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.