Theories of Punishment

Literature Review

Preface

This literature review explores punishment in the society. Specifically, it explores the philosophical views of punishment, as well as the theoretical perspectives from the likes of Foucault, Bentham, Beccaria, Garland, Walker and others. First, explores early Greek philosophy of punishment up to Garland’s thesis of the relationship between punishment and culture. This literature review is descriptive and evaluative aiming to support the dissertation into full extent, basically to have an insight about the modern theories of punishment within the society.

Philosophical Views of Punishment

There is no specific mark where people have started to realize the concept of punishment. However, its practice can be greatly reflected from ancient scriptures and from the words of ancient philosophers such as Socrates, Plato and Aristotle. For Aristotle, punishment is a paternal act, whereas the punisher exercises his power like a father to a child, or as a king to his subjects. As Aristotle stated “Thus, to be seen administering punishment paternally is to be seen acting like a king and for the benefit of the malefactor” (David, 1999). Socrates, on the other hand, accepted the notion that punishment is necessary “to serve as a corrective measure that would be of benefit to the criminal by helping him to overcome his evil tendencies” (Patterson, 1985, p.44). An opposite view was expressed by Crito, in which punishment “was to enable society to get even with the criminal by inflicting upon him an evil that was equivalent to the one he had caused others to suffer” (Patterson, 1985, p.44). Plato also believed that punishment is a necessary action for unjust actions of people. For Plato, men simply choose to be evil or to be good, where the former is punished and the latter rewarded. Punishment stands as form of lesson or consequence that the bad man will receive for his unjust actions (Thornburg, 2000).

Modern philosophers have tried with great effort to explain what punishment is. Kant, in his book “The Science of Right”, asserted that to punish an offender is the sole right of the sovereign as the supreme power or the head of the state (Kant and Hastie, 1790, p.82). For Kant, the world would be without purpose if justice and righteousness would perish. Punishing the offender to whatever means is justice, given that it has been proven beyond reasonable doubt. Kant agrees that punishment is some kind of retribution for the offended that is executed by the authority to the offender. For Kant, the moment an individual does an unjust act; he already gives himself the right to be punished (Kant and Hastie, 1790, p.82; Barber, 1994). Kant firmly stated “In every punishment, as such, there must first be justice, and this constitutes the essence of the notion” (Kant, 1788, p.35), in the punisher must feel that justice is served and that the punished must feel that justice has been served unto him. In this sense, punishment is physical and mentally evil, but not necessarily morally evil (Kant, 1788, p.35).

On the other hand, for the early medieval philosopher Thomas Aquinas, the crime committed by a criminal is an offence to the whole community upholding such law against the crime committed. Thus, punishment is not revenge by the offended alone, but as payment to the debt of the criminal to the whole community. The criminal broke the law, and it is fitting that punishment must be served. Aquinas believes that punishment must be measured by the scale of the offender’s fault, not by the harm done. Punishment should only be for their offence. In other words, punishment should a matter of fairness, which is measured finding what is good for the whole community (Finnis, 1998). Aquinas also supported the notion that punishment should be for correcting the offender and not to seek revenge for the offended (Hanks, 1997). He mentioned that punishment should “…be corrective by being conducive either to the reform of the sinner or the good of society, which becomes more peaceful through the punishment of sinners" (Hanks, 1997, p.164).

Alternatively, the early medieval Augustine of Hippo had an opposite view about punishment. For Augustine, punishment should be retributive and deterrent, whereas capital punishment should be applied. Augustine justified capital punishment and stated: “He to whom authority is delegated, and who is but a sword in the hand of him who uses it, is not himself responsible for the death he deals” (St. Augustine, 1950). According to Augustine, the church and the state should be partners in governance, in which capital punishment should be applied in order to deter others to commit the same crime.

Modern Theories of Punishment

Foucault’s view on the evolution of punishment contributes to its wealth of meaning and interpretation. In Discipline and Punish, Foucault (1977) explained the transformation in practices of punishment between the eighteenth and nineteenth centuries, more specifically from “the spectacular reassertion of the power of the sovereign (public executions and torture as judgements of crime) to normalising detention (imprisonment as judgement of criminality)” (Glendinning, 1999, p.597). Foucault stresses that “punishment had not simply changed from being directed at the body to being directed at the mind; rather, both mind and body were now the objects of surveillance and disciplinary intervention” (Spierenburg, 2004, p.612). Foucault explained that these changes were caused by two factors: the spread of disciplinary techniques producing docile bodies; and the emergence of a government rationality dedicated to the welfare of the population of living, labouring and linguistic beings (Glendinning, 1999).

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Foucault adopted this idea from Bentham’s Panopticon (Glendinning, 1999). Bentham’s view on punishment is utilitarian, which is greatly influenced by Beccaria’s philosophy of punishment (Draper, 2002). Cesare Beccaria, an Italian philosopher and criminologist in the 18th century started the idea that “punishment should fit the crime” (Latzer, 1998). For him, the true measure of crime is the injury done to the society (Latzer, 1998), a view that can be traced from Aquinas’s view of punishment. For him, legitimacy of punishment derives from contract and consent and human beings must, in principle, give their consent to being punished, which can be found in social contract (Williams, 1997). Beccaria stressed that the death penalty is immoral and ineffective, and argued that psychologically, life imprisonment at hard labour would be a more effective deterrent to crime than capital punishment (Beccaria, 1775). For him, it is the certainty of punishment instead of severity that deters crime. A correspondence between crime and punishment should exist (Beccaria, 1775), stressing for the first time the necessity for a criminal justice system, or that a system for punishment should be created i.e. The need for a jury, the right of the accused to defend himself, for example, a specific house or institution that would handle such trials and so on (Griset, 1991). Beccaria is also against torture and other inhumane acts of punishment because such actions conflict with the humanitarian teachings of the Enlightenment philosophy (Griset, 1991). Further, such actions were also ineffective to promote obedience to the law (Griset, 1991).

Bentham agreed with Beccaria’s theory to a great extent. Bentham, with his views on punishment, upholds a utilitarian principle and promotes the ideology of deterrence, restraint and reformation. Bentham is a consequentialist who believes that punishment is necessary but should not be too harsh and should be humane and civilized (Bilz and Darley, 2004), just as what Beccaria implies (Draper, 2002). But this is not because of morality or philosophical reasons, but merely because of political reasons. Binder (2002) stated: “He was interested in the question how to rationally settle political disagreement and develop legitimate law” (p. 339). For Bentham, individuals are self-interested and can only be induced to be good by laws offering rational incentives (Binder, 2002). This, of course, should be presented in contracts, where each individual should agree to be punished if ever he or she committed a crime. Binder (2002, p.338) stated: “the normative significance of utility rests on a contractarian theory of the legitimacy of laws…” which means that all citizens have the right to inflict punishment.

Bentham also started the idea of the Panopticon, or an architectural design that can easily monitor everyone within the infrastructure, whether it is a hospital, a prison, or a school. It is basically a circular structure with a central observation tower, designed so that every move of the individual inmates, who were segregated in separate cells on the periphery of the building, could be observed by guardians who themselves remained unseen (Miller, 1998). Accordingly, it is the utilitarian approximation of an all-seeing God (Miller, 1998). It serves as a diagram for an ideal prison system, whereas inmates can be monitored effectively. It is basically a disciplinary supervisory schema, whereas consistent monitoring should be the key for disciplining the punished (Chow, 1998). In a sense, as Foucault puts it, the “Panopticon” is not only a physical structure but also a cultural formation that institutionalizes "surveillance and observation, security and knowledge, individualization and totalization, isolation and transparency'' (Foucault, 1975; Epstein, 1987).

Utilitarian versus Retributivists:

Beccaria and Bentham all share a utilitarian view of punishment. The utilitarian theory has two important components, in which the three firmly agrees with. The first component is the consequentialist aspect or the one that “postulates that an action or institution is right if it maximally achieves whatever are intrinsically good states of affairs while minimizing whatever are intrinsically bad states of affairs” (Katz, 1999, p.64). The other component stresses that welfare is the only sort of thing that is intrinsically good (Katz, 1999). In short, this theory claims that together and alone, people only act to maximize happiness (Kunz, 1998).

However, utilitarianism is not left without any criticism. For instance, it is said that utilitarianism promotes abuse in power of authority figure because they can easily justify that what is done is for the good of the majority. It has no sympathy for reformists and revolutionists as it mutes the critique of society and restricts possibilities of action by beginning with the way things and people are (Bell, 1993). Moore stressed that the calculation of net social welfare that utilitarianism demands often cannot be equated with the intuitive demands of justice. Moore argued that sometimes, innocents are sacrificed for the general welfare, while the guilty are freed in order to meet what is perceived “good for all” (Katz, 1999).

Contrary to utilitarianism is retributivism, or the view that “people should always and only be treated as ends and never as means, and that are the actions of government legitimate only to the degree to which they are consistent with this model of citizenry” A theory supported by Kant’s philosophy of punishment, a purist view of retribution is that “the state inflicts harm in order to confirm the moral order established by the laws of the state”. Unlike utilitarianism, retributivism focused more on morale instead of the political nature of punishment (Clear, 1994). As Nigel Walker (1991) stated, punishment is necessary because it is simply deserved by the offender. It advocates just deserts instead of the “good for all” that utilitarianism preaches, it that it practises fairness and proportionality. In other words, the harshness of punishment should be proportionate to seriousness of the crime (Hoffman, 2000). Hampton stated “The retributive punisher uses the infliction of suffering to symbolize the subjugation of the subjugator, the domination of the one who dominated the victim. And the message carried in this subjugation is ‘What you did to her, she can do to you. So you’re equal.’”

Bennett (2004) stated that even though retributivism has a higher moral ground than utilitarianism, it still has some problems. He argued that the retributivist has the hard job of explaining why it is more than mere vindictiveness to punish offenders rather than use these seemingly more humane alternatives. Retributivism fails to promote morally right conduct because it seeks to severe the punishment to the offender rather than to seek to rehabilitate him or to keep him for disciplining (Shook, 2004), as suggested by Foucault, Bentham and Beccaria. As Dewey explained in his theory of punishment when we are concerned with morality, we are concerned with developing the future responsible agency of a person, and thus moral education is the relevant practice involved (Shook, 2004). Retributivism eliminates the concern for the future responsible agency of the offender as it seeks to end it by inflicting the same amount of damage inflicted on the offended.

Deterrence:

Supporting the utilitarian stance, deterrence is an ideology that punishment discourages other potential offenders from committing crime (Latzer, 1998). Thus, the more severe the punishment, the better it will deter others to commit the crime (Latzer, 1998). Becker (1968) formulated the theory of deterrence, in that the expected cost is the probability of being punished, reflected in arrest and conviction rates, operating in conjunction with the severity of punishment. The three components – arrests, convictions, and sentences – should come in package or else the theory’s credibility will be unbundled and undermined. In other words, it is operationalised by rates of arrest, imprisonment rates, or mean length of prison sentences and economic variables are taken into account by such indicators as median family income or proportions of working- or middle-class families in an area (Maxim et al, 1998).

Ellis (2003) agreed that deterrence is reason enough to implement capital punishment because he believes that violence is justified only in self-defence against aggression. For Ellis (2003), it is necessary to exert greater force to deter aggression because it is better than to deflect it once it has started. It is basically based on fear, and openly supports capital punishment or death penalty (Latzer, 1998). However, despite the claims of proponents of deterrence, the statistical data seem to be conflicting to the supposed to be effects of deterrence to the society. For instance, in the study of Yunker (2001), data on state homicide rates were employed and execution rates between 1976 and 1997 across 50 states and the District of Columbia were estimated. The study found that there is not enough data to support the hypothesis that death penalty indeed help deter criminal acts (Yunker, 2001). Simson (2001) also criticised the relationship between deterrence and homicide rates because only relatively few supportive data exists. Simson (2001) stated that most case studies failed to emphasise the relationship between the two variables. Furthermore, the study of Ehlrich found that deterrence is more effective in reducing crimes against the person than crimes against property (Maxim et al, 1998). Also, Walker (1991) supports the claims that deterrence is unsupported statistically.

The Emerging Importance of Culture

Garland (1990) stated that none of the most widely acclaimed theories of the function of penal harms is without flaw. He stated that penality is inadequately explained by the utilitarian and retributivism theories (Garland, 1990). Garland (1991) claims culture now plays an important part in explaining or developing forms of punishments. Garland cited Melossi (2001): “Punishment is deeply embedded in the national and cultural specificity of the environment which produces it”. For Garland, cultural elements are always present and mixed with other aspects of actions, including that of approach towards punishment or view towards capital punishment (Garland, 1991).

Garland also mentioned the role of the media in the culture the Western world have today towards punishment. The media depicts a picture of what crime is, imposing to the viewers that life is becoming risky and there is a need for a much firmer penal system. In this sense, it the new culture of fear that shaped the current penal system the government has (Cavender, 2004).

Politics and Punishment

Punishment is a matter of political deliberation. But as Garland (1991) stated, the changing paradigm of punishment also has something to do with the media and culture. In Britain, there is a proposal to review the 1957 Homicide Act because the definition of cold-blooded murderer is limited (Humphry, 2005). The Law Commission proposes to change the definition of murder and manslaughter. It is proposed that the charge of first-degree murder should be restricted to those proved to have intended to kill. They should still be subject to a mandatory life sentence. On the other hand, the judge should have a choice to impose life sentence or a lesser sentence on second degree murders, or cases where the killer intended to cause serious harm (though not actually to kill) but behaved with "reckless indifference" to the outcome, or where the killer could successfully prove provocation or diminished responsibility (Humphry, 2005).

Politics and culture basically plays a huge part in the implementation of punishment. For instance, during Saddam’s rule in Iraq, he ordered the killing of 148 Shiite villagers in retaliation for an unsuccessful attempt on his own life in 1982 (Lawson, 2007). He performed other inhumane acts of punishment simply because there is no political system to oppose him, as those who will oppose will die (Lawson, 2007). Now, with Iraq shifting to democracy, it is being influenced politically, including the laws in punishment (Lawson, 2007). This includes considering abolishing capital punishment.

Culver (1999) stated: “Capital punishment is a public policy which politicians can legitimately debate to inform the electorate of their different views” (p.289). However, the issue of punishment is sometimes being used as leverage for political gain. There are cases when a candidate deliberately distorts the record or position of an opponent on capital punishment merely for self-serving political gain (Culver, 1999).

In the United Kingdom, lobbying for the desired punishment standard is also a trend. For instance, its adoption of the Juvenile Justice System in the 1970s that gives lesser punishment to children and juvenile criminals was influenced by the United States legal system (Gelsthorpe et al, 1995). This has been solidified by the Criminal Justice Act of 1991 (Gelsthorpe et al, 1995). There are organisations that show deep concern to the welfare of the child, and the idea that children should be saved instead of being punished. This idea has been backed up by several politicians, stirring political debates that would soon shape UK’s juvenile justice system (Gelsthorpe et al, 1995).

Basically, a political debate on punishment would be between utilitarianists and a retributivist, between different political factions with different agendas and interests. But there is also one political theory that should fit in to the debate, which Metz (2000) called Censure Theory. This is different and much more specific than symbolic theory. According to Metz (2000), the censure theory “holds that the government must punish in order to fulfill its duty to denounce injustice”. This theory states that the “political community has a pro tanto moral obligation to punish in proportion to the degree of injustice because only thereby can it discharge its obligation to denounce injustice in proportion to the degree of injustice” (Metz, 2000, p.493). In a way, this theory is a retributivist stance, but at the same time, utilitarian, because there should be a consensus that the decision should be for the benefit of the majority.

Politics is also the battleground for the debate on which is better – cruel and unusual punishment or capital punishment (Palmer and Henderson, 1998). There has been a plea to integrate cruel and unusual punishment to increase the deterring power of punishment, but according to Palmer and Henderson (1998), “North American society has chosen, through very rigid constitutional means, to bar the use of cruel and unusual punishment and even to pursue prison reforms, making punishments less severe rather than more severe, hence reducing the disincentives for criminal activities” (p.235). Again, Garland’s theory of culture fit well with the situation as people, becoming more exposed to crimes through the media, have developed a new culture towards it. The rise of humanitarian plea and the taking advantage of politicians to hype their campaigns have led to the current structure of the Western punishment system. However, as Garland (1991) pointed out, “Not all are fully identical as there are cultural factors that should be considered” (p.320).

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