When you wake up in the morning and leave the house to go to work or school, you probably don’t think about it too much, but you are entering “society”. You’re constantly interacting with other members of society, and it dictates many of the things you do, as well as some of the things you don’t do. There are countless aspects that make up what we refer to as “society”, from paying for goods and services, to driving on the right side of the road. One of the major motivations for us as members of this society to stay within its boundaries is punishment, which is doled to those of us that choose to break society’s rules, or laws.
Punishment is our topic of discussion today, specifically the reasonings behind it, also referred to as the theories of punishment. Always a hot button issue, how and why we punish law breakers is left up to the government, and depending on which way the current government leans, they decide which theories will influence how they sentence criminals. If laying down the law seems like an interesting career path, this article on the different careers in criminal justice and this course on crime studies will help you decide if this is the right career for you.
Concepts of Punishment
Before we start our discussion on the different theories of punishment, we can break down this concept into three main philosophies: utilitarian, retributive, and denouncing. The utilitarian side of the punishment coin states that when someone is punished for committing a crime, the good of the punishment should be greater than the total bad of the crime, and that a punishment shouldn’t be unlimited. For example, a gravely ill criminal’s incarceration no longer benefits society because he is unable to commit more crimes, so he may be released. Utilitarian punishment is meant to deter future crimes, while at the same time assuring the public that crime is not tolerated, and is swiftly punished.
The retributive side of punishment is meant, simply stated, to keep society happy. A happy society is one without crime, or at least low crime, and the threat of punishment is what keeps most people from committing crimes. In other words, punishment helps to keep society balanced. As opposed to the utilitarian side, which bases the severity of punishment upon how much it will benefit society as a whole, the retributive side instead looks at the actual illegal act, executing a punishment that fits the act. A large part of the retributive idea is that we have free will, and we choose to act out, but those without free will, such as people that are insane, or otherwise deemed incompetent, shall not be punished under this philosophy. If you’d like to learn more about mental health and the law, this course on the Mental Health Reform Act will get you caught up.
Finally, denouncement claims that a punishment should be an expression of society’s condemnation of an act. It is a hybrid of the other two concepts: it is utilitarian in that the person fears public embarrassment and hence, deterred from committing the crime, and it is retributive in that it promotes the concept that criminals deserve to be punished.
The Five Theories of Punishment
The following theories of punishment explain how and why justice is doled out to those that deserve it. This course on the fairness of justice will take you deeper into the world of law.
This theory of punishment refers to two different types of deterrence: general and specific. General deterrence focuses on society, and wishes to make an example out of a criminal so that everyone else will know that if they commit that particular crime, they will have to go through what he or she went through. Specific deterrence is when the punishment is designed to make the specific criminal think twice about committing that crime again. Deterrence relies on the concept of fear, and is generally effective, but only when the punishment is meted out in a fashion that is severe, certain, and swift. One of the criticisms of specific deterrence theory is the high rates at which some people relapse back into crime (recidivism). Other faults of this theory are that certain crimes, such as crimes of passion, and those committed by those under the influence, will never be deterred.
Expiatory punishment theory plays a large part of the paroling process, and operates under the idea that if a criminal repents, or expiates, then he or she must be forgiven. Also part of the repenting process is the idea of atonement and reparations, or making up somehow for your crime to either the victim or their family. The idea behind expiation theory is that the current justice system forgets about the victim, and just focuses on punishing the criminal. Ideally, expatiation would help do away with crimes that revolve around revenge, with reparations to the victim eradicating any monetary benefit the criminal may have realized as a result of the crime.
With the U.S. having more of their population in jail than any other country (.94%), this theory seems to be the most widely practiced in America. The idea is simple: if someone commits a crime, they must be taken off the streets and isolated from the general public. The idea is to not only protect others from these people, but to prevent them from committing any more crimes. Incapacitation is effective, and may result in lowered crime rates, but it is also quite expensive, with most of the associated costs going to building and operating prisons. Also worth noting is the emotional toll that it takes when it breaks apart families.
The idea behind the rehabilitation punishment theory is that no one is born a criminal, and that anyone can be reformed. The reasoning behind any criminal actions was that social, environmental, or economic forces acted on the perpetrator (or “nurture” in the nature vs. nurture argument), causing an otherwise productive and law-abiding member of society to act out, and that training, education, and other rehabilitation can transform them. This theory is especially successful with younger offenders.
The concepts of “just desserts” and “let the punishment fit the crime” are other ways to describe this theory, in which justice is seen in terms of fairness and proportionality. Proponents of retribution believe that the harshness of the punishment should fit the harshness of the crimes they are convicted of. Retribution is backward-looking in that past precedents must be referenced in order to find an appropriate punishment, but its major fault is that both the severity of the crimes and matching punishments rely too heavily upon subjective opinion, making a proper punishment difficult to agree upon.
As you can imagine, some of these theories of punishment are more effective than others, and are quite controversial issues in the worlds of politics, criminal justice, and sociology. Not only does the practicing of these theories affect the criminal and the victim, but also the families of the two, making the repercussions very widespread. If these types of issues interest you, and you’d like to learn more, this course on the basic concepts of sociology, and this course on criminology might just help you find a new career.