The Ethical Theories of Punishment - Essay Example

?The Ethical Theories of Punishment: ANALYSIS ESSAY Ethical theories of punishment greatly impact the individual and society, bringing in its wake far-reaching consequences. The concept of ethical theories of punishment is a delicate and burning issue since ethics and laws change with the times. Some acts currently accepted in contemporary society were unacceptable decades and even centuries ago. Ethics affect personal and societal perspectives on right and wrong, good and evil. Punishment is a control in human behavior which can either be retributive, deterrent, incapacitating or rehabilitative. These ethical theories of punishment, based on principles of reciprocity, the potential of human transformation and grace come into conflict with one another because of the differences in the intentions in imposing punishment as well as the effects of the punishment. Ethical considerations regarding punishment are of major consequence since its policies infiltrate into and guide all the systems of government: legislative, judicial and executive. The primary objective of punishment is to preserve law and order in society. It is a method implemented and harnessed by an authority to keep a level of stability in society. The moral barometer of society is most often directed according to the decisions taken by legislators and interpreted by the judiciary. Legally, punishment governs the justice and penal systems in which persons offending the law are brought to justice. The justice and penal systems are integral since human rights must be protected and maintained within these institutions, not only by men, but also by a divine figure. The administration of retributive justice by deity is a concept as old as time immemorial and has been corroborated by our modern justice system. In classical Greece, retributive judgment had religious significance so that the Greeks even had a goddess, Nemesis, which personified and delivered retribution to her followers (Littleton 960). Nemesis is often depicted carrying a pair of scales to demonstrate fairness and inflicted punishment based on the indignation of the gods at particular crime or hubris. Not only in Greek religion but in every religion, there is a mandated form of justice or vengeance for contraventions of the law. Indeed, the goddess Lady Justice stands before major courthouses and Departments of Justice as the dispenser of punishment. Retributive punishment is the brand of punishment retaliatory in nature. Retribution dictates that offenders of the law must face a penalty for their attack on another. The purpose of retribution is to have the guilty party suffer for a wrong committed and “provides limits that the punishment fit the crime” (Natarajan 75). The letter of the law imposes a cost on the part of the transgressor of the law in which the ancient retributive principle of “an eye for an eye” comes into effect. Retributive punishment places the fault of the crime squarely on the shoulders of the offender. In other words, you do the crime, you do the time. Society has instituted and leaned on a penal system for ages as a means of restraining offenders from threatening law-abiding citizens. Retributive punishment constitutes “one of those infringements of the holy will of God in society which can claim a formal legitimacy” (Bedau 439). Hence, one sees that present-day punishment is derived from a legacy of retributive justice. Retributive punishment follows the ethical principle of “an eye for an eye…- the amount of punishment is proportioned to the degree of his responsibility” (Wood 635). In other words, punishment has to be tantamount to the offense. Taken from the Mosaic law, this law signifies that in penal law, offenders’ punishment has to be weighed alongside the crime. The penal system is to a large extent governed by this rule because of religious history and transferred values. Also, the natural reactive attitudes inherent to man compel him to reciprocate an injury done. Standards are set so that judge and jury sentence miscreants using length of imprisonment in tandem with the breach of law. However, sentencing scholar Michael Simons in all of his research discovers that “the most important sentencing development has been our rejection of the principle of parsimony…instead, we have replaced parsimony with severity (Simons 161). Therefore, the harsher the punishment, the more the judiciary regards it as ‘justice.’ As a result, stiffer penalties and longer incarceration terms result from this type of retributive ethics. Incapacitation is the hindrance imposed on the criminal – physically isolating him and preventing additional interference. In addition to its deterrent effect, the crime and punishment system “serves as an effective means of incapacitation, securely excluding offenders from society…(and) containing those individuals too troublesome for other institutions or communities” (Garland 289). Even though incapacitated persons can be determined, the numbers of those deterred cannot be calculated. Deterrence is the punitive theory which reinforces the ethical principle of instruction not only, in word but in deed. The wider public needs to learn by the justice system’s implementing its own laws with the concomitant penalties. Practical application underlines deterrence’s ethical principle which is highly instructive and exemplary. The deterrence theory’s premise is that “people will engage in criminal and deviant activities if they do not fear apprehension and punishment” (Keel). Seeing the magnitude of the punishment, it is the intent of punishment to deter others from committing the crime. As a result of implementing deterrence, the theoretical expectation is that others would not follow the path of crime in future. Another intention of deterrence is to prevent a recurrence on the part of the punished offender. The message goes not only to the public but also to the criminal himself. The distinction between deterrence and incapacitation needs to be clear cut. The deterrence theory affects a specific class of people – those who are not yet in jail but are contemplating criminality as an option. Deterrence is a theory which posits that “the threatened punishment works as a deterrent only if the would-be offender believes the costs (of crime) to him outweighs the benefits” (Bedau 127). The criminal justice system has a predisposition to sending masses to incarceration. This occurrence serves as confirming evidence to prove the inefficiency of the deterrence objective since the heightening prison populations demonstrates that few are being deterred from committing crime. Another of the ethical theory of punishment, rehabilitation, involves the transformation of former criminal behaviors to that of law-abiding and responsible citizens. The rehabilitation process also intends to successfully reintegrate the miscreant back into society with the social skills essential to making valuable contributions. As a result of the ethical value of rehabilitation, the rehabilitative project “assumed an innate and moral equality among men that could be restored (from being) criminals through penal discipline” (Western 2). Rehabilitative institutions enable criminals to change their ways of thinking by presenting more alternatives to live a more positive lifestyle, while preparing the miscreant for probation and eventual release into society. So paramount is rehabilitation to the full restoration of the criminal that even governmental regimens comply with the requirements to preserve the good functioning of the citizenry, providing this body with the opportunity to elect persons to operate in rehabilitative institutions. Rehabilitative punishment proceeds from the ethic that “the primary aim of justice is rehabilitation or reformation”(Uduigwomen 1). The active ethical principle behind rehabilitation is founded in grace. Criminals are human beings who have need of cure so that “instead of being punished for his crime, the criminal should be corrected, re-socialized along the right path and taught…skills” (Uduigwomen 2). These ideals are practiced since lawmakers have instituted probation and release for convicts who have displayed manifest change. In the midst of guilt, criminals who have reformed are more likely to obtain pardon. Pardon is a high ethical consideration in the dispensation of justice. The criminal understands the gravity of his offense and is taught that “punishment is necessary…;however, there is a higher standpoint, the standpoint of mercy, clemency and pardon” (Williams 176). Pardon has been integrated as part of the justice system so that one can attest to the effect of grace and pardon mingled with just punishment. In conclusion, ethical theories of punishment contribute to society since they constitute the principles by which the authorities deliver punishment to the transgressing party. These theories justify the existence of a punitive system to preserve social order and to ensure the life and liberty of the society. Whatever the infraction, a law offender is subjected to punishment on the grounds of certain violations so that as a consequence, rights and privileges are forfeited. Whether for retributive, deterrent, incapacitating or rehabilitative purposes, punishment is the instituted measure to discipline criminals, to avert the repetition of the crime, to bar the criminal from hurting others through isolation, and to reform the ways of the wrongdoer so that he emerges not only corrected but changed from penal facilities. The Ethical Theories of Punishment: ARGUMENT ESSAY Because of the retributive focus of the crime and punishment system, more delinquents are falling between the cracks, convicted for many years in prison which matured criminal characters. Although retribution has its place in the administration of justice, it needs to be commingled with clemency, with sentences weighed according to the individual. The retributive form of justice favors casting criminals en masse into prison without regard for particular considerations. It must be said that although more clemency is an option to rehabilitate prisoners, it does not imply tolerance of crime with impunity. In an effort to curb crime statistics, the State is becoming harsher and stiffer with regard to obeying the law, laying heavier penalties on transgressors. Consequently, one will find a growing population of recidivist criminals whose condition is not being improved by the justice system. One critic reveals that “the analysis shows that the criminal justice system became more punitive in the two decades from 1980, increasing the risk of imprisonment for those who are arrested and increasing the time served for those who are locked up” (Western 35). With an under-emphasis or absence of the rehabilitation in ethical theories of punishment, the aftermath ends in a burdensome toll which yields overcrowded prisons, poor rehabilitation infrastructure, and the concentration of justice on certain racial, low-income minorities. Criminologists and sociologists have attributed the root of the problem of criminality to the natural sequences of “the basic social causation of the great mass of crimes against property and public order (being) clearly established in the framework of criminality and the social environment” (Rusche  3). In other words, environment and economics shaped the attitudes of criminals proceeding from the poorer classes. Because of this conclusion, retributive justice has cracked down on the poor to wage a war that would be felt mostly among the disadvantaged classes. Class struggle still continues in contemporary society. Once there is organized society, there inevitably will be classification of groups and class struggle. Although many of the former social and governmental systems have disappeared such as slavery, feudalism, monarchy and social orders, remnants of elitism and class discrimination subsist. Social tiers resurface in the basic social rungs: the wealthy, the middle-class and the working poor. These class divisions can be further subdivided to include wealthy-middle class and poor middle class. Class distinctions are very present when treating with criminal justice since the majority of the prison population includes the poor, uneducated and socially disadvantaged.  Racial dynamics or demography all plays an essential role in delineating and targeting social groups for consignment to prison.  However, the privileged tiers enjoy higher education, more political power, better institutions and facilities and more entitlements to human rights. The two “motives for retribution, behavior control and reassertion of the reactors values and beliefs” (Vidmar 570), so that the type of punishment theory adopted reflects more on the government system which adopts it. The primary Although old and traditional hierarchies have dissolved, the contemporary social class system thrives on oppression of minorities, casting them aside as expendables in prison – utilizing the same methods of monarchy and feudalism. In turn, the powers-that-be engineer and maneuver a system which maintains the social positions of the few and relegates a majority of the minorities to institutions of correction.  In today’s world, one cannot be rid of the necessity and endangering effect of the punishment system which favors the retribution theory. I believe that the retribution theory should be de-prioritized for the rehabilitative and incapacitating theories of punishment. This stance betters the chances for reintegration into society. What retribution achieves is legal satisfaction on the part of the victim; however, what would be even more beneficial to society at large is a reformed individual instead of a hardened criminal knowledgeable only in the art of destruction. Surveys conducted between 1972-1991 on the public opinion concerning crime and punishment reveal that “people believe other measures such as job training and drug rehabilitation programs, are more effective than capital punishment in reducing crime” (Bedau 96). In lieu of wasting a life, languishing in penal drudgery, it is best to save and even improve it. In light of the appeal of human rights even among the ranks of prisoners, there has been a change of heart with respect to the criminal’s fate. Instead of exerting cruelty and heading first to capital punishment, one hears the rising voices of some in favor of more humane treatment – balancing the circumstances of criminals which took them to jail and the weight of personal responsibility. Capital punishment, which mirrors retribution, is often deemed as a practice that should be phased out and the re-introduction into the penal system of more clemency. The fundamental problem with criminals is that they lack socialization to grow into productive individuals. Owing to this absence, they are dispossessed of the skills to make an honest income, form healthy relationships and break the cycle of recidivism, remaining out of jail. The soaring of recidivistic tendencies betray the failure of the ample assessment of ethical theories of punishment and their active application to the criminal justice system. The controversies at the fore of ethic theories of punishment are not only the questions of the efficiency of capital punishment, but also the efficiency of rehabilitation and reform in the penal system. Nowadays, the fated trajectory of the felon, steeped in vice, conveys him to criminal hardness and leads him to the chambers of the prisons or from thence to death. The prison system often helps inure lawbreakers to delinquency, ending in a cycle of chronic recidivism. The human being, imprisoned in a vicious cycle, becomes gradually confirmed in vice. Not only the retribution but also the incapacitation aspect of crime and punishment is guilty of wreaking havoc in society, racking up the numbers of prisoners and causing an imbalance in the free civilian population. One critic observes that “the incapacitation effect takes the form of lopsized gender ratios in poor urban communities – populated by ethnic minorities” (Western 139). In one district of Washington, D.C in an urban community, the male-female ratio was 1 to 1.6. Families are jeopardized since the father figures and the husbands of the homes are incapacitated to do their duties as male heads of the homes. Sadly, the women have to pick up on the slack, donning the pants and becoming the head of the household. The accumulation of these effects end in compounded poverty and weakened family units. In sum, rehabilitative justice is much preferred among the ethical theories of punishment. This method fosters better faith and hope among society members of all classes, but especially the lower classes that are likely to suffer injustice and even wrongful punishment. Retribution and incapacitation, although they have their roles to play in the scheme of justice, work against the principles of humanity. Works Cited: Bedau, H. A. The Death Penalty in America: Current Controversies. Oxford University Press, New York, 1998. Garland, D. Punishment and Modern Society: A Study in Social Theory, University of Chicago Press, Chicago, 1993. Littleton, C.S. Gods, Goddesses, and Mythology, Volume 11, Marshall Cavendish Corporation, New York, 2005. Natarajan, M. International Crime and Justice, “Punishment Philosophies and Practices around the World,” by G. Newman, Cambridge University Press, New York, 2010. Newman, G. The Punishment Response. Transaction Publishers, New Jersey, 2008. Rusche, G. Kirchheimer, O. Punishment and Social Structure. Transaction Publishers, New Jersey, 2003 Simons, M. Sense and Sentencing: Our Imprisonment Epidemic. Journal of Civil Rights and Economic Development, 25(1), 161-175. Uduigwomen, A. The Christian Perspective on Capital Punishment: An Evaluation of Rehabilitation, Quodlibet Journal, 6(3), July-September 2004. Vidmar, N. DT. Miller. “Social Psychological Processes Underlying Attitudes Toward Legal Punishment,” Law & Society Review Journal, 14(3), Contemporary Issues in Law and Social Science, 1980, 565-602. Western, B. Punishment and Inequality in America, Russell Sage Foundation, New York, 2007. Williams, R. Hegel’s Ethics of Recognition, University of California Press, California, 2000. Wood, L. Responsibility and Punishment. Journal of Criminal Law and Criminology (1931- 1951), 28(5), 630-640, . Accessed 08 December, 2011. Read More