GENERAL THEORIES OF PUNISHMENT AND TREATMENT

 II. Theories of how to deal with crime and criminals (legally convicted offenders) ; Theories of Punishment

 Determinists, Hard and Soft, advocate Reform-Deterrence Theories of Punishment and Rehabilitation. As psychology learns more about the limits of

punishment in reforming or deterring individuals, the more they tend towards Rehabilitation and Education. But, general deterrence clearly does work for

some crimes.

Libertarian - Free Willists have traditionally been retributivists. Of course, anyone can advocate a Public Defense theory.

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. 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 must be 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.Reform Theory (Sometimes called: Special or Individual 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 (become penitent) 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)  

3. Retribution - "It Serves You Right" (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 "pay back" theory) 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). 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 on a belief in free will. The argument: As free, rational, autonomous

beings we have certain rights to realize our wills through action.

When a person freely commits an offense, he is choosing to try to extend his own freedom and

to deprive another of her freedom. 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.

 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.

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.