What is the Function of Punishment?

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Mike Brookes. 3rd year Philosophy (Applied Philosophy)

What is the Function of Punishment?

"Justice must not only be done but seen to be done". Most would agree with this statement - the wicked must surely be punished (or should they? - do two wrongs make a right?) but why is it so important that the punishment must be seen to be done? To the utilitarian the answer is simple - punishment must be witnessed in order to deter others from committing the same act. Thus, to a utilitarian the perception of punishment is seen as the main, or even the sole, justification for punishment. Of course, if the wrongdoer is sent to prison for any length of time he is incapacitated, and thus excluded from doing further harm. Further, while being punished there may be at least the hope that the wrongdoer repents and reforms. Both these consequences are compatible with utilitarian principles as they both serve to reduce the harm caused by anti-social behaviour. Seen in this way punishment can be said to have a tripartite function - to deter, to reform, and to incapacitate. The extent to which any of these functions are successful is a matter of debate, as is the extent to which any one of these functions should take priority. Although the length of this essay precludes any real discussion on this subject, it would perhaps be as well to mention that broadly speaking those that stress the importance of reform tend to be of the liberal disposition, whereas conservatives tend to put more emphasis on the deterrent aspect of punishment. Both perspectives however are essentially utilitarian as they both see the function of punishment as being to minimise the overall quantity of suffering . Also it would perhaps be true to say that liberals generally tend to view the function of punishment as maintaining morality in society, whereas conservatives are perhaps more likely to argue of the importance of maintaining order in society.

Taking that, by definition, punishment involves inflicting some kind of pain on the offender, the ideas of reform and incapacitation are largely seen as secondary to the main purpose of punishment - to deter.  The most well known proponents of utilitarianism have almost always justified punishment in terms of its deterrent effect. Bentham, for example, argued that apparent justice was everything, and real justice was essentially irrelevant. And John Stuart Mill, in defending the death penalty, stated that "to deter by suffering by inflicting suffering is not only possible, but the very purpose of penal Justice. (Mill 1868). This leads to one of the main criticisms of the utilitarian argument, namely the denial that there is any moral justification for punishment other than preventing further suffering. This argument seems counter intuitive - surely the wrongdoer must get his just deserts? What would justice mean if some wrongdoers were to go unpunished simply because no deterrent effect could be demonstrated? Conversely, and more seriously, there would certainly be occasions when innocent men would have to be punished for the sake of the greater good - for example, in that case where an atrocious crime has been committed and the authorities failed to find the perpetrator (This scenario is by no means hypothetical - the “Birmingham Six” is just one example). One may only speculate as to how many miscarriages of justice there have been for the sake of maintaining  “apparent justice”. Thus, there appears to be a real conflict between the utilitarian justification for punishment and the common concept of justice.

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Retributive theorists, on the other hand, place the emphasis on the punishment “being done” rather than “being seen to be done”. They claim that inflicting some form of harm to the offender is the primary concern of punishment. We may hope that punishment reforms and deters but these at secondary benefits, not reasons for punishment. This view is epitomised in Kant's assertion that even if civil society were to dissolve itself then the last murderer lying in the prison should still be executed for no other reason than because he has acted criminally. More recently Mabbott (1939) has argued ...

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