argue that it isunacceptable because it is impossible toachieve, and if deterrent sentences are not


Box 5.2 Draconian Punishments

The notion of “draconian punishments” derives from the laws promulgated for Athens in621 B.C. by Draco (see, for example, Carawan 1998). It appears from later accounts ofthe Draco code that the punishment of death was prescribed for even the most trivialoffenses. Draconian punishments are essentially deterrent in nature, being so severe as todissuade most people from committing crimes. Draconian-type notions of punishment areoften advocated by those in the “get tough on crime” lobby.

CASE STUDY 5.1 THE NATURE OF THE PUNISHMENT:CORPORAL PUNISHMENT

On May 4, 1994, Michael Fay, a U.S. teenager who had pleaded guilty to severalacts of vandalism in Singapore, was caned by Singapore’s authorities (in Nygaard2000: 1). He was stripped, bent at the hip over a padded trestle, tied down at hisankles and wrists, and his buttocks were lashed by a martial arts specialist four timeswith a four-foot long, half-inch wide stick of rattan soaked in antiseptic. Fay, 18, hadlived in Singapore since 1992, and was sentenced to four months in prison, a fine of$2,230, and the caning after his guilty plea.

The sentence of corporal punishment secured great media attention in the UnitedStates, with many people expressing their views. President Clinton, in a personal letterto the Singapore president, urged him to spare the rod and revoke the punishment,which Clinton described as ”extreme.” Also, 24 U.S. senators appealed to the presi-dent of Singapore that clemency would be “an enlightened decision.” However, U.S.public opinion expressed support for the punishment, some even writing to theSingapore Embassy in Washington expressing their approval. In Dayton, Ohio, whereFay’s father lived, citizens supported the punishment by a 2 to 1 margin. TheSingaporean courts and government rejected the various appeals for clemency, exceptfor reducing the number of lashes. A Home Affairs Ministry official stated thatSingapore was able to keep its society orderly and crime free because of its tough lawsagainst antisocial crimes and that Singapore did not have a situation where acts ofvandalism were commonplace like New York where even police cars were vandalized.

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successful, inflicting suffering in the name ofdeterrence is morally wrong (p. 13).

To utilitarian philosophers like Bentham,punishment can be justified only if the harmthat it prevents is greater than the harminflicted on the offender through punishinghim or her (Hudson 1996: 18). In this view,therefore, unless punishment deters furthercrime, it simply adds to the totality of humansuffering. In other words, utilitarians justifypunishment by referring to its beneficial effectsor consequences. In this sense, utilitariantheory is a consequentialist theory that consid-ers only the good and bad consequences pro-duced by an act as morally significant (Ten1987: 3). Bentham is considered the main pro-ponent of punishment as deterrence, and heexpressed his early conception of the notion asfollows:

Pain and pleasure are the great springs ofhuman action. When a man perceives orsupposes pain to be the consequence of anact he is acted on in such manner as tendswith a certain force to withdraw him as itwere from the commission of that act. If theapparent magnitude be greater than themagnitude of the pleasure expected he willbe absolutely prevented from performing it.(in Bean 1981: 30)

Becarria took a similar position to Bentham,arguing that “the aim of punishment can onlybe to prevent the criminal committing newcrimes against his countrymen and to keepothers from doing likewise” (in Bean 1981: 30).Utilitarians understand punishment only as ameans to an end, and not as an end in itself.They perceive punishment in terms of its abilityto reduce crime and do not focus on the pun-ishment that “ought” to be imposed on offend-ers. To utilitarians, a “right” punishment (orone with the greatest utility) is one that is bene-ficial to the general welfare of all those affectedby the criminal act (Bean 1981: 4). Critics ofutilitarianism argue that because utilitarianssee the aim of punishment as promoting

public welfare and maximizing the happinessof all, this means that utilitarians are willing topunish the innocent in order to achieve thatobjective (p. 4).

Those supporting the theory of punishmentas deterrence distinguish between individualdeterrence and general deterrence. Individualdeterrence involves deterring someone whohas already offended from reoffending; gen-eral deterrence involves dissuading potentialoffenders from offending at all by way of thepunishment administered for a particularoffense (Hudson 1996). Individual deterrencerelies on offenders receiving a taste of the pun-ishment they will receive if they reoffend, andcan be seen operationally in the “short, sharp,shock punishments” such as boot camps,which are used as an alternative to imprison-ment and are clearly aimed at subjectingoffenders to a regime that will shock them outof any further criminal conduct. Generaldeterrence takes the form of legislation impos-ing penalties for specific offenses in the beliefthat those penalties will deter or preventpersons from committing those offenses. Anexample of an attempt at general deterrencewould be significantly increasing the penaltiesfor driving under the influence (DUI) in aneffort to deter citizens from drunk driving.

Does Deterrence Work?

Beyleveld (1979, cited in Hudson 1996: 23)after carrying out a comprehensive review ofstudies that have considered the deterrenteffects of punishment concluded that,

. . . there exists no scientific basis forexpecting that a general deterrence policy,which does not involve an unacceptableinterference with human rights, will do any-thing to control the crime rate. The sort ofinformation needed to base a morallyacceptable general policy is lacking. There issome convincing evidence in some areas thatsome legal sanctions have exerted deterrenteffects. These findings are not, however,


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generalizable beyond the conditions thatwere investigated. Given the present state ofknowledge, implementing an official deter-rence policy can be no more than a shot inthe dark, or a political decision to pacify“public sentiment.”

The empirical evidence suggests that, gener-ally, punishment has no individual deterrenteffect (Ten 1987: 9). Walker (1991: 16) arguesthat evidence from research studies has estab-lished that capital punishment has no greatereffect than life imprisonment. Nagin (cited inTen 1987: 9) comments on the difficulty indistinguishing between individual deterrenceand rehabilitation. In another overview ofresearch on deterrence, Nagin (1998: 345)identifies three sets of studies, which he refersto as interrupted time-series studies, ecologicalstudies, and perceptual studies.

The first set, time-series studies, exploresthe effect of specific policy initiatives such aspolice crackdowns on open-air drug markets.Nagin finds that such policy targeting has onlya temporary effect, and is therefore not asuccessful deterrent.

Ecological studies look for a negativeassociation between crime rates and punish-ment levels that can be interpreted as having adeterrent effect. Nagin points out that anumber of such studies have been able to iso-late a deterrent effect.

In perceptual studies, the data comes fromsurveys. Such surveys have found that self-reported criminality is lower among those whosee sanctions, risks, and costs as higher. Nagintherefore concludes that, collectively, the oper-ations of the criminal justice system exert asubstantial deterrent effect.

In discussing whether the threat of punish-ment has a deterrent effect, Andenaes (1972:345) explains that two positions are usuallydebated. Bentham’s position is that man is arational being who chooses between courses ofaction having first calculated the risks of painand pleasure. If, therefore, we regard the risk

of punishment as sufficient to outweigh alikely gain, a potential criminal applying arational approach will choose not to break thelaw. The alternative position considers thismodel unrealistic, arguing that people remainlaw-abiding, not because they fear the criminallaw, but as a result of moral inhibitions andnorms of conduct. Criminals, they argue, donot make rational choices but act out of emo-tional instability, through lack of self-control,or as a result of having acquired the values ofa criminal subculture (p. 345). Andenaespoints out the dangers of generalization; thatis, he suggests it is necessary to distinguishbetween various offenses such as murder ordrunk driving. Offenses vary immensely interms of an offender’s motivation, and anyrealistic discussion of general deterrence oughtto take into account the particular norms andcircumstances of each particular type ofoffense. He also notes that the threat of pun-ishment, although directed to all persons,affects individuals in different ways (p. 346).For example, in his view, the law-abiding citi-zen does not need the threat of the law toremain law-abiding. On the other hand, thecriminal group may well fear the law but stillbreak it, and the potential criminal might havebroken the law if it had not been for the threatof punishment. It follows that the threat ofpunishment seems relevant only to the poten-tial criminal. In some cases, however, there isevidence that punishment has a deterrenteffect on individuals. Andenaes refers to astudy of department store shoplifting whereamateur shoplifters were treated as thieves bythe store management and reacted by chang-ing their attitudes and experiencing great emo-tional disturbance (1972: 343). This contrastswith the professional shoplifter who does notregister any shock at getting caught andaccepts jail as a normal hazard of the trade.

Tullock (1974: 109), after surveying theeconomic and sociological models of deter-rence, concludes that multiple regressionstudies show empirically that increasing the


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frequency or severity of punishment doesreduce the likelihood of a given crime beingcommitted. However, Blumstein, Cohen, andNagin (1978: 66) contend that although theevidence does establish a negative associationbetween crime rates and sanctions, this doesnot necessarily establish the general deterrenteffect of sanctions. This is because, in theirview, the negative association can beexplained by lower sanctions being the effect,and not the cause, of higher crime rates.Overall there seems to be little agreementamong researchers that punishment has ageneral deterrent effect.

How Much Punishment Must BeImposed to Deter?

For the utilitarian who regards punishmentas bad in itself, a particular punishment will bejustified only if the suffering it inflicts is lessthan the harm caused by the criminal act thatwould have taken place had there been no pun-ishment. If various forms of punishment wouldachieve the same result, a utilitarian will opt forthe most lenient punishment that minimizes thepotential suffering. It follows that if a sentenceof capital punishment or the lesser punishmentof a term of imprisonment are both equallyeffective in deterring murder, the utilitarianwill choose the lesser punishment and regardcapital punishment as unjustified. However,utilitarian approaches can result in the inflic-tion of excessive punishment. Ten (1987: 143)gives the example of petty thefts being wide-spread in society with hundreds of cases occur-ring, frequently perpetrated by efficient thieveswho are difficult to catch. The harm caused byeach individual theft is minor, but the totalharm, according to utilitarian approaches, isgreat and may, therefore, be greater than theharm caused by severely punishing one minorcriminal. If a newly enacted law were toimpose a punishment of 10 years imprison-ment on a petty thief, and no less a penaltywould have a deterrent effect, it is arguable

that a utilitarian would have to accept whatwould be considered an excessive sentence forthe one petty thief unlucky enough to bearrested and convicted (Ten 1987: 143–144).

Retribution

Retribution is the theory that punishment isjustified because it is deserved. Systems of ret-ribution for crime have long existed, with thebest known being the lex talionis of Biblicaltimes, calling for “an eye for an eye, a toothfor a tooth, and a life for a life” (Hudson1996: 38). Retributionists claim a moral linkbetween punishment and guilt, and see pun-ishment as a question of responsibility oraccountability (Bean 1981: 14–15). Oncesociety has decided upon a set of legal rules,the retributivist sees those rules as representingand reflecting the moral order. Society’s accep-tance of legal rules means that the retributivistaccepts the rules, whatever they may be;accepts that the rule makers are justified intheir rule making; and claims that those whomake the rules provide the moral climateunder which others must live. Accordingly,retributivists cannot question the legitimacyof rules. They argue that retribution operateson a consensus model of society where thecommunity, acting through a legal system ofrules, acts “rightly,” and the criminal acts“wrongly” (Bean 1981: 17). It follows that theretributivist position makes no allowance forsocial change or social conditions, lookinginstead only to crime. Raising the issue of thesocial causes of crime or questioning the effec-tiveness of punishment are irrelevant consider-ations to a retributivist.

It has been suggested by van den Haag(1975) and Kleinig (1973) that in historicalterms, the lex talionis did not operate as ademand for retribution. Instead, it set a limiton the nature of that retribution, and thereforeprevented the imposition of excessive penaltiesin the course of acts of vengeance. Capital pun-ishment may be the only form of punishment


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still supported by appeals to the lex talionis.The basic principle of lex talionis is that pun-ishment should inflict the same on the offenderas the offender has inflicted on his or hervictim. It can, therefore, be seen as a crude for-mula because there are many crimes to whichit cannot be applied. For instance, what pun-ishment ought to be inflicted on a rapist underlex talionis? Should the state arrange for therape of the offender as his due punishment? Inaddition, the lex talionis can be objected tobecause its formula to determine the correctpunishment considers solely the harm causedby the crime and makes no allowance for themental state of the offender or for any miti-gating or aggravating circumstances associatedwith the crime. Thus, even though a person’sdeath may have been brought about acciden-tally or negligently, the lex talionis, strictlyapplied, would still call for the imposition ofthe death penalty (Ten 1987: 152). A furtherobjection is found in the view that in a civi-lized society, certain forms of punishment areconsidered too cruel to be defended as validand appropriate. For example, a sadistic mur-derer may horribly torture his or her victim,but society would condemn the imposition ofthat same form of punishment on the offender.It can also be said that although the deathpenalty may constitute a just punishmentaccording to the rule of lex talionis, it shouldnevertheless be abolished as part of “the civi-lizing mission of modern states” (Reiman1985).

Retributivists believe that wrongdoersdeserve to be punished and that the punish-ment imposed should be in proportion to thewrongdoing the offender committed. In con-trast to utilitarians, retributivists focus theirline of reasoning on the offender’s just desert(a proportionate punishment) and not onthe beneficial consequences of punishment.Retributivists ask questions such as “Why dooffenders deserve to be punished?” and “Howare their just deserts to be calculated andtranslated into actual sentences?”

A number of explanations have beensuggested to justify retribution, including thenotion that retribution is a payment of what isowed; that is, offenders who are punished are“paying their debt to society” (Walker 1991:73). Walker notes that this seems to confusethe “victim” with “society” because we gener-ally do not perceive offenders as liable to paycompensation or make restitution to their vic-tims; furthermore, if society is compensatedfor anything at all, it is for a breach of its peace(p. 73).

Censure is also an important component inretributivist thinking. For example, Andrewvon Hirsch, the leading theorist on just desertssentencing, writes:

. . . desert and punishment can rest on amuch simpler idea, used in everyday dis-course: the idea of censure . . . Punishmentconnotes censure. Penalties should comportwith the seriousness of crimes so that thereprobation on the offender through hispenalty fairly reflects the blameworthinessof his conduct. (in Walker 1991: 78)

For von Hirsch (1994: 120–121), censure issimply holding someone accountable for his orher conduct and involves conveying the mes-sage to the perpetrator that he or she haswillfully injured someone and faces the disap-proval of society for that reason. On the partof the offender, an expression of concern orremorse is expected. As well, the censureexpressed through criminal law has the role ofproviding third parties with reasons for notcommitting acts defined as criminal. In otherwords, censure can have a deterrent effect.Some theorists of desert argue that notions ofcensure cannot be adequately expressed ver-bally or symbolically, and that hard treatmentis needed to properly express societal disap-proval. The notion of the expressive or com-municative character of punishment is closelyassociated with the idea of “punishmentas censure.” This conception recognizes pun-ishment as comprising not merely harsh


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treatment, but also elements of condemnation,denunciation, and censure. Thus, for example,punishment in the form of a fine is quite dif-ferent from the payment of a tax, althoughboth involve payment to the state. In the samevein, imprisonment contrasts with other formsof detention such as quarantine or detentionfor psychiatric disorders (Duff and Garland1994: 13–14). Imprisonment, it is argued, car-ries with it an expressive function of censure,whereas detention for reasons of quarantine orfor mental disorder does not. Feinberg (1994:74) explains the expressive function of punish-ment in the following terms:

Punishment is a conventional device for theexpression of attitudes of resentment andindignation, and of judgments of disap-proval and reprobation, on the part either ofthe punishing authority himself or of those“in whose name” the punishment isinflicted. Punishment, in short, has a sym-bolic significance largely missing from otherkinds of penalties.

Feinberg (1994: 76) further argues that pun-ishment expresses more than disapproval; itamounts to a symbolic method of hitting backat the criminal and of expressing “vindictiveresentment.” In similar fashion, H. Morris(1994: 92) contends that punishment serves toteach offenders a moral lesson so that in theprocess of being punished and being madeaware that a crime violated communal values,they will come to see what is good and chooseit in the future. According to this account, theaim of punishment is to persuade and not tomanipulate or coerce. However, as Morrishimself points out, this approach does notaccount for the punishment of those who arealready repentant, nor is it able to cope withthose who understand the values of society butare indifferent or opposed to them (p. 106).

Over the last two decades, the notion ofpunishment as a communicative practice hasdeveloped (Duff 1999: 48). This notion assertsthat punishment communicates to the criminal

a response appropriate to the crime committed.Communication requires that the person towhom the communication is directed must bean active participant in the process and mustreceive and respond to the communication.Additionally, the communication shouldappeal to the person’s rational understanding.The communication must be focused primarilyon the offender being punished as a responseto him or her, and must be justified by his orher offense (Duff 1999: 50). The message com-municated by punishment must focus on andbe justified by the offender’s past offense andmust be appropriate to that offense. Duff(1999: 50) argues that the message communi-cated should be the degree of censure or con-demnation the crime deserves. In the contextof criminal law, censure might be communi-cated in a formal conviction of guilt orthrough a system of harsh punishments suchas imprisonment, fines, or community service.Duff (1999: 51) argues that the aim of hardtreatment is ideally to cause the offender tounderstand and repent the crime committed. Itshould attempt to direct his or her attention tothe crime, and give him or her an understand-ing of crime as a “wrong.” It should also causethe offender to accept the censure that punish-ment communicates as deserved. By undergo-ing hard punishment, the offender can becomereconciled with the community and restoredback into the community from which theoffense caused him or her to be excluded.

Philosophers such as Duff (in Walker 1991:79) see the main benefit of punishment as theeffect on the offender. They argue that punish-ment has the effect of restoring the offender tothe community in the same way that penancerestores a penitent to the communion of thechurch. Nozick sees retributive punishment as amessage from those whose values are assumedto be correct and normative to someone whoseact or omission has displayed incorrect andnon-normative values (in Walker 1991: 81).Walker (1991: 81) explains that “man is a rule-making animal,” and that rules and notions of


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rules are acquired during childhood. Rules, inthe form of transactions involving promises,establish codes of normative conduct including“penalizing rules” that specify action to betaken against those who infringe the rules(Garfinkel in Walker 1991: 84–85). It followsthat failing to penalize an offender for infring-ing the rules would itself be an infringement ofthose rules; thus, an unpunished infringementwould create two infringements.

Another theory that attempts to justify pun-ishment as a retributive act is that an offendershould be viewed as a person who has takenan unfair advantage of others in society bycommitting a crime, and that imposing pun-ishment restores fairness (Ten 1987: 5).Philosophers such as Herbert Morris, JohnFinnis, and Jeffrie Murphy subscribe to theunfair advantage theory. For example, Morrisargues that the effect of criminal law is to con-fer benefits on society, because others are notpermitted to interfere with areas of an individ-ual’s life since certain acts are proscribed andprohibited. In order to gain the benefits ofnoninterference, individuals must exercise self-restraint and not engage in acts that infringethe protected areas of the lives of others (inTen 1987: 53). It follows that when a personviolates the law but continues to enjoy its ben-efits, he or she takes an unfair advantage ofothers who follow the law. Punishment, it isargued, is therefore justified because itremoves this unfair advantage and restores thebalance of benefits and burdens disturbed bythe criminal activity.

The unfair advantage argument has beenchallenged by those who argue that it distortsthe nature of crime itself. For example, thewrongfulness of rape does not merely consistof taking unfair advantage of those who obeythe law. Also, it is difficult to show that offen-ders have in any real sense “willed” their ownpunishment (Murphy 1994: 44). Addition-ally, although unfair advantage might consti-tute an ideal theory for the justification ofpunishment, the question arises about

whether it can be applied to an actual society.In other words, do those who commit crimi-nal acts actually take an unfair advantage forthemselves?

Finally, some retributivists argue that pun-ishment is morally justified because it givessatisfaction. James Fitzjames Stephen, anEnglish Victorian judge, is often cited as anadvocate of this theory. He expressed his viewof punishment as follows:

I think it highly desirable that criminalsshould be hated, and that punishmentsinflicted upon them should be so contrivedas to give expression to that hatred, and tojustify it so far as the public provisions ofmeans for expressing and gratifying ahealthy, natural sentiment can justify andencourage it. (in Bean 1981: 21)

Is Retribution in Fact Revenge?

Retributive theories of punishment arguethat punishment should be imposed for pastcrimes and that it should be appropriate to thenature of the crime committed; that is, theseverity of the punishment should be commen-surate with the seriousness of the crime.Sometimes, retributive punishment is confusedwith notions of revenge. Critics of retribution-ist theories of punishment argue that retribu-tion is basically nothing more than vengeance.However, Nozick argues that there is a cleardistinction between the two because “retribu-tion is done for a wrong, while revenge may bedone for an injury or harm or slight and neednot be a wrong” (1981: 366). He also pointsout that whereas retribution sets a limit for theamount of punishment according to the seri-ousness of the wrong, no limit need be set forrevenge. In this sense, therefore, revenge is per-sonal whereas the person dispensing retribu-tive punishment may well have no personal tieto the victim. As Nozick points out, “revengeinvolves a particular emotional tone, pleasurein the suffering of another” (1981: 367). Afurther distinction between the two is that


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retribution in the form of punishment isinflicted only on the offender, but revenge maybe carried out on an innocent person, perhapsa relative of the perpetrator.

Just Deserts

Up until about 1970, criminologists gener-ally thought of retribution as vengeance.During the 1970s, criminologists reconsideredthe idea of retribution and advanced new for-mulations. By the 1980s, the new retributionisttheory of just deserts had become influential(Hudson 1996: 39). Importantly, the newthinking indicated that although there shouldcontinue to be treatment programs, a defen-dant would not ordinarily be incarcerated inorder to receive treatment (N. Morris 1974).Influential writings such as Struggle for Justice(American Friends Service Committee 1971)and Doing Justice (von Hirsch 1976), whichwere written in the aftermath of the riot atAttica Prison in 1971, elaborated on the newretributivism in philosophical and civil libertar-ian terms. This theory gained support as a reac-tion against the perceived unfairness of systemsthat favored treatment that had developed overthe first half of the 20th century, especially theuse of the indeterminate sentence. This form ofsentence vested the power of determining thedate of release to a parole board, and signifiesthe practice of individualized sentencing. Thelatter attempted to sentence according tothe treatment needs of the offender, rather thanthe seriousness of the offense (Duff and Garland1994: 12). One of the criticisms of indetermi-nate sentencing was the fact that the sentencingcourts had a wide discretion in choosing a sen-tence, and although they tended to adopt tariffsfor classes of crime, individual judges coulddepart from them without providing reasons.Along with the just deserts movement, manystates and federal sentencing authoritiesrepealed indeterminate sentencing laws with theaim of reducing judicial discretion in sentencingand promoting consistency and certainty, as

well as a set of standards that would help in theprocess of deciding the sentence.

Among the retributivists, Kant argued thatthe aim of penalties must be to inflict desert,and that this was a “categorical imperative.”(Kant’s categorical imperative is discussed asan aspect of deontology in Chapter 8.) By thishe meant that inflicting what was deservedrendered all other considerations irrelevant(Walker 1991: 53). Just deserts proponentsemphasize the notion that punishment shouldbe proportionate; that is, there should be ascale of punishments with the most seriousbeing reserved for the most serious offenses,and that penalties should be assessed accord-ing to the seriousness of the offense (Hudson1996: 40). This is often called tariff sentenc-ing. In this method of punishing, the offender’spotential to commit future offenses does notcome into consideration, but his or her previ-ous convictions are taken into account becausemost proponents of just deserts support reduc-tions in sentence for first offenders. Desert the-orists contend that punishment should conveyblame for wrongdoing, and that blame isattached to offenders because they have donewrong. Consequently, the blameworthiness ofthe offender is reflected in the punishmentimposed. Thus, advocates of desert focus ontwo dimensions only—the harm involved inthe offense and the offender’s culpability. VonHirsch (1998: 669) enlarges on these two mainelements, stating that, in looking at the degreeof harm, a broad notion of the quality of life isuseful because “invasions of different interestscan be compared according to the extent towhich they typically affect a person’s standardof living” (1998: 670). As to culpability, hesuggests that the substantive criminal law,which already distinguishes intentional fromreckless or negligent conduct, would be usefulin sentencing law.

Von Hirsch (1998: 667) argues that afocus on the censuring aspect of punishmenthas coincided with a change in criminologicalthinking. Criminologists had previously


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regarded the blaming aspects of punishment asstigma that might create obstacles to the rein-tegration of the offender into the communityand might also cause the offender to reinforcehis or her own deviance, making him or hermore likely to continue offending. Desert the-orists now emphasize that responding to crim-inal acts with a process of blaming encouragesthe individual to recognize the wrongfulness ofthe action, to feel remorse, and to make effortsto refrain from such conduct in the future. Incontrast, a deterrent punishment requires theindividual to simply comply or face the conse-quences. The difference between the twoapproaches is that a moral judgment isrequired from the offender under just desertsthat is not required under a purely deterrentpunishment. During the 1980s, many states, aswell as the Federal Sentencing Commission,introduced desert-based sentencing schemes(Hudson 1996: 43).

In considering questions of proportionalityand seriousness, the issue arises as to howoffenses are to be ranked in terms of their seri-ousness. Who is to determine the degrees ofseriousness? In some jurisdictions, the judge’sviews determine the issue; other approachesinclude the use of sentencing commissions andlegislating sentencing schedules. In California,the Determinant Sentencing Laws allow politi-cians and others to raise the tariffs for offensesin response to public or media pressure inorder to give effect to “get tough on crime”policies (Zimring 1976).

Some critics argue that just deserts theoryleads to harsher penalties, but von Hirsch(1998: 672) contends that the theory itself doesnot call for harsher penalties, and that sentenc-ing schemes relying specifically on just desertstheory tend not to be severe. He draws atten-tion to sentencing guidelines in Minnesota andOregon that provide for modest penalties byU.S. standards. The Minnesota SentencingGuidelines provide a grid with a horizontalaxis showing previous convictions and avertical axis showing offense type (Hudson

1996: 44). The sentencing judge is required tolocate the appropriate cell on the grid for theoffender being sentenced, where the severity ofthe offense and the number of previous convic-tions intersect. Each cell stipulates a presump-tive prison term that represents the normalperiod of incarceration for a standard case ofthat offense. In addition to the presumptivesentence, there is a band indicating the rangethat should apply in the actual case. Forexample, in the case of an aggravated burglary,where the offender has three previous convic-tions, there is a presumptive term of 49 monthsand a range of 45 to 53 months. The actualsentence depends on aggravating and mitigat-ing factors. According to Hudson (1996: 45),sentencing guidelines have had the effect ofreinforcing relatively lenient punishments instates with that tradition, although states witha history of imposing severe punishments, suchas New Mexico and Indiana, have producedsevere schedules and guidelines.

The fundamental difficulty with desertstheory is that it lacks any principle that deter-mines a properly commensurate sentence(Hudson 1996: 46). Deserts are determined bya scale of punishment that fixes the mostsevere penalty. This might be imprisonment ordeath. It then determines ordinally propor-tionate penalties for lesser offenses. It followsthat if imprisonment is the most severepenalty, then proportionality will provideshorter terms of imprisonment and noncusto-dial penalties for lesser offenses. If the term ofimprisonment for severe offenses is moderate,then short sentences and penalties such as pro-bation will soon be reached on the scale ofseriousness. If the penalty for the most seriousoffenses is death, it follows that long terms ofimprisonment will be proportionate penaltiesfor less serious offenses. This is the situationthat prevails in many states.

Many argue that retribution based onjust deserts fails to account for the problemof just deserts in an unjust world. Just desertstheory ignores social factors like poverty,


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disadvantage, and discrimination, andpresumes equal opportunity for all. Tonry(1994: 153) notes that most sentencing com-missions in the United States will not allowjudges to bring personal circumstances intoaccount in their sentencing decisions, despitethe fact that the average offender has a back-ground that is likely to be either deeply dis-advantaged or deprived. Zimring (1994: 165)suggests that desert sentencing fails to takeaccount of the fact that there are multiple dis-cretions involved in the sentencing power. Hepoints to the legislature that sets the range ofsentences, the prosecutor who has the legalauthority to select a charge, the judge as thesentencing authority, and the correctionalauthority, which is able to modify sentencesafter incarceration, as constituting a multi-plicity of decisions and discretions that makethe task of achieving just and proportionatesentences extremely problematic. Since pros-ecutors and legislators act under politicalinfluence and attempt to implement policiesthat reflect public opinion, the sentencingprocess is not the monopoly of the trial judge,but is all too often an expression of varyingperspectives based on periodic concerns aboutwhether current philosophies reflect notions ofbeing “tough on crime.”

Reconciling Utilitarian andRetributive Theories

Is it possible to reconcile utilitarian andretributive theories of punishment? Forutilitarians, desert is not seen as necessary tojustify punishment nor as a reason forpunishment because desert does not look tothe consequences of punishment—it simplypunishes. For the utilitarian, the only goodreasons for punishment relate to the conse-quences of that punishment. The contrastbetween the two theories lies in the fact thatfor utilitarians, the aim of punishment isto control future action, whereas theretributivists see the aim in terms of desert

(Bean 1981: 32). The strength of the utilitarianargument is that rules can be changed accord-ing to changes in society, but that no suchchange is built into theories of retribution.

Can a retributivist ever be forgiving or mer-ciful? During the sentencing process, offendersoften say they are remorseful for their actions,and in this sense remorse represents regretand self-blame. Those charged with the taskof determining the sentence are urged toaccept statements of remorse as mitigatingfactors. The issue, therefore, is whether gen-uine remorse should lead a sentencer towardsleniency. If the sentencer is a utilitarian, heor she will be concerned only about whethera remorseful offender will be less likely toreoffend. However, for the retributivist, thequestion is whether remorse should mitigateculpability (Walker 1991: 112). Accordingto Walker, forgiveness has no degrees butmay take the form of “interested” or “dis-interested” forgiveness, with the victim beinginterested and the sentencing authority dis-interested. He suggests that whether from autilitarian or retributivist viewpoint, the sen-tencing authority must choose the sentencethat is most appropriate, and that a retribu-tivist may take extenuating circumstancesinto account. He considers, however, that for-giveness, being an act of absolution, shouldnot be considered an extenuating circumstance(p. 113). Thus, according to Bean, “forgive-ness is a moral sentiment where ill-will is nolonger retained. It may occur before or afterpunishment but does not affect it” (1981: 99).

Mercy must be distinguished from forgive-ness because granting mercy is an act, but for-giveness is an attitude of mind (Walker 1991:115). Mercy may be prompted by expressionsof remorse or by a statement that the victimhas forgiven the offender. Walker argues thatmercy is not equivalent to “reasoned leniency”and that mercy, in effect, suggests other consid-erations such as proportionality and any suffer-ing experienced by the offender, and mitigationgenerally (p. 116). Fundamentally, therefore,


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mercy is a synonym for various kinds ofleniency and has no force or effect of its own.

Rehabilitation

Retribution and deterrence involve aprocess of thinking that proceeds from thecrime to the punishment. However, rehabilita-tion is a more complex notion involving anexamination of the offense and the criminal,and a concern for the criminal’s social back-ground and punishment. Further, those infavor of rehabilitation theories acknowledgethe possibility of additional problems develop-ing during the offender’s sentence or treatmentthat may be unconnected with the offense andwhich may require an offender to spend addi-tional periods in treatment or confinement(Bean 1981: 54).

Utilitarian theory argues that punishmentshould have reformative or rehabilitativeeffects on the offender (Ten 1987: 7–8). Theoffender is considered reformed becausethe result of punishment is a change in theoffender’s values so that he or she will refrainfrom committing further offenses, now believ-ing such conduct to be wrong. This change canbe distinguished from simply abstaining fromcriminal acts due to the fear of being caughtand punished again; this amounts to deter-rence, not reformation or rehabilitation bypunishment. Proponents of rehabilitation inpunishment argue that punishment shouldbe tailored to fit the offender and his orher needs, rather than fitting the offense.Underpinning this notion is the view thatoffenders ought to be rehabilitated orreformed so they will not reoffend, and thatsociety ought to provide treatment to anoffender. Rehabilitationist theory regardscrime as the symptom of a social disease andsees the aim of rehabilitation as curing thatdisease through treatment (Bean 1981: 54).In essence, the rehabilitative philosophy deniesany connection between guilt and punishment(p. 58).

Bean (1981: 64) outlines the strengths ofthe rehabilitation position as being its empha-sis on the personal lives of offenders, its treat-ment of people as individuals, and its capacityto produce new thinking in an otherwise rigidpenal system. He suggests its weaknessesinclude an unwarranted assumption that crimeis related to disease and that social expertscan diagnose that condition; treatment pro-grams are open-ended and do not relate to theoffense or to other defined criteria; and thefact that the offender, not being seen as fullyresponsible for his or her actions, is capable ofmanipulating the treatment to serve his orher own interests. In addition, rehabilitationtheory tends to see crime as predetermined bysocial circumstances rather than as a matter ofchoice by the offender. This, it is said, deniesthe agency of the offender and arguably treatsan offender in a patronizing, infantilizing way(Hudson 1996: 29).

Indeterminate sentences gave effect to therehabilitative perspective because terms ofimprisonment were not fixed at trial, butrather the release decision was given to insti-tutions and persons operating within the crim-inal justice system, including parole boards,probation officers, and social workers. Thenotion of rehabilitation enjoyed considerablepolitical and public support in the first half ofthe 20th century, but modern rehabilitation-ists now argue that fixed rather than determi-nant sentences should be the context forrehabilitation (Hudson 1996: 64). They arguethat with indeterminate sentences, offendersbecome preoccupied with their likely releasedate, and this leads to their pretending to havemade more progress in treatment than is reallythe case.

The demise of rehabilitation as a theory ofpunishment began in the 1970s and was theresult of a complex set of factors, one of whichwas a much quoted article by Martinson(1974) who argued that “nothing works”; thatis, that no treatment program works very suc-cessfully in preventing reoffending, and that


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no program works better than any other.Martinson later attempted to rectify this pes-simistic view of rehabilitation and treatmentby acknowledging that some programs work,sometimes, for some types of offenders.1

Nevertheless, from that point on, policy mak-ers and legislators abandoned rehabilitation asan objective of punishment. On the issue ofindeterminate sentencing, the publication ofCriminal Sentences: Law without Order byMarvin Frankel, then a federal judge, whichargued that judges exercised “almost whollyunchecked and sweeping authority” in sen-tencing (1972: 5), provided substantial sup-port to the proponents of determinatesentencing. By the 1980s, the retributionisttheory of just deserts had become the mostinfluential theory of punishment.

Nowadays, rehabilitationists contend thattheir rationale for punishment is the only onethat combines crime reduction with respect foran offender’s rights. According to this view,although capital punishment and long terms ofimprisonment may deter and will certainlyincapacitate, rehabilitation can be accom-plished only if criminals re-enter society; conse-quently extreme punishments should be ruledout. Rotman (1994: 286) for example, arguesin favor of a “right’s oriented rehabilitation,”which accepts the offender’s liability to receivepunishment but claims a corresponding righton his or her part to “return to society with abetter chance of being a useful citizen and stay-ing out of prison.” This perspective is oftentermed “state-obligated rehabilitation,” andcontends that if the state assumes the right topunish, it should ensure that no more harm isinflicted than was intended when the sentencewas pronounced. That is, the intent of theprison sentence is deprivation of liberty and notloss of family ties or employability (Gallo andRuggiero 1991). Rotman (1994), for one,argues that a failure to provide rehabilitationamounts to cruel and unusual punishment.Carlen (1994) and Matthews (1989) argue thatstates are entitled to punish offenders because

offenders act out of choice. However, theysuggest that the offenders’ choices are often lim-ited because of circumstances and social condi-tions like poverty and inequality, which mightlead people into crime. Therefore, Hudson(1996: 66) claims, the state should recognizethat it plays a part in causing crime and shouldrecognize its role toward crime prevention byproviding rehabilitation to assist the offender innot committing further crime. The offender, onhis or her part, has a corresponding obligationto take part in rehabilitation programs offeredby the state. In this view, rehabilitation may beseen as an alternative to punishment rather thanas something to be achieved through the meansof punishment. As Carlen (1994: 329) con-tends, a purely punitive approach to sentencingdoes little to decrease crime and serves only toincrease the prison population.

Incapacitation

Penal practice has always tried to estimatethe risk that individual offenders might commitcrimes in the future and has tried to shape penalcontrols to prevent such crimes from happen-ing. Through the incapacitative approach,offenders are placed in custody, usually for longperiods of time, to protect the public from thechance of future offending (H. Morris 1994:238). In utilitarian theory, incapacitation is seenas a good consequence of punishment because,when serving his or her sentence, the offender isremoved from society and is therefore unable tocommit further offenses. This applies regardlessof whether the offender is deterred, reformed,or rehabilitated through the punishment he orshe is given. Incapacity may also be present inother forms of punishment such as parole, inthe sense that although the offender is free fromincarceration, he or she is placed under supervi-sion, which may restrict his or her opportunityto commit crime (Ten 1987: 8).

Some criminologists claim that certainoffenders commit crimes at very high rates,and that applying a policy of selective


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incapacitation aimed at these “career criminals”will assist with the aims of crime prevention.There are two basic objections to followinga policy of incapacitation based on selectingoffenders for this kind of punishment. Thefirst is that predicting criminal dangerousnessis problematic and will inevitably mean thata number of persons will suffer incapacitationwho would not have committed further crimesif left free, because, given the inaccuraciesof prediction, it is necessary to lock up orincapacitate large numbers of nondangerousoffenders so we can ensure we incapacitatedangerous offenders. Second, there is themoral objection that it is wrong in principleto punish offenders based on a predictionof their future conduct; that is, they oughtto be punished for what they have done andnot for what they might do in the future.Morris (1994: 241) argues that sentencesintended to incapacitate an offender ought tobe permitted only where there exists reliableinformation showing a high probability offuture offending. Morris suggests that takingaccount of dangerousness in the futureshould be considered to be statements aboutan offender’s present condition and not as aprediction of future conduct.

Some of the problems inherent in incapaci-tative sentencing include the following:

• it works only if we lock up those who wouldhave committed further offenses if they hadbeen left free;

• if those we lock up are not immediatelyreplaced by new recruits; or

• if the crimes committed after release are notso frequent or serious so as to negate theeffects of the crimes prevented throughincapacitative sentencing.

Ethical questions that arise from the sentenc-ing rationale of incapacitation include (also seeTravis 2002):

• Is it ethical to punish persons for crimes notyet committed?

• Is it ethical to base punishment on inaccuratepredictions?

• Is it ethical to punish a repeat offender fora past crime he or she committed and hasalready been punished for?

The notion of incapacitation is reflected in suchpunishment policies as three-strikes legislation,mandatory minimum sentences, and truth insentencing. These polices will be discussed aspenal policies in Chapter 7.

Restorative Justice

Braithwaite (1998: 323) argues that restora-tive justice has been “the dominant model ofcriminal justice throughout most of humanhistory for all the world’s peoples,” and thatit is grounded in traditions from ancientGreek, Arab, and Roman civilizations and inHindu, Buddhist, and Confucian traditions.Braithwaite emphasizes that restorative justicemeans restoring victims as well as offendersand the community. In addition to restoringlost property or personal injury, restorationmeans bringing back a sense of security. Hepoints to the shame and disempowermentsuffered by victims of crime. He observes thatWestern legal systems generally fail to incorpo-rate victims’ voices because the justice systemoften excludes their participation. Restoringharmony based on an acceptance that justicehas been done is, in his view, inadequate.Essentially, restorative justice proponentsemphasize the need to support both victimsand offenders, and see social relationships as arehabilitative vehicle aimed at providing for-mal and informal social support and controlfor offenders (Bazemore and Schiff 2001: 117).Rather than separating out the offender as asubject for rehabilitation, restorative justice seessocial support and social control of offendersas the means to rehabilitation.

The origins of restorative justice in theUnited States lie in part in court orders forreparation taking the form of restitution


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and community service. Since the 1970s,restitution and community service have beenemployed as sentencing tools in criminal andjuvenile courts, and during the 1980s anexpansion occurred in victim–offender media-tion programs resulting partly from interest inrestitution and community service programs(Bazemore and Schiff 2001: 25). Along withthe increased interest in these alternative sanc-tions, attention to the interests of victimsincreased during the 1990s, focusing on repairand healing influenced by the “faith commu-nity” and feminists (p. 26). Today, numerousprograms can be brought under the rubric ofrestorative justice, but they often remainsmall-scale experiments and tend to be associ-ated with community approaches to crimecontrol.

In considering the nature of a restorativejustice approach to offenders, it is useful tonote the three core principles suggested by VanNess and Strong (1997: 8–9).

1. Justice requires the healing of victims,offenders, and communities injured bycrime.

2. Victims, offenders, and communities shouldbe permitted to actively involve themselvesin the justice process in a timely and sub-stantial manner.

3. Roles and responsibilities of the govern-ment should be rethought and in its promo-tion of justice, government should beresponsible for preserving a just order andthe community should be responsible forestablishing peace.

Restorative justice may be considered uniquein its emphasis on not just one component ofthe criminal justice system such as punish-ment, but as incorporating victims, offenders,and the community in its strategies anddesigns.

In relation to offenders, Bazemore andDooley (2001: 108) state that there is a nor-mative focus on harm and repair. Repair, inthe context of restorative justice, implies a

particular form of rehabilitation. However,Bazemore and Dooley concede that there is anabsence of theory to explain how the opera-tion of restorative justice is supposed to bringabout a change in the offender. Some restora-tive justice proponents argue that repair inrelation to offenders involves a focus onrestoring, strengthening, and building relation-ships between offenders, victims, and commu-nities (p. 111), and therefore interventionintended to prevent future crime must focusnot only on the offender’s obligation to repairharm done to victims and the community, butalso on the need to repair broken relationshipsbetween the offender and the community, thevictim and the community, and the victim andthe offender.

Critics of restorative justice point to its too-ready assumption that it will be possible tosecure agreement between offenders, victims,and communities. Garland (1990) notes thatone of the functions of punishment is to relievethe feelings of victims and communities wherecrimes are committed, and that restorative jus-tice avoids the ceremonies and rituals of crim-inal law that recognize these emotions (inHudson 1996: 150). In addition, it can beargued that a greater reliance on restorativejustice and a consequent restriction on theoperation and expression of criminal lawmight lead to a situation in which those vic-tims processed through restorative justicemight come to believe or feel that the harmthey have suffered is of less importance than“real crime.” Feminists, who have argued forsevere sentencing for domestic violence, haveadopted this argument. Criminalization andpunishment show the limits of tolerance, anddepenalizing through restorative justiceprocesses tends to suggest that society has adifferent attitude towards certain kinds ofbehavior (Hudson 1996: 151). Von Hirsch, inhis investigation into the basis for restorativejustice, contends that no clear principles havebeen formulated for restoring the harm doneby offenders to community standards, and


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unlike victim restitution, which involves a taskof mediation between the victim and theoffender, there are no disputed claims involvedin crime because, for example, a robber appro-priates something that is clearly the propertyof the victim (1998: 674–675). Volpe (1991)has warned of the propensity of restorativejustice to widen the net of social control.

WHY PUNISH? THESOCIOLOGICAL APPROACH

In sociological terms, punishment raises ques-tions such as why particular punishments wereused and why they are no longer used; why apunishment like capital punishment has beenabandoned to a great extent in the West; andwhy imprisonment has become the majorform of punishment for criminal activity.

In social terms, research has concluded thatpunishments depend less on philosophicalarguments and more on the currents andmovements in social thinking and in climatesof tolerance and intolerance. A focus onhistory and changes in social conditions hasilluminated the relationship between punish-ment and society, which in turn has broadenedthe investigation of the notion of punishmentinto questions concerned with how order andauthority are maintained in society. Garland(1990: 10) summarizes social theory aboutpunishment as: “that body of thought whichexplores the relations between punishmentand society, its purpose being to understandpunishment as a social phenomenon and thustrace its role in social life.”

Garland (1990) has argued that punishmentis the product of social structure and culturalvalues. Thus, whom we choose to punish, howwe punish, and when we punish are deter-mined by the role we give to punishment insociety. If we construe criminal punishment asa wrong for a wrong, then we must concludethat society is, in a sense, wronging theoffender. We must therefore ask, “can theinfliction of pain or a wrong upon an offender

be justified ethically?” To answer this question,one must first look at the purpose of criminalpunishment and question the various rationalesput forward for punishment, such as deter-rence, incapacitation, rehabilitation, justdeserts, retribution, and restorative justice.

Sociological perspectives on punishmentinclude the thinking of Durkheim, Weber, theMarxist tradition, and post-Marxist sociolo-gies of punishment, particularly that pro-pounded by Foucault. Sociologists expandthe notion of punishment to “penality,” whichthey explore in various societies at varioustimes. Hudson defines penality as

. . . the complex of ideas (about properpunishment, about effective punishment),institutions (laws, policies and practices,agencies and buildings) and relationships(who has the power to say who is punished,whose ideas count, what is the relationshipof those who punish and are punished to therest of society) involved in the punishmentof offenders. (1996: 6)

Only a broad outline of the various perspec-tives on penality will be provided here.

According to Durkheim, society has anobjective reality apart from the individualswho comprise it, and he argues that peoplebehave according to social rules that, togetherwith customs and traditions, form a culturefor a particular society (in Hudson 1996:81–86). Durkheim took a functionalistapproach; that is, he examined aspects ofsocial life in terms of the functions they per-formed in society. He applied this approach topunishment by looking at the functions thatpunishment fulfills in maintaining social order.Durkheim identified beliefs and sentimentsheld by members of society, which he calledthe “conscience collective,” and argued thatcrimes are those acts which violate that con-science collective and produce a punitive reac-tion (in Garland 1990: 29). He developedtwo laws of penal evolution. The first is thatpunishment is more intense the less developed


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a society is and the more the central powerwithin that society is of an absolute nature.Thus, in industrial societies, collective senti-ments are embodied in law rather than inreligion, so crimes are seen as wrongs againstindividuals. He tried to demonstrate thatpenalties changed from ancient societies to histime, from aggravated penalties such as deathwith torture and mutilation to reduced formsof punishment. In his second law, he developsthe notion of punishments having lesser inten-sity, arguing that imprisonment will becomethe main punishment replacing death andtorture.

Overall, Durkheim sees the function of pun-ishment as promoting social solidarity throughthe affirmation of values, and argues that pun-ishment’s importance lies in its expression ofoutrage upon the commission of an offense. Hebelieved punishment to be a “passionate reac-tion” to crime, and this expressive view of pun-ishment can be seen in modern-day notions ofcensure in retributivism. His focus was not,therefore, on whether punishment was effectivein controlling crime, but in its function as ameans of maintaining social solidarity throughexpressions of outrage and through the affir-mation of societal values. Among critics ofDurkheim, Garland (1990) suggests thatDurkheim’s analysis of punishment is focusedtoo strongly on punishment’s expressive func-tion, causing all other explanations to bediscarded. Nevertheless, Garland (1990: 252)points out that Durkheim’s insight into the roleof punishment—as one of expressing commu-nity outrage against criminal acts—does singleout one aspect of punishment that seems to res-onate in the context of today’s debates about“getting tough on crime.” In similar fashion,Mead in The Psychology of Punitive Justicecontends that the indignation that members ofsociety feel towards the criminal amounts to acultural sublimation of the instincts and hostil-ities that the individual has tamed in the inter-est of social cooperation with others (inGarland 1990: 64).

Weber’s ideas on punishment are impliedrather than made explicit in his notions aboutauthority and power in modern society.Having identified three types of authority,the traditional, the charismatic, and the legal,Weber promoted legal authority—the processof making rules by those given the right torule—as being the most appropriate form ofrule for modern societies. For Weber, legalauthority carries with it a duty to obey laws.He argued that systems of laws might berational or irrational; in a rational system ofcriminal law, crimes would be defined andrules put forward for adjudicating thosecrimes. He favored formal rationality, whichhe termed “bureaucratic rationality,” andsaw this as an essential feature of a modernstate. His notion of bureaucratic rationalityappears in certain features of modernsociety, such as our processes for makingjudgments according to rules and the wayin which office holders exercise authority.Developments such as a professional policeforce and a judiciary as well as due processcan be traced to the bureaucratization ofsociety.

Marxist perspectives on punishment evolveout of Marx’s concern for the place of capi-talism and the relations between productionand society. In his view, institutions like laware shaped to parallel the relations of pro-duction and the maintenance of the capitalistsystem. Marxist penologists have argued thatpunishment regulates the supply of labor; thisview was put forward in 1939 by Ruscheand Kirchheimer in Punishment and SocialStructure (in Howe 1994: 12). In discussingthe history of punishment in Europe fromthe 13th century until the development ofcapitalism, the authors perceive the severity ofpunishment as being tied directly to the valueof labor. Thus, the severity of punishment,they argue, is relatively lenient when labor isscarce and its value high, whereas whenlabor is abundant, punishments become moreintense.


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Another key aspect of their view is theprinciple of less eligibility (Howe 1994: 12).The argument is that the conditions theoffender will experience in prison must beworse than anything he or she is likely toendure outside the prison in order to restrainthe “reserve army of labor” from crime; thatis, to serve as a deterrent to the lowest socialclasses. The idea of less eligibility encompassesmatters like discipline, diet, accommodation,and general living conditions in prisons.Rusche argued that this principle limited penalreform because punishments and prison con-ditions could not be improved beyond a pointthat would bring the offender into line withthe standard of life of the least advantagednonoffender (in Howe 1994: 20). This analy-sis has been criticized for its economic reduc-tionism (it only offers an economic argumentto explain changes in punishment) (Howe1994: 20). Nevertheless, it has led to a series ofstudies that have tested the basic frameworkand found some correlation between punish-ment and the labor market in the United Statesover time. The important point is that theauthors, together with other Marxists, haveprovided the insight that all punishment can-not be understood simply as a response tocrime. In other words, when changes in the useof imprisonment and other punishments areexamined in historical contexts, other factorsappear to have influenced their development.

Other Marxist theorists like Melossi andPashuknis have asked why imprisonment per-sists, as opposed to other forms of punish-ment. One answer from Pashuknis is that thereis a correspondence between the developmentof wage labor, which puts a price on time, andpaying for crime by “doing time.” In thissense, Marxist theory concerning the relationsof production is found mirrored in the punish-ment of imprisonment, and Marxists thereforeargue that a crucial principle in society is theexchange of equivalence. Punishment, there-fore, becomes an exchange transaction inwhich the offender pays his debt, an expression

commonly used today both in that form andin the notion of “paying a debt to society”(Garland 1990: 113). Marxist analysis ofsociety generally has been heavily criticizedby feminists for ignoring gender and for out-moded interpretative frameworks (Howe1994: 41).

In 1977, Michel Foucault publishedDiscipline and Punish: The Birth of the Prison,revolutionizing the study of penality and pun-ishment by presenting the notion of penalityand highlighting discipline as the key elementin modern forms of punishment. In his com-plex exploration of penality, Foucault followsan approach that examines the issue from theground up through a detailed examination ofpenal practices. His central focus is the exer-cise of power in modern society and its link-ages with knowledge to exercise power of andover the body. Describing first the effect andcontent of the public execution, Foucaultshows how the infliction of pain on the bodygave way to an exercise of power through thenew practice of disciplining the individualthrough institutions such as the factory andthe modern prison, and how this led to thedevelopment of a class of “delinquents.”Foucault claims that disciplinary regulation isthe fundamental principle of social control inmodern society and is most fully realized in theform of the prison.

Foucault (1977) emphasizes the role ofpunishment in producing the “right-thinkingcitizen”; that is, the trained and disciplinedindividual (Hudson 1996: 7). Foucault drawson both Weber (in his emphasis on bureaucra-tization) and Durkheim (in his descriptionof punishment as an expressive force) in hisaccount of penality. However, he adopts amuch broader analytic framework that linkspunishment and penality and connects themdirectly to changes in society and to the exer-cise of power over the individual. Foucault’sideas have inspired many followers includingDavid Garland who, in Punishment andModern Society (1990), argues that a full


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understanding of punishment and penalityshould incorporate the theoretical insights ofall the writers discussed in this section,together with those of Norbert Elias and hisnotion that the West has undergone a “civiliz-ing process” that has sensitized society againstharsh punishment. Importantly, Garland hasdrawn attention to the need to consider pun-ishment not simply as the consequence of acriminal act, but as a “complex social institu-tion” requiring us to think beyond simplycrime control. Punishment, he argues, shouldbe viewed as a social institution, and its socialrole and significance can be properly under-stood only through developing the insights ofsocial theorists.

SUMMARY

The morality of punishment rests upontheories of deterrence, retribution, just deserts,rehabilitation, incapacitation, and mostrecently, restorative justice. These theoriesattempt to justify society’s imposition of pun-ishment on offenders and try to provide anadequate ethical rationale for inflicting harm.Deterrence maintains that people are deterredfrom crime because they are concerned aboutthe possible consequences of their actions.Utilitarian philosophers first put forward thisjustification for punishment. A number ofstudies have considered the effectiveness ofdeterrence as a theory, but there is no clearconclusion about whether deterrence works.

Retribution theorists argue that punishmentis justified because it is deserved, and punish-ment therefore becomes a question of responsi-bility and accountability for acts that harmsociety. In retribution theory, the punishmentimposed should be proportionate to the wrong-doing. Retribution is justified in a number ofways, including the notion that offendersare paying their debt to society, that they arebeing censured by society, and that punishmenthas an expressive character that ought to becommunicated to an offender.

The emergence of just deserts theory in the1980s put an end to indeterminate sentencingand introduced sentencing guidelines andsentencing commissions as attempts were madeto fix proportionate sentences. Just desertstheory lacks any principle that determineswhat amounts to a properly commensuratesentence, and it ignores social factors as wellas the multiple decisions and discretions thatgo into the sentencing decision.

Rehabilitation shows a concern for anoffender’s social background and regardscrime as the outcome of a social disease thatshould be cured through treatment. In thepast, indeterminate sentences supportedrehabilitation programs because the releasedecision was given over to boards and notdetermined by the court. The idea that “noth-ing works” brought about the demise of reha-bilitation, which had been the dominantrationale for punishment until the 1970s. Ithas now been displaced by just deserts andincapacitation.

According to incapacitation theorists, plac-ing offenders in custody for lengthy periods oftime protects the public from the chance offuture offending, but this means that offendersare being punished based on a prediction ofwhat they might do in the future. It raises thequestion of whether it is ethical to punishpersons for crimes they have yet to commit.

Restorative justice is a newcomer to thefield of penal theory, and some suggest that itlacks theoretical support. However, its empha-sis on community involvement in solutions tocrime and emphasis on the victim haveattracted a body of support, at least at thelocal level, where it has been employed todeal with delinquency and relatively minoroffenses.

The philosophical approach to punishmentis concerned with the “ought” of punishment,whereas the sociological approach raises ques-tions about the use and severity of particularpunishments and the relationship amongpunishment, society, and social change. The


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criminological approach focuses on the fact ofimprisonment and on penal policy making andcrime control. Some suggest that no singleapproach adequately provides justificationand rationale for punishment, and that a fullexplanation can be gained only by combiningthese various perspectives.

DISCUSSION QUESTIONS

1. Offenders are punished because we holdthem accountable and responsible for theiractions. Explain by reference to the varioustheories of punishment.

2. Does deterrence work? Explain.

3. How can just deserts theory be criticized,and why has just deserts become thepredominant view in penal policy?

4. Contrast rehabilitation and incapacita-tion as theories of punishment explainingtheir justification, operation, and whatcriticisms have been made of them.

5. What advantage would society gain ifrestorative justice were the only method ofpunishment? In your answer consider all theadvantages and disadvantages offered by arestorative justice approach to punishment.

6. Contrast the philosophical and sociologicalperspectives on punishment.

7. What is the lex talionis, and what are itsdrawbacks as a form of punishment?

NOTE

1. A recent meta-analysis found that adult cor-rectional treatment is effective in reducing recidi-vism; that behavioral cognitive treatments aremore effective than others; and that intensive in-prison drug treatment is effective, especially whenit operates in conjunction with community after-care (Gaes et al. 1999: 361). In assessing the effec-tiveness of interventions, Duff and Garland (1994:24) point out that we need to ask not just “whatworks” but “what should be counted as working?”

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Purpose of punishment

Education

Transcript of Purpose of punishment