The Philosophical Debate On Punishment

Introduction

Crime is a problem facing the global population, but one for which a solution exists. It must be met head-on with a hard-line approach. The criminal is a social “enemy” who deserves condemnation and retaliation. The answer lies in the ability of the criminal justice system to catch, convict, and punish the violent criminal. And while the system has not been very successful in the past, it can be. Other nationally recognized experts advocate a similar hard-line, punitive approach to crime control. So strong are his beliefs in the viability of punishment that he suggests we may be forced to give up justice to preserve social order (Understanding Deterrence. AICrime reduction matters no. 27 2004). This last thought appears to guide much of the movement toward reduction of procedural safeguards today. To many, the defendant’s rights have long been placed above society’s safety, and it is time to reserve this practice and protect the rights of the innocent (Harding, 1998). The intent is to impose some costs on offenders, particularly violent criminals, for their transgressions, to get them off the streets as quickly as possible, and to keep them off longer. The goal is the safety of the public and restoration of social order within cities.

Utilitarian Theory of Punishment

Utilitarian theory of punishment claims that offenders should be discouraged in order to protect the society and population. One target of reform efforts is the release of arrested but not yet convicted violent offenders on bail. According to the Constitution, a person accused of committing a crime has the right to be free after arrest to prepare a defense but can be required to post bail to guarantee presence at the trial. This practice sometimes leads to the release of violent and often known repeaters back into the community to prey on unsuspecting citizens. Police officers often claim that the criminal is back on the streets before they have finished doing the required paperwork. For this reason, stringent conditions for bail, allowing judges to consider the seriousness of the offense and the probability that the criminal will re-offend if released, a practice known as preventive detention, has been proposed and supported by several respected authorities (Warner n.d.).

Preventive detention has been debated for many years. Its proponents argue that it would prevent crime by incapacitating those likely to re-offend. Its opponents claim that it is fundamentally unfair because it allows a judge to make a decision about a person’s future behavior (Society’s Response to Violent Offender. 1989). Since no one can accurately predict behavior, particularly criminality, the chances of mistakes are high. It is also considered to be a dangerous step toward punishment without trial. Since most of the nation’s jails are already overcrowded and in disrepair, it is pragmatically an unworkable solution. Another component of the current punitive trend is tougher sentencing laws, particularly for serious crime and repeat offenders. Within the past few years at least three dozen states have enacted stricter sentences. Most of the remaining states introduced but have not yet passed similar legislation (Warner n.d.).

During the heyday of rehabilitation, the form of sentencing most often used was the indeterminate sentence. Legislatures set wide ranges for sentencing, and judges meted out minimums and maximums that also had a wide range. This allowed correctional personnel the discretion of releasing offenders when they were reformed. No one, other than correctional authorities, particularly cared for this system. Inmates did not like it because their release depended on the whims of the parole board and because offenders never knew exactly when they would be released. Judges and the public did not like it because the term served never resembled the actual sentence given and was almost always shorter (Potas and Walker 1987).

Retributive Theory of Punishment

Retributive theory of punishment suggests that punishment should be applied to all individuals committed crimes as they deserve this punishment. Recent legislation in many states replaced the indeterminate sentence with more determinate forms of sentencing. Discretion has been taken away from correctional personnel and assumed by legislators and judges (Potas and Walker 1987). New laws specifying set lengths of sentences for particular offenses allow modifications of the time served based on the specific circumstances associated with a given incident. Judges then sentence according to the prescribed scheme and set a specific time for a person to remain incarcerated, which correctional officials can do little to modify. This change lengthened sentences, particularly for serious and repeat offenders. In many states, third-time convicted felons automatically receive a life sentence, and second-time felons receive automatic prison sentences with no chance for probation (Urbas 2000).

Restriction of the opportunity for probation and parole often accompanies new sentencing legislation. Many states made it more difficult to be placed on probation for certain offenses and impossible for certain serious ones. Parole, which is the conditional early release from prison under supervision in the community, has also been restricted in many states. In theory, a return to determinacy and the abandonment of rehabilitation eliminates the need for parole, which was designed to help the offender prepare to reenter the community. Yet parole serves another important function of controlling inmates in prison and is one of the few rewards that can be manipulated. For this reason, most states have retained it. Still, the administration of parole has been modified so that the parole date is determined by the sentence rather than by the paroling authority. Good time–receiving extra credit for time served while maintaining good behavior in prison–is another major form of reward used in prison to control inmates. Because it reduces the total amount of time an individual will serve and modifies the original sentence, several states have considered eliminating it. However, heavy lobbying against the legislation by correctional personnel has prevented its elimination (Potas and Walker 1987).

The reason critics endorse new reforms is obvious: it is what the public wants. People are afraid of crime. People are tired of being the victims of theft and violence, and they want action. They want government to solve the difficulty. The accuracy of the public’s image of crime is irrelevant. If the public believes that a problem exists and wants changes, then responsive government must respond. Programs providing opportunities for the disadvantaged and programs for rehabilitating criminals did not reduce crime, so penal philosophy followed the general swing back toward conservatism. Second, it is a reaffirmation of three goals of criminal sanction: deterrence, incapacitation, and retribution. The fourth recognized goal is reform, from which the system is moving away. Deterrence, simply, is the use of punishment to prevent illegal behavior and may be directed toward two different populations. Offenders are punished to prevent them from repeating their crimes in the future; this is known as specific deterrence, a practice that embodies the principle most American families use in disciplining. When children engage in undesirable behavior, they are punished. This is repeated whenever the behavior occurs until the punishment is associated with the act. To avoid the punishment, the child learns to refrain from the act. Punishing criminals have the same purpose. We want the individual to associate the punishment and its related pain and unpleasantness with commission of the illegal act so that in the future, to avoid the punishment, the individual will refrain from repeating the crime (Urbas 2000).

Deterrence

Besides the benefits of specific deterrence, secondary effects known as general deterrence accrue. Punishment serves as a warning of what will happen to anyone who commits an illegal act. In this way, the criminal sanction should have a restraining effect on the entire population, and even though most do not directly experience its unpleasantness, they come to associate it with illegal behavior. Along with deterrence, incapacitation is considered to be an important aspect of the current reform efforts. Rehabilitation had as its objective the return of offenders to the community as cured and viable members of society (Potas and Walker 1987) the rehabilitation efforts were to a large extent unsuccessful. No program appeared to be any more effective in changing criminals than any other program, so a sizable portion of the people released from prison continues to return. This has led many to conclude that the best and possibly only alternative is simply to remove offenders from the community, precluding any further vexation and exploitation by them (Understanding Deterrence 2004).

Incapacitation will be effective if the “right” people–those likely to commit crimes–are locked up. Since criminals are thought to be more likely to commit crimes than those never convicted of a criminal act, it follows that some benefits will be derived from incarcerating convicted criminals. Incapacitation has the greatest potential as a method of crime control if it is a few hardened criminals who commit most crimes. If they can be identified, convicted, and incarcerated for long periods, a significant reduction in crime would be realized. Most advocates of punitive reform have this perspective on the criminal population. Blame for the majority of crimes committed is placed on a relatively few compulsive, predatory individuals thought to commit hundreds if not thousands of crimes each year (Potas and Walker 1987).

Rehabilitation and Incapacitation

The final goal behind the punishment reform is the reestablishment of retribution. Of all penal goals, retribution is the most moralistic. It contains an element of revenge because the victim deserves to be repaid with pain for the harm suffered. Retribution goes beyond simple revenge. Justice is achieved when the punishment given to the offender is equivalent to the harm accruing from the criminal act. Consequently, a social balance or equity is reestablished and maintained within society. People can see that productive contributions to society are re- warded and that noncompliance with generally accepted rules and the victimization of others is punished. Plea-bargaining, provision for “good time,” and parole heightened the public’s opinion that punishments were inadequate (Potas and Walker 1987). Now people are demanding longer sentences, pushing for the death penalty and for making inmates serve their entire sentence, and advocating the removal of protections that prevent punishments from being administered. It is fascinating that conservatives, who generally shun government intervention and argue that it is an ineffective and inappropriate source for handling social problems, look to government for crime control, just like liberals. Liberals want government to help, conservatives want government to punish, but both want government to solve the problem. The truth is that regardless of the financial investments in crime control made by federal, state, and local governments, the system will not reduce crime. Let us look at why. As indicated above, deterrence is one method held to have great potential for reducing criminal behavior. It is predicated on two important factors: (1) that there be a relatively high degree of certainty that the person will be caught and convicted so the costs will outweigh any potential benefits, and (2) that offenders will be rational enough to recognize the potential losses and benefits that might result from commission of a crime. Unfortunately, the realization of each factor is limited, to a degree that renders deterrence virtually impotent as a crime control strategy (Understanding Deterrence 2004).

Conclusion

Critics admit that there are a number of reasons why people do not call the police. In some cases, the crime is never completed or the loss or danger is considered too minor. Some people do not believe the police can do anything. Others–rape victims, for example–want to avoid any further embarrassment and humiliation. This provides good up-front odds of getting away with a crime; coupled with the system’s inability to catch and convict, the odds are even better. These figures are known to be inflated. The criminal justice systems are evaluated by their arrest records. One way to assure high rates is to encourage offenders who plead guilty to one offense to also plead guilty to several other recent and similar offenses in exchange for leniency. The main point of the criminal justice process in almost everyone’s mind is the trial, which is believed to be the point at which guilt or innocence is decided and where justice is done. In reality the trial is of little consequence in determining the outcome of the criminal justice process.

Bibliography

  1. Harding, R. 1998, Private Prisons in Australia: The Second Phase. Trends and Issues in Crime and Criminal Justice History of crime, policing and punishment.
  2. Potas, I., Walker, J. 1987, Capital Punishment. Trends and Issues in Crime and Criminal Justice.
  3. Society’s Response to Violent Offender. 1989.
  4. Urbas, G. 2000, The Age of Criminal Responsibility. Trends and Issues in Crime and Criminal Justice. 
  5. Understanding Deterrence. AICrime reduction matters no. 27. 2004.
  6. Understanding Deterrence.  2004.
  7. Warner, K. n.d. Family Group Conferences and the Rights of the Offender.