Punishment

Governments have several theories to support the use of punishment to maintain order in society.

Theories of punishment can be divided into two general philosophies: utilitarian and retributive. The utilitarian theory of punishment seeks to punish offenders to discourage, or "deter," future wrongdoing. The retributive theory seeks to punish offenders because they deserve to be punished.

Under the utilitarian philosophy, laws should be used to maximize the happiness of society. Because crime and punishment are inconsistent with happiness, they should be kept to a minimum. Utilitarians understand that a crime-free society does not exist, but they endeavor to inflict only as much punishment as is required to prevent future crimes.

The utilitarian theory is "consequentialist" in nature. It recognizes that punishment has consequences for both the offender and society and holds that the total good produced by the punishment should exceed the total evil. In other words, punishment should not be unlimited. One illustration of consequentialism in punishment is the release of a prison inmate suffering from a debilitating illness. If the prisoner's death is imminent, society is not served by his continued confinement because he is no longer capable of committing crimes.

Under the utilitarian philosophy, laws that specify punishment for criminal conduct should be designed to deter future criminal conduct. Deterrence operates on a specific and a general level. General deterrence means that the punishment should prevent other people from committing criminal acts. The punishment serves as an example to the rest of society, and it puts others on notice that criminal behavior will be punished.

Specific deterrence means that the punishment should prevent the same person from committing crimes. Specific deterrence works in two ways. First, an offender may be put in jail or prison to physically prevent her from committing another crime for a specified period. Second, this incapacitation is designed to be so unpleasant that it will discourage the offender from repeating her criminal behavior.

Rehabilitation is another utilitarian rationale for punishment. The goal of rehabilitation is to prevent future crime by giving offenders the ability to succeed within the confines of the law. Rehabilitative measures for criminal offenders usually include treatment for afflictions such as mental illness, chemical dependency, and chronic violent behavior. Rehabilitation also includes the use of educational programs that give offenders the knowledge and skills needed to compete in the job market.

The counterpart to the utilitarian theory of punishment is the retributive theory. Under this theory, offenders are punished for criminal behavior because they deserve punishment. Criminal behavior upsets the peaceful balance of society, and punishment helps to restore the balance.

The retributive theory focuses on the crime itself as the reason for imposing punishment. Where the utilitarian theory looks forward by basing punishment on social benefits, the retributive theory looks backward at the transgression as the basis for punishment.

According to the retributivist, human beings have free will and are capable of making rational decisions. An offender who is insane or otherwise incompetent should not be punished. However, a person who makes a conscious choice to upset the balance of society should be punished.

There are different moral bases for retribution. To many retributivists, punishment is justified as a form of vengeance: wrongdoers should be forced to suffer because they have forced others to suffer. This ancient principle was expressed succinctly in the Old Testament of the Judeo-Christian Bible: "When a man causes a disfigurement in his neighbour … it shall be done to him, fracture for fracture, eye for eye, tooth for tooth…."

To other theorists, retribution against a wrongdoer is justified to protect the legitimate rights of both society and the offender. Society shows its respect for the free will of the wrongdoer through punishment. Punishment shows respect for the wrongdoer because it allows an offender to pay the debt to society and then return to society, theoretically free of guilt and stigma.

A third major rationale for punishment is denunciation. Under the denunciation theory, punishment should be an expression of societal condemnation. The denunciation theory is a hybrid of UTILITARIANISM and retribution. It is utilitarian because the prospect of being publicly denounced serves as a deterrent. Denunciation is likewise retributive because it promotes the idea that offenders deserve to be punished.

The U.S. conception of punishment is a combination of the utilitarian, retributive, and denunciation theories. The most widely accepted rationale for punishment in the United States is retribution. If convicted, the sentence a defendant receives is always, at least in part, a form of retribution.

A sentence may, however, combine utilitarian ideals with retribution. For example, a defendant sentenced to prison for several years is sent there to quench the public's thirst for vengeance. At the same time, educational programs inside the prison reflect the utilitarian goal of rehabilitation.

Our legal system shows its adherence to utilitarian ideals in the creation of systems such as pretrial diversion programs, PROBATION, and PAROLE. These systems seek to limit punishment to the extent necessary to protect society. The utilitarian philosophy is also reflected in the assignment of different punishments for different crimes and in the notion that the amount of punishment a convicted criminal receives should be in proportion to the harm caused by the crime. For example, murder calls for imprisonment or even the death penalty. A simple ASSAULT AND BATTERY with no serious injuries is usually punished with a short jail sentence or probation and a fine.

Judges generally have the discretion to fashion punishment according to the needs of both society and the defendant. This is an expression of utilitarian tenets. However, judicial discretion in sentencing is limited. In some cases statutes require judges to impose mandatory minimum prison sentences as punishment, and these laws stand as a monument to the retributive theory.