Punishment and Moral Theories

• This chapter discusses punishment and the moral theories that justify it, which are important for legitimizing the criminal justice system, determining accountability and appropriate punishment, and evaluating the fairness and coherence of criminal laws.

Defining Punishment

• There is no universally accepted definition of "punishment."
• Punishment occurs when a government agent, authorized by a criminal conviction, intentionally inflicts pain or causes an unpleasant consequence on the convicted individual.
• A fine for a criminal violation constitutes punishment, as do court-compelled public service and outpatient psychiatric care.
• Penalties imposed outside the criminal justice system, like disbarment or actions by a lynch mob, are not considered punishment.

Constitutional Law Analysis

• The constitutional distinction between "punishment" and civil remedies is unclear.
• "Sexual predator" laws, which allow for indefinite civil confinement of individuals with sexual disorders, raise questions about double punishment and cruel and unusual punishment.
• Courts consider legislative intent when categorizing proceedings as civil or criminal.
• If a civil sanction serves retributive or deterrent purposes, it may be deemed "punishment," triggering criminal law protections.

Theories of Punishment

Utilitarianism

• Utilitarianism is a consequentialist theory that justifies practices based on their consequences, aiming to maximize societal happiness and minimize pain.
• Utilitarians view crime and punishment as undesirable but believe punishment is justifiable if it reduces the overall pain of crime.
• The threat or imposition of punishment can reduce crime through the understanding that people act hedonistically and rationally - weighing the benefits and risks.

Forms of Utilitarianism:

• General deterrence: Punishing an offender to discourage the general community from committing similar crimes.
• Individual deterrence: Punishing an offender to prevent them from re-offending.
• Incapacitation: Imprisoning an offender to prevent them from committing crimes in society.
• Rehabilitation: Reforming the offender through programs like psychiatric care or vocational training.

Retributivism

• Retributivists believe punishment is justified when deserved, based on the wrongdoer's free choice to violate society's rules.
• Retributivism focuses on past actions, justifying punishment based on the commission of a crime, while utilitarians look to the future, advocating punishment only if it provides a social benefit.
• Retributivists believe that humans possess free will and can be blamed for violating societal norms.

Forms of Retributivism:

• Assaultive retribution: Society is justified in hating criminals and hurting them back for harming society, sometimes seen as a way to deter private vengeance.
• Protective retribution: Punishment secures a moral balance in society by ensuring that those who violate rules and gain an unfair advantage repay their debt to society.
• Victim vindication: Punishment corrects the false moral claim made by the criminal, reaffirming the victim's worth and restoring the balance.

Denunciation (Expressive Theory)

• Punishment is justified as a means of expressing society's condemnation of a crime and its seriousness.
• Denunciation is educative, informing individuals that specific conduct is improper and valuing the victim's worth.
• Public denunciation channels community anger away from personal vengeance and maintains social cohesion.
• Stigmatizes offenders for their offenses
• Vindicates victims
• Announces that wrongdoers deserve punishment for disrespecting important values

The Debate Between the Competing Theories

Criticisms of Utilitarianism

• Retributivists argue that utilitarianism uses individuals as a means to an end, ignoring their dignity and rights.
• Utilitarians respond that individuals do not possess immutable rights. The right each member of society possesses is the right to have the law used for the benefit of the whole community.
• Utilitarianism can justify punishing innocent individuals if it benefits society.
• Framing the innocent is justifiable only if one applies 'act-utilitarian' ethic governing individual behaviour, but not if one applies 'rule-utilitarianism'.
• Rule-utilitarianism is the determination of whether a particular act, publicly announced as a rule of law that applies to an entire community, would be justified.

Rehabilitation Criticism

• Some critics doubt the effectiveness of rehabilitation.
• Proponents argue that rehabilitation can reduce recidivism.
• Retributivists argue it removes the concept of desert from punishment.
• Advocates argue that it preserves the concept of redemption.

Criticisms of Retributivism

• Utilitarians argue that intentionally inflicting pain without future benefit is senseless and cruel.
• Retributivism glorifies anger and legitimizes hatred.
• Retributivism is irrational because it is founded on emotions.

Mixed Theories of Punishment

• Conflicts between utilitarianism and retributivism exist.
• The criminal law that has developed in the United States is not philosophically consistent.
• Many scholars advocate a mixed theoretical system.
• Deterrence may be the general aim; however, retributive concepts should be applied in determining whether and how much to punish a particular person.
• Punishment should never exceed that which is retributively justifiable but it is permissible to inflict less punishment than is deserved if there is no good utilitarian justification for the punishment.

Sentencing

• Criminal codes provide sentences of imprisonment, fines, or both for noncapital felonies
• Alternative non-incarcerative sanctions are less common, but permitted in some circumstances.
• In some sentencing systems, the trial judge can suspend the prison sentence and put the individual on probation for that term. If the probationer violates a condition of release, the judge may order the offender to serve the suspended sentence or a part thereof.
• The sentencing provisions of the Model Penal Code, as originally adopted by the American Law Institute in 1962, were consistent with the rehabilitative goals dominant in legal thought in the 1960s.
• By 1960, various states utilized some form of “indeterminate sentencing.”
• "Indeterminate” was that the judge only defined the outer reaches of the sentence and correctional officers had the authority to release the prisoner before completion of the sentence if specific rehabilitative goals were met during confinement.
• Nearly all states, and now the Model Penal Code, have abandoned indeterminate sentencing systems in favor of a determinate one.
• This is due to disillusionment with the rehabilitative model, pressure from the public for longer prison sentences, increased interest in retributive goals, and a desire to cut back on judicial sentencing discretion because of disparity.
• In a determinate system, either the legislature or a sentencing commission sets a specific punishment or sets a range of incarcerative penalties for that offense and the judge (or jury) imposes a specific sentence within that range.