a) involves suffering (pain, isolation, loss of freedom or money etc).
b) the suffering is not a result of accidental or natural causes; it is
deliberately and intentionally inflicted.
c) it is inflicted on an offender for an action* because of a legal
offense, (perhaps, more accurately, it is inflicted on one found legally
guilty.) There must be a LAW which has been broken. (Remember Fuller's
account of some minimal features of law.)
d) it is imposed by an authorized agent, i.e., the state, not a private
party.
e) the pain or unpleasantness is an essential part of what the authority
intends. (Certain aspects of treatment might be unpleasant, but this
doesn't make it punishment.)
*"Action" is partly being used in a restricted sense of something that a
person DOES voluntarily.
What questions might you pose to challenge each of these? E.g. do you
think that the offense must be a moral offense as well as a legal one?
1. Deterrence. Simple put, the justification of punishment or the aim
of punishment is to discourage criminal behavior. This is sometimes
called general deterrence, since the punishment of any particular person
is meant to restrain others from committing offenses. Note one
peculiarity, among many; it is actually the threat of punishment which
is suppose to deter. The actual punishment takes place only after the
threat has failed, and it is intended to make future threats more
credible. Deterrence theory has utilitarianism as its theoretical
background, and as enthusiasm for utilitarianism waxes and wanes, so
does the support for deterrence theory as a comprehensive theory of
punishment. Since punishment involves the infliction of pain it is
especially important that it be effective, that is the good results must
outweigh the pain of punishment, and that punishment is the least
painful way to reduce crime. This raises many questions about how
effective punishment is, under what circumstances, for which kind of
crimes etc. And, it does not justify any treatment, the pain caused to
criminals and citizens alike because of the enforcement of laws and
penalties must be taken into account.
2. Retribution (from Black's Law Dictionary) "Something given or
demanded in payment. In criminal law, it is punishment based on the
theory which bears its name and based strictly on the fact that every
crime demands payment in the form of punishment." The key here is that
the punishment is inflicted for something the person did (it "goes back"
to the crime), quite apart from any future beneficial results. This is
sometimes called the "just deserts" theory, and it depends, perhaps, on
an intuition that a world in which evil is hated (punished) is better
than a world in which evil is loved (rewarded). (Important: this is
quite the opposite of two wrongs making a right, since loving or
rewarding or even ignoring evil is a wrong.) Kant is one of the more
famous defenders of retributive theory, and he offers a version which is
quite clear; it does rely rather heavily (this is certainly arguable) on
a belief in free will. The argument: As free, rational, autonomous
beings we have certain rights to realize our wills through action.
Since we are rational, we can universalize, and therefore realize that
others also have rights, and that we must respect the rights of others.
Now rights, in this sense, are legitimate freedoms, and ideally, laws
maximize, extend, and protect these freedoms. When a person freely
commits an offense, he is choosing to try to extend his own freedom and
to deprive another of her freedom. At this point, things get a bit more
murky. One version says that punishment, (seen more as a counter
coercion or hindrance, than as infliction of pain) is a "`hindrance of a
hindrance' of legitimate freedom, and is therefore justifiable. Freedom
is limited for the sake of freedom itself." (Golding, Philosophy of Law.
Another way of putting this is that justice (treating equals as equally)
requires that those getting benefit of breaking the laws plus all the
freedoms which law provides, must be punished to equalize the burdens
imposed by law.
3.Reform Theory (Special deterrence). Reform theory is a subset of
deterrence theory, and in fact the full title is sometimes: reform-
deterrence theory. I have separated them in order to emphasize general
deterrence, and because, whatever its shortcomings, deterrence theory is
somewhat more plausible than reform theory - especially as a
comprehensive theory. Reform theory is simply that one aim of
punishment is to literally re-form the individual offender through
punishment. (The underlined part distinguishes it from rehabilitation
theory.) When little Johnny is scolded and sent to his room to "think
about" what he did, punishment (temporary imprisonment in his room) is
being used as an instrument to change Johnny (and his behavior). This
might work in two ways. Originally, a penitentiary was a place to send
people so that they would think about what they did and, through their
own consciences, convert. However, reform need not depend on this
"meditative model" of personality change, one might think that
infliction of pain will change behavior. The parent who swats Johnny
across the mouth when he says "s___" is using a form of crude
behaviorism. (see Rehabilitation Theory)
4. Social Defense/Incapcitation. The purpose of punishment is to protect innocent law-abiding citizens from the dangerous elements in society. It is usually used to continue to incarcerate or detain people after the initial punishment because it is deemed that the person is mentally ill or continues to be dangerous. This is a
theory of despair, or perhaps it is just realistic. This theory is
resorted to as a consequence of criticisms of the others. That is, say
what you like, we have to protect ourselves, so lets lock up as many
dangerous people as we can for as long as we can. Even if reform and
deterrence doesn't work we can still "fence them in." This theory
assumes that there is a way of diagnosing and predicting dangerous
behavior, and that we can actually lock up a high enough percentage of
law breakers to make a difference. (The percentage of people who are
caught, convicted and sentenced in comparison with the number of crimes
is quite actually so low, that it is doubtful that this theory can be
taken seriously as a "solution" to the crime problem.) Notice also how
disproportionate sentences could be in comparison to the seriousness of
the crime on this model. An unrestricted social defense would be
opposed by everyone, utilitarians and retributivists alike, who think
that punishment and the amount of punishment needs a moral
justification.
5. Expressive theory of punishment. Though not a complete and
comprehensive theory, it reminds us of an important aspect of
punishment especially with respect to capital crimes. Punishment
expresses our moral outrage about some acts. The system of punishment
has the function of expressing our moral values and their hierarchy.
Even if we found that severe punishment did not deter murder, nor reform
the murderer, it would be important to severely punish the crime as an
expression of our abhorrence at the taking of human life.
6. Moral Education theory shares some features with the expressive
theory, the reform theory and the retributive theory. There are several
recent varieties of this view. It is the view that punishment can send
a very effective message to the law breaker when combined with clear
reasons as to the reasons for the law and the resulting punishment. It
"reconnects" the person with moral values, in the words of one advocate.
This is close to reform theory, but is often defended from a Kantian
background rather than from utilitarianism.
B. Non-punitive theories
1. Rehabilitation (Therapeutic Model). Rehabilitation has the same aim
as the reform theory, but it is founded on the recognition that
punishment is a very ineffective way to change behavior. Founded on the
medical or educative model, it isn't really punishment at all, but some
combination of therapy, retraining, and education. When used it has
tended to actually lengthen sentences, and it seems to be an especially
dangerous view when used for "political" crimes, e.g., peace marches,
anti abortion rallies, rancorous political or hate speech.
2. Restitution. Basically this theory would privatize crime and punish
and treat crime more on the model of civil law. At present, a crime is
considered an act against the state (the people at large); such acts are
simply NOT TO BE DONE. Acts covered by the civil law have a price tag
to them. You might look at them this way: "You probably shouldn't do
this, but if you do then you will be liable to those injured from your
act, and you will have to pay." On this model, when you are caught,
perhaps by a bounty hunter, you would have to pay damages (or other
sorts of compensation) to the victim (or family) Prisons can be turned
into factories where people work in order to earn funds to pay off those
they hurt. Thus, a lot of law would be handled like liability under
tort law. It also minimizes role of government, and begins to see even
crime as a private matter between individuals. This can look pretty
attractive theoretically. It can have appeal to liberals who want worry
about victims and it is favored by libertarians and conservatives who
don't trust government. There are enormous practical problems, but
there are a lot of theoretical and moral ones too, when the details are
examined.