Punishment - Wikipedia
Feb 27, This review will look at using incarceration as a punishment and what Do the punishments actually hold those convicted accountable for their. Of course, these justifications are about punishing the guilty, not about are reasonably available, and as long as the conditions above are met -- that the person Where punishment does not serve as a deterrent, this attempt at justifying it does him/her, perhaps the cost of any incarceration if incarceration is necessary. The dominant approaches to justification are retributive and utilitarian. Many actual theories of punishment do not fit unambiguously and exclusively into one . Imprisonment temporarily puts the convicted criminal out of general circulation, .
Specific and General Deterrence Deterrence prevents future crime by frightening the defendant or the public. The two types of deterrence are specific and general deterrence.
Specific deterrence applies to an individual defendant. When the government punishes an individual defendant, he or she is theoretically less likely to commit another crime because of fear of another similar or worse punishment.
General deterrence applies to the public at large. When the public learns, for example, that an individual defendant was severely punished by a sentence of life in prison or the death penalty, this knowledge can inspire a deep fear of criminal prosecution. Incapacitation Incapacitation prevents future crime by removing the defendant from society. Examples of incapacitation are incarceration, house arrest, or execution pursuant to the death penalty.
Examples of rehabilitation include educational and vocational programs, treatment center placement, and counseling.
The actual imposition of punishment creates fear in the offender that if he repeats his act, he will be punished again. Adults are more able than small children to draw conclusions from the punishment of others, but having a harm befall oneself is almost always a sharper lesson than seeing the same harm occur to others. To deter an offender from repeating his actions, a penalty should be severe enough to outweigh in his mind the benefits of the crime. For the utilitarian, more severe punishment of repeat offenders is warranted partly because the first penalty has shown itself ineffective from the standpoint of individual deterrence.
Incapacitation and other forms of risk management. Imprisonment temporarily puts the convicted criminal out of general circulation, and the death penalty does so permanently. These punishments physically prevent persons of dangerous disposition from acting upon their destructive tendencies. Less drastic forms of risk management include probationary or parole supervision, and accompanying requirements for example, random urine tests to detect use of illegal drugs and prohibitions use of alcohol or firearms, association with certain persons, contact with the victim, and so on.
As with individual deterrence, more severe risk-management measures are warranted for repeat offenders because such offenders are statistically more likely to commit further crimes. However, incapacitation of a high-risk offender may nevertheless fail to prevent further crimes.
This would be the case if such an offender were to be immediately replaced by another offender for example, on a street corner well-suited for selling drugs. It would also be the case if the offender, when released from prison, had become more dangerous than he was before so that the crimes he commits after release are more numerous or more serious than those which were prevented while he was imprisoned.
Punishment may help to reform the criminal so that his wish to commit crimes will be lessened, and perhaps so that he can be a happier, more useful person. Conviction and simple imposition of a penalty might themselves be thought to contribute to reform if they help an offender become aware that he has acted wrongly. In that case, punishment acts as a form of norm reinforcement operating at the individual rather than the community level; the importance of promoting the offender's awareness of wrongdoing is also cited by those who stress the "communicative" aspects of punishment.
However, reform is usually conceived as involving more positive steps to make offenders less antisocial by altering their basic character, improving their skills, or teaching them how to control their crime-producing urges for example, their tendency to abuse drugs or alcohol, or to commit sex crimes. Various psychological therapies, medications, and even drastic interventions such as psychosurgery, are designed to curb destructive tendencies.
Educational and training programs can render legitimate employment a more attractive alternative to criminal endeavors. These may indirectly help enhance self-respect, but their primary purpose is to alter the options that the released convict will face. The utilitarian, in contrast to the retributivist, does not suppose that wrongful acts intrinsically deserve a harsh response, but utilitarians recognize that victims, their families and friends, and some members of the public will feel frustrated if no such response is forthcoming.
Satisfying these desires that punishment be imposed is seen as one legitimate aim in punishing the offender. In part, the point is straightforwardly to increase the happiness, or reduce the unhappiness, of those who want the offender punished, but formal punishment can also help increase their sense of respect for the law and deflect unchanneled acts of private vengeance.
Community or victim restoration. Another utilitarian sentencing goal that began to receive much greater emphasis toward the end of the twentieth century is to repair the damage that the offense has caused, by requiring the offender to make restitution or perform compensatory service for the victim or the community.
Punishment - Moral Justifications And Legal Punishment
Restorative justice goals are also sometimes defined to include acceptance of responsibility or repentance by the offender, forgiveness by the victim, and victim-offender or community-offender reconciliation, for example, by means of mediation or an apology.
Since some of these goals and measures may also benefit the offender, and depend heavily on his cooperation, they might not seem sufficiently unpleasant or stigmatizing to qualify as punishment; however, the same could be said for many measures designed to promote reform or manage the offender's risk of re-offending. Indeed, the broadest goals of restorative justice overlap with several previously mentioned punishment goals, in particular, norm reinforcement, risk-management, and reform.
Restorative measures can also be seen as a means of deflecting the desires of victims and the public for vengeance, and providing a more constructive outlet for such feelings. Unlike a basic retributive theory, the utilitarian approach to punishment is compatible with philosophical determinism.
Whether or not human acts are completely determined by prior causes, punishment can be an efficacious prior cause. A determinist can support even the "condemnation" component of punishment on utilitarian grounds, believing that condemnation and feelings of guilt are useful instruments in guiding human behavior. From the utilitarian perspective, the acts for which criminal punishment should be authorized are those with respect to which the good consequences of punishment can outweigh the bad; the persons who should be punished are those whom it is useful to punish; and the severity of punishment should be determined not by some abstract notion of deserts but by marginal usefulness.
Each extra ingredient of punishment is warranted only if its added benefits outweigh its added harms and costs. Of course, in real life such a fine scale cannot be developed, but legislators and those administering punishment should be guided by this principle. The utilitarian does not start with the premise that penalties of equal severity should go to those with equal blame.
For general deterrence, roughly equal penalties for the same offenses may be appropriate, but goals relating to individual offenders may support individuation of treatment, leading, for example, to long confinement for those judged irredeemably antisocial, and to rehabilitation and prompt release for those whose character can be positively transformed or already has been, at the time of sentencing.
Philosophical objections to utilitarianism. Utilitarian programs for systems of punishment are subject to two kinds of objections: When existing practices are attacked, disentangling the theoretical from the practical complaints often is not simple, but the following discussion tries to separate the two, dealing first with basic attacks on utilitarian theory and indicating what modifications may be needed to accommodate valid criticisms. The most fundamental objection is to treating the criminal as a means to satisfy social purposes rather than as an end in himself.
This objection bears on why, and how, guilty offenders may be punished; but the most damaging aspect of the attack is that utilitarianism admits the possibility of justified punishment of the innocent. The retributivist asserts that such punishment is morally wrong even when it would produce a balance of favorable consequences.
Various responses have been made by utilitarians.Does Punishment Work? - Child Psychology
One is that since the term punishment implies guilt, the innocent cannot logically be punished. The terminological point is highly doubtful in cases in which innocent people are portrayed as guilty and given harsh treatment on that basis.
In any event, even if the point is sound, it merely requires the retributivist to restate his worry, now objecting that utilitarian theory countenances subjecting the innocent to harms that have the appearance of punishment. The utilitarian may answer that his theory will certainly not support any announced practice of punishing the innocent. The purposes of punishment would not be served if people knew a person was innocent, and even to establish a general policy that officials would at their discretion occasionally seek punishment of those they know are innocent would cause serious insecurity.
One version of utilitarianism, called "rule" utilitarianism, makes the standard of moral evaluation the rules that would, if publicly announced, accepted, and applied, produce the best consequences. Under this version, punishment of the innocent may cease to be a problem, since no rule authorizing such punishment should be accepted.
Suppose, however, that an official or citizen is sure that surreptitiously promoting the punishment of someone he knows to be innocent will be very useful. The rule-utilitarian account avoids the dilemma, but only by presupposing that proper moral decisions must be defensible in terms of rules that can be publicly announced.
They might, however, also try to foreclose intentionally punishing the innocent as a practical alternative, pointing to the severe insecurities that would be caused by knowledge of such punishment and the difficulties of maintaining secrecy.
Alternatively, they might concede that punishing the innocent would be appropriate if the balance of likely consequences were favorable, arguing that such a conclusion conflicts with moral intuitions only because those are developed to deal with ordinary situations.
Many people will feel that none of these utilitarian responses adequately accounts for the unacceptability of punishing the innocent, which is regarded as inherently wrongful. Similarly, many regard it as intrinsically unfair and morally wrong to impose severe punishment on those who commit minor crimes, however useful that might be; to give widely variant punishments to those who have committed identical offenses with similar degrees of moral guilt; or to count the interests of an offender as having as much intrinsic weight as the interests of a victim or ordinary law-abiding person.
Mixed or hybrid theories. Given these problems with unalloyed utilitarian theory, some mixture of utilitarian and retributive elements provides the most cogent approach to punishment. The basic reasons for having compulsory legal rules backed by sanctions are utilitarian; these reasons should dominate decisions about the sorts of behavior to be made criminal.
Moral wrongs should not be subject to legal punishment unless that is socially useful, and behavior that is initially morally indifferent may be covered by the criminal law if doing so serves social goals.
Notions of deserts, however, should impose more stringent constraints on the imposition and severity of punishment than pure utilitarianism acknowledges.
Every practical system of punishment must admit the possibility that mistakes will lead to innocent persons being punished, but knowingly to punish an innocent person is to violate an independent moral norm. Wrongdoing alone may not be a sufficient basis to justify punishment, but the wrongful act creates a right of society to punish that does not exist with innocent persons.
Considerations of deserts should also be relevant to the severity of punishment. One possible position is that someone should never be punished more severely than could be justified both by utilitarian objectives and by the degree of his wrongdoing. Under this principle, a person would not receive more punishment than he deserves, even when that might be useful a concept sometimes referred to as "limiting" retributivismand he would not receive unproductive punishment, whatever his degree of guilt a utilitarian principle sometimes referred to as "parsimony"—punishing agents should impose the least severe sanction necessary to achieve all relevant social purposes.
The latter principle, however, might be seen as too rigid in some circumstances. One such circumstance involves violent offenders whose mental condition, while not excusing them altogether, does make them less blameworthy, but also renders them more dangerous and less amenable to being deterred or rehabilitated. Perhaps in an exquisitely precise system such offenders would be given a moderate criminal sentence and an extended form of civil commitment, but in the absence of such fine lines, most observers would support a criminal penalty somewhat greater than the offender really deserves.
For a different reason, more severe penalties may also be warranted when those who rationally decide to commit certain crimes are very difficult to apprehend. To have a deterrent effect, the penalties may need to be greater than would be justified by the guilt of the individual offender who happens to be caught.
If he has been forewarned and has chosen to take the risk, the punishment may not be unfair to him, but it may be out of proportion to the blameworthiness of his action.
In other kinds of situations, retributive concerns may make it justifiable to inflict punishment even when a balance of favorable consequences is not expected. Under an ordinary utilitarian approach, each person's welfare counts equally, but perhaps the welfare of those who intentionally commit crimes should not be given as much weight in some respects as the welfare of law-abiding citizens. The wrongdoers may, by their acts, have forfeited a right to count equally. Suppose, for example, that every one hundred executions of murderers could save seventy innocent lives.
Putting aside all other relevant considerations, one might believe that those who are innocent simply have a greater claim to have their lives protected than those who have knowingly taken the lives of others, and thus, one might accept that saving seventy innocent lives is worth taking a hundred guilty ones.
As noted above, a cardinal principle of the utilitarian approach is that useless punishment should be avoided. Suppose too that our utilitarian is in the area of the crime when it is committed such that his testimony would bring about the conviction of a particular Negro.
If he knows that a quick arrest will stop the riots and lynchings, surely, as a utilitarian, he must conclude that he has a duty to bear false witness in order to bring about the punishment of an innocent person A utilitarian is committed to endorsing the act that would be most likely to produce the greatest balance of happiness over unhappiness, and, in this situation, it appears that the act that meets this criterion is bearing false witness against an innocent person.
But, so the argument goes, it cannot be morally permissible, let alone morally mandatory, to perform an act that leads directly to the punishment of an innocent person. Therefore, since the utilitarian is committed to performing this clearly wrong act, the utilitarian justification must be incorrect. The standard utilitarian response to this argument demands that we look more closely at the example.
1.5 The Purposes of Punishment
Once we do this, it supposedly becomes clear that the utilitarian is not committed to performing this clearly wrong act. Furthermore, the sensible utilitarian will not attach much weight to the possibility that framing the man would stop the riots.
Since well confirmed generalizations are more reliable than hunches, happiness is most likely to be maximized when individuals give the vast majority of the weight to such well confirmed generalizations when making moral decisions.
Therefore, since the relevant well confirmed generalization tells us that at least a few people the innocent man and his family would be made miserable by the false testimony, the utilitarian would give much weight to this consideration and choose not to bear false witness against an innocent man. This type of response can in turn be challenged in various ways, but perhaps the best way to challenge it is to point out that even if it is true that the greatest balance of good over evil would not be promoted by punishing an innocent person in this situation, that is not the reason why punishing an innocent person would be wrong.
It would be wrong because it would be unjust. The innocent man did not rape the woman, so he does not deserve to be punished for that crime. Because utilitarianism focuses solely on the balance of happiness over unhappiness that is produced by various actions, it is unable to take into account important factors such as justice and desert.
- The Moral Permissibility of Punishment
If justice and desert cannot be incorporated into the theory, then the punishment of innocents cannot be ruled out as unjust, so a prohibition against it will have to be dependent upon the likelihood of various consequences.
This strikes many theorists as problematic. Retributive Justification Regarding retributive theories, C. He is surely right about this, so, therefore, it is difficult to give a general account of retributive justification.
However, it is possible to state certain features that characterize retributive theories generally. Concepts of desert and justice occupy a central place in most retributive theories: It is instructive to look at the form that a particular retributive theory can take, so we will examine the views of Immanuel Kant.
If a wrongful act is committed, then the person who has committed it has upset the balance of the scale of justice.
He has inflicted suffering on another, and therefore rendered himself deserving of suffering. So in order to balance the scale of justice, it is necessary to inflict the deserved suffering on him.
But it is not permissible to just inflict any type of suffering. Perhaps the most straightforward application of this principle demands that murderers receive the penalty of death. So, for Kant, the justification of punishment is derived from the principle of retaliation, which is grounded in the principle of equality.
Recall that the failure to take desert and justice into consideration is thought by many to be a major problem with utilitarian theory. However, while Kantian theory may seem superior because it takes desert and justice into account, an influential criticism of the theory challenges the idea that punishment can be justified on the grounds of justice and desert without requiring that the balance of happiness over unhappiness be taken into account.
In this world, punishment does not deter or rehabilitate. For whatever reason, incapacitation is impossible. In addition, victims receive no satisfaction from the punishment of those who have harmed them. In this world, a Kantian would be committed to the position that punishments still ought to be inflicted upon wrongdoers.
Furthermore, the individuals that populated this world would be morally obligated to punish wrongdoers. If they failed to punish wrongdoers, they would be failing to abide by the dictates of justice. But surely it is quite odd to hold that these individuals would be morally obligated to punish when doing so would not produce any positive effects for anyone.
According to Ezorsky, this terribly odd consequence suggests that the Kantian theory is problematic. Kant would not agree that this consequence of his theory is odd. If they do not live up to this obligation, then they will be failing to abide by the dictates of justice, and their lives will be of lesser value. Of course, critics of the Kantian theory are unlikely to be persuaded by this response. Predictably, the responses to these criticisms vary depending on the particular theory.
Compromise Theories Many theorists have attempted to take features of utilitarianism and retributivism and combine them into a theory that retains the strengths of both while overcoming their weaknesses. The impetus for attempting to develop this sort of theory is clear: However, the idea that it would be justified to punish an innocent in any circumstance where such punishment would be likely to promote the greatest balance of happiness over unhappiness surely seems wrong.
So, each type of theory seems to have positive and negative aspects. But how to combine these seemingly opposed theories and produce a better one? Is a compromise between them really possible? In an attempt to explore this possibility, we will examine the theory of H. What we should look for are answers to a number of different questions such as: What justifies the general practice of punishment? To whom may punishment be applied?
Punishment (Stanford Encyclopedia of Philosophy)
So, the general practice is to be justified by citing the social consequences of punishment, the main social consequence being the reduction of crime, but we ought not be permitted to punish whenever inflicting a punishment is likely to reduce crime. In other words, we may not apply punishment indiscriminately.
With few exceptions, the individual upon whom punishment is inflicted must have committed an offense, and the punishment must be attached to that offense.
Utilitarian concerns play a major role in his theory: But retributive concerns also play a major role: