These justifications can be placed within two well known philosophical theories that place much weight on the evidence that punishment is justifiable (Honderich 1984). These are the ‘retribution’ and ‘reductivism’ or better known as deterrence theories (Cavadino & Dignan, 1992). There are other theories that justify capital punishment, such as economics of keeping a prisoner alive, however this essay will focus on just the two.
Retribution is held as one of the main principles for supporters of capital punishment. It justifies punishment on the reason that the offender deserves it. It is a theory that dwells on the past, looking back at the offence. This way of thinking sources back to the Old Testament with the phrase “an eye for an eye”, the lex talionis, or law of retaliation from (Shubow, 2006). Whether or not the phrase originated as a rule of punishment today, it expresses a principle of retributive justice in that two wrongs can make something right (Cavadino et al 1992). It has the element of revenge in order to match the punishment with the crime.
Retributivism is about making the wrongdoers suffer. Yet its moral groundings are problematic in that the victims are the ones enduring these retribution feelings leading them to irrational emotions of vengeance and wanting death. On the contrast, the offender subjected to capital punishment, their family feelings of grief and sorrow, which do not want death, are disregarded (Cavadino et al 1992). How do you justify what is right and what is wrong? Do the ends justify the means?
Retributivism is closely allied with reductivism, as supporters of capital punishment believe it is a necessary process in order to deter crime. Reductivism is consequential in that, it is an outcome driven to deter future wrongdoings. Its argument can be supported by the form of moral reasoning known as utilitarianism. Having capital punishment can cause potential offenders to change their mind about committing crime by knowing what punishment awaits them. Capital punishment illustrates disapproval that society has placed on the crime. It makes people more aware of the law, its power and in return building respect for the law and the legal system. In addition the existence of capital punishment can provide a cause for social conformity (Chan et al 2004).
However there are many studies and statistics that try to combat the justification of capital punishment (Honderich 1984). Chan et al (2004) point out that capital punishment does not deter the commission of homicide. They suggest that there are mitigating factors to every crime, possible even antecedents that have helped the growth of a criminal (Chan et al 2004). Can it be argued then that having punishment without the death penalty is more than enough suffering for any offender? Then there is the view that criminality is an illness, no different to a cancer patient, meaning the offender should have the right to treatment, to be rehabilitated, to feel remorse and reformed to be able to function in a normal society.
Is long term penal incarceration not deterrent enough? Some would argue absolutely no, with the suggestion that some offenders welcome prison, seeing it as a refuge from the outside wide (Cavadino et al 1992). On the other hand some would argue that capital punishment is too ruthless and a disregard to humanity. Overall both ‘retribution’ and ‘reductivism’ theories do have valid points and evidence to suggest it is justifiable to use capital punishment, but there is also challenging evidence that advocates that it is not right, nor justified to use capital punishment (Honderich 1984).
How were the welfare-penal institutions that were applied to Aboriginal people different from the strategies of penal welfare applied to others?
There has been a definite distinction of inequality amid the Australian Indigenous people and the white European Australian’s, which dates back to 1788 when the British declared settlement (). This ill treatment of Aboriginal people inflicted by white Australia has been constant and existent throughout history and many aspects of Australian society. For example The Royal Commission into Aboriginal Deaths in Custody reported a discovery that not only was their high deaths of Aboriginal people in custody, but rather that they were simply incarcerated at much higher rates (Hogg, 2001). A way of defining the ailing treatment of Aboriginal people is through the welfare-penal institutions.
The welfare-penal institutions were a new product of the penal system that brought about change in which offenders were inserted and categorised according to the severity of their offence. This new penal creation has produced legislation measures such as Probation Act 1907, Prevention of Crime Act 1908 and Criminal Justice Administration Act 1914 (Garland, 1981). These measures have reformed traditional punishment to a more personalised structure of regulation. It is pointed out “that these institutions are in fact normalizing rather than punitive” (Garland, 1981: 64). Furthermore the welfare-penal system was to be modeled around correction, integration and optimal social functioning. Yet it has been seen that Aboriginal people have been excluded from these new welfare-penal institutions and the normalising process.
Aboriginals were deemed not worthy of this process as there were plans to wipe them and their culture out e.g. stolen generation, rather than support and nurture them. Their welfare was managed much differently compared to others in that they were governed very strictly under the political and bureaucratic authority of the state. They were denied rights and forcefully refrained from taking part in social institutions of civil society (i.e. they were excluded from voting) (Hogg, 2001).
Segregation regimes were in place in order to keep Aboriginal people remote from the rest, especially in schools, housing, and other public facilities. Even when segregation stopped in the 1960’s, Aboriginal communities were faced with the battle of market, legal and social institutions, which highly discriminated against Aboriginals due to their race. In other words they were not welcomed into the Australian society; segregation had left a long lasting residue, which drove so many Aboriginal members to commit crime and in addition lead them to penal incarceration (Hogg, 2001).
This can be seen as the reason as to why indigenous people are overrepresented within the Australian criminal justice system, where by 1999 Aboriginal prisoners constituted 20 percent of the total Australian prison population” (Hogg, 2001: 143). White racial attitudes have been a massive contributor in not only creating a different welfare-penal system, but social system for Aboriginals. The so called White Australia policy has also plagued any Aboriginal opportunity. Other processes that have decreased Aboriginal opportunity are economic factors such as rural unemployment, which has created poverty and disorder amongst Aboriginal communities (Hogg, 2001).
The removal of aboriginal children from their family has shattered the Aboriginal soul and solidarity to state that drove them to a mental disability, resulting in alcoholism, violence, self-mutilation and criminal behaviour. Stolen Aboriginal children in some cases lost their identity growing up suffering and became confused about their role in society. Additionally other children were neglected by not getting enough or any support and not being provided any type of education; and to make matters worse they had no connection to their Aboriginal families. These factors have seen so many young aboriginals go through welfare and juvenile institutions, which later on when they became adults, promotes them to the next stage, the penal system where they resort to alcohol, violence and suicide (Hogg, 2001).
Being an Aboriginal offender has attracted the government in targeting them continually by using the law to surround them in situations that kept them in touch with the penal institutions and keeping the criminal justice system cycle an ongoing process. The majority of the offence committed, that gets Aboriginal people in prison, have been petty crimes such as public drunkenness and offence against good order (Hogg, 2001).
In conclusion Aboriginal people have been vastly rejected from the normalisation, integration and socialisation process from society, particular from the white Australian society. Policies such as ‘White Australia’, segregation regimes and destroying aboriginal culture have produced the penal system to punish aboriginal unfairly. Even the little penal welfare that Aboriginal people receive is insignificant compared to those from white communities. The aboriginal race has been and still is currently being repressed of any opportunity and development by the government, through the ill treatment and lack of penal welfare services.
REFERENCE
Austlii (2007) ‘Death Penalty Abolition Act 1973, Section 4’ Commonwealth Consolidated Acts. Available from: (Viewed online 15 November)
Austlii (2007) ‘Crimes Act 1900, Section 18’ New South Wales Consolidated Acts. Available from
(Viewed online 15 November)
Barry J. (1968) The penalty is death: capital punishment in the twentieth century, retentionist and abolitionist arguments with special reference to Australia. Sun Books in association with the Anti-Hanging Council of Victoria. Melbourne.
Black C. (1974) Capital punishment, the inevitability of caprice and mistake. Norton. New York.
Cavadino, M and Dignan, J. (1992). The Penal System. An Introduction ‘Justifying Punishment’
Chan, J and Oxley, D (2004)’ The deterrent effect of capital punishment: A review of the research evidence’. Crime and Justice Bulletin. Contemporary Issues in Crime and Justice. Number 84 NSW Bureau of Crime Statistics
Garland D (1981) ‘The birth of the welfare sanction’, British Journal of Law and Society 8(1) 29-45 (Reader)
Honderich T. (1984) Punishment, The Supposed Justifications. Harmondsworth: Penguin. London.
Hogg, R (2001) Penality and modes of regulating indigenous peoples in Australia, Punishment and Society 3,3 355-379 (Reader)
Shubow, J (2006) Blind Justice, First Things. [Online]. The journal of religion, culture and public life. Available from: (Viewed online 15 November, 2007)
