Why Do We Punish Essay Research Paper

Why Do We Punish. Essay, Research Paper

There are four main theories of punishment; retribution, deterrence, incapacitation and rehabilitation. The retributive theory looks back to the crime and punishes because of the crime. The remaining three all look forward to the consequences of punishment and thereby hope to achieve a reduction in crime. They are therefore often termed consequentialist or utilitarian theories. The boundaries between these theories are far from clear, containing sub-categories, many of which are perceived quite differently by different writers. To establish why it is we punish, each theory will have to be examined closely. The term retribution can be used in several senses. It can indicate vengeance or expiration, however, it is today more commonly associated with giving the offender his just deserts and using punishment as a censure or denunciation. The desire for vengeance theory is that the punishment satisfies the victim’s desire for vengeance, and the state is exacting vengeance on their behalf to prevent private retaliation. Such a view finds little support today. Expiration requires the offender to work off his guilt; he must be purified through suffering. “The essence of the expiratory view is that in suffering his punishment, the offender has purged his guilt, has ‘paid for’ his crime, and that his account with society is therefore clear.” The focus is on the past crime with the attempt to wipe the slate clean. These ideas largely stem from religious influences on our culture. However, a deeper psychological explanation has been argued to exist, underlying the offenders need for expiration. Guilt is a state of tension which gives rise to a need for the removal of this tension. From the time we are children we are conditioned to expect this relief through punishment. In R v. Williams the defendant was to be punished so that he could expiate his sins, and thus become an accepted member of society again. Whilst society may offer the chance of expiration, it obviously cannot demand it as the desire for true expiration must flow from the defendant himself. The view that has gained support, whilst theories of punishment such as deterrence and rehabilitation have come under increasing attack, is that we punish criminals primarily because they deserve it. The Criminal Justice Act 1991 followed a White Paper which proclaimed that the aim was “better justice through a more consistent approach to sentencing, so that convicted criminals get their ‘just deserts.’” Just desert theorists have tended to follow the ideas of Kant, that people deserve to be punished if they have broken the law. Furthermore, all persons owe duties to others not to infringe their rights. Justice and fairness ensure that all persons must bear the consequence of obeying the law equally. Thus punishment is necessary to remove the benefits gained by the offender. The concept of just deserts has attracted criticism as there is the suspicion that “the idea of desert cannot be distinguished from a principle of vengeance or the unappealing assertion that two wrongs somehow make a right.” Although, there are two main advantages to desert based punishment. Firstly, it imposes limits on the states power in that excessive exemplary or incapacitative sentences become unacceptable. Second, it reduces the unjustifiable sentencing disparity, as two offenders whom commit the same crime will receive similar punishments, irrespective of race, culture or background. Deterrence is the second main theory of punishment and it aims to reduce crime by the threat or example of punishment. Unlike retributive theories, deterrent theories are forward looking, concerning themselves with the consequence of punishment. Deterrence operates on several levels. Firstly, by individual deterrence it is hoped that the experience of punishment will be so unpleasant that the offender will not reoffend. In this theory, the task of the sentencer is to look to the future and select the punishment that will have the greatest impact on the individual. It is argued that every time a crime is committed the theory of deterrence is weakened. Moreover, reconviction highlights the failure of the previous sentence. Andrew Ashworth sates that where a “former prisoner is not reconvicted within two years, one cannot tell whether the explanation for that is the rehabilitative effect of custody, or its deterrent effect upon him, or a decision taken independently by the offender, or simply good luck in avoiding detection.” Under the theory of general deterrence it is the threat of punishment that deters people from committing crimes. At the legislative level, Parliament establishes penalties to threaten those who might contemplate committing a crime. At the sentencing level, offenders are punished in order that others will be discouraged from committing crimes. Thus, punishment is held up as an example of what will happen to those who engage in similar activities. When a specific crime is on the increase or attracted much publicity, then exemplary sentences may be imposed to attempt to prevent that particular crime. In Whitton , concern over the rise of hooliganism at football matches led to an exemplary sentence of life imprisonment for riotous assembly outside a football ground. The theory of general deterrence rests upon the crucial assumption that people are deterred from committing crime by the threat of punishment. It is of some significance