Category: Punishment

Introduction to Theories of Punishment

Punishment has always been the traditional method of crime control. Punishment is the intentional infliction of torture and hurt, yet punishment has been an area of significant dispute (Hucklesby & Wahidin, 2013). When looking at theoretical justifications for punishment outside the criminal justice system, it is important to address the main theories of punishment and what they aim to achieve. These theories can be placed under two categories – Utilitarianism and Retributivism.

Utilitarianism: A Forward-Looking Theory

The utilitarian theory believes the use of punishment is validated as it can aid the prevention of future crime and reduce the consequences of crime. In order to lower the crime rate, the offender’s suffering must be counterbalanced by preventing future pain to individuals (Cavadino and Dignan, 2007). Thus, it acts as a forward-looking theory and can be seen as a moral response against wrongdoers (famously promoted by Jeremy Bentham, 1748-1832) considering that it creates significant happiness for the greatest number of people. Therefore, this makes punishment morally right in the eyes of a utilitarian.

Retributivism: A Backward-Looking Theory

In contrast, retributivism penalises wrongdoers for the illegal acts committed, so it is considered a backwards-looking theory (Brooks, 2012). The main rationale for retributive punishment is that the offender is deserving of it (Murphy, 2007) and the punishment should be in proportion to the crime (Brooks, 2012). Retributivism was established in the lex talonis – “an eye for an eye, a tooth for a tooth, a life for a life” (Exodus 21, 23-5) and Kant’s retributivists believe that retribution “should not be a means to an end, but an end in itself” (Newburn, 2017, p. 558). Retributivists may argue that the harshness of sanction is not arranged with prospective deterrent influence, nevertheless retributivists still believe criminals should revaluate the consequences of committing a crime. (Brooks, 2012).

Alternative Punishments: ASBOs, Civil Injunctions, and Parenting Orders

ASBOs, civil injunctions and parenting orders have been popular uses of punishment outside of the criminal justice system. ASBOs are governmental arrangements that offer protection to the community from actions that are expected to create distress or annoyance (Home Office, 2002). They are not intended to penalise the delinquent or act as penalties, although a breach can result in a criminal sentence (Home office, 2002). Civil injunctions took over from several previously used devices like the ABSO. The court has to be satisfied that the individual has participated is likely to participate in behaviour that is able to cause inconvenience and trouble before granting an injunction (Crime and Disorder Act, 1998). Different to the ASBO, a criminal record is not obtained when an injunction is breached. Yet punishments can include supervision within the community or even imprisonment for those over the age of 14 (Wigzell, 2014). Parenting orders can be given to parents whose child has received an ASBO, a Child Safety Order or has been found guilty of an offence (Holt, 2008).

This essay will criticise and assess the theoretical justifications for the use of punishment outside the criminal justice system, whilst considering the use of ASBOS, civil injunctions and parenting orders in terms with the justifications.

Deterrence: Individual and General Perspectives

Primarily, deterrence, rehabilitation and incapacitation can be placed into the ideology of utilitarianism.

Deterrence believes that the rate of crime is reduced because of the fear of punishment offenders could suffer (Cavadino and Dignan, 2007). Micheal Howard, the Home Secretary at the time, expressed at the Conservative Party Conference (1993) that deterrence allows those who are enticed into committing crime, to think twice about the consequences before carrying out the offence (Cavadino and Dignan, 2007). If the nation is worried about the consequences, then the people will not offend (Brooks, 2012). There are two forms of deterrence – individual deterrence and general deterrence.

Individual deterrence is aimed at the offender and uses a personal fear calculation, where the shock of the sanction counterbalances the desire to offend, resulting in a decrease in further offences being committed (Hucklesby and Wahidin, 2013). A justification for the use of parenting orders is individual deterrence. Parenting orders can be appointed to parents of a child that has acquired a child safety order, an ASBO or has been found guilty of a crime (Holt, 2008). The Government holds the view that by imposing a formal requirement on parents to pay a penalty has a consequential effect which brings home the realities of their children’s behaviour and the implication of their own actions into family life (Home Office, 1990). Which, should act as a big enough deterrent to the family for the criminal act to not occur again, especially in vulnerable and impoverished families. This is further supported by the use of The Troubled Families programme, which was an initiative for families facing various issues involving crime and anti-social behaviour. The aim of the program was to deal with problems before further action is needed. The first stage of the TF scheme operated from 2012 – 2015 and helped 99% of 120,000 families (Bate and Bellies, 2019). Yet, this statistic was challenged when an evaluation of the scheme found little proof that was significant enough to produce results (Aldridge, 2019).

Empirical data displays that individual deterrence is disadvantageous (Helen, 2010), especially when looking at ASBOs. As in the term of June 1st 2000 to December 31st 2012, 24,323 ASBOs were distributed. 58% of the ASBOs issued were breached more than once. Of those breached, 75% were violated repeatedly (Home Office, 2014). In contrast, 63% of individuals who were sent a warning letter before obtaining an ASBO did not receive another action to prevent anti-social behaviour (National Audit Report, 2006) so it could be claimed that ASBOs are seen as a deterrence in some cases. It is also argued that civil injunctions do not act as a good enough deterrent as there is no criminal offence attached if the order is breached (Youth Justice Board, 2015).

Alternatively, general deterrence involves social control. This perspective uses a social fear calculation, as the person is not exposed to suffering but is an observer of the suffering of the society (Hucklesby and Wahidin, 2013). ASBOs are seen to have a component of general deterrence, as they are governmental orders that offer protection to the community from actions that are expected to create distress or annoyance (Home Office, 2002). They are orders that require individuals within the community to help with the evidence collection and also helping in the enforcement of breaches (Home Office, 2002). General deterrence is built from the concept that penalizing one individual could deter others from performing similar actions (Mathiesen, 2006). This is a main reason as to why the government use ASBOs, parenting orders and civil injunctions, to try and deter others from committing similar offences. General deterrence is an attempt by the state to communicate through penal law, but messages can be reinterpreted or never received by the intended group (Mathieisen, 2006). This can show that general deterrence is ineffective especially in relation to the communication of ASBOs, parenting orders and civil injunctions when looking at breach rates. On average, an ASBO is breached 5 times, and it is reported that over two thirds of juveniles breached their ASBO more than once at the end of 2013 (Home Office, 2014). This shows that ASBOs do not act as a good enough deterrent from committing the offences, as the National Audit Report (2006) found that the program in place was not working for long-standing persistent criminals. This is supported by Edward Leigh, the chairman of the Commons Public accounts committee who supervises the National Audit Report (2006) stated that often delinquents respond to ASBOs by mocking the government and ruining the lives of the local community, instead of being shocked into correcting their attitude. The Ipsos MORI survey (2005) identified that there was support from the public for ASBOs, however judgements are split on their success. Those who knew of ASBOs, four in ten sensed they were successful in preventing individuals from partaking in anti-social behaviour.

Advocates for general deterrence believe that harsher punishments can intimidate prospective offenders (Walker, 1993). There is evidence that argues that wrongdoers who experience harsher punishments (including punishments directed at deterrence) are expected to reoffend (Lipsey, 1992). A research study on youths in London found that if a boy commits a crime, the most successful way to prevent reoffending is to not convict him on the first offence (West, 1982). This evidence is contradictory to common sense as it shows that there is no deterrent effect through the use of punishment, or that any wrongdoer is actually deterred. Although, it is proposed that sanctions have alternative effects which could counterbalance the deterrent effect. Mathiesen (2006) argues that the law in advanced capitalist-patriarchal societies penalise the poor the hardest, so general deterrence is not a way of preventing crime in society, but a way of keeping the poorest people in order. A National Audit report (2006) confirmed this as they found that it was those living in underprivileged communities who were more likely to suffer.

Additionally, advocates for this justification accept that the deterrence is dependent upon several factors, including when the offence has occurred during the criminals career, the extent of the wrongdoing, or the norms that are being breached (Wright, 1994). The rationale of deterrence has also been challenged. People don’t often weigh out the costs and benefits before committing a crime. Emotions are also strong influencers when calculating actions, and are not often thought about in advance (Golash, 2005). The certainty of being convicted is also very significant when assessing the effectiveness of deterrence. The lower the anticipated risk of being caught by the offender, the lower the chance the penal law will intimidate the offender against carrying out unlawful actions in the future (Andeneas, 1974).

There are several complications with deterrence. One of the criticisms is that deterrence is insignificant, because individuals who abstain from troublesome actions do so because of causes unrelated to penal law. Moral sense and family ties can act as an obstacle inhibiting the crime, while a minority of offenders may grow out of crime (Golash, 2005). In addition, there has been interest regarding the publicity and ‘naming and shaming’ of ASBO recipients as a disregard of human rights (Burney, 2005); however as stated by the Home Office (2005) exposure is necessary if the public are to assist agencies in stopping anti-social behaviour. Exposure is essential in terms of restoring the public’s confidence in that something is being done, it allows the local community to be able to notify the government of any breaches and act as a deterrent to offenders (Millie, 2008). Commentators emphasize that it does overuse its bias against the offender in specific areas but the authority’s response is that, even though ASBOS may break human rights (the right to respect private and family life and the right to freedom of expression), it can be overthrown in favour of a proportional reaction to combat crime and disorder (Respect, 2008). The matter of naming and shaming can be problematic for juveniles. Naming and shaming cannot be distinct, and shame without a reintegrative procedure is expected to be ineffective (Ahmed et al., 2001). It adds to the outcast aura which can be harmful to the identity and future of a child. It could increase resistance and boldness, with the ASBO acting as a badge of bravery (Burney, 2005). Several studies have proposed that ASBOs are seen more like a badge of honour with minors creating a self-fulfilling prophecy and living up to the labels (Wain and Burney 2007).

Rehabilitation and Incapacitation: Utilitarian Approaches

Although rehabilitation may not be a justification for ASBOs, civil injunctions and parenting orders, it is a justification for utilitarian punishment. Raynor and Robinson (2005) recognise there is a number of definitions, that argue rehabilitation is a necessary part of punishment and is a way of undoing the damaging drawbacks that punishment created. Rehabilitation is recognised as an effort to convert the offender to the individual they were before the offence had taken place. It also believes that the individual has deteriorated as a result of committing the crime (Hucklesby and Wahidin, 2013). Wrongdoing is perceived as a social illness so if the problems are correctly identified, the offender can be cured. As a result of this, advocates concentrate on treating the criminogenic symptoms which draws in the main rationale for positivist criminology (Hucklesby and Wahidin, 2013). Several academics have highlighted the evidence: crime is not an illness but in fact a social construct and offenders may be no different to the law abiding society (Scott, 2008). By concentrating on the wrongdoer rather than the crime, rehabilitation is deeply deterministic and refuses human agency and moral decisions (Golash, 2005). There is also a risk that many of the claimed ‘cures’ create more damage than the crime they handle (Boonin, 2008). Rehabilitation can also be seen as unjust and hinder procedural rights, as rehabilitative punishments can be excessively long and indeterminate, as the wrongdoer must transform before the scheme of treatment can finish (Hudson, 1996). Supporters of rehabilitation have been hesitant to accept that the solutions that are tackled through coerced imprisonment are actually a method of punishment (Wootton et al, 1978). Martinson (1974) found that rehabilitation in the community has been proven to be widely unsuccessful in the reduction of future offending, with only a number of cases proving successful.

The final theoretical justification for utilitarian punishment is incapacitation. Incapacitation appears to be straightforward, and has a specific fit with the basic role of imprisonment (Zimring and Hawkins, 1995), which in turn removes the ability to engage in further crime. It also appears to be infallible in terms of meeting its aims (Bentham, 1830). ASBOs are considered to have an element of incapacitation as there is the implementation of curfews and bans from associating with certain people, which is a restriction and forfeit of freedom. Hucklesby and Wahidin (2013) claim that incapacitation could lead to the postponement of crime, with the criminal having a tendency to reoffend when returning to the community. Incapacitation also has what Honderich (2006) calls capacitating results, which gives increase in opportunities for new wrongs or could treat criminals in such a way that they will participate in further criminal acts when released. It is said that the removal of wrongdoers only has an effect for a number of years before their place is occupied by new criminals (Hucklesby and Wahidin, 2013). Additionally, Tarling (1993) has identified that a rise in prison populations by 25% would reduce recorded crime by only one per cent. Another problem is that by basing punishments on these unreliable predictions, Von Hirsch (1987) argues that the wrongdoer will be given a harsher sentence and will be unjust punishment. Scott (2008) highlights the critical question of false negatives and false positives. Not only does it contradict the key principles of penal law that the legally guilty should be punished, additionally we have no capability to correctly forecast the number of future offences (Mathiesen, 2006). The issues of false positives and false negatives indicates the hazards of predicting future actions (Hucklesby and Wahidin, 2013).

Retribution: The Principle of Proportionality

In contrast, retribution stands as a single objective, as retributivism concentrates purely on the offender suffering the consequences for their misbehaviour because they deserve it, and not to improve future society (Newburn, 2017).

Retribution can take many forms of punishment including restrictions of freedom, incapacitation and loss of status (Case et al., 2017). Retributivism is rooted in the foundation that through hurting others in the past, the criminal deserves to be hurt. In doing this, retributivists concentrate on the wrongdoers guilt and connect the punishment with the crime, which is known as the principle of proportionality (Hucklesby and Wahidin, 2013). Additionally, this supplies a moral structure that claims that the innocent should not be penalised (Hucklesby and Wahidin, 2013). Retributivism is regarded as a fundamental justification for parenting orders, as the government assumes the enforcement on parents of a official requirement to pay penalties has an consequentialist effect and will bring into reality the result of the child’s behaviour and the consequences of their actions.

Retributivism has been critiqued by several academics. Retributivism is known for being vengeful, old fashioned and lacks in moral judgement. Although the perspective is backwards-looking, it is criticised for its attempt to explain an element of a procedure that merges the formation of norms relating to further criminal behaviour (Wacks, 2017). Retributivism believes that the country has not only a right but an obligation to punish merely on the fact that an offence has been committed (Wacks, 2017). Hucklesby and Wahidin (2013) also query whether the requirement for pain and torment is healthy, as the emotions that can follow punishment can be harmful to the offender. Although retributivism struggles to justify the reasons for punishment, what punishments are deserved or why that state is given the authority to undertake such damage. This is endorsed by Lyons (1984) who asserts that retribution is ineffective because it accounts for too little or too much. If punishment is accounted for, it will be accounted for in numerous cases and by numerous individuals. Although it is uncertain that they succeed in justifying any retribution at all, notably by legal jurisdiction, because they do not explain why someone possesses the right to penalise or why the right to penalise is reserved to the state (Wacks, 2017). This is supported by Hudson (1996) who argues that retribution fails to prove why the right to punish is reserved to the government, particularly if there are other means of punishment and education which do not involve physical punishment such as rehabilitation. It argues that there should be punishment that restores balance but doesn’t explain why the punishment should involve pain (Hucklesby and Wahidin, 2013).

“Men are punished by their sins, not for them.” – Elbert Hubbard[HK]. Punishment is always caused by one’s sins whether that be public disgrace or being punished by their own conscience [BRG]. In Hawthorne’s classic, The Scarlet Letter, several characters receive punishment, both just and unjust, for their sins [TH]. Hester receives punishment both publicly and privately, Dimmesdale receives punishment by keeping his sin private, and Chillingworth receives punishment by seeking revenge for Dimmesdale’s sin against him [OS].

Hester receives public and private along with just and unjust punishment by her sin of adultery [TS1]. At the beginning of the story, we see Hester being brought out of jail for her public punishment[CE1]. ‘Open a passage; and I promise ye, Mistress Prynne shall be set where man, woman, and child may have a fair sight of her brave apparel from this time till an hour past meridian. A blessing on the righteous colony of the Massachusetts, where iniquity is dragged out into the sunshine! Come along, Madame Hester, and show your scarlet letter in the market-place!’ (pg.3-4) [E1]. Hester is receiving punishment for her crime; however, it seems unjust due to the fact that she is being punished alone. This is the sin of two, but only one is being punished[R1]. Hester has become an outcast in her society. Her sin has set her apart. [CE2]. “As an outcast: Standing alone in the world–alone, as to any dependence on society, and with little Pearl to be guided and protected–alone, and hopeless of retrieving her position, even had she not scorned to consider it desirable–she cast away the fragment a broken chain.” (pg.49)

[E2]. She is unjustly cast out of society; this leaves her alone with no help to raise Pearl. The punishment she is receiving in this portion of the story is unjust because her sin is now affecting her child who didn’t sin along with her [R2]. At the governor’s house, Pearl is about to be taken away from Hester. Hester shows love to Pearl, but also exclaims that by Pearl, she is constantly punished[CE3]. “She is my happiness–she is my torture, none the less! Pearl keeps me here in life! Pearl punishes me, too! See ye not, she is the scarlet letter, only capable of being loved, and so endowed with a millionfold the power of retribution for my sin? Ye shall not take her! I will die first!'(pg.27) [E3]. Hester is justly punished by her sin. This punishment a direct consequence for her actions [R3]. Hester received both just and unjust punishment by her sin, while Dimmesdale only received just punishment for his [TR1].

Dimmesdale receives only just, private punishment by his sin of adultery in The Scarlet Letter [TS2]. Hester is telling Dimmesdale that her punishment is worse because she has lost her good reputation, but Dimmesdale claims his is worse [CE4]. “Happy are you, Hester, that wear the scarlet letter openly upon your bosom! Mine burns in secret! Thou little knowest what a relief it is, after the torment of a seven years’ cheat, to look into an eye that recognises me for what I am!” (pg.61-62) [E4]. Dimmesdale’s punishment is fit for him. He should have a guilty conscience because he has not confessed his sin. He can’t have peace because he is hiding a sin; he is being justly punished by his sin [R4]. Dimmesdale’s guilt has taken form as physical illness [CE5]. “He looked now more careworn and emaciated than as we described him at the scene of Hester’s public ignominy; and whether it were his failing health, or whatever the cause might be, his large dark eyes had a world of pain in their troubled and melancholy depth.” (pg.28)

[E5]. He is ill because he has the stress of his unconfessed sin on his heart. This is just punishment because he should confess his sin. This is his body’s natural reaction to guilt [R5]. Chillingworth has befriended Dimmesdale to try to get him to confess for his revenge. He nags Dimmesdale constantly to try to wear him down and get him to confess [CE6]. ‘Thus, a sickness,’ continued Roger Chillingworth, going on, in an unaltered tone, without heeding the interruption, but standing up and confronting the emaciated and white-cheeked minister, with his low, dark, and misshapen figure,–‘a sickness, a sore place, if we may so call it, in your spirit hath immediately its appropriate manifestation in your bodily frame. Would you, therefore, that your physician heal the bodily evil? How may this be unless you first lay open to him the wound or trouble in your soul?’ (pg.37) [E6]. Chillingworth knows Dimmesdale’s secret, but Dimmesdale is still punished privately. By Chillingworth nagging Dimmesdale, Dimmesdale is incapable at putting his conscience at rest. This is a just punishment because he needs to confess his sin [R6]. Though Dimmesdale should have confessed, it was not right of Chillingworth to seek revenge towards Dimmesdale [TR2].

Chillingworth’s sin of seeking revenge in The Scarlet Letter, received just punishment [TS3]. Chillingworth has begun befriending Dimmesdale so that he may seek revenge. He has committed his life to seeking revenge [CE7]. “more wretched than his victim–the avenger had devoted himself.” (pg.39)[E7]. Chillingworth is receiving just punishment by his sin because he is choosing to give up his life; he is committing his life to this sin[R7]. Dimmesdale confesses before Chillingworth can tell the crowd of Dimmesdale’s sin [CE8]. “Old Roger Chillingworth knelt down beside him, with a blank, dull countenance, out of which the life seemed to have departed,

‘Thou hast escaped me!’ he repeated more than once. ‘Thou hast escaped me!’

‘May God forgive thee!’ said the minister. ‘Thou, too, hast deeply sinned!'(pg.88) [E8]. Chillingworth is punished because he can no longer get his revenge that he had committed his life to. His punishment is just because he was trying to get Dimmesdale to confess for the wrong reasons [R8]. After Dimmesdale dies, Chillingworth has no energy left from the energy he received while trying to seek revenge. He ends up dying because he has no purpose left. [CE9]. “All his strength and energy–all his vital and intellectual force–seemed at once to desert him, insomuch that he positively withered up, shrivelled away and almost vanished from mortal sight, like an uprooted weed that lies wilting in the sun. This unhappy man had made the very principle of his life to consist in the pursuit and systematic exercise revenge; and when, by its completist triumph consummation that evil principle was left with no further material to support it–when, in short, there was no more Devil’s work on earth for him to do, it only remained for the unhumanised mortal to betake himself whither his master would find him tasks enough, and pay him his wages duly.” (pg. 90)

“At old Roger Chillingworth’s decease, (which took place within the year)” (pg.90) [E9]. Chillingworth is receiving just punishment because he contributed to the guilt that killed Dimmesdale. [R9]. Chillingworth along with Hester and Dimmesdale sinned; however, they did not receive equal punishment by their sin [TR3].

Hester received unjust public punishment, but just private punishment. Dimmesdale’s private punishment was just because he needed to confess his sin. Chillingworth’s punishment was just because he gave his life away to sin and ended up paying for it at the end of his life [SYN]. All three of these characters in Hawthorne’s The Scarlet Letter were punished by their sins [RBRG]. People are truly punished by their sins, not for their sins. Sin first punishes the conscience, then comes public punishment. A guilty conscience is a just punishment [RHK].

In society, punishment is used to set out anything we may view as painful; such as rough treatment or handling (McTaggart, 1896). When it comes to crime, punishment is considered to be important and necessary to deter crime and those to commit it. Punishment has a variety of uses within society, however the most common use is to promote the behaviour that society deems acceptable whilst, simultaneously, discouraging behaviours that are considered inappropriate. Durkheim believed that society can only restore its faith in each other when a crime has been committed by punishing the offender, which maintained a societal solidarity that once would have been shattered by said crime. Criminals are punished judicially, by fines, or custodial sentences such as prison. Flew argued that (in the context of penalizing a criminal offence) punishment is comprised of five key components: it should involve a negative act towards the victim, it should be in response to the committing of an offence, it should be acted out on the offender, personal agencies should perform the punishment, and whichever institution’s rules have been affected by the offence should be the imposers of the punishment. (Flew, 1954). Alongside this, Benn and Peters (1959, 1981) added that the act of punishment should be performed with intentions leading to negative outcomes for the offender. In regard to the theoretical approaches to punishment, each theorist has their own take on the true cause, necessities and their own explanation of punishment. For example, Durkheim assigns the power of punishment to the state of the sole purpose of resorting and maintaining social and collective conscience and felt as if crime shatters societal solidarity (Durkheim, 1933, 1973, 1983). In contrast, Michel Foucault seeks to understand punishment from a social perspective, by studying how altering relations of power affected punishment (Foucault, 1975). This essay will pursue the similarities and differences between both theorists Durkheim and Foucault, whilst comparing and contrasting their ideologies on punishment and ending with an overall conclusion.

Emile Durkheim states that punishment reinforces morality, which functions to maintain societal values and norms. (Durkheim, 1983). Durkheim goes on to declare that the punishment of crime advantages society by promoting the “collective consciousness, and that punishment is an institution which draws its motivating energies and support from the moral sentiments of the community, “forming symbolic and enact moral judgements” (Breathnach, 2002). It is for this reason that Durkheim believed that the criminal law of society portrays the basic moral values that societies deem of paramount importance. Therefore, crimes negating the “conscience collective” will tend to give rise to moral indignation and a general desire for retributive justice. (Kenneth, 1982). Durkheim’s opinion was that therefore, punishment is the part of a moral connection that not only creates – but sustains social solidarity – a basic social institution with moral functions that are all important. Due to this, Durkheim stated that we must forget about the immediacies of dealing with the offenders, and rather have a broader social idea on punishment if we are going to appreciate the real characteristics and the elements that make an institution work (Durkheim 1993, 1973, 1983). However, Durkheim himself does not particularly look at the institutions of punishment, such as prisons, and tends to specifically look at how people are shaped by their social experiences, and with more criminal behaviours, leads to a weakened collective conscience. In contrast, Foucault’s ideology looks at how certain authority institutions act through the body and argued that prison did not become the principal form of punishment just because of the humanitarian concerns, but rather the cultural shifts that led to the predominance (McNay, 1991). Durkheim made clear two important points based around his theory on crime: first, “that a wider population feels itself to be involved within the act of punishing, supplying the state institution with its social support and legitimacy” (Garland, 1991:122) and secondly, that despite the attempts across the world to make punishment more rational and utilitarian, it continues to be related by the punitive and emotive reaction that are at the root of the society’s response to crime. This proved that “punishment is not an instrumental mechanism, since its deterrent and governing impact on offenders is severely limited” (Garland, 1991:123)

Like Durkheim, Michel Foucault’s primary concern was displaying how penal institutions came to be caught up within different social classes, which are also shaped by economic structures. However, Foucault looks at how punishment forms, whereas Durkheim looked at the values help by class and economy. However, in contract to Durkheim, who was mainly focused on society and their collective conscience, Foucault’s work focused directly on the central workings of the ‘apparatus’, which focuses on the specific technologies and operations of penal power (Garland, 1986, 134). Foucault’s study analysed the mechanisms in which modern disciplinary sanctions apply their specific forms of control in which they may rely on, alongside the acceptive knowledges that inform these modes of power (1977, 1978, 1980, 1990). Durkheim believed that nothing was abnormal about deviance, as it is found within every society. Within this, Durkheim adopted a functionalist perspective, which sees society as a complex system, with each different part working together to promote stability and solidarity (1858, 1917). Durkheim visualised society as an organism, with each part playing a role. However, Durkheim also believed that within this, society cannot function alone without the parts (Crossman, 2020). Within Durkheim’s functionalist view on punishment, he believed that all punishment served as positive function for society, as it reinforces society and strengthens common values. However, society reacts differently to each crime, such as reacting stronger when it comes to murder. Durkheim outlined a change in retributive justice and believed that “revenge” was mainly found in traditional societies. In contrast, Foucault believed that the law was considered part of the superior body and thus, that revenge must be overall used as harming the convict’s body (Garland, 1986). In terms of ‘reform’, Durkheim found that it primarily happened within advanced societies, and that punishment is used to reform the offender, whilst repaying society (Burkhardt, 2016). Unlike Durkheim, Foucault was known as having a Marxist approach when it came to punishment, and even described the movement over history from “sovereign power to a disciplinary power” (Brozzone, 2019). First, sovereign power, which can be related to Durkheim’s restitutive system, meant that punishment was often intended to be cruel, and often made to be a public gathering. Moreover, disciplinary power, which can also be related to Durkheim’s restitutive justice, became important in the 1800s, with the aim to change the person via discipline and training – mainly through work, such as within prisons (Vinthagen, 2013).

Foucault’s Discipline and Punishment aims to explain the disappearance of one style of punishment – in which the punishment itself operates as a public performance of violence, whilst looking at the emergence of another, welcoming the prisons aims to become the standard penal method (1977). In contrast to Durkheim, he suggests that it is the use and conquering of power vs morals, rather than society values, who looks at society values that influence the institutions use of punishment. Foucault chooses these specific problems in order to explore the wider explanation of how power is exercises within the modern society, whilst analysing the apparatus of power that prison utilises, alongside the forms of technology, knowledge, and social relationships in which the apparatus may depend on. The relationship between power and knowledge is the central works of Foucault’s theory, which recognises the organisation of the power to punish, alongside the development of knowledge within various bodies that reinforce and interact with that power (Garland, 1986). Foucault’s way of looking at punishment it more distinctive and specific compared to Durkheim’s, as Durkheim tends to specify morals and society when it comes to punishment, whereas Foucault focuses on the surveillance and prisons side of punishment. Foucault rejects the overall idea that originally, punishment was intended as a form of rehabilitation, as oppose to a cruel way to punish an offender.

According to Foucault, punishment is best to be understood as a “political tactic” (Foucault, 1975), and it is to be studied with a view to its positive effects, rather than being seen as a repressive mechanism. It was for this reason that Foucault thought of punishment as being internally linked to the development of “human sciences”, such as psychology and criminology, rather than being influenced by them from the outside. Overall, Foucault examines the system of state control in its social context, explaining the connection between the gradual transition from power that is centralised, to democratic rule and the changes in how different societies punish their criminals. Like Foucault, Durkheim also looks at societies, but assigns the power of punishment to the state, similar to Foucault, but for the purpose of restoring and maintaining social and collective conscience, rather than looking at how societies punish and how the state maintain authority (Garland, 1986).

Yes, Durkheim and Foucault have different perspectives, but also share the same concern with what kind of society might constitute an “emancipatory” alternative. Alongside this, both theorists also showed an overall interest in the philosophical results of punishment, whilst taking the historical changes within penal practices, such as prisons, seriously.

Despite the apparent differences between Durkheim and Foucault, we can see that these approaches have important similarities. Both Durkheim and Foucault have greatly shaped the idea of punishment with their contributions, allowing further criminologists and sociologists to delve deeper into why punishment may or may not be necessary. Nevertheless, although this apparent similarity, both Durkheim and Foucault had very different views on their theories of punishment, making it extremely different to extinguish their resemblance (Garland, 1986). Durkheim believed that through moral education, the youth became self-determining, and developed skills in critical thinking, which was vital to democracies that were evolving.

Punishment within school systems strengthens the authorities of societies’ moral forms of life, confirming that social ideals and practices cannot be intrusive without consequences. Similarly, Durkheim believed that the punishment of convicted criminals reinforces the authority that society has held dear – the moral identity, which shows that the primary purpose of punishment is not to rehabilitative criminals, or to even deter those who are yet to commit a crime, but its fundamental aim is to strengthen the shared social sentiments (Garland, 1986). However, in contrast to Durkheim, Foucault viewed punishment without schools and prisons harsh and cruel instruments – which work the mind into conforming to social constraints. Alongside this, Foucault believed that introducing punishment within education would almost ‘normalise’ the pain behind punishment (Cladis, 2001). Durkheim and Foucault both saw punishment within education as the means to not only introduce, but to secure the authority of social norms. Yet, Foucault aimed to explore the effect of prisons unlike Durkheim, but both theorists believed that the main function of punishment, best described by Foucault, “was to assure that discipline reigns over society as a whole” (1979: 209). Furthermore, both Durkheim and Foucault stated that punishment within schools and prisons reflect a common environment in which society knows. Even if those who are not in the educational system reflect a common environment, they are still confronted with the same authority and social norms – passing on the knowledge and delivering the punishment that is taught. Durkheim stated that a shared environment for all is requirement for the continuation of a democratic society, with Foucault objecting, believing that progress should be understood as allowing the individual freedom, which employs the right of renewing the material structure of society (Collier, 2009). In short, the main difference between Durkheim and Foucault is that Durkheim investigates and urges normative social constraints, whereas Foucault investigates and finds them essentially problematic. It was for this reason that Foucault stated “the judges of normality are present everywhere. We are in the society of the teacher-judge; it is on them that the universal reign of the normative is based; and each individual, wherever he may find himself, subjects to it his body, his gestures, his behaviour, his aptitudes, his achievements” (1979: 304). As stated within the introduction, Durkheim kept to the idea throughout his work that discipline was the most important component of moral education, producing a ‘self-master’ in which, according to Durkheim, is the first step for power. For Foucault, all discipline and social initiations are problematic, as it implies that all social institutions care the most for not only oppression, but for power too.

In conclusion, within this essay are clear indications of many differences between both Durkheim and Foucault, with only a handful of similarities. As both have very different theories behind punishment, it was hard to extinguish an overall conclusion of how they compare, with the majority of the essay stating how they contrast. Both theorists involve the use of societies within their ideas of punishment, but Foucault looks at how the system of state control changes in how different societies punish their criminals, whereas Durkheim looks at how societies assign the power of punishment to the state for punishing criminals. Foucault ultimately suggests that within society, that it is the use and subjugation of power that may influence the institutions use of punishment, rejecting any notion that the development of said system had been motivation by humanitarian ideals. Adjacent to this, Durkheim looks at the morals, arguing that people are who they are due to their social experiences, stating that if the collective conscious is weakened by an abundance of criminal behaviour, the moral ties that may be holding societies together are also weakened. However, both Durkheim and Foucault did not see crime and punishment as deviating – rather having the power to construct a larder social order. Overall, the contrast between these theorists outweigh the similarities, making it near impossible to compare their ideologies on punishment.

For a long time, systems of condemning and imprisonment have had various goals. These destinations contain discipline, out of action, discouragement, and recovery. In as of late years the approach activities have much of the time been approved with the plan of improving our present arrangement of criminal equity. New confirmations comprise of truth in sentencing, three strikes, and required essentials, which were all intended to dishearten with the danger of overwhelming broad jail terms for those indicted for criminal offenses. With this developing pestilence, we should return to the viability of discipline and adequacy of rehabilitation of those guilty parties in correctional facilities and jails versus those under network watch.

Deterrence of crime

As a rule, discipline can contact prevention by two methods. First, one can expand the inevitable end product of discipline, that imminent gangsters might be debilitated by the simple danger of being gotten. Second of these is the degree of discipline could affect activities if hoodlums somehow happened to consider the punishments of their off-base doings, and reach the resolution the danger of punishment is excessively high. Arrangements, for example, Truth in Sentencing and Three Strikes hold the belief system that through the utilization of danger of brutal punishments, people will be stopped from perpetrating the act of illegal violations (Reynolds, 1998). In the survey and assessing this hypothesis, it acts under the supposition that those people who are carrying out these criminals are balanced and that they think about the result of their activities preceding perpetrating criminal acts. The rationale for support harsher authorizations is self-absorbed.

Effect on victims and victims’ families

Exploration directed by the Alliance of Safety and Justice ensnared that casualties of crimes would prefer to burn through cash on treatment strategies in endeavors to end criminal offense instead of on imprisonment frameworks (Trounstine, 2016). Intermittently the casualties of committing crimes are of low-salary families and tragically contemplate show that per casualty declarations, they don’t see the advantages of the cash set forth towards establishments which are the after effect of the legal authorities claimed exertion to dissuade crime. A large number of these casualties and their families feel like they’d receive to a greater extent a reward if lawbreakers were rather effectively occupied with treatment programs that are explicitly built to assist crooks with modifying their hostile practices in a way which takes out such. Family individuals from the survivors of violations have even started to build up associations that offer and give treatment programs that require recovery.

Effect on the offender

Proof of evidence in a case by which a typical conviction among criminal therapists and others in the public eye that recovery influences wrongdoers in a way that is genuinely organized to deflect their crimes. While again, punishment is still undoubting important yet it fails to address such trademark attributes in criminals which at last leaves space for an improved probability of the event of rehash offenses. Rehabilitation offers a stage for the treatment of criminal defendants in territories that are bound to assist them with rearranging to society as improved people. Instruction and Career aptitudes preparing are two instances of normal rehabilitative projects accessible to crimes when they are imprisoned that they can use once they recapture opportunity and organized to shield previous hoodlums from drawing in criminal activities. Retaliation generally involves the law and is purportedly stated per offense. The guilty party is intended to persevere through a detached encounter to be rebuffed for their criminal demonstration which is organized to cause them to perceive their activities and how the reoccurrence of such will warrant a comparable or significantly harsher experience. Subsequently, trusting the offender won’t have any desire to realign with offense once more. (Fieser, 2017)

Social effect on society

There are a few types of discipline for violations, and for the most part, the discipline fits the crime that’s been committed. If an individual burglarizes a bank, they have taken from the business, however, its customers, which is the network encompassing the bank. There are numerous casualties engaged with such a wrongdoing. Staff and customers in the bank are casualties, and if there is a weapon included, it could damage many. A discipline for theft or robbery ought to be comparable, and detract from the lawbreaker, and give significant serenity to any casualties. If a criminal was to shoot somebody during a burglary, it at that point turns into capital crimes, and the outcomes could be far more awful than jail. If it happens in a state where capital punishment is regarded, there is a decent possibility that execution would be an official choice of the court. If it is a lawful offense, they will lose numerous rights, carry out a potential life punishment in jail, need to change by a new arrangement of policies, and exceptionally exacting rules.

Fiscal effect on society

Thirdly, proof-based practices have made a financial emergency and are making strategy producers reevaluate the common sense of Truth-In-Sentencing, and Three Strike rehearses. These approaches with their drawn-out sentences have brought about significant assets being eaten up. Current appraisals show that neighborhood, state, and government elements are spending around $68 billion every year. Financial specialists see this as a gigantic hit to the American citizen (Reynolds, 1998). Taking a gander at the jail and the amount of inmates, it must be perceived that peaceful violators involve an enormous level of the population.

Conclusion

In conclusion, when crime is committed justice is not always served. It is a choice that one chose which could cost another person their life, or numerous lives to be influenced by what may seem like a basic demonstration at the hour of origination. Regardless of whether a criminal is rebuffed or restored, there are consistently a large number of individuals who are profoundly influenced by a wrong of lawlessness. The criminal justice system takes a stab at guarding society from crooks, and stopping them, or rejecting them on the off chance that they can’t be dissuaded.

Introduction to Theories of Punishment

Punishment has always been the traditional method of crime control. Punishment is the intentional infliction of torture and hurt, yet punishment has been an area of significant dispute (Hucklesby & Wahidin, 2013). When looking at theoretical justifications for punishment outside the criminal justice system, it is important to address the main theories of punishment and what they aim to achieve. These theories can be placed under two categories – Utilitarianism and Retributivism.

Utilitarianism: A Forward-Looking Theory

The utilitarian theory believes the use of punishment is validated as it can aid the prevention of future crime and reduce the consequences of crime. In order to lower the crime rate, the offender’s suffering must be counterbalanced by preventing future pain to individuals (Cavadino and Dignan, 2007). Thus, it acts as a forward-looking theory and can be seen as a moral response against wrongdoers (famously promoted by Jeremy Bentham, 1748-1832) considering that it creates significant happiness for the greatest number of people. Therefore, this makes punishment morally right in the eyes of a utilitarian.

Retributivism: A Backward-Looking Theory

In contrast, retributivism penalises wrongdoers for the illegal acts committed, so it is considered a backwards-looking theory (Brooks, 2012). The main rationale for retributive punishment is that the offender is deserving of it (Murphy, 2007) and the punishment should be in proportion to the crime (Brooks, 2012). Retributivism was established in the lex talonis – “an eye for an eye, a tooth for a tooth, a life for a life” (Exodus 21, 23-5) and Kant’s retributivists believe that retribution “should not be a means to an end, but an end in itself” (Newburn, 2017, p. 558). Retributivists may argue that the harshness of sanction is not arranged with prospective deterrent influence, nevertheless retributivists still believe criminals should revaluate the consequences of committing a crime. (Brooks, 2012).

Alternative Punishments: ASBOs, Civil Injunctions, and Parenting Orders

ASBOs, civil injunctions and parenting orders have been popular uses of punishment outside of the criminal justice system. ASBOs are governmental arrangements that offer protection to the community from actions that are expected to create distress or annoyance (Home Office, 2002). They are not intended to penalise the delinquent or act as penalties, although a breach can result in a criminal sentence (Home office, 2002). Civil injunctions took over from several previously used devices like the ABSO. The court has to be satisfied that the individual has participated is likely to participate in behaviour that is able to cause inconvenience and trouble before granting an injunction (Crime and Disorder Act, 1998). Different to the ASBO, a criminal record is not obtained when an injunction is breached. Yet punishments can include supervision within the community or even imprisonment for those over the age of 14 (Wigzell, 2014). Parenting orders can be given to parents whose child has received an ASBO, a Child Safety Order or has been found guilty of an offence (Holt, 2008).

This essay will criticise and assess the theoretical justifications for the use of punishment outside the criminal justice system, whilst considering the use of ASBOS, civil injunctions and parenting orders in terms with the justifications.

Deterrence: Individual and General Perspectives

Primarily, deterrence, rehabilitation and incapacitation can be placed into the ideology of utilitarianism.

Deterrence believes that the rate of crime is reduced because of the fear of punishment offenders could suffer (Cavadino and Dignan, 2007). Micheal Howard, the Home Secretary at the time, expressed at the Conservative Party Conference (1993) that deterrence allows those who are enticed into committing crime, to think twice about the consequences before carrying out the offence (Cavadino and Dignan, 2007). If the nation is worried about the consequences, then the people will not offend (Brooks, 2012). There are two forms of deterrence – individual deterrence and general deterrence.

Individual deterrence is aimed at the offender and uses a personal fear calculation, where the shock of the sanction counterbalances the desire to offend, resulting in a decrease in further offences being committed (Hucklesby and Wahidin, 2013). A justification for the use of parenting orders is individual deterrence. Parenting orders can be appointed to parents of a child that has acquired a child safety order, an ASBO or has been found guilty of a crime (Holt, 2008). The Government holds the view that by imposing a formal requirement on parents to pay a penalty has a consequential effect which brings home the realities of their children’s behaviour and the implication of their own actions into family life (Home Office, 1990). Which, should act as a big enough deterrent to the family for the criminal act to not occur again, especially in vulnerable and impoverished families. This is further supported by the use of The Troubled Families programme, which was an initiative for families facing various issues involving crime and anti-social behaviour. The aim of the program was to deal with problems before further action is needed. The first stage of the TF scheme operated from 2012 – 2015 and helped 99% of 120,000 families (Bate and Bellies, 2019). Yet, this statistic was challenged when an evaluation of the scheme found little proof that was significant enough to produce results (Aldridge, 2019).

Empirical data displays that individual deterrence is disadvantageous (Helen, 2010), especially when looking at ASBOs. As in the term of June 1st 2000 to December 31st 2012, 24,323 ASBOs were distributed. 58% of the ASBOs issued were breached more than once. Of those breached, 75% were violated repeatedly (Home Office, 2014). In contrast, 63% of individuals who were sent a warning letter before obtaining an ASBO did not receive another action to prevent anti-social behaviour (National Audit Report, 2006) so it could be claimed that ASBOs are seen as a deterrence in some cases. It is also argued that civil injunctions do not act as a good enough deterrent as there is no criminal offence attached if the order is breached (Youth Justice Board, 2015).

Alternatively, general deterrence involves social control. This perspective uses a social fear calculation, as the person is not exposed to suffering but is an observer of the suffering of the society (Hucklesby and Wahidin, 2013). ASBOs are seen to have a component of general deterrence, as they are governmental orders that offer protection to the community from actions that are expected to create distress or annoyance (Home Office, 2002). They are orders that require individuals within the community to help with the evidence collection and also helping in the enforcement of breaches (Home Office, 2002). General deterrence is built from the concept that penalizing one individual could deter others from performing similar actions (Mathiesen, 2006). This is a main reason as to why the government use ASBOs, parenting orders and civil injunctions, to try and deter others from committing similar offences. General deterrence is an attempt by the state to communicate through penal law, but messages can be reinterpreted or never received by the intended group (Mathieisen, 2006). This can show that general deterrence is ineffective especially in relation to the communication of ASBOs, parenting orders and civil injunctions when looking at breach rates. On average, an ASBO is breached 5 times, and it is reported that over two thirds of juveniles breached their ASBO more than once at the end of 2013 (Home Office, 2014). This shows that ASBOs do not act as a good enough deterrent from committing the offences, as the National Audit Report (2006) found that the program in place was not working for long-standing persistent criminals. This is supported by Edward Leigh, the chairman of the Commons Public accounts committee who supervises the National Audit Report (2006) stated that often delinquents respond to ASBOs by mocking the government and ruining the lives of the local community, instead of being shocked into correcting their attitude. The Ipsos MORI survey (2005) identified that there was support from the public for ASBOs, however judgements are split on their success. Those who knew of ASBOs, four in ten sensed they were successful in preventing individuals from partaking in anti-social behaviour.

Advocates for general deterrence believe that harsher punishments can intimidate prospective offenders (Walker, 1993). There is evidence that argues that wrongdoers who experience harsher punishments (including punishments directed at deterrence) are expected to reoffend (Lipsey, 1992). A research study on youths in London found that if a boy commits a crime, the most successful way to prevent reoffending is to not convict him on the first offence (West, 1982). This evidence is contradictory to common sense as it shows that there is no deterrent effect through the use of punishment, or that any wrongdoer is actually deterred. Although, it is proposed that sanctions have alternative effects which could counterbalance the deterrent effect. Mathiesen (2006) argues that the law in advanced capitalist-patriarchal societies penalise the poor the hardest, so general deterrence is not a way of preventing crime in society, but a way of keeping the poorest people in order. A National Audit report (2006) confirmed this as they found that it was those living in underprivileged communities who were more likely to suffer.

Additionally, advocates for this justification accept that the deterrence is dependent upon several factors, including when the offence has occurred during the criminals career, the extent of the wrongdoing, or the norms that are being breached (Wright, 1994). The rationale of deterrence has also been challenged. People don’t often weigh out the costs and benefits before committing a crime. Emotions are also strong influencers when calculating actions, and are not often thought about in advance (Golash, 2005). The certainty of being convicted is also very significant when assessing the effectiveness of deterrence. The lower the anticipated risk of being caught by the offender, the lower the chance the penal law will intimidate the offender against carrying out unlawful actions in the future (Andeneas, 1974).

There are several complications with deterrence. One of the criticisms is that deterrence is insignificant, because individuals who abstain from troublesome actions do so because of causes unrelated to penal law. Moral sense and family ties can act as an obstacle inhibiting the crime, while a minority of offenders may grow out of crime (Golash, 2005). In addition, there has been interest regarding the publicity and ‘naming and shaming’ of ASBO recipients as a disregard of human rights (Burney, 2005); however as stated by the Home Office (2005) exposure is necessary if the public are to assist agencies in stopping anti-social behaviour. Exposure is essential in terms of restoring the public’s confidence in that something is being done, it allows the local community to be able to notify the government of any breaches and act as a deterrent to offenders (Millie, 2008). Commentators emphasize that it does overuse its bias against the offender in specific areas but the authority’s response is that, even though ASBOS may break human rights (the right to respect private and family life and the right to freedom of expression), it can be overthrown in favour of a proportional reaction to combat crime and disorder (Respect, 2008). The matter of naming and shaming can be problematic for juveniles. Naming and shaming cannot be distinct, and shame without a reintegrative procedure is expected to be ineffective (Ahmed et al., 2001). It adds to the outcast aura which can be harmful to the identity and future of a child. It could increase resistance and boldness, with the ASBO acting as a badge of bravery (Burney, 2005). Several studies have proposed that ASBOs are seen more like a badge of honour with minors creating a self-fulfilling prophecy and living up to the labels (Wain and Burney 2007).

Rehabilitation and Incapacitation: Utilitarian Approaches

Although rehabilitation may not be a justification for ASBOs, civil injunctions and parenting orders, it is a justification for utilitarian punishment. Raynor and Robinson (2005) recognise there is a number of definitions, that argue rehabilitation is a necessary part of punishment and is a way of undoing the damaging drawbacks that punishment created. Rehabilitation is recognised as an effort to convert the offender to the individual they were before the offence had taken place. It also believes that the individual has deteriorated as a result of committing the crime (Hucklesby and Wahidin, 2013). Wrongdoing is perceived as a social illness so if the problems are correctly identified, the offender can be cured. As a result of this, advocates concentrate on treating the criminogenic symptoms which draws in the main rationale for positivist criminology (Hucklesby and Wahidin, 2013). Several academics have highlighted the evidence: crime is not an illness but in fact a social construct and offenders may be no different to the law abiding society (Scott, 2008). By concentrating on the wrongdoer rather than the crime, rehabilitation is deeply deterministic and refuses human agency and moral decisions (Golash, 2005). There is also a risk that many of the claimed ‘cures’ create more damage than the crime they handle (Boonin, 2008). Rehabilitation can also be seen as unjust and hinder procedural rights, as rehabilitative punishments can be excessively long and indeterminate, as the wrongdoer must transform before the scheme of treatment can finish (Hudson, 1996). Supporters of rehabilitation have been hesitant to accept that the solutions that are tackled through coerced imprisonment are actually a method of punishment (Wootton et al, 1978). Martinson (1974) found that rehabilitation in the community has been proven to be widely unsuccessful in the reduction of future offending, with only a number of cases proving successful.

The final theoretical justification for utilitarian punishment is incapacitation. Incapacitation appears to be straightforward, and has a specific fit with the basic role of imprisonment (Zimring and Hawkins, 1995), which in turn removes the ability to engage in further crime. It also appears to be infallible in terms of meeting its aims (Bentham, 1830). ASBOs are considered to have an element of incapacitation as there is the implementation of curfews and bans from associating with certain people, which is a restriction and forfeit of freedom. Hucklesby and Wahidin (2013) claim that incapacitation could lead to the postponement of crime, with the criminal having a tendency to reoffend when returning to the community. Incapacitation also has what Honderich (2006) calls capacitating results, which gives increase in opportunities for new wrongs or could treat criminals in such a way that they will participate in further criminal acts when released. It is said that the removal of wrongdoers only has an effect for a number of years before their place is occupied by new criminals (Hucklesby and Wahidin, 2013). Additionally, Tarling (1993) has identified that a rise in prison populations by 25% would reduce recorded crime by only one per cent. Another problem is that by basing punishments on these unreliable predictions, Von Hirsch (1987) argues that the wrongdoer will be given a harsher sentence and will be unjust punishment. Scott (2008) highlights the critical question of false negatives and false positives. Not only does it contradict the key principles of penal law that the legally guilty should be punished, additionally we have no capability to correctly forecast the number of future offences (Mathiesen, 2006). The issues of false positives and false negatives indicates the hazards of predicting future actions (Hucklesby and Wahidin, 2013).

Retribution: The Principle of Proportionality

In contrast, retribution stands as a single objective, as retributivism concentrates purely on the offender suffering the consequences for their misbehaviour because they deserve it, and not to improve future society (Newburn, 2017).

Retribution can take many forms of punishment including restrictions of freedom, incapacitation and loss of status (Case et al., 2017). Retributivism is rooted in the foundation that through hurting others in the past, the criminal deserves to be hurt. In doing this, retributivists concentrate on the wrongdoers guilt and connect the punishment with the crime, which is known as the principle of proportionality (Hucklesby and Wahidin, 2013). Additionally, this supplies a moral structure that claims that the innocent should not be penalised (Hucklesby and Wahidin, 2013). Retributivism is regarded as a fundamental justification for parenting orders, as the government assumes the enforcement on parents of a official requirement to pay penalties has an consequentialist effect and will bring into reality the result of the child’s behaviour and the consequences of their actions.

Retributivism has been critiqued by several academics. Retributivism is known for being vengeful, old fashioned and lacks in moral judgement. Although the perspective is backwards-looking, it is criticised for its attempt to explain an element of a procedure that merges the formation of norms relating to further criminal behaviour (Wacks, 2017). Retributivism believes that the country has not only a right but an obligation to punish merely on the fact that an offence has been committed (Wacks, 2017). Hucklesby and Wahidin (2013) also query whether the requirement for pain and torment is healthy, as the emotions that can follow punishment can be harmful to the offender. Although retributivism struggles to justify the reasons for punishment, what punishments are deserved or why that state is given the authority to undertake such damage. This is endorsed by Lyons (1984) who asserts that retribution is ineffective because it accounts for too little or too much. If punishment is accounted for, it will be accounted for in numerous cases and by numerous individuals. Although it is uncertain that they succeed in justifying any retribution at all, notably by legal jurisdiction, because they do not explain why someone possesses the right to penalise or why the right to penalise is reserved to the state (Wacks, 2017). This is supported by Hudson (1996) who argues that retribution fails to prove why the right to punish is reserved to the government, particularly if there are other means of punishment and education which do not involve physical punishment such as rehabilitation. It argues that there should be punishment that restores balance but doesn’t explain why the punishment should involve pain (Hucklesby and Wahidin, 2013).

“Men are punished by their sins, not for them.” – Elbert Hubbard[HK]. Punishment is always caused by one’s sins whether that be public disgrace or being punished by their own conscience [BRG]. In Hawthorne’s classic, The Scarlet Letter, several characters receive punishment, both just and unjust, for their sins [TH]. Hester receives punishment both publicly and privately, Dimmesdale receives punishment by keeping his sin private, and Chillingworth receives punishment by seeking revenge for Dimmesdale’s sin against him [OS].

Hester receives public and private along with just and unjust punishment by her sin of adultery [TS1]. At the beginning of the story, we see Hester being brought out of jail for her public punishment[CE1]. ‘Open a passage; and I promise ye, Mistress Prynne shall be set where man, woman, and child may have a fair sight of her brave apparel from this time till an hour past meridian. A blessing on the righteous colony of the Massachusetts, where iniquity is dragged out into the sunshine! Come along, Madame Hester, and show your scarlet letter in the market-place!’ (pg.3-4) [E1]. Hester is receiving punishment for her crime; however, it seems unjust due to the fact that she is being punished alone. This is the sin of two, but only one is being punished[R1]. Hester has become an outcast in her society. Her sin has set her apart. [CE2]. “As an outcast: Standing alone in the world–alone, as to any dependence on society, and with little Pearl to be guided and protected–alone, and hopeless of retrieving her position, even had she not scorned to consider it desirable–she cast away the fragment a broken chain.” (pg.49)

[E2]. She is unjustly cast out of society; this leaves her alone with no help to raise Pearl. The punishment she is receiving in this portion of the story is unjust because her sin is now affecting her child who didn’t sin along with her [R2]. At the governor’s house, Pearl is about to be taken away from Hester. Hester shows love to Pearl, but also exclaims that by Pearl, she is constantly punished[CE3]. “She is my happiness–she is my torture, none the less! Pearl keeps me here in life! Pearl punishes me, too! See ye not, she is the scarlet letter, only capable of being loved, and so endowed with a millionfold the power of retribution for my sin? Ye shall not take her! I will die first!'(pg.27) [E3]. Hester is justly punished by her sin. This punishment a direct consequence for her actions [R3]. Hester received both just and unjust punishment by her sin, while Dimmesdale only received just punishment for his [TR1].

Dimmesdale receives only just, private punishment by his sin of adultery in The Scarlet Letter [TS2]. Hester is telling Dimmesdale that her punishment is worse because she has lost her good reputation, but Dimmesdale claims his is worse [CE4]. “Happy are you, Hester, that wear the scarlet letter openly upon your bosom! Mine burns in secret! Thou little knowest what a relief it is, after the torment of a seven years’ cheat, to look into an eye that recognises me for what I am!” (pg.61-62) [E4]. Dimmesdale’s punishment is fit for him. He should have a guilty conscience because he has not confessed his sin. He can’t have peace because he is hiding a sin; he is being justly punished by his sin [R4]. Dimmesdale’s guilt has taken form as physical illness [CE5]. “He looked now more careworn and emaciated than as we described him at the scene of Hester’s public ignominy; and whether it were his failing health, or whatever the cause might be, his large dark eyes had a world of pain in their troubled and melancholy depth.” (pg.28)

[E5]. He is ill because he has the stress of his unconfessed sin on his heart. This is just punishment because he should confess his sin. This is his body’s natural reaction to guilt [R5]. Chillingworth has befriended Dimmesdale to try to get him to confess for his revenge. He nags Dimmesdale constantly to try to wear him down and get him to confess [CE6]. ‘Thus, a sickness,’ continued Roger Chillingworth, going on, in an unaltered tone, without heeding the interruption, but standing up and confronting the emaciated and white-cheeked minister, with his low, dark, and misshapen figure,–‘a sickness, a sore place, if we may so call it, in your spirit hath immediately its appropriate manifestation in your bodily frame. Would you, therefore, that your physician heal the bodily evil? How may this be unless you first lay open to him the wound or trouble in your soul?’ (pg.37) [E6]. Chillingworth knows Dimmesdale’s secret, but Dimmesdale is still punished privately. By Chillingworth nagging Dimmesdale, Dimmesdale is incapable at putting his conscience at rest. This is a just punishment because he needs to confess his sin [R6]. Though Dimmesdale should have confessed, it was not right of Chillingworth to seek revenge towards Dimmesdale [TR2].

Chillingworth’s sin of seeking revenge in The Scarlet Letter, received just punishment [TS3]. Chillingworth has begun befriending Dimmesdale so that he may seek revenge. He has committed his life to seeking revenge [CE7]. “more wretched than his victim–the avenger had devoted himself.” (pg.39)[E7]. Chillingworth is receiving just punishment by his sin because he is choosing to give up his life; he is committing his life to this sin[R7]. Dimmesdale confesses before Chillingworth can tell the crowd of Dimmesdale’s sin [CE8]. “Old Roger Chillingworth knelt down beside him, with a blank, dull countenance, out of which the life seemed to have departed,

‘Thou hast escaped me!’ he repeated more than once. ‘Thou hast escaped me!’

‘May God forgive thee!’ said the minister. ‘Thou, too, hast deeply sinned!'(pg.88) [E8]. Chillingworth is punished because he can no longer get his revenge that he had committed his life to. His punishment is just because he was trying to get Dimmesdale to confess for the wrong reasons [R8]. After Dimmesdale dies, Chillingworth has no energy left from the energy he received while trying to seek revenge. He ends up dying because he has no purpose left. [CE9]. “All his strength and energy–all his vital and intellectual force–seemed at once to desert him, insomuch that he positively withered up, shrivelled away and almost vanished from mortal sight, like an uprooted weed that lies wilting in the sun. This unhappy man had made the very principle of his life to consist in the pursuit and systematic exercise revenge; and when, by its completist triumph consummation that evil principle was left with no further material to support it–when, in short, there was no more Devil’s work on earth for him to do, it only remained for the unhumanised mortal to betake himself whither his master would find him tasks enough, and pay him his wages duly.” (pg. 90)

“At old Roger Chillingworth’s decease, (which took place within the year)” (pg.90) [E9]. Chillingworth is receiving just punishment because he contributed to the guilt that killed Dimmesdale. [R9]. Chillingworth along with Hester and Dimmesdale sinned; however, they did not receive equal punishment by their sin [TR3].

Hester received unjust public punishment, but just private punishment. Dimmesdale’s private punishment was just because he needed to confess his sin. Chillingworth’s punishment was just because he gave his life away to sin and ended up paying for it at the end of his life [SYN]. All three of these characters in Hawthorne’s The Scarlet Letter were punished by their sins [RBRG]. People are truly punished by their sins, not for their sins. Sin first punishes the conscience, then comes public punishment. A guilty conscience is a just punishment [RHK].

In society, punishment is used to set out anything we may view as painful; such as rough treatment or handling (McTaggart, 1896). When it comes to crime, punishment is considered to be important and necessary to deter crime and those to commit it. Punishment has a variety of uses within society, however the most common use is to promote the behaviour that society deems acceptable whilst, simultaneously, discouraging behaviours that are considered inappropriate. Durkheim believed that society can only restore its faith in each other when a crime has been committed by punishing the offender, which maintained a societal solidarity that once would have been shattered by said crime. Criminals are punished judicially, by fines, or custodial sentences such as prison. Flew argued that (in the context of penalizing a criminal offence) punishment is comprised of five key components: it should involve a negative act towards the victim, it should be in response to the committing of an offence, it should be acted out on the offender, personal agencies should perform the punishment, and whichever institution’s rules have been affected by the offence should be the imposers of the punishment. (Flew, 1954). Alongside this, Benn and Peters (1959, 1981) added that the act of punishment should be performed with intentions leading to negative outcomes for the offender. In regard to the theoretical approaches to punishment, each theorist has their own take on the true cause, necessities and their own explanation of punishment. For example, Durkheim assigns the power of punishment to the state of the sole purpose of resorting and maintaining social and collective conscience and felt as if crime shatters societal solidarity (Durkheim, 1933, 1973, 1983). In contrast, Michel Foucault seeks to understand punishment from a social perspective, by studying how altering relations of power affected punishment (Foucault, 1975). This essay will pursue the similarities and differences between both theorists Durkheim and Foucault, whilst comparing and contrasting their ideologies on punishment and ending with an overall conclusion.

Emile Durkheim states that punishment reinforces morality, which functions to maintain societal values and norms. (Durkheim, 1983). Durkheim goes on to declare that the punishment of crime advantages society by promoting the “collective consciousness, and that punishment is an institution which draws its motivating energies and support from the moral sentiments of the community, “forming symbolic and enact moral judgements” (Breathnach, 2002). It is for this reason that Durkheim believed that the criminal law of society portrays the basic moral values that societies deem of paramount importance. Therefore, crimes negating the “conscience collective” will tend to give rise to moral indignation and a general desire for retributive justice. (Kenneth, 1982). Durkheim’s opinion was that therefore, punishment is the part of a moral connection that not only creates – but sustains social solidarity – a basic social institution with moral functions that are all important. Due to this, Durkheim stated that we must forget about the immediacies of dealing with the offenders, and rather have a broader social idea on punishment if we are going to appreciate the real characteristics and the elements that make an institution work (Durkheim 1993, 1973, 1983). However, Durkheim himself does not particularly look at the institutions of punishment, such as prisons, and tends to specifically look at how people are shaped by their social experiences, and with more criminal behaviours, leads to a weakened collective conscience. In contrast, Foucault’s ideology looks at how certain authority institutions act through the body and argued that prison did not become the principal form of punishment just because of the humanitarian concerns, but rather the cultural shifts that led to the predominance (McNay, 1991). Durkheim made clear two important points based around his theory on crime: first, “that a wider population feels itself to be involved within the act of punishing, supplying the state institution with its social support and legitimacy” (Garland, 1991:122) and secondly, that despite the attempts across the world to make punishment more rational and utilitarian, it continues to be related by the punitive and emotive reaction that are at the root of the society’s response to crime. This proved that “punishment is not an instrumental mechanism, since its deterrent and governing impact on offenders is severely limited” (Garland, 1991:123)

Like Durkheim, Michel Foucault’s primary concern was displaying how penal institutions came to be caught up within different social classes, which are also shaped by economic structures. However, Foucault looks at how punishment forms, whereas Durkheim looked at the values help by class and economy. However, in contract to Durkheim, who was mainly focused on society and their collective conscience, Foucault’s work focused directly on the central workings of the ‘apparatus’, which focuses on the specific technologies and operations of penal power (Garland, 1986, 134). Foucault’s study analysed the mechanisms in which modern disciplinary sanctions apply their specific forms of control in which they may rely on, alongside the acceptive knowledges that inform these modes of power (1977, 1978, 1980, 1990). Durkheim believed that nothing was abnormal about deviance, as it is found within every society. Within this, Durkheim adopted a functionalist perspective, which sees society as a complex system, with each different part working together to promote stability and solidarity (1858, 1917). Durkheim visualised society as an organism, with each part playing a role. However, Durkheim also believed that within this, society cannot function alone without the parts (Crossman, 2020). Within Durkheim’s functionalist view on punishment, he believed that all punishment served as positive function for society, as it reinforces society and strengthens common values. However, society reacts differently to each crime, such as reacting stronger when it comes to murder. Durkheim outlined a change in retributive justice and believed that “revenge” was mainly found in traditional societies. In contrast, Foucault believed that the law was considered part of the superior body and thus, that revenge must be overall used as harming the convict’s body (Garland, 1986). In terms of ‘reform’, Durkheim found that it primarily happened within advanced societies, and that punishment is used to reform the offender, whilst repaying society (Burkhardt, 2016). Unlike Durkheim, Foucault was known as having a Marxist approach when it came to punishment, and even described the movement over history from “sovereign power to a disciplinary power” (Brozzone, 2019). First, sovereign power, which can be related to Durkheim’s restitutive system, meant that punishment was often intended to be cruel, and often made to be a public gathering. Moreover, disciplinary power, which can also be related to Durkheim’s restitutive justice, became important in the 1800s, with the aim to change the person via discipline and training – mainly through work, such as within prisons (Vinthagen, 2013).

Foucault’s Discipline and Punishment aims to explain the disappearance of one style of punishment – in which the punishment itself operates as a public performance of violence, whilst looking at the emergence of another, welcoming the prisons aims to become the standard penal method (1977). In contrast to Durkheim, he suggests that it is the use and conquering of power vs morals, rather than society values, who looks at society values that influence the institutions use of punishment. Foucault chooses these specific problems in order to explore the wider explanation of how power is exercises within the modern society, whilst analysing the apparatus of power that prison utilises, alongside the forms of technology, knowledge, and social relationships in which the apparatus may depend on. The relationship between power and knowledge is the central works of Foucault’s theory, which recognises the organisation of the power to punish, alongside the development of knowledge within various bodies that reinforce and interact with that power (Garland, 1986). Foucault’s way of looking at punishment it more distinctive and specific compared to Durkheim’s, as Durkheim tends to specify morals and society when it comes to punishment, whereas Foucault focuses on the surveillance and prisons side of punishment. Foucault rejects the overall idea that originally, punishment was intended as a form of rehabilitation, as oppose to a cruel way to punish an offender.

According to Foucault, punishment is best to be understood as a “political tactic” (Foucault, 1975), and it is to be studied with a view to its positive effects, rather than being seen as a repressive mechanism. It was for this reason that Foucault thought of punishment as being internally linked to the development of “human sciences”, such as psychology and criminology, rather than being influenced by them from the outside. Overall, Foucault examines the system of state control in its social context, explaining the connection between the gradual transition from power that is centralised, to democratic rule and the changes in how different societies punish their criminals. Like Foucault, Durkheim also looks at societies, but assigns the power of punishment to the state, similar to Foucault, but for the purpose of restoring and maintaining social and collective conscience, rather than looking at how societies punish and how the state maintain authority (Garland, 1986).

Yes, Durkheim and Foucault have different perspectives, but also share the same concern with what kind of society might constitute an “emancipatory” alternative. Alongside this, both theorists also showed an overall interest in the philosophical results of punishment, whilst taking the historical changes within penal practices, such as prisons, seriously.

Despite the apparent differences between Durkheim and Foucault, we can see that these approaches have important similarities. Both Durkheim and Foucault have greatly shaped the idea of punishment with their contributions, allowing further criminologists and sociologists to delve deeper into why punishment may or may not be necessary. Nevertheless, although this apparent similarity, both Durkheim and Foucault had very different views on their theories of punishment, making it extremely different to extinguish their resemblance (Garland, 1986). Durkheim believed that through moral education, the youth became self-determining, and developed skills in critical thinking, which was vital to democracies that were evolving.

Punishment within school systems strengthens the authorities of societies’ moral forms of life, confirming that social ideals and practices cannot be intrusive without consequences. Similarly, Durkheim believed that the punishment of convicted criminals reinforces the authority that society has held dear – the moral identity, which shows that the primary purpose of punishment is not to rehabilitative criminals, or to even deter those who are yet to commit a crime, but its fundamental aim is to strengthen the shared social sentiments (Garland, 1986). However, in contrast to Durkheim, Foucault viewed punishment without schools and prisons harsh and cruel instruments – which work the mind into conforming to social constraints. Alongside this, Foucault believed that introducing punishment within education would almost ‘normalise’ the pain behind punishment (Cladis, 2001). Durkheim and Foucault both saw punishment within education as the means to not only introduce, but to secure the authority of social norms. Yet, Foucault aimed to explore the effect of prisons unlike Durkheim, but both theorists believed that the main function of punishment, best described by Foucault, “was to assure that discipline reigns over society as a whole” (1979: 209). Furthermore, both Durkheim and Foucault stated that punishment within schools and prisons reflect a common environment in which society knows. Even if those who are not in the educational system reflect a common environment, they are still confronted with the same authority and social norms – passing on the knowledge and delivering the punishment that is taught. Durkheim stated that a shared environment for all is requirement for the continuation of a democratic society, with Foucault objecting, believing that progress should be understood as allowing the individual freedom, which employs the right of renewing the material structure of society (Collier, 2009). In short, the main difference between Durkheim and Foucault is that Durkheim investigates and urges normative social constraints, whereas Foucault investigates and finds them essentially problematic. It was for this reason that Foucault stated “the judges of normality are present everywhere. We are in the society of the teacher-judge; it is on them that the universal reign of the normative is based; and each individual, wherever he may find himself, subjects to it his body, his gestures, his behaviour, his aptitudes, his achievements” (1979: 304). As stated within the introduction, Durkheim kept to the idea throughout his work that discipline was the most important component of moral education, producing a ‘self-master’ in which, according to Durkheim, is the first step for power. For Foucault, all discipline and social initiations are problematic, as it implies that all social institutions care the most for not only oppression, but for power too.

In conclusion, within this essay are clear indications of many differences between both Durkheim and Foucault, with only a handful of similarities. As both have very different theories behind punishment, it was hard to extinguish an overall conclusion of how they compare, with the majority of the essay stating how they contrast. Both theorists involve the use of societies within their ideas of punishment, but Foucault looks at how the system of state control changes in how different societies punish their criminals, whereas Durkheim looks at how societies assign the power of punishment to the state for punishing criminals. Foucault ultimately suggests that within society, that it is the use and subjugation of power that may influence the institutions use of punishment, rejecting any notion that the development of said system had been motivation by humanitarian ideals. Adjacent to this, Durkheim looks at the morals, arguing that people are who they are due to their social experiences, stating that if the collective conscious is weakened by an abundance of criminal behaviour, the moral ties that may be holding societies together are also weakened. However, both Durkheim and Foucault did not see crime and punishment as deviating – rather having the power to construct a larder social order. Overall, the contrast between these theorists outweigh the similarities, making it near impossible to compare their ideologies on punishment.

For a long time, systems of condemning and imprisonment have had various goals. These destinations contain discipline, out of action, discouragement, and recovery. In as of late years the approach activities have much of the time been approved with the plan of improving our present arrangement of criminal equity. New confirmations comprise of truth in sentencing, three strikes, and required essentials, which were all intended to dishearten with the danger of overwhelming broad jail terms for those indicted for criminal offenses. With this developing pestilence, we should return to the viability of discipline and adequacy of rehabilitation of those guilty parties in correctional facilities and jails versus those under network watch.

Deterrence of crime

As a rule, discipline can contact prevention by two methods. First, one can expand the inevitable end product of discipline, that imminent gangsters might be debilitated by the simple danger of being gotten. Second of these is the degree of discipline could affect activities if hoodlums somehow happened to consider the punishments of their off-base doings, and reach the resolution the danger of punishment is excessively high. Arrangements, for example, Truth in Sentencing and Three Strikes hold the belief system that through the utilization of danger of brutal punishments, people will be stopped from perpetrating the act of illegal violations (Reynolds, 1998). In the survey and assessing this hypothesis, it acts under the supposition that those people who are carrying out these criminals are balanced and that they think about the result of their activities preceding perpetrating criminal acts. The rationale for support harsher authorizations is self-absorbed.

Effect on victims and victims’ families

Exploration directed by the Alliance of Safety and Justice ensnared that casualties of crimes would prefer to burn through cash on treatment strategies in endeavors to end criminal offense instead of on imprisonment frameworks (Trounstine, 2016). Intermittently the casualties of committing crimes are of low-salary families and tragically contemplate show that per casualty declarations, they don’t see the advantages of the cash set forth towards establishments which are the after effect of the legal authorities claimed exertion to dissuade crime. A large number of these casualties and their families feel like they’d receive to a greater extent a reward if lawbreakers were rather effectively occupied with treatment programs that are explicitly built to assist crooks with modifying their hostile practices in a way which takes out such. Family individuals from the survivors of violations have even started to build up associations that offer and give treatment programs that require recovery.

Effect on the offender

Proof of evidence in a case by which a typical conviction among criminal therapists and others in the public eye that recovery influences wrongdoers in a way that is genuinely organized to deflect their crimes. While again, punishment is still undoubting important yet it fails to address such trademark attributes in criminals which at last leaves space for an improved probability of the event of rehash offenses. Rehabilitation offers a stage for the treatment of criminal defendants in territories that are bound to assist them with rearranging to society as improved people. Instruction and Career aptitudes preparing are two instances of normal rehabilitative projects accessible to crimes when they are imprisoned that they can use once they recapture opportunity and organized to shield previous hoodlums from drawing in criminal activities. Retaliation generally involves the law and is purportedly stated per offense. The guilty party is intended to persevere through a detached encounter to be rebuffed for their criminal demonstration which is organized to cause them to perceive their activities and how the reoccurrence of such will warrant a comparable or significantly harsher experience. Subsequently, trusting the offender won’t have any desire to realign with offense once more. (Fieser, 2017)

Social effect on society

There are a few types of discipline for violations, and for the most part, the discipline fits the crime that’s been committed. If an individual burglarizes a bank, they have taken from the business, however, its customers, which is the network encompassing the bank. There are numerous casualties engaged with such a wrongdoing. Staff and customers in the bank are casualties, and if there is a weapon included, it could damage many. A discipline for theft or robbery ought to be comparable, and detract from the lawbreaker, and give significant serenity to any casualties. If a criminal was to shoot somebody during a burglary, it at that point turns into capital crimes, and the outcomes could be far more awful than jail. If it happens in a state where capital punishment is regarded, there is a decent possibility that execution would be an official choice of the court. If it is a lawful offense, they will lose numerous rights, carry out a potential life punishment in jail, need to change by a new arrangement of policies, and exceptionally exacting rules.

Fiscal effect on society

Thirdly, proof-based practices have made a financial emergency and are making strategy producers reevaluate the common sense of Truth-In-Sentencing, and Three Strike rehearses. These approaches with their drawn-out sentences have brought about significant assets being eaten up. Current appraisals show that neighborhood, state, and government elements are spending around $68 billion every year. Financial specialists see this as a gigantic hit to the American citizen (Reynolds, 1998). Taking a gander at the jail and the amount of inmates, it must be perceived that peaceful violators involve an enormous level of the population.

Conclusion

In conclusion, when crime is committed justice is not always served. It is a choice that one chose which could cost another person their life, or numerous lives to be influenced by what may seem like a basic demonstration at the hour of origination. Regardless of whether a criminal is rebuffed or restored, there are consistently a large number of individuals who are profoundly influenced by a wrong of lawlessness. The criminal justice system takes a stab at guarding society from crooks, and stopping them, or rejecting them on the off chance that they can’t be dissuaded.

On the evening of January 29, 2017, 6 men lost their lives and another 19 sustained life-threatening injuries moments after concluding their evening prayers at the Islamic Cultural Centre in Quebec City, Canada. This tragedy was a consequence of a violent terrorist attack whereby Alexandre Bissonnette, a well-educated man in his late twenties of who many close to him say was born to model parents, opened fire on a mosque reportedly packed with 53 innocent people. The perpetrator was charged with 6 counts of first-degree murder and 5 of attempted murder, but no charges of terrorism due to Canadian Criminal Code’s definition of such specifying collaboration with a terrorist group. After eventually pleading guilty to all charges, Bissonnette was sentenced to life imprisonment with no parole for at least 40 years (Al Jazeera, 2017).

Despite what might seem like a more than fair sentencing to Bissonnette from a neutral standpoint, people close to him such as Lucie Cote, his first witness of defense and former teacher, said that he was introverted, bullied mercilessly, and “developed reflexes of nervousness and fear and did not defend himself” in his youth. Furthermore, the psychologist who evaluated him in court said that he had been suffering with mental illness leading up to the attack, expressing a simple desire to kill. As a matter of fact, the gunman claimed to have initially planned to open fire in a mall, but turned his attention to the mosque to target the Muslim refugees in the area which he perceived as a threat (Marin, 2018). Bissonnette’s parents said that this ‘very severe sentence’ left no room for rehabilitation (Enos, 2019), bringing up the question of whether or not life imprisonment really is justifiable given the perpetrator’s history. We don’t know for a fact whether or not Bissonnette really had the luxury of free will when making this decision, so for him and other potential offenders of a similar social context, is severe punishment the best way to prevent it? This concept can be explored through the two major criminological schools of thought, classical and positivist, and how they’ve evolved to date.

The classical school of criminology is a criminological perspective built on the concept that potential criminals, “as rational beings capable of free will” (Cornish et al., 1986), will refrain from committing a crime if they were faced with the certainty of punishment, swiftness of justice, and fair penalties proportionate to the severity of social harm done (Beccaria, 1995). Built on the assumption that Bissonnette was acting on his own free will, this sentence is most definitely justifiable. He devastated an entire community that now must mourn their lost ones, and on top of that will no longer be able to visit their preferred place of worship whilst being comfortable that a tragedy of this magnitude may never strike again. Judging from the social impact of this crime, one could argue that lifetime in a correctional institution may not even be enough, let alone the possibility of parole in 40 years. Before as recently as the 1970’s, more severe punishments would’ve been considered for charges of Bissonnette’s scale, but as the Canadian Criminal Justice System became more progressive, they are no longer considered an option (Cowper, 2012).

Given this, as the CCJS developed to be more considering of the perpetrators’ circumstances, the classical school of criminology adapted. This evolution presents itself in the form of the neoclassical school of criminology. This perspective exercises the idea that, whilst endorsing the core ideas of the classical school, some offenders should be treated more leniently given situations whereby they did not necessarily have the option of exercising their own free will (Winterdyk, 2016). In light of Alexandre Bissonnette’s speculated mental illness, it is important to take into consideration that he might not have had the same ability of decision-making that another would have. Because of his experiences being bullied at a young age, the idea of victimization may have been cemented into his evaluation of non-threatening situations. As he stated himself, the attack was a consequence of his concern over refugee conflicts in Europe, leading him to them as a threat to him and his loved ones (Leyland, 2018). Regardless of how flawed this perception might be, it doesn’t take away from the fact that the environment in which he grew up in may have forced him into thinking that way. However, it cannot be guaranteed that he won’t make a mistake like this again, so keeping him in a correctional facility may be the best punishment Bissonnette can be offered in this situation.

Similar to the neoclassical school, the positivist school of criminology stresses the significance of one’s inability to act on his or her own free will when committing a crime. More explicitly, the positivist thought uses the scientific method to examine behavior and reasoning (McShane, 2013). As opposed to the classical method of punishment, it emphasizes rehabilitation. Recognized as the father of modern criminology, Cesare Lombroso adopted this ideology on the basis of biological determinism: a condition whereby one may be unable to live within societal norms as a consequence of inability to act on free will (Lombroso, 2006). As aforementioned, Bissonnette was an introvert who suffered from both physical and psychological abuse on a severe level as a student, potentially pertaining to his mental illness and the crime that followed. With his parents’ argument that his life sentence gave him no hope of rehabilitation, it is possible that a positivist approach may indeed be more beneficial to the perpetrator as well as to society. He could revisit his community accountable for the great loss he has caused and pay his debt by retiring the thoughts that caused so much pain to his community in the first place.

Like the classical approach, the positivist approach has also changed to date as the study of crime as a whole has. The neopositivist school of criminology stresses more on the possibility of reintegrating criminals into society as functioning members of the system with hope and opportunity to recover from their past (Winterdyk, 2016). Although this might seem ideal for Bissonnette and his family, it is also important to consider the basis of the positivist approach in the first place: that some of the decisions they make are beyond their control. Considering how devastating the mosque shooting was, there is no doubt the community he was taken from will receive him negatively regardless of how much he has changed. If this is perceived as hostility, the perpetrator’s flawed perception of the immigrants of Quebec may be reignited. Furthermore, others that have once shared his same hatred for a certain group of people may find temporary jail time as a very minimal price to pay for their crime. Regardless of the improvement that a neopositivist approach may bring Bissonnette, it would be difficult for a community that suffered this great loss to move on knowing the man that ended their loved ones’ lives walks among them unscathed.

Although both the classical and positivist schools of criminology both present compelling points towards the fairness of the shooter’s sentencing, it is important to acknowledge the drawbacks that come to using them as decision making tools. In relation to the classical school, although the social costs of severe punishment may indeed act as effective deterrents of crime, not a strong enough correlation can be found between perception of risk and subsequent offences to validate the deterrence theory (Akers and Sellers, 2011). Moreover, rates of reoffending in Canada show that after one’s first punishment, it is very likely that a perpetrator will return to the life of crime by which he/she was taken from (Newark, 2013). As for the positivist school, the theory of determinism by which the whole perspective is built around has been challenged on many different bases, notable ones including its weakness of methodology and its failure to distinguish the roles of environment and heredity (Schafer, 1976; Cullen and Wilcox, 2010).

Because criminology is, in its nature, a very multidimensional study, it should be treated as such. Given that there will never be one ‘right’ or ‘wrong’ perspective, the best approach is one that involves multiple ones complementing one another where they fault. Integrating the classical approach with the positivist, the sentence laid on the shooter should not be reduced, as despite the life sentence handed to him if he chooses to make the effort to improve on himself and commit to it, he may be handed parole starting 40 years later. As his punishment should reflect his impact on society, these 40 years minimum reflect far less than the 6 lives he’s taken, and so it may be argued that they should be more than so.

In conclusion, this sentence gives a fair balance of hope for rehabilitation, but also a harsh sentence whereby the perpetrator can reflect on his mistake and truly come out a better individual if he sets out to do so.

Punishment is a legal process and complex phenomenon, shaped by social and historical forces which has a range of effects that reach beyond the population of offenders. Punishment ensures that we are protected from criminals and they pay for their consequences, as Garland states, punishment is a ‘process whereby violators of the criminal law are condemned and sanctioned in accordance with specific legal categories and procedures’ (1990:17). The main purpose of punishment is to prevent crime, however, principles of distribution in relation to the conflicting views of the types of punishment that certain types of offenders or offenses should receive change and evolve over time. For example, there is general consensus that murder is one of the worst crimes and therefore should receive the most serious sentence, however, in relation to the possession of drugs such as cannabis not everyone has the same views, and this affects the types of punishments given as well the justifications that underlie them (Barkan, 2001). Even in relation to offenses we consider as the most serious such as murder, the sanctions they should receive are still highly debated, for instance, capital punishment was used in ancient times for murder as well as another 220 crimes including minor theft, known as the ‘Bloody Code’, which involved punishments such as hanging until the Murder (Abolition of Death Penalty) Act (1965) suspended the death penalty in Great Britain and replaced it with the mandatory sentence of life imprisonment for just murder moderated by the Criminal Justice Act 2003 (Logan, 2013:36). The first main school of thought is reductivism, also known as consequentialism, which is mainly concerned with the prevention of future crime through deterrence, rehabilitation and incapacitation and the second school of thought is retributivism which is concerned with the offense itself and receiving a proportionate punishment, although these two are not necessarily mutually exclusive. This essay aims to explore the underlying justifications of punishment in relation to utilitarianism and libertarianism whilst considering their individual aims of punishment, criticizing them and seeing how such reasoning has evolved since the 20th century up until current developments.

Utilitarian approaches first advocated by Bentham have shaped reductivism, where punishment is justified if it prevents greater harm to society than the harm that is inflicted through punishment, or as he stated it should achieve ‘the greatest happiness of the greatest number’ (1907, cited in Hudson, 2003:19). One of the aims of reductivism is deterrence which can be distinguished into individual and general deterrence, where the former is to with stopping offenders from re-offending again and the latter is to do with preventing other potential offenders from offending. General deterrence would ideally aim to show others in society that behaving in a particular way in unacceptable and therefore acting out in a similar way will result in them receiving a similar punishment. However, Hiroshi et al (1990) has drawn on several criticisms in relation to this, problems arise in relation to who gets to decide the severity of punishments, how we can be sure that society is aware of the consequences for all types of offenses and lastly what may be a severe punishment to someone may not be severe to someone else and even if it is, we can not be sure that it prevents offending. For example, America has one of the harshest punishments as it still carries the death penalty as well as maximum security prisons, yet they have the highest crime rates in the world (Rubin, 2018:5). In relation to individual deterrence, the aim here is to prevent the individual from re-offending in order to tackle recidivism rates. The fear of pain here plays a substantial role in both individual and societal levels as the objective of the criminal justice system is to show both, that the pain that will arise from punishment and humiliation is not worth the crime by convincing potential criminals to not take risk and afterall criminals are ‘utterly indifferent from the rest of us… [they are not] indifferent to the risks and gains of crime’ (Wilson, 1983; 2013: 336). Therefore, as Beccaria believed, the criminal is viewed as a rational actor who we should be able to influence to make the right choices by weighing up the consequences and benefits of a crime through deterrence. However, the issue with this approach is that not all criminals are able to make rational decisions as there are individuals who are not afraid of pain or additionally, the benefits may outweight the consequences as the severity of a punishment is subjective and what is severe to one may not be to another. West argued that there is evidence of quite the opposite effect as it was found detention center regimes such as the ‘short, sharp, shock’ introduced in the 1980s simply did not work and in fact argued that the harsher the penalty, the more likely an individual is to re-offend (1982, cited in Cavadino & Dignan, 2007:39). These anti-deterrent effects may be a consequence of labeling effects, where individuals are stigmatized by being labeled ‘criminals’ and this process can make it difficult for them to become a law-abiding citizen (ibid.: 40). This, in turn, makes us question whether deterrence is only useful and limited to particular crimes or whether it has any value at all.

On the other hand, incapacitation is focused on removing and isolating (physically) the criminal from society in order to protect the public and prevent any further crime in the future. In the United Kingdom, this is done by imprisonment which is the punishment given to serious offenses where danger is posed in hopes to remove criminals and make them realize their wrongdoings. Michael Howard who was the Conservative Home Secretary in 1993, argued that ‘prison works’ and that it protects us ‘from murders, muggers and rapists’ which may work temporarily or in relation to specific offenses such as theft or in to relation driving disqualifications and preventing motoring offenses (Burnett and Maruna, 2004: 390). Despite this seeming to resolve the ‘problem’, prisons are becoming overcrowded and are very expensive to maintain. Additionally, prison is seen as an ineffective punishment due to offenders’ recidivism rates being high which is a common occurrence and therefore only removing any danger from society temporarily and not dealing with the long-term effects of criminals possibly re-offending as recidivism rates for adults are 28.7% and for juvenile offenders, they are 42.3% (Ministry of Justice, 2018). There are also problems within the criminal justice system as crime still occurs within the prison and some offenders go on to commit even more crimes and become more experienced by learning the tricks through other criminals who have committed much more severe crimes. Sentencing is also difficult as although a ‘life sentence’ may sound very severe, it does not mean life in prison, as individuals can sometimes serve the tariff periods and be released based on good behavior which they may have simply followed the rules in order to minimize their sentences and serve as low as 7 years for serious offenses (Zimring and Hawkins,1997). So far, incapacitation and deterrence have been explored and it can be argued both aims of punishment also aim to send society a message in relation to the kind of behaviors that are seen as acceptable/not acceptable which is also known as denunciation and it can be considered as a justification in its own right. After all, our legal system has always been influenced by societal norms and through the punishments that arise through incapacitation and deterrence, we can also see the co-existence of denunciation and how it has evolved accordingly.

When penological thought became dominated by the ‘rehabilitative ideal in the 1950s and 1960s, rehabilitation became important and was seen as a way of reducing crime by reforming and treating individuals so that their character is modified and they do not re-offend. Despite this being the introduction of rehabilitation as a form of punishment, Robinson argues the rehabilitative ideal has been able to still be alive in our late modern society through its evolution and can therefore be characterized as utilitarian, managerial and expressive (2008:430). The first visions of rehabilitation where the focus was on welfare and making the state responsible for the stigmatization of punishment by providing offenders legitimate social opportunities and re-integration into society no longer apply as a central theme as, pubic policy is more focused on placing society’s interests and the prevention of future victimization at heart and above offenders’ needs. This utilitarian rehabilitative ideal has also led to rehabilitation evolving and as Garland argues it is only effective in cases where effective risk management is undertaken, the focus is on providing interventions for offenders who are seen as eligible based on the criteria of posing a high risk to society (ibid.:434). In addition to this, rehabilitation can be seen in expressive terms in relation to communicating to the offender as well as the wider society the moral wrong that the offender has caused which does not correspond with society’s beliefs which in itself overlaps with the aim of denunciation and it is another form in which this can be achieved by sending a message to society. It is also important to note that in our modern society, individuals are not seen as passive but rather, active individuals who make rational decisions and this has led to the idea of moralism being central in rehabilitative programs where individuals realize how their actions have affected other people’s lives as well as society’s. This, in turn, has led to the argument that restorative approaches may be better equipped to deal with this as such programs do incoporate the acknowledgment of a moral discourse and the damaging impact of one’s criminals actions (Dignan, 2005: cited in Robinson, 2008: 439).

Retributivism is usually seen as an alternative to the reductivism justifications of punishment and became prevalent in the 1970s as it supports the idea that the criminal should be punished because it is deserved and therefore it is the right thing to do. Kant argued that we must find punishment on blame and treat an offender as a rational blameworthy individual in a society of equals where we all agree on what happens to an individual who disobeys the law and everyone is treated equally when this occurs- idea of Lex Talionis from the biblical times, also known as ‘eye for an eye (Whitman, 2004: 94). The implications that arise from this are that ideas of vengeance have been used to justify the atavistic nature of harsher punishments such as capital punishment when this is not necessarily the case as retributivist ideas are based on more humane justifications where the individual simply receives a punishment that is proportionate rather than a more punitive sentence. Carvalho and Chamberlen (2018: 223) in fact argue that the reason for a need for harsher punishment in our contemporary era is actually to do with a need for social solidarity that is achieved through punishment, which is experienced by the anxiety and social insecurity of our society and therefore this is resolved by punishing harsher and giving us a sense of an effective criminal justice system. Equally, it is very hard to enforce an idea of equality and proportionality in a westernized society where social schism exists, groups in power may see other individuals as outsiders and therefore have much more punitive attitudes towards them in order to deal with the threat imposed, which may explain America’s harsh punitive practices (Markel, 2001: 2215). Retributivism may not be seen as a justification by itself, however, it can be argued that it can co-exist within consequentialism, where an offender is given a punishment that they deserve but that punishment should also have deterrent effects so that it also prevents future crime (Dolinko, 1997).

Alternatively, Garland argues that currently the criminal justice system is taken into unfamiliar territories where the ideological perspectives mentioned earlier may be outdated and an unreliable guide due to the existence of victim impact statements, community sentences, electronic monitoring and sentence guidelines laws (1991: 8). As a result, we can see the emergence of restorative justice as an alternative punishment, where the parties affected by a crime are brought together in order to take part in a discussion of what happened, see how individuals were affected and discuss the implications for the future, thus placing the victim at the heart of the sentencing process (Rossner, 2017: 269). Restorative justice was originally seen as a counter-argument to retributivism and punishment practices, however, it is now seen as an alternative punishment and a ‘tool’ that can be used instead. Therefore, restorative justice could provide the basis of a more balanced criminal justice system that considers the needs of victims, offenders and the community, where the criminal justice system across the country are encouraged, rather than obliged, to use this method which has actually been implemented when dealing with young offenders under the 1998 Crime and Disorder Act (Dignan, 2007: 324). Although critics of restorative justice claim that no actual beneficial outcomes arise, there is only positive evidence shown by comparisons made to control groups of criminals who were dealt with by the criminal courts, as offenders were able to remain crime-free successfully and recidivism rates did not increase as a result (Latimer et al, 2001, cited in Morris, 2006: 467).

Alternatively, abolitionism is worth mentioning in relation to the rationale of punishment as, although it is a strategy aimed at the suppression of punitive punishments, it is also a philosophical perspective that challenges the conventional definitions of punishment as a whole (Ruggiero, 2010). Since our understanding of crime have changed and academic literature views crime as a social construct, there are arguments that it should not be tackled the way it is but instead the root of the problem and why a crime occurred in the first place should be tackled. This can be linked to capitalist ideas of criminals being seen as deviant and rebelling against the government whereby, different classes are driven to oppression and control through punishment rather than help. However, if we were to remove prisons from the social and ideological landscapes of our society, what would be the alternative strategies and institutions used? Davis (2003:108) argues that there would be difficulty in dealing with large amounts of people who have offended but this issue could be resolved by looking at schools and health care systems as alternatives. Equally, there are already political projects being considered towards the movement of decriminalization in relation to certain types of offenses such as the ‘War on Drugs’ where treatment-based programs are seen as an alternative. This has already been implemented in the Netherlands as well as has a history of legalized sex work, such decriminalization would advance the abolitionist strategy of incarceration by reducing the number of people sent to prison and focusing on rehabilitation (Boyd and Lowman, 1993).

In conclusion, crime is an extremely complex social phenomenon and due the development of new and advanced societies, our understanding of it has changed. Not only is there a co-existence of justifications in relation to punishment as a whole but this can also be seen with particular institutions such as prisons, as what may have been the rationale behind prisons 200 years ago may be different from modern prisons today where there are elements such as rehabilitation programs incorporated and opportunities for offenders to reintegrate back into society through academic courses being offered within prisons. Therefore, as explored it can be very difficult to pinpoint the exact justifications underlying imprisonment and other punishments at a given time, which can in turn affect other policy areas in relation to probation services, the availability of rehabilitation programs and even sometimes the law itself in order to reflect society’s shifting sentiments. Public opinion is equally important when it comes to politicians, policy-makers and also judges when passing sentences as they have a duty to lead public views in order to maintain trust in the political process and criminal justice administration (Roberts and Hough, 2002:6). Nevertheless, there still remains scope for the transformation of public opinion of the different forms that punishment can take further to what we have already witnessed as public conceptions will continue to change and be reflected in the laws and therefore, punishment itself.