Governments have several theories to support the use of punishment to maintain order in society.
Theories of punishment can be divided into two general philosophies: utilitarian and retributive. The utilitarian theory of punishment seeks to punish offenders to discourage, or “deter,” future wrongdoing. The retributive theory seeks to punish offenders because they deserve to be punished.
Under the utilitarian philosophy, laws should be used to maximize the happiness of society. Because crime and punishment are inconsistent with happiness, they should be kept to a minimum. Utilitarians understand that a crime-free society does not exist, but they endeavor to inflict only as much punishment as is required to prevent future crimes.
The utilitarian theory is “consequentialist” in nature. It recognizes that punishment has consequences for both the offender and society and holds that the total good produced by the punishment should exceed the total evil. In other words, punishment should not be unlimited. One illustration of consequentialism in punishment is the release of a prison inmate suffering from a debilitating illness. If the prisoner’s death is imminent, society is not served by his continued confinement because he is no longer capable of committing crimes.
Consequentialism says that the results of actions are most important. For example, if you could know 100% that a killer would never kill again, consequentialism says that punishing that person is useless. A good example is Anders Behring Breivik, a Norwegian man who killed 77 people, mostly children. If he shows enough improvement, he can rejoin society in 20 years. What do you think?
Under the utilitarian philosophy, laws that specify punishment for criminal conduct should be designed to deter future criminal conduct. Deterrence operates on a specific and a general level. General deterrence means that the punishment should prevent other people from committing criminal acts. The punishment serves as an example to the rest of society, and it puts others on notice that criminal behavior will be punished.
Specific deterrence means that the punishment should prevent the same person from committing crimes. Specific deterrence works in two ways. First, an offender may be put in jail or prison to physically prevent her from committing another crime for a specified period. Second, this incapacitation is designed to be so unpleasant that it will discourage the offender from repeating her criminal behavior.
Rehabilitation is another utilitarian rationale for punishment. The goal of rehabilitation is to prevent future crime by giving offenders the ability to succeed within the confines of the law. Rehabilitative measures for criminal offenders usually include treatment for afflictions such as mental illness, chemical dependency, and chronic violent behavior. Rehabilitation also includes the use of educational programs that give offenders the knowledge and skills needed to compete in the job market.
The counterpart to the utilitarian theory of punishment is the retributive theory. Under this theory, offenders are punished for criminal behavior because they deserve punishment. Criminal behavior upsets the peaceful balance of society, and punishment helps to restore the balance.
Retribution theory is not concerned with results. A good example of this is Stanley “Tookie” Williams. Williams was convicted of murder as a young man. In prison he reformed and became very useful, negotiating peace between two huge gangs in Los Angeles and helping children escape from gang lifestyles. However, in order to get retribution, he was still executed.
The retributive theory focuses on the crime itself as the reason for imposing punishment. Where the utilitarian theory looks forward by basing punishment on social benefits, the retributive theory looks backward at the transgression as the basis for punishment.
According to the retributivist, human beings have free will and are capable of making rational decisions. An offender who is insane or otherwise incompetent should not be punished. However a person who makes a conscious choice to upset the balance of society should be punished.
There are different moral bases for retribution. To many retributivists, punishment is justified as a form of vengeance; wrongdoers should be forced to suffer because they have forced others to suffer. This ancient principle was expressed succinctly in the Old Testament of the Bible: “When a man causes a disfigurement in his neighbor, it shall be done to him, fracture for fracture, eye for eye, tooth for tooth.
To other theorists, retribution against a wrongdoer is justified to protect the legitimate rights of both society and the offender. Society shows its respect for the free will of the wrongdoer through punishment. Punishment shows respect for the wrongdoer because it allows an offender to pay the debt to society and then return to society, theoretically free of guilt and stigma.
Should prisoners, after they are released, be free of guilt and stigma or should we punish them forever?
A third major rationale for punishment is denunciation. Under the denunciation theory, punishment should be an expression of society’s condemnation. The denunciation theory is a hybrid of utilitarianism and retribution. It is utilitarian because the prospect of being publicly denounced serves as a deterrent. Denunciation is likewise retributive because it promotes the idea that offenders deserve to be punished.
Cited from Jrank Articles. http://law.jrank.org/pages/9576/Punishment-THEORIES-PUNISHMENT.html#ixzz3jiAP19HL
Study Questions:
- What sorts of punishments are best for teachers to use, retributive or utilitarian?
- What sorts of punishment make classes worse, rather than better? Be specific and explain your answers with theory.
- The danger of utilitarianism is mostly that others will not accept it as valid. The danger of retribution is that it easily becomes revenge. How can you avoid these problems?
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[…] Part Five – Theories of Punishment […]
Brilliant analysis.
But probably none of them achieve their stated aim.
What do you think is best?
Where does Devil’s Island fit in?
Definitely retributive. Devil’s Island is where we can bask in the righteousness of our anger whilst the evil-doers suffer to restore balance to our idyllic societies.
once someone has served their time, we need to allow them to move on so that society can move on too. i guess, though, this does mean that for some crimes life has to mean life – some things are too awful for any society to ever forgive. is that right and fair though? I’m not sure.
The hardcore utilitarian left over from my early twenties thinks we should release everyone if we could know they were no longer a danger.
The pragmatist thinks sacrificing criminal victims to the bloodthirsty public is too good a campaign strategy to ever go away. The cynic in me wonders if that’s maybe okay. The idealist wonders if there isn’t a way to remove vengeance from the political sphere.
So yeah, it’s complicated. 🙂
‘bloodthirsty public’ – good description! Near us, a Paediatrician got attacked because someone got confused between that word and the word ‘peadophile’.
That’s hilarious in a depressing sort of way.
There’s the danger of vengeance in what you’re calling the retributive theory, but there’s also the Kantian side, which runs deep. And I don’t think it’s just a matter of wanting to see someone who’s hurt you get hurt. (Although it can be that.) I think it ties to our sense of justice.
I personally think both utilitarian and retributive theories have their place. As does rehabilitation. Ethics and morality are sticky areas, so it’s one of those things where you’d have to see the specific context.
I’m intrigued. What sort of Kantian purpose does retribution serve?
As for ethics and morality, I completely agree. I’m currently engaged in a huge and definitely foolhardy project to FINALLY SOLVE ETHICS!
I’m finding it tricky. 😉
The Kantian thing you’ve touched on in saying, “Society shows its respect for the free will of the wrongdoer through punishment.” People are ends in themselves, not means to an end. Using them as examples of warning to others is wrong, according to Kant. So is punishing someone for utilitarian purposes, to “get them off the streets,” etc.
At least that’s what I remember reading. Don’t quote me on that!
Ah, I get it. That said, I’ve never quite understood how you could live you life never using people as a means. I mean, I “used” the waiter this evening because I wanted spaghetti.
I am, I’m betting you already suspect, a bit of a Kant neophyte. 😉
I think it’s okay to go to restaurants and “use” the waiter. Just so long as you see the waiter as a person…maybe that means you have to tip well? 🙂
Haha, yeah. I’m sure this is mostly my ignorance, but that part of Kantian ethics has always confused me.
I think it just means treat people as people. Exploitation would require a signature on a consent form. 🙂