Punishment has always been the most conventional way in dealing with crime or misdeeds. Historically, corporal punishment such as hangings and executions were more prevalent. The notion of ‘retribution’ was widespread and victims were encouraged to take vengeance for the crime committed against them. Capital and corporal punishment had strong universality during the 16th century onwards to the 19th century but the level of personal autonomy has reduced. This was a result of the growth of humanitarian beliefs since the Enlightenment and such punishments were viewed as inhumane. Currently prisons are the main source of punishment in majority countries with the objectives of punishment in the legal system being, deterrence, retribution, rehabilitation and incapacitation. The customary purpose for punishment is to reduce levels of crime however many theorists share different perspectives on the goals of punishment therefore this essay will discuss the reasons behind punishments from the contrasting viewpoints.
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The juridical rationales for punishment consist of two opposing ideas, one being the goal to reduce the level of crime. This is a reductivist approach in which involves the processes of deterrence, rehabilitation/reformation and incapacitation. These processes theoretically are said to reduce the levels of crime. ‘In the juridical system, just enough punishment is applied to act as a deterrent to the offender and to others’ Newburn (2009, p.641)The punishment should be made public as this shows the severity of the penalty to others and they will therefore avoid offending. There must be a set of punitive signs which reduce the desire to commit crime amongst individuals. The purpose of rehabilitation is to reform the wrongdoer. The judge can combine rehabilitation with a punishment such as incarceration and include vocational and educational courses or counselling allowing the offender to turn their life around.‘The removal of harmful features of the individuals life is also likely to remove the triggers to offending’ Case et al (2017, p. 686-687). Alcoholics and drug addicts may come out recovered as they are locked away from any triggers. Rehabilitation measures are assumed to improve quality of life this can prevent recidivism as rehabilitation prepares offenders to better themselves. Incapacitation involves incarceration of offenders to reduce the likelihood of the offence reoccurring. The offenders freedom and liberties is seized, they are restrained from society so they do not commit anymore offences. They are presented as a danger to society so offenders go through physical restraints such as execution/imprisonment for society’s protection. The reductivist approach is forward looking and focuses on improving crime in the future and it puts strong emphasis on reducing crime rates.
However there are critical perspectives against the reductivist approach. It is said that ‘some social groups within the same political community may respond differently to the same deterrent threats’ Brooks (2012, p. 41). This means punishment of offenders may not have a great deal of influence on everyone as some individuals may be more resistant to deterrence therefore this can prevent crime from reducing. Punishment may be the same but the deterrent effect may differ in different communities. ‘some claim that imprisonment may even be criminogenic because it may contribute to more crime and not less’ Brooks (2012, p. 43). This can result because criminals will lose their jobs, homes and maybe even their families therefore after being released they may reoffend to get back on their feet. In 2014, ’46 percent of adults who were imprisoned were re-convicted within one year of release’ Case et al (2017 p. 585). This is because prisons are not an ideal environment for a person to change their habits. Those with lengthy prison sentences may end up psychologically damaged as result of not being able to make basic decisions. Therefore they may be a more mentally worse or violent person on their release and reoffend. Rehabilitation focuses on changing the offender and not social conditions. It’s very difficult to measure the effectiveness of rehabilitation as different schemes are used for different individuals. Abolitionists state that the problem lies within the prisons and they should eliminate custodial institutions. They argue prisons are harmful and do not work at all.
The juridical approach also states that the other purpose of punishment is surrounded around the theory of retributivism. This backward looking approach looks at the past to punish crimes already committed. Retributive justice is a response to crime in which the offender has to suffer in a way which is proportionate to the victims pain. The punishment may not always be equivalent to the crime but the more severe a crime is it must be dealt with harsher, for example rape or murder. ‘Revenge is essentially personal whereas retribution is by nature impersonal’ Kaufman, R.P (2013, p.95). This is because it is a matter of the law and there is no pleasure gained from others suffering. During ancient law retribution was explained in terms of ‘an eye for an eye’ or ‘a tooth for a tooth’ indicated in the books of Exodus. The whole idea of retribution is that that the criminal must suffer the sanctions irrespective of any future consequences for example through through fines/ incarceration. Offenders are held accountable for their actions and thus must deal with the punishment. Contradicting theories include the Utilitarian and rehabilitative theories. They’re both forward looking approaches which are focused on future benefits of punishment. Although utilitarians see punishment as evil they do believe it serves a purpose of crime prevention through deterrence or incapacitation. Rehabilitationists choose to not blame the criminal for their actions and use gentle approaches to promote reformation. Retributionists only focus on punishing the criminal without thinking about what offenders may do afterwards whereas rehabilitationists address this by trying to better the individual removing their incentive for crime. Retributionists ignore the future effects of crime this prevents them from being proactive in reducing crime rates.
There are other functions and perspectives aside from the juridical approach. The denunciation theory involves the condemnation of an action by society so it deters individuals from offending. This theory is a hybrid of retribution and utilitarianism. It’s utilitarian as it serves as general deterrence as society will avoid doing what is widely disapproved. It’s also retributive because it promotes the idea that those who go against society’s values and break moral boundaries deserve to be punished (expressive denunciation). Denunciation is a symbolic response to what’s seen as harmful behaviour. The effectiveness of this approach is questioned. Radical non intervention claim that sometimes we should tolerate minor offences to prevent labelling. This theory states that as many young people should be kept out the system as it will end up criminalising them and affect their adult life and opportunities. The ‘label given to juveniles processed by the court system can increase their delinquency’ Cullen et al (2010, p.818). Labelling can lead to adolescents feeling alienated by society and can promote further delinquency. Therefore this theory claims that most adolescent rule breaking is petty in nature and takes a tolerant stance. ‘Restorative justice is a process whereby all the parties with a stake in a particular offence come together to resolve collectively how to deal with the aftermath of the offence’ Liebling et al (2017, p.970). This process allows the victim to gain closure for the offence by communicating with the offender. This approach can act as a proactive way to prevent harm and curing harm already done. It allows the offender to realise how detrimental their actions were and therefore they are forced to take responsibility for their actions. This is a alternative process to modern Western systems of punishment and focuses on reparation by developing a relationship between the offender and the victim. Sociologists focus on how and why crime is committed. Functionalists state that punishment serves as specific functions for society while Marxists focus on power relations behind crime and state punishment serves the interests of the middle class. Punishment can be said to be influenced by many factors creating biases e.g. race, gender and class which undermines the effectiveness of the penal system.
Contemporary forms of control are not necessarily consistent with retributive principles. More recently the aim of punishment focuses on future social benefits and lowering recidivism by using rehabilitation and utilitarian methods. There’s been a great shift from dramatic, public and brutal measures to the use of restrictive sanctions such as containment. Some individuals see prisons as excusing criminals from their responsibility and that the criminals must suffer capital punishments or harsh ones as families deserve justice. Incapacitation remains to have limited effectiveness as there’s evidence of relatively higho reoffending rates associated with imprisonment. The idea of reconciliation and forgiveness is undermined as not all victims and offenders will agree to this therefore it can be ineffective. Research has shown the most effective way in reducing criminal acts is through education. So if rehabilitative measures are a positive reinforcement for deterring crime, why is imprisonment still the prime response to crime?
REFERENCE LIST:
- Brooks T.,2012, Punishment, Oxon, Routledge
- Case S, Johnson P, Manlow D, Smith R, Williams K.,2017, Criminology, Oxford, Oxford University Press
- Cullen F, Wilcox P., 2010, Encyclopedia of criminological theory, vol 1, Thousand Oaks, SAGE Publications
- Kaufman W., 2013, Honor And Revenge: A Theory Of Punishment, Heidelberg, Springer Publishers
- Liebling A, Marina S, Mcara L.,2017, The Oxford Handbook Of criminology, 6th ed, Oxford, Oxford University Press
- Newburn T.,2009, Key Readings In Criminology, Oxfordshire, Routledge
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