Assess the Strengths and Weaknesses of the Different Aims of Punishment
Assess the Strengths and Weaknesses of the Different Aims of Punishment
The definition of crime is "breaking the laws set by the State" and the general agreement of people is that if someone commits a crime they should be punished in some way. Punishment practices are ancient; we accept them without question. However, punishment requires justification, as it is an infliction of pain upon an individual. What is the justification of punishment? What are its aims?
Before the aims of punishment can be discussed why people commit crimes should be examined to further understand how we should punish. Some people believe that all human actions are caused by factors outside human control, these people are "hard determinists". John Locke, a philosopher, believed moral choice was an illusion. He gave the example of a man sleeping in a locked room, man wakes and decides to stay in the room, he thinks he has a free choice to do so but he does not know it is locked. His ignorance makes him believe he has a choice. This relates to punishment and punishment must presuppose moral blame. No person can be held morally blameworthy if they have no freedom of choice. This suggests punishment is irrelevant as no one can be held responsible for his or her actions. Clarence Darrow, a US attorney who was also a determinist argued just that point. In 1924 two youths kidnapped and murdered a 14 year old boy, Darrow pleaded for mercy on the grounds that it was the boys' environment that was the cause of their crime. Darrow was successful in his argument; the boys were saved from death. Darrow was not suggesting that the criminals shouldn't be punished as one aim of punishment is to protect society, but he questioned the common assumption that criminals are morally responsible for what they do.
"Libertarians" do not reject determinism completely but they do deny the principle of universal causation, which states that human actions can be predicted. They distinguish between personality and moral self. A person may be pre-disposed to steal because of their personality but their moral self may stop them from doing so. So Libertarians would see the aim of punishment to penalise criminals as they can be held morally accountable for their actions. John Stewart Mill states that we use the past as an excuse for ones actions as we fear the responsibility of freedom, but the past does influence our actions.
One aim of punishment is as a deterrent and this is stated in the "utilitarian " theory. This looks at the consequences of punishment and decides if the punishment is right or wrong by the principle of utility, which is if it does or does not increase the sum total of human happiness. A famous "Utilitarian" Bentham said punishment involves pain so it is an evil, however it is justifiable if the increase in pain for the criminal leads to the prevention of crime therefore an increase in society's happiness. He saw punishment as an instrument for good with a deterrent effect. The infliction of pain is motive not to re-offend. it also includes the final incapacitation, imprisonment or death. Punishment also protects society by making it physically impossible to re-offend.
Another approach to punishment is the "Deontological" theory. In this theory the aim of punishment is retribution. The theory states a punishment should fit a crime, that it is unjust to impose a sentence on a criminal which they didn't deserve, for example if a few drivers who parked illegally were hung others would be deterred but this would be unjust. This theory believes that there is a moral imbalance caused by crime which must be corrected by punishment and it concentrates on the criminal rather than the victim. The retributive theory is similar to the Old Testament ...
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Another approach to punishment is the "Deontological" theory. In this theory the aim of punishment is retribution. The theory states a punishment should fit a crime, that it is unjust to impose a sentence on a criminal which they didn't deserve, for example if a few drivers who parked illegally were hung others would be deterred but this would be unjust. This theory believes that there is a moral imbalance caused by crime which must be corrected by punishment and it concentrates on the criminal rather than the victim. The retributive theory is similar to the Old Testament views on punishment, e.g. an eye for an eye a tooth for a tooth. The idea being that the criminal must repay society that an injustice would be done if someone could inflict pain without having it inflicted upon him. Here retribution links in with the "utilitarian" theory as retribution also has a deterrent effect. If you know that chopping off a man's hand leads to you losing your hand, then you would think twice about doing it. The idea of retribution is appealing to the general public, for example hanging a Nazi war criminal forty years after his crime had been committed. No victims would be brought back to life, but it would be seen that he had paid for his crimes with his life.
Cant, a German philosopher, believed executions were necessary unless society decided to forget all about injustice, unless murderers are executed people would behave like justice didn't matter.
R. S. Downie was also an advocate of the "retributive" theory. He said that "this theory is often seen as barbarism but provides a safeguard against the inhumane sacrifice of the individual for the social good."
Brunner sees the theory of punishment also in Biblical terms. He sees punishment as achieving a moral balance similar thinking as the atonement of our sins. Brunner believed the penal system is flawed and the guilty should make expiation for their offences. De Wolf was also a Christian thinker and in his work "Crime and Justice in America" he attempted to show a Christian perspective on the Criminal Justice System. He listed a set of ethical norms of criminal justice by which our system should be evaluated.
Consistence and coherence with realities.
Benevolent good will and respect towards all person.
Equal rights for all persons.
Presumption of innocence.
Special care to protect poor, weak and unpopular from unfair treatment.
Restoration of community and responsibility of all individuals to the community.
An opposing view on the aims of punishment is the idea of rehabilitation and reform. Here the focus is on the criminal, someone who couldn't cope with society due to a weakness. In helping them society will benefit, society should help them overcome their negative tendencies. Society should find a way to change them or reform them to bring them back to Society. Controlling or suppressing criminal tendencies, re-education or psychological treatment can do this. The idea is that the criminal is sick rather than wicked and needs help rather than punishment. It can be seen, as "utilitarian" in its outlook as it aims to have an improving effect on people, which in turn will benefit Society.
In the Bible God punishes to reform the wicked "happy indeed is the man who God corrects". In the 19th Century Christians used solitary confinement to achieve rehabilitation. Criminals had time to think about their evil deeds and repent. Prisoners were shut away from each other and cared for by chaplains.
The Reformation and Rehabilitation theory disagreed with other ideas of the aims of punishment as they see prisons as a place where criminals enhance their criminal skills. How can you teach someone to be free when they are behind bars? The Reform and Rehabilitation theory believes in alternatives to traditional punishment, for example, probation, parole and community service, the latter even benefits society. An advocate of this theory was Crook. He saw punishment and crime as the responsibility of society. He suggested that everyone is responsible for the actions, but they are influenced by society. He believed it was possible to predict person's actions so therefore society should share in the responsibility for the offender's crime. He saw our legal system as wrong as individuals pay the price at the hands of our system. He believed society must pay the price of correcting these dangerous and destructive situations.
John Hospers discussed a compromise view in which he combined retribution and reformation. He was a determinist and as such he saw men as not responsible for their actions, "if a man commits murder because he ate a certain combination of foods, for example ham and cheese, we could not hold him morally responsible for his crime as it would be the ham and cheese which made him do it." He believed punishment should meet two conditions, that it should be deserved and that it should do well to someone the victim, the offender, society or all three. To meet the latter he suggested that the penal system shouldn't focus on punishment but treatment. He does not state he is a Christian thinker but his ideas are in line with Christian ideology.
The philosopher Moberly's ideas were on a par with Hospers' ideas. Moberly produced a theory, which combined elements of the "retributive and reform" aspects of punishment. He envisaged punishment as a form of ritual or mirror to bring criminals to their senses by representing crudely the moral deterioration, which had already taken place within them. Moberly believed the criminal had inflicted a wound upon society. He thought the penalty inflicted must symbolise and be felt to symbolise a double role of punishment, so imprisonment means the person imprisoned is unsuited to membership of society, however Moberly felt that the punishment in relation to the crime is artificial. He saw serious limitations to the effectiveness of punishment. He believed that there are authorities far too amoral to impose punishment and some criminals are too incorrigible and incapable from benefiting from it. At the other end of the scale he saw a "intermediate moral region" people who are truly repentant and communities too morally advanced to need punishment. Moberly sees that some criminals may not benefit from punishment but they still need to be taken out of circulation to protect the public. However, Moberly does not think that the people segregated from society should be left to rot in low quality prisons.
In conclusion these theories seem to stand up on their own merit at first glance, but on closer inspection it is clear they have their flaws.
The utilitarian aim of punishment is as a deterrent; however, it does not always deter people. Prisons are often just "universities of crime" simply making matters worse. Also the fear of punishment can lead to crime for example someone stealing money to prevent going to jail for not paying a fine. The theory of deterrence can be used to justify punishing the innocent on the grounds that it serves to deter others. The utilitarian idea assumes we have a legal system that will produce good results, but the threat of punishment is not very effective in reducing crime or preventing serious crimes such as murder or rape. The philosopher Hoose believed the deterrent effect does have some effect on crime but that it is far from automatic. He pointed out that when the death penalty was abandoned in Canada the homicide rate went down.
The "Dentological" view that retribution is the aim of punishment also has criticisms as it could be seen as the harshest of all the aims of punishment. Gandhi said that if the retributive theory "and eye for an eye a tooth for a tooth" was used throughout the world "the world would soon be blind and toothless". Christians should see that the "retributive" theory is wrong as Jesus taught forgiveness and co-operation not retribution only God has righteousness and judgement. Also many people argue that all retribution does is satisfy a primitive and barbarous desire for revenge. In Exodus it states "an eye for an eye" but how do we determine which punishment fits which crime? How long should the punishment be? This theory has too many unanswerable questions.
Karl Menninger believed retribution was immoral and ineffective. He saw it as useless and expensive. He believed in rehabilitation and reform as he saw the criminal as a patient and that crime was a disease that people could be cured of.
However, the theory of rehabilitation and reform is not without its critics. C.S. Lewis stated rehabilitation and reform does not really have an effect on people, that it is pointless. Some people are beyond help. Can a man who rapes and kills his family be helped?
The theory in question also overlooks social advantages of deterrents. If there were not deterrents then how could psychologists and prison officers cope with the sheer numbers that would need help.
As with the "retributive" theory the question of how long a punishment should be arises. A murderer's chance of a repeat offence is low but a thief is much more likely to repeat his offence. Should the thief be given a longer sentence than the murderer?
Also recent statistics by the prison reform trust show that probation and community service have not proved more effective than prison in stopping re offending. For example 57% of men and 40% of women discharged from prison in 1987 re offended in two years. The figures for probation and community service were 56% men, 37% women, 55% men, and 41% women re offended. The re-offending rate of prisoners is more than those in community service but not on a large enough scale to make a difference.
This theory is supposed to be about reform but the way criminals are "cured" by mind altering drugs, surgery or brain washing is not reform. It is just creating a brand new person. The criminal loses the right to be him or herself in that case. C.S Lewis also stated his humanitarian theory, that in rehabilitation and reform the criminal becomes the case and not a person subject to rights.
I believe that the most feasible of the aims of punishment is that put forward by Moberly and Hospers. Their views of compromise seem to be a very logical aim of punishment. Their ideas do not "over punish" criminals nor do they leave the victims feeling as if justice has not been served. Moberly also suggests that in some cases punishment may not be necessary. Retributivists however, may advocate punishment is a duty in all circumstances, but surely if in a particular case punishment would probably make matters worse and an alternative action, for example kindness, would improve matters, the morally right course of action would be the latter.
