This module is a resource for lecturers
Topic two - Justifying punishment in the community
What justifies punishment? What are the underlying rationales? This part of the Module examines the main purposes of criminal punishment. There are five main underlying justifications of criminal punishment considered briefly here: retribution; incapacitation; deterrence; rehabilitation and reparation.
Retribution is probably the oldest justification of punishment and can be found in the theories offered by Kant and Hegel (Brooks, 2001). It is the fact that the individual has committed a wrongful act that justifies punishment, and that the punishment should be proportional to the wrong committed. Its underlying premise has been summarized by the philosopher Kurt Baier as follows:
- All those convicted of a wrongdoing or crime deserve punishment;
- only those convicted of a wrongdoing or crime deserve punishment;
- the severity of the punishment should not be less than the gravity of the crime;
- the severity of the punishment should not be greater than the gravity of the crime (Baier, 1977, p. 37, emphasis in original).
Retribution theorists claim that individuals are rational beings, capable of making informed decisions, and therefore rule breaking is a rational, conscious decision. They propose an 'offence-based tariff', that is, "a set of punishments of varying severity which are matched to crimes of differing seriousness: minor punishments for minor crimes, more severe punishments for more serious offences" (Cavadino and Dignan, 2007, p. 44). While the idea of retribution as a justification for criminal punishment often enjoys intuitive support, it has been subjected to various strains of criticism. Some critics, for example, have raised questions about the difficulties of ordering or ranking offences. Is it possible to develop a satisfactory scale of punishments for all crimes? Others question the extent to which crimes are committed by rational agents and argue that retribution unduly rationalizes criminality. It has also been suggested that punishing individuals because they have acted wrongly does not address the underlying causes and social conditions that have led to criminality in the first place, and that punishment needs to incorporate a more rehabilitative approach (Hudson, 2003; Zedner, 2004).
The theory of incapacitation assumes that the state has a duty to protect the public from future wrongs or harms, and that such protection can be afforded through some form of incarceration or incapacitation. It prevents future crime by disabling or restricting the offender's liberty, their movements or ability to commit a further wrong. The most extreme form of incapacitating punishment is the death penalty, but there are several other forms including imprisonment, curfews, house arrest, electronic monitoring and disqualification from driving for drunken drivers. Incapacitating sentencing, however, has been subject to serious criticism, on both moral and empirical grounds (see for example: Zedner, 2004; Binder and Notterman, 2017). One major concern is that incapacitating sentences effectively punish individuals for crimes not yet committed. An inherent risk with incapacitation is that some individuals who have committed a crime, and are thus incarcerated or incapacitated, would not have gone on to (re)offend. Moreover, as Barton (2005, p. 464) suggests, "even if the methods of prediction were accurate, there are naturally moral and ethical questions about incarcerating individuals for what they may do rather than what they have actually done" (emphasis in original). Yet this justification for punishment has proved highly popular among politicians and the media, and has clearly played a role in significant rises in prison populations across many jurisdictions.
Theories of deterrence draw on Jeremy Bentham's philosophy of utilitarianism, captured in the maxim, "the greatest happiness of the greatest number" (see for example: Shackleton, 1972; Baujard, 2009). In similar vein to incapacitation, deterrence justifies punishment based on what it will achieve in the future. Theorists claim that the pain of punishment and the costs of imposing that pain upon the offender are outweighed by the social benefits consequently enjoyed. A distinction has been drawn between two types of deterrence: individual (or specific) and general deterrence. Individual deterrence refers to the aim of imposing punishment to deter individuals who have already offended from doing so again. General deterrence justifies the imposition of punishment to deter other potential offenders. The logic of this theory is that if the imposition of criminal punishment deters people from committing crimes then the general public can enjoy a greater sense of safety and security (Hudson, 2003).
Deterrence has often been criticized for being neither effective or morally acceptable. The research evidence is generally inconclusive on whether punishment deters potential offenders from committing future crimes. Furthermore, deterrence allows for punishments to be imposed that are disproportionate to the harms done, for the innocent to be punished and for the punishment of crimes that have not yet been committed (Hudson, 2003; see also von Hirsch et al., 1999).
The central premise of rehabilitation is that punishment can prevent future crime by reforming the individual offender's behaviour. Rehabilitation may involve education and vocational programmes, counselling, intervention programmes or skills training. The behavioural premise of this theory of punishment is that criminal behaviour is not a rational choice, but determined by social pressures, psychological difficulties, or situational problems of various kinds (Ashworth, 2007).
Although once dominant in penal discourse, the ideal of reform became discredited in the early 1970s, partly due to research results which suggested that penal measures intended to reform offenders were no more effective than punitive measures in preventing recidivism (Martinson, 1974; Cullen and Gendreau, 2001). Furthermore, rehabilitative approaches have been criticized for holding an overly-deterministic view of behaviour, that places too much emphasis on social and cultural conditions, and too little on the ability of individuals to make decisions and choices. It also conflicts with the idea of a right not to be punished disproportionately and places no limits on the extent of treatment or intervention. Yet, reform remains a key rationale within many penal systems, justifying punishment which aims to address and reduce the risk and needs of individual offenders (see Zedner, 2004).
While reparation in criminal justice, at the international level, can be traced back to the late 1800s (UNODCCP, 1999), the concept of reparation has been the subject of increased attention in recent years. The justification of reparation in criminal justice is based on the idea that crimes should be corrected by requiring that offenders make amends to victims to repair the wrong that they have done. Restitution and compensation to victims, their families or communities, should therefore be a key objective of criminal justice.
According to the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power (GA Resolution 40/34), restitution should include, "the return of property or payment for the harm or loss suffered, reimbursement of expenses incurred as a result of victimization, the provision of services and the restoration of rights" (1985, article 8). Furthermore, states should endeavour to provide financial compensation to victims when the offender is not able to compensate the victim for the harm caused (1985, article 12). Proponents argue that restitution can be implemented at different points throughout the criminal justice process, as part of a sentence or as a sanction in itself. Not only does it offset some of the harm done to victims, it provides a "socially constructive way for the offender to be held accountable, while offering the greatest possible scope for rehabilitation" (UNODCCP, 1999, p. 47).
In recent years, there has been strong emphasis on the development of restorative justice interventions that bring together key stakeholders in the offence (the state, the offender and the victim) to decide on the appropriate response to the offence, and of restorative goals such reparation to the victim and the community (Ashworth, 2007). If there is no individual or identifiable victim (or if the victim is unwilling to participate), reparation can be made to the community, as a whole, through community service sanctions, or paying a fine into public funds. Restorative justice interventions vary significantly across jurisdictions and can include: victim-offender mediation; family group conferencing; healing, peacemaking or sentencing circles; community panels; and, restorative prisons (see Dünkel et al., 2015; Dignan, 2005; Crawford and Newburn, 2003; Edgar and Newell, 2006; Johnston, 2014; see also UNODC, 2006b).
Critics of reparative approaches, however, argue that rather than empower stakeholders, such initiatives may actually undermine the rights of victims and offenders. Defendants may suffer from a lack of procedural safeguards, failure of adherence to due process, and lack of access to legal advice. Victims may feel burdened by responsibility for their offender's future and may feel pressured to offer forgiveness. Proponents of restorative justice and the principle of reparation often argue, however, that such criticism is "born of undue pessimism or an unwillingness to think beyond the conventions of the punishment paradigm" (Zedner, 2004, p. 106). For further information on restorative justice, see Module 8.
In sum, there are five key rationales or justifications for the imposition of criminal punishment, all of which have their supporters and critics in modern societies. Importantly, the goals of criminal justice systems described above are not static, but can evolve, shift and even merge over time, often because of contemporary cultural values and political priorities (see Garland, 1990). While there is much debate regarding the relative weight that should be given to the differing aims in the administration of criminal justice, it is increasingly acknowledged that retributive punishment must be balanced with other considerations that will contribute to the rehabilitation of the offender, the restoration of the victim, and the protection of society in the long-term.
The various rationales for criminal punishment can be achieved with non-custodial measures. Accordingly, the international community has recognized that effective criminal justice responses necessitate that sentencing authorities have a wide range of penalties at their disposal. The Commentary to The Tokyo Rules advocates that sentencing authorities "should be guided by the principle that imprisonment should be a measure of last resort" and that "every effort should be made to apply non-custodial measures" (1993, p. 17). Recognizing the different goals of the administration of criminal justice, The Tokyo Rules emphasize that states should "ensure a proper balance between the rights of individual offenders, the rights of victims, and the concern of society for public safety and crime prevention" (1990, Rule 1.4). At the same time, the Rules call on member states "to develop non-custodial measures within their legal systems" to reduce the use of imprisonment, and to "rationalize criminal justice policies, taking into account the observance of human rights, the requirements of social justice and the rehabilitation needs of the offender" (1990, Rule 1.5). According to the Commentary to The Tokyo Rules, non-custodial measures are of "considerable potential value for offenders, as well as for the community", and can be an appropriate sanction for a whole range of offences and many types of offenders (1993, p. 5).
The following sections of this Module will consider the use and implementation of a wide range of non-custodial sanctions that are available to relevant authorities at different stages of the criminal justice process.