Secondly, punishment by incapacitation seeks to remove certain liberties from an individual effectively removing them from society and preventing them from committing further crimes.
Finally, there is the head of reform or rehabilitation. Reform seeks to alter the way an offender will assess the future desire to commit a crime, thus willingly refraining from committing an offence. Rehabilitation aims to educate the offender, providing new skills that can be used to find employment, or to offer help with problems or addictions.
It should be noted here that the pure consequentialist theory requires no direct correlation between the offence and the severity of the punishment imposed, provided that the costs are ultimately outweighed by the benefits. This is but one criticism that brought about the creation of modified theories.
The early 1970s brought criticism that human science could not be relied upon to create a cost effective consequentialist system, thus creating the pessimistic belief that punishment was not an effective source of crime prevention, giving way to a retributivist view. Further to this, the rates of crime and reconviction during the same period questioned the effectiveness of the rehabilitative programmes. The pure consequentialist theory of punishment was not only open to theoretical criticism, but also moral criticism, based on the premise that the pure theory can justify punishment of an offence provided the costs outweigh the benefits; this suggests that the utilitarian is prepared to punish even the innocent.
This essay will now examine the modified theory of consequentialism developed by Alan H. Goldman and compare it to the pure consequentialist theory in an attempt to identify whether or not the side constraints and adaptations created in the former rectify the underlying problems of the latter.
Goldman begins his article with a look into why traditional utilitarian theories are failing, the points of which echo those above, and also why retributivist theories are failing and why the two could not coexist as one combined theory. With this in mind it would be sensible to highlight these views in order to understand Goldman’s reasoning behind his modified theory.
Goldman states that a retributivist theory of punishment fails to justify a state penal system altogether by failing to acknowledge the second criterion of punishment, which is that the costs of imposing the punishment must not exceed the aggregate benefits to society. Furthermore, he points out that a combination of utilitarian theory with a retributivist theory, whereby each one would satisfy one of the two criteria, would also fail as, when implemented, it always seems to be the case that to achieve one criterion the other must be sacrificed.
Goldman recognises, in his modified theory, the requirement of the two side constraints that are added to the pure theory (that only the guilty are to be punished and that punishment be proportionate to the crime) and also states that the utilitarian view that benefits outweigh costs is still very much desired in an effective theory. He builds his side constrained theory of punishment on the notion that each member of society receives, upon attaining citizenship, a package of rights, within a moral society, that carry with them numerous duties and one can not exist without the other. If an individual is found guilty of committing an offence then he shall forfeit some of his rights, the amount of which will be proportionate to the seriousness of the offence and for no period longer than necessary to prevent further offences, and these rights are held by the community, as a trustee, until the guilty individual can be fully restored to society. He further notes that:
“In practice the emphasis here will be upon both incapacitation and rehabilitation, rather than upon deterrence or retribution. The purpose is neither to deter others sufficiently nor to pay back in kind, but to restrain and redirect through means that do not unnecessarily violate rights.”
The implementation of the above achieves the two desired side constraints of the modified theory seemingly through the single channel of the forfeiture of rights. The amount of rights forfeited will correlate directly to the seriousness of the crime thus satisfying the requirement that punishment be proportionate to the crime and the requirement that no rights are forfeited by the individual until they are found guilty of the offence. Finally, the fact the rights are forfeited ‘for a period not longer than necessary to prevent further offences’ works to ensure that the costs of the system never really fall out of line with the benefits.
In his article, Goldman identifies several perspective criticisms of his model of modified consequentialism and in doing so, offers satisfactory responses where possible. One criticism is the suggestion that individuals rights can originate from numerous sources and organisations thus pointing out that individuals may have more or less rights than others. This argument is countered by the fact that Goldman refers to rights in membership of a moral community rather than in the political state or regime. Also, the new model faces criticism from the traditional utilitarian that its practice is inadequate for the purpose of deterrence. The key argument offered to this seems to be the point that deterrent threats fail in general unless the punishment threatened far exceeds the seriousness of the offence, which is a fundamental issue that the modified theory aims to overcome.
It may be that Goldman has sufficiently countered the possible criticisms that he has himself identified, but the model that he puts forward does seem to open the door to two reservations. Firstly is the problem that Goldman puts forward no suggestion as to which rights are to be forfeited by the individual. He does make it clear that not all rights are forfeited by the actions of the individual, but at the same time he offers no means by which we can calculate which rights the offender must surrender. Furthermore there is no suggestion as to whether we should, when implementing the punishment, seek to remove specific rights such as the right not to be imprisoned for example. Secondly, Goldman aims to set limits on the severity of the punishment of offenders, but Duff opines that this suggests that the theory is treating offenders as ‘objects to be remoulded or reformed into moral law-abiding conformity rather than responsible moral subjects’. Duff’s opinion also suggests that offenders are left with a rather weak protection against severe punishments as ‘we must do whatever is necessary to restore offenders to full membership of the community and prevent them committing further crimes’. This argument could potentially open the offender to a limitless level of punishment in order to return them to society.
It is clear that the above arguments against Goldman’s modified consequentialist theory highlight some rather serious flaws which may prompt the need to further ‘modify’ the theory, but this essay must now address the question as to whether or not Goldman’s modified theory fails to overcome the enduring problems of the pure consequentialist theory of punishment.
As noted above, the problems of the pure consequentialist theory centre on its readiness to punish even the innocent provided that such threats will deter others from offending and the fact that the late 1960’s and early 1970’s saw an increase in crime and re-offence rates prompting the view that nothing can or will work. Further to this, the problems with Goldman’s modified theory have been identified as the inability to identify which rights must be forfeited by an offender and the notion that it is difficult to estimate a limit on what is necessary in order to return the offender to a full member of society. On this comparison it is clear that, although Goldman’s modified theory does have its problems, but the enduring problem of the pure theory that came about from the increase of crime and re-offence rates of the 1960s and ‘70s has been overcome. However, the problem identified in Goldman’s theory that the offender is open to a limitless level of punishment in order to return them to society is almost identical in nature to the problem faced by the pure theory, that any punishment is justified(even that of the innocent) provided that its benefits outweigh the costs. It is the latter comparison that would compel one to argue that, at least in terms of Goldman’s model, the modified consequentialist theory has indeed failed to overcome the enduring problems of the pure consequentialist theory of punishment.
Word count: 2147
Bibliography
Ashworth, A., and Redmayne, M., (2005), The Criminal Process, 3rd Ed., Oxford: Oxford University Press
Duff, R.A., (2003), Punishment, Communication and Community, 1st Ed., Oxford: Oxford University Press
Garland, D., (1991), Punishment and Modern Society: A Study in Social Theory, 1st Ed., North America: University of Chicago Press
Herring, J., (2004), Criminal Law: Text, Cases and Materials, 1st Ed., Oxford: Oxford University Press
Mill, J.S., (1994), Utilitarianism, On Liberty, Considerations on Representative Government, 2nd Ed., Guernsey: The Guernsey Press Co Ltd.
Articles:
Goldman, A.H., Toward a New Theory of Punishment, (1982) Law and Philosophy 1, pp. 57-76
Duff, R.A., (2003), Punishment, Communication and Community, 1st Ed., Oxford: Oxford University Press, p.3
(1982) Law and Philosophy 1, pp. 57-76
Kymilicka, W., (1990), Contemporary Political Philosophy, 1st Ed., New York: Oxford University Press, p.9
Duff, R.A., (2003), Punishment, Communication and Community, 1st Ed., Oxford: Oxford University Press, p.4
Herring, J., (2004), Criminal Law: Text, Cases and Materials, 1st Ed., Oxford: Oxford University Press, p.73
Duff, R.A., (2003), Punishment, Communication and Community, 1st Ed., Oxford: Oxford University Press, p.6
Johnathan Herring suggests this by way of imprisonment, but one would argue here that this is rather more far reaching with punishments such as electronic tagging
Duff, R.A., (2003), Punishment, Communication and Community, 1st Ed., Oxford: Oxford University Press, p.7
see Allen, F.A., The Decline of the Rehabilitative Ideal: Penal Policy and Social Purpose (Yale University Press, 1981) and Bottoms, A.E. and Preston, R.H., The Coming Penal Crisis: A Criminological and Theological Exploration (Edinburgh: Scottish Academic Press, 1980)
Duff, R.A., (2003), Punishment, Communication and Community, 1st Ed., Oxford: Oxford University Press, p.8
Goldman, A.H., Toward a New Theory of Punishment, (1982) Law and Philosophy 1, at p.60
Goldman, A.H., Toward a New Theory of Punishment, (1982) Law and Philosophy 1, at pp.67-68
Duff, R.A., (2003), Punishment, Communication and Community, 1st Ed., Oxford: Oxford University Press, p.15
