Justifications for punishment and their relevance to criminal offences

Author: Dmytro Tupchiienko, Institute of Criminology, University of Cambridge (UK)

Theories of Punishment and their Origins

For punishment to be instituted, a conduct or behaviour must be deemed as improper for which punishment is applied. A system of criminal law must exist that defines crimes as being such. Mabbot ((Mabbott, J. D. Punishment. Mind, New Series, Vol. 48, No. 190 (Apr., 1939), pp. 152-167))defines punishment as a ‘corollary of law-breaking by a member of the society whose law is broken’; this modern definition was further developed by Flew ((Flew, Antony. The Justification of Punishment. Philosophy, Vol. 29, No. 111 (Oct., 1954), pp. 291-307))and Hart ((Hart, H. L. A. The Presidential Address: Prolegomenon to the Principles of Punishment. Proceedings of the Aristotelian Society, New Series, Vol. 60 (1959 – 1960), pp. 1-26 see also Hart, H. L.A. 2008. Punishment and responsibility: Essays in the philosophy of law. 2d ed. Oxford: Oxford Univ. Press))into that punishment has five elements i.e. it must be:

  • evil and involve pain or other consequences normally considered unpleasant to the victim;
  • for an offence against legal rules;
  • of an actual or supposed offender for his offence;
  • intentionally administered by human beings other than the offender e.g. agencies;
  • imposed and administered by some special authority or institution constituted by a legal system against which the offence is committed.

As a matter of fact, he demand for proportionate loss and suffering or the “lex talionis” – restoration of balance between victim and offender, is known from ancient codified systems of law e.g. Cuneiform Law Mosaic Laws and the Twelve Tables, to name a few.

Plato in Protagoras ((Plato, Protagoras; ed. by Nicholas Denyer. Cambridge: Cambridge University Press, 2008))describes the punishment’s nature as a way of being deterred from doing wrong for the sake of prevention.

Several concepts of punishment are attributed to Cicero ((Cicero, On the commonwealth; and On the laws; edited by James E.G. Zetzel. Cambridge University Press, 1999))such as noxiæ pœna par esto (”let the punishment be equal with the offence”), and cavendum est ne major poena wuam culpa sit (“Care must be taken lest the punishment exceed the guilt” ((Cicero, De Officiis [Loeb Classical Library 293]. London; Cambridge,MA, 1968)).

Garland ((Garland David. Sociological Perspectives on Punishment. Crime and Justice, Vol. 14 (1991), pp. 115-165))sees the philosophy of punishment as a branch of moral philosophy, which was first stated by Locke during the Enlightenment that declared several critical ideas as centerfold values of the society, such as freedom, democracy, and reason—which led to reexamination of penal systems.

Locke ((Locke, John. Two Treatises of Government. Ed. Peter Laslett. Cambridge: Cambridge University Press [1988]))argued that government preserves every man’s right and property from the violence or injury of others by imposing a ‘terror to evil doers’, and to force men to observe the laws of the society for the benefit of public good.

Hobbes ((Hobbes, Thomas. Leviathan. Eds. G.A.J. Rogers and Karl Schuhmann. Bristol: Thoemmes, 2003))described punishment as an “evil inflicted by public authority” on what is “judged by the same authority to be a transgression of the law, to the end that the will of men may thereby the better be disposed to obedience”.

Montesquieu ((Montesquieu, Charles de Secondat, baron de. Spirit of the Laws. Eds. Anne M. Cohler, Basia Carolyn Miller, and Harold Samuel Stone. Cambridge Texts in the History of Political Thought. Cambridge: Cambridge University Press [1989]))extended these principles further and argued that there should be a certain proportion, or moderation, in punishments.

Beccaria ((Beccaria, Cesare. Of crimes and punishments. Translated by Jane Grigson; introduction by Marvin Wolfgang; foreword by Mario Cuomo. New York: Marsilio Publishers (1996).))developed a number of principles that instigated reforms in the area of modern criminal justice as well as in penal codes of most modern nations, namely that punishment has not a retributive but a deterrent (preventive) function.

Kant ((Kant, Immanuel, Groundwork of the metaphysics of morals; translated and edited by Mary Gregor; with an introduction by Christine M. Korsgaard. Cambridge University Press, 1998 see also Kant, Immanuel, Critique of practical reason; translated and edited by Mary Gregor ; with an introduction by Andrews Reath. Cambridge University Press, 1997 (2005 printing).))states that punishment must always be imposed on the criminal only because he has committed a crime, which must previously have been found punishable; argues that the “law of punishment is a categorical imperative”, that only the law of retribution (lex talionis) applied by a court “can specify definitely the quality and quantity of punishment”.

Hegel ((Hegel, Georg Wilhelm Friedrich, Elements of the philosophy of right; edited by Allen W. Wood; translated by H.B. Nisbet. Cambridge University Press, 1991))states that punishment must be absolutely just, and the result of punishment is set down as a good, hence punishment annuls the wrong done, being the negation of a negation.

Feuerbach ((Feuerbach Paul von. Kritik des natürlichen Rechts als Propädeutik zu einer Wissenschaft der natürlichen Rechte. Georg Olms Verlagsbuhhandlung, Hildesheim (1963).))developed the theory of justice administration, which included the maxim nulla poena sine lege (“no penalty without a law”) and further developed a theory that judges should be bound by the provisions of the penal code in their decisions.

Bentham ((Bentham, Jeremy. An introduction to the principles of morals and legislation; edited by J.H. Burns and H.L.A. Hart. London : Methuen, 1982))as the founder of Utilitarianism stressed social policy as a basis for penal reform, developing Beccaria’s idea that that offenders would be deterred from crime if punishment was applied swiftly, certainly, and severely. Bentham states that “general prevention ought to be the chief end of punishment as its real justification”.

Justifications for Punishment and their Relevance to Criminal Offences

As it derives from the above analysis, punishment is imposed as a result of sentencing. Tonry ((Tonry, Michael. 2006. Purposes and functions of sentencing. In Crime and justice: A review of research. Vol. 34. Edited by Michael Tonry, 1–53. Chicago: Univ. of Chicago Press))says that sentencing depends on which philosophical principles are used by courts and what each legal system considers as the purpose of punishment.

In R v Salcedo McColl JA observed that:
…the task of the sentencing judge is to take into account all the objective circumstances of the offence in characterising its criminality as well as such subjective circumstances as appear appropriate…

Modern philosophy of punishment could be broadly divided between two concepts: utilitarian and retributive. As stated by Cavadino and Dignan ((Cavadino, M. and Dignan, J. (1997). The Penal System: An Introduction (2nd ed.), p. 39. London: Sage)), the former is describing the purpose of punishment as to discourage or deter any future wrongdoing. Garland ((Garland David. Sociological Perspectives on Punishment. Crime and Justice, Vol. 14 (1991), pp. 115-165))highlights two rather different discursive traditions, the “penological” and the “philosophical”. Within this framework, states Garland, penal institutions and the processes of punishment are seen by penology as a means to the reduction of crime rates and the restraint of individual criminals . Garland goes on to say that the motto of the penological approach is to view criminal justice in instrumental terms as an apparatus whose purpose is the management and control of crime.

The most common and traditional justifications for punishment are given by e.g. Greenawalt ((Greenawalt, Kent. 2001. Punishment. In Encyclopedia of crime and justice. Vol. 3. 2d ed. Edited by Joshua Dressler, 1282–1294. New York: Macmillan))and Honderich ((Honderich, Ted. Punishment, the Supposed Justifications. [Revised ed. & with a new Postscript]. Penguin Books. 1984.)):

  • Retribution, whose aim is to impose punishment for an offense being committed; more severe crime must be punished more harshly than a minor crime, known in common law from the times of Magna Carta which provided that no one should be punished except in accordance with the degree and the gravity of the offense; and again in the Bill of Rights that no excessive fines, fines, nor cruel and unusual punishments should be inflicted. As stated by Rodriguez ((Rodriguez, Angel Manuel. An eye for an eye. Adventist Review, 1998, v175, Dec 10, p21(1685).)), this however does not mean that the punishment should be equivalent to the crime in accordance with lex talionis.

In criminal law is an injury, loss or damage, including material or tangible elements and varies by a reasonable perception Justification of punishment depends on the size/dimension of harm, which the underlying crime causes.

Von Hirsch ((Hirsch, Andrew von, Proportionality in the Philosophy of Punishment. Crime and Justice, Vol. 16 (1992), pp. 55-98. The University of Chicago Press))in his concept of “just deserts” states that the central point of desert theory is that “proportionality is a requirement of fairness”, i.e. the severity of the punishment depends on the severity of the crime. He further argues that “penalties should be scaled to reflect the blameworthiness of offences, because blame is what the sanction expresses”.

Does this show that sentences must always be scaled proportionately? Not necessarily. To the contrary, as Domanick ((Domanick, J. Cruel Justice: Three strikes and the politics of crime in America’s golden state. University of California Press. (2004).))states, the Three Strikes legislation has lacked strong evidence for its effectiveness as a deterrent.
 Deterrence, which is seen by McCarthy ((McCarthy, Francis Barry. Crimes of Omission in Pennsylvania. Summer, 1995. 68 Temp. L. Rev. 633))as a tool ensuring that the potential offenders should be warned. As stated by Andenaes ((Andenaes, Johannes. (1974). Punishment and Deterrence. Ann Arbor: Univ. of Michigan Press))and Fox and Freiberg ((Fox R. and Freiberg A. Sentencing: State and Federal Law in Victoria (2nd ed, 1999).)), it could be subdivided into three separate categories:

(i) specific deterrence, focusing on the individual and whose aim is to discourage or dissuade the individual offender or criminal from committing further possible criminal acts by understanding of the consequences thus preventing offenders from re-offending and from committing further offences through fear of further punishment; Simpson J in Comptroller-General of Customs v Parker stated:

…Specific deterrence goes further than deterring the offender from repeating precisely the conduct the subject of the offence or conviction. It has a broader purpose. It is also to deter the particular offender from engaging in any other form of dishonesty…

(ii) general or indirect deterrence, which focuses on general crime prevention and aims to prevent those prospective offenders , from actually committing it in the future by impressing upon their minds the fear of incurring a possible sanction; in Putland v R Gleeson CJ stated that general deterrence is a relevant consideration in sentencing:

…general deterrence, a matter so obviously relevant to sentencing that the statement of matters to which regard must be had is manifestly incomplete.

Wikstrom, Bottoms, von Hirsch, and Burney ((Hirsch, Andrew von; Bottoms, Anthony E.; Burney, Elizabeth; Wikstrom, P-O. Criminal Deterrence and Sentence Severity: An Analysis of Recent Research. Hart Publishing (December 1, 1999).))found convincing evidence that deterrence works, albeit in certain circumstances. They state that “people can be deterred by both formal and informal sanctions… [and that] the criminal justice system as a whole also exercises a deterrent effect”. They found that ‘increased likelihood of conviction is statistically associated with declining crime rates, or vice-versa’.

(iii) incapacitation, whose aim is to make a supposed offender incapable of committing further offences in order to protect the society against which they are offending. Nagin ((Nagin, Daniel. Crime Rates, Sanction Levels, and Constraints on Prison Population. Law & Society Review, Vol. 12, No. 3, Special Issue on Criminal Justice (Spring, 1978), pp. 341-366))states that one of the major justifications for the ‘rise of mass incarceration in the United States’ is that ‘incarceration reduces recidivism by teaching offenders that “crime does not pay.” He further states ((Cullen Francis T., Jonson Cheryl Lero, and Nagin Daniel S. Prisons Do Not Reduce Recidivism: The High Cost of Ignoring Science. The Prison Journal. September 2011. 91: 48S-65S, first published on July 19, 2011))that there is ‘little evidence that prisons reduce recidivism – quite to the contrary’.

  •  Denunciation, whose aim in the context of punishment philosophy is to express moral disapproval of an offence by society. Denunciation most often justifies the existence of legal principles that are rarely enforced in practice but exist merely as reflections of certain values, rather than active principles of a justice system.
  •  Rehabilitation, whose purpose is to encourage the offender not to re-offend by restoring an offender to useful life—to reform the offender’s behavior by means of therapy and education, community service, and probation orders – in general via any form of sanction that consists of aftercare and guidance to an offender. McNeill ((McNeill, Fergus, Four forms of ‘offender’ rehabilitation: Towards an interdisciplinary perspective. Legal and Criminological Psychology, Volume 17, Issue 1, pages 18–36, February 2012))defines four forms of offender’s rehabilitation: psychological, legal or judicial, moral and social. In R v Bugeja Adams J said:

…the fundamental purpose of rehabilitation is that the offender will no longer offend.

In Vartzokas v Zanker, King CJ said:

[r]ehabilitation … is aimed at the renunciation by the offender of his wrongdoing and his establishment or re-establishment as an honourable law-abiding citizen.”

Another argument by OECD study ((Custodial And Non-Custodial Measures. Alternatives To Incarceration. Criminal Justice Assessment Toolkit. United Nations Office On Drugs And Crime, Vienna, 2006. http://polis.osce.org/library/view?item_id=2706&attach_id=538))for rehabilitation is that ‘prisons not only rarely rehabilitate, but they tend to further criminalise individuals, leading to re-offending and a cycle of release and imprisonment, which does nothing to reduce overcrowding in prisons or to build safer communities.’

Modern Evidence on Effects of Imprisonment other than Custodial: Restorative Justice and other Alternatives to Incarceration

For the most of the second half of the 20th and the beginning of 21st centuries, incarceration has served as the most widespread tool used in the penal system. Garland ((Garland David, Punishment and Modern Society. A Study in Social Theory. Clarendon Press, 1991))argues that the efforts to build a new framework for penal policy upon traditional theories of punishment are unable to achieve its stated objectives and that the penal system needs to produce a modern rationale for punishment that will constitute a backbone for penal reform.

Practice suggests that comprehensive reform of criminal justice systems need to be developed, and sentencing practices need to be changed by introducing alternatives to imprisonment. It reflects a fundamental change in the approach to crime and punishment, changing the focus from punishment and incarceration to reintegration and restorative justice.

There are several social issues related to alternative methods of punishment, as stated by a UN handbook ((Handbook for prison managers and policymakers on Women and Imprisonment, Criminal Justice Handbook Series, United Nations Publication ISBN 978-92-1-130267-7, http://www.unodc.org/documents/justice-and-prison-reform/women-and-imprisonment.pdf))that the majority of prisoners nowadays come from economically and socially disadvantaged backgrounds, whereby imprisonment is not addressing the issue of safety in the community.

Recently developed assessment tools such as the Tokyo Rules ((Alternatives to imprisonment and restorative justice. United Nations Standard Minimum Rules for Non-custodial Measures (the Tokyo Rules), General Assembly resolution 45/110, annex))or UNODC Manuals ((Manuals on Alternatives to Imprisonment and Restorative Justice, http://www.unodc.org/documents/justice-and-prison-reform/UNODC_Prison_reform_concept_note.pdf)), provide a set of basic principles to promote the use of non-custodial measures that include probation services, parole or conditional release; social reintegration (assisting offenders’ return to normal life in society), and amnesties.

Lindholm ((Lindholm, Margareta, Legal Basis and Organisation of Probation Services, Paper presented at the Council of Europe/Ministry of Justice, Turkey Conference on Probation and Aftercare, 14-16 November 2005, Istanbul, p.5), http://www.coe.int/t/dghl/standardsetting/prisons/Conferences/CPA%20_2005_%201%20-%20programme%208%20november.pdf))suggests that the evidence of economic arguments tells that a probation system is less costly than the imprisonment. However, probation services may not be viable and effective for countries with limited resources to adequately maintain a probation system.

There are many objectives for sentencing as a means of crime prevention that are used in the criminal justice system, which, especially deterrence, remind potential offenders of the consequences for a criminal act committed. Retribution allows a punishment to be determined based on the severity and circumstances of the crime. It helps to ensure an individual will receive a rationalized punishment

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