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Punishment sociology endeavors to explain the rationale behind punishing individuals. It literally seeks to justify the objective of the principle of punishing offenders. Generally, it involves intentionally inflicting pain as well as deprivation of a certain right to individuals. Both the modern and contemporary societies had some form of theory to support punishment used as a means of maintaining order within the society. The theories mainly fall into two broad categories, namely utilitarian and retributive. The utilitarian theory endeavors to impose punitive actions on the offenders in order to discourage or deter future wrong acts. On the other hand, retributive theory endeavors to impose punitive actions on the offenders because they deserve the imposed punishment. Lessnoff (1971) notes that on the basis of the utilitarian theory, laws should be intended to optimize societal happiness. Given that crime and punishment are both inconsistent with happiness, the two should be kept at minimal levels. Despite understanding that crime cannot cease within society, utilitarians still go ahead to inflict punishment as a means of deterring future crimes.
Naturally, the utilitarian theory is a consequentialist approach. Recognizing that punishment has consequences, both to the offender and the society, in addition to holding the opinion that total good produced through punishment should not exceed the overall evil. Put otherwise, punishment should not lack limits. A good illustration of the consequentialist ideology is the release of inmates who suffer from debilitating ailments. It recognizes that when a prisoner is ill and his/her death is imminent, society is not in any way served by his continued confinement. Given that such a person is not able to continue committing crimes. Basically, the idea behind this approach is that laws that specify punishment for criminal acts need to be engineered in such a manner that they deter future criminal behaviors. Deterrence works at a specified as well as a generalized level.
General deterrence works to prevent other members of the society from engaging in criminal behaviors, whereby the imposed punishment acts as an example to other members as to what could befall them if they get engaged in crime. It also puts another criminal on notice that their behaviors are punishable. On the other hand, specific deterrence implies that punishment is meant to prevent the same person from committing criminal acts in the future. Specific deterrence generally operates in two ways. Firstly, the offender may be jailed or imprisoned as a means of physically preventing them from committing other criminal acts during a specified length of time. Secondly, this form of incapacitation is meant to be unpleasant and as such discourage the offender from re-engaging in the criminal acts.
Other than consequentialist approach, utilitarian philosophy makes use of rehabilitation as a justification for punishment. Rehabilitation is meant to limit future criminal acts by giving the offenders and opportunity to succeed within the legal confines (Johnston, Bruce, & Marvin, 1970). The rehabilitative measures for crime perpetrators include treatment for afflictions suffered by the offenders including mental ailments, chemical dependencies, as well as chronic violent acts. Rehabilitation also provides educational initiatives which offer the offenders knowledge, as well as skills to, have the competitive ability within the job market (Melossi, 1998).
As earlier mentioned, other than utilitarian philosophy, there is the retributive philosophy which unlike its earlier counterpart punishes offenders because they deserve to be punished. This approach is premised on the belief that crime obstructs peaceful co-existence within the society and that punishment can be used to restore a balanced peaceful co-existence. This philosophy focuses primarily on crime as the reason for punishment imposition. Unlike utilitarian philosophy which views punishment on the basis of social benefits, retributive philosophy concerns itself with transgression as the basis for punishment. According to the retributive approach to punishment, people have free will and are able to make rational decisions (Honderich, 1989). An insane offender or one who has some form of incompetency needs not be punished. However, one who makes conscious decisions to interfere with societal balance deserves to be appropriately punished. There are quite a number of ideas that offer moral premises for the retributive approach.
Firstly, retributivists justify punishment on the basis of vengeance (Lessnoff, 1971). It is more of an ‘eye for an eye scenario.’ Under this ideology, wrongdoers should be made to suffer on the ground that they have made others suffer as well. This principle is traceable to the ancient principle which is laconically expressed in the Old Testament part of the Judeo-Christian bible. Here it is clearly mentioned that “When a man causes a disfigurement in his neighbor … it shall be done to him, fracture for fracture, eye for an eye, tooth for tooth…. (Miethe & Hong, 2005)” In such a case, it is believed that everyone deserves to suffer the consequences they unjustifiably make others suffer. The term ‘unjustifiably’ implies that there is room for one to justify his/her actions.
Other theorists perceive retribution against crime perpetrators as a justification to protect legal rights of the society as well as that of the offender. It is believed that the society accords its respect for the free will of the offender by imposing punishment. Punishment accords respect to the offender given it permits the offender to pay his/her debt to the society and in turn, the society theoretically frees the offender from the guilt and stigma associated with the crime (Valier, 2004).
Another ideology surrounding retributive ideology of punishment is denunciation. This is an act of social condemnation by the society where individuals break its norms. It is rather a hybrid of utilitarianism and retributive approach to punishment. It is utilitarian given that the prospect of having one publicly denounced acts as deterrence to the society while at the same time it touches retributive approach given that it promotes the idea that offenders deserve punishment for their offences (Baker, 1971). In some nations, the legal jurisdiction is a conception of both theories, while others have adopted a singular approach either going the retributive way or the utilitarian way.
The most widely accepted approach in the United States is retribution whereby most of the punishments are a form of retribution. However, in some instances a combination of the two is employed, for instance, where a defendant is sentenced to prison and also subjected to educational programs during imprisonment. The latter reflects the utilitarian approach which a form of retribution. The utilitarian approach basically rears its head into the justice system through a number of systems including the pretrial diversion programs, probationary approach, as well as offering paroles. This philosophy is also visible from assigning diverse punishments for distinct crimes. Additionally, this is displayed in the notion that the threshold of assigned punishments should be proportional to the harm resulting from the criminal act. For instance, while in many jurisdictions murder result into life in prison or even death penalty, assault and battery are considered to be of lesser thresh and hence where there are no serious injuries, a short jail term or a fine will do.
Recent works of scholars focusing on criminal punishment have increasingly paid attention to retributivist justifications with regard to punishment. However, utilitarian approach has similarly not been spared. A key question that many would want to be answered is which of the two superior to the other. This question is generally not an easy one to respond to (Davis, 1986). It generally depends on what the society is after. While some societies are purely pro-vengeance, others seek to have its renegade members reformed to fit within the society. Basically, utilitarian which is more society oriented and reflective of a family unit desire to have a son or daughter is much more superior in a pro-reform society (Bedau, 1978). It offers the offenders an opportunity to renounce their actions and start a new life. Additionally, it well addresses the needs of persons who are not inherently criminal and would like an opportunity to reform. However, it does little with regard to deterrence of recidivist criminals. Some criminals just won’t stop and in such cases, retribution works best. A criminal knows quite well that if caught killing another he/she too may end up on the hang man’s noose. Essentially, this approach is much more superior when it comes to the deterrence of criminals.
The contradicting punishment theories, typically seek to limit crime within the society. Utilitarian considers punishment an evil and justifies by the larger advantage of attaining crime prevention and also achieving the greater aim of deterring crime and incapacitating would be crime perpetrators (Clark, 1971). On the other hand, retributive approach is often more like a crime prevention initiative, where mostly educational programs and reform initiatives substitute deterrence and incapacitation as used in utilitarian approach. Retributivism basically purports to respond to much more discrete queries with regard to criminal justice, for instance, issues like the correct doctrinal triggers for liability, as well as question regarding the threshold of punishing offenders on various culpability levels (Braithwaite& Philip, 1990). It has much stronger implications as to what needs to be prohibited by penal law and as such yields a legal moral point of view to criminal law on basis of which only things that are morally wrong need to be outlawed (Honderich, 2006). It basically argues that if a given behavior is morally unacceptable, then there is a facie reason to make it a criminal offense and similarly, if a behavior is morally justifiable, then there is no reason to make the behavior a criminal offense. It basically sees no justice in punishing people who do not engage in any wrong doings. However, it should not escape the mind that utilitarian approach is much more focused on societal well-being and as such is keen on having all members integrated into constructive acts within the society. Either way, both converge towards creation of a crime free society.
References
Baker, J. M. (1971). Utilitarianism and “Secondary Principles.Philosophical Quarterly, 21 (82), p.69-71
Bedau, H. A. (1978). Retribution and the Theory of Punishment. Journal of Philosophy, 75 (11), p. 601-620
Braithwaite, J. & Philip, P. (1990). Not Just Deserts: A Republican Theory of Criminal Justice. New York: Clarendon Press; Oxford University Press.
Clark, M. (1971). The Moral Gradation of Punishment. Philosophical Quarterly, 21 (83), p. 132-140
Davis, M. (1986). Harm and Retribution. Philosophy and Public Affairs, 1-33
Honderich, T. (1989)Punishment: the supposed justifications, Polity Press, Cambridge
Honderich, T. (2006). Punishment: The Supposed Justifications Revisited. London, UK; Ann Arbor, MI: Pluto Press.
Johnston, N., Bruce, L. D. & Marvin, E. W. (1970). The Sociology of Punishment and Correction (2nd ed.). New York, NY: John Wiley.
Lessnoff, M. (1971). Two Justifications of Punishment’ in Philosophical Quarterly. 21 (83), p. 141-148
Melossi, D. (1998). The Sociology of Punishment: Socio-Structural Perspectives. Brookfield, VT: Ashgate.
Miethe, T. D. & Hong, L. (2005). Punishment: A Comparative Historical Perspective. Cambridge, UK; New York, NY: Cambridge University Press.
Valier, C. (2004). Crime and Punishment in Contemporary Culture. NY: Routledge
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