The Retributivist and Utilitarian Theories for Justification of Criminal Punishment - Essay Example

?The Retributivist and Utilitarian Theories for Justification of Criminal Punishment. Introduction Since the dawn of civilization, societies have felt the need to impose order by regulating human relations and interactions according to a set of laws or code of conduct. In order to compel obedience violation of the code entailed consequences adverse to the offender. To punish the errant individual for punishment’s sake is not the purpose of the penal sanction; rather, what the law desires is for all to abide by the law and therefore maintain social order. The matter of penal sanctions, therefore, became an issue among legal theorists; apparently, there comes a point when the penalty is too harsh as to itself be disruptive of the social peace, or that the penalty is too inconsequential that offenders do not think twice about transgressing the law. In order to create effective penal laws, the philosophy and purpose behind the punishment should be examined and their merits and shortcomings understood. Of all frameworks that have been proposed, two stand out in particular in penal theory, namely the retributivist and the utilitarian theories. Retributivism and Utilitarianism There are four fundamental justifications behind criminal punishment: retribution, deterrence (including incapacitation), rehabilitation, and protection of society (Hagan, 2010:103). Deterrence means that punishment serves to warn possible future offenders and inhibit them from committing crimes. Rehabilitation aims to reform or resocialize the criminal into law-abiding and compliant members of society. Protection and upholding of social solidarity is simply what it expresses – the protection of society and reaffirmation of social solidarity and values. These three justifications fall under utilitarian theory, because they deal with the effect of the criminal deed on society and to maximize the good such punishment can provide for the greater number, the community (Yacoubian, 1998). Retribution, on the other hand,“is a moral motive for punishment, not simply a utilitarian one” (Hagan, 2010:103). In this purpose of punishment, the fundamental aim is to restore justice to those who had suffered as well as to society as a whole. In retributivism, neither the future conduct of the offender nor the future impact on society are significant in determining punishment (Yacoubian, 1998) Hagan describes it quite appropriately as society’s equivalent for the individual’s revenge. In the pre-modern age, a person wronged by a crime is entitled to seek vengeance to right the wrong done to him. Modern legal theory assumes this role for the individual, and takes the crime to be an offense not only against the individual but against society itself. Victims of the crime may not pursue their own revenge, but allow the state to pursue, on its behalf and theirs, the penal act that restores the balance of justice. An example of retributive justice is the hunt for and punishment of Nazi war criminals. Such punishment may not significantly serve such purposes as deterrence, protection of society, least of all rehabilitation. However, there remains the public outrage throughout the years that such criminals had gotten away with their war crimes (Hagan, 2010). There is a need to inflict some suffering on the criminal commensurate to the crime done, for the simple reason that justice must be restored. This is the crux behind retributive justice (Haist, 2009). Virtually ignored during the first three quarters of the twentieth century, retributivism again assumed dominance as the underlying theory of the criminal justice system (Ackerman, 2011:220). What had prevailed for the greater part of the 20th century was Utilitarianism as the overriding theory in criminal punishment. According to Mills (1938), “Utilitarianism is the ethical doctrine that the moral worth of an action is solely determined by its contribution to overall utility.” Utility here is understood to mean the good (also called “happiness” or “pleasure”) that something does to those involved, which is to be maximized in the utilitarian theory. It is a consequential theory, i.e., the consequences or ends justify the means. An act utilitarian theory considers as moral is an act that creates “the greatest good for the greatest number of people (Mills, 1938). The case for psychopathic criminals If the offender has a mental disorder, he is usually considered to be less culpable for being less in control of his actions or less capable of fully rational thought. Psychopathy therefore becomes a mitigating factor from the point of view of retribution, as the offender is seen as less culpable for being less responsible for his actions, and is usually treated with greater mercy and empathy (Lee, 2007). On the other hand, under utilitarianism, psychopathy becomes an aggravating factor in the assessment of the gravity of the crime for the imposition of commensurate punishment. The effect is to prescribe longer sentences or a higher level of security, in order to ensure that the community is protected and citizen safety is assured. The offender may not be aware and therefore not entirely responsible for the gravity or malice of the crime, but the fact that he suffers from a psychiatric condition that has caused harm to others renders him dangerous to quite easily release into the community. The purpose, therefore, is to avoid a recurrence of the crime – to deter another infliction of harm (Lee, 2007:135). Another circumstance that may be treated differently by each framework is that of age. Generally, young offenders are spared grave punishment in favor of rehabilitation (i.e., utilitarian theory). On the other hand, there have been crimes so heinous that the youthful offender is denied the benefit of his age, and is tried and sentenced as an adult. This is retributivist justice. The youthfulness of the offender, therefore, may or may not be benefited by his age, depending on what the sensibilities of the court would deem “just deserts.” The overlap between retributive and utilitarian theories There is general agreement that criminal punishment should be meted according to the retributivist theory, or stated otherwise, criminals should be given their “just deserts” (Haist, 2009:789). There is also general acceptance that the practical repercussions of punishment may not be ignored since there is usefulness in deterring crime, incapacitating the criminal or rehabilitating him. The consensus of most academics is that the criminal must be meted a punishment pursuant to what the criminal deserves. In order to arrive at an optimal employment of both theories, theorists proposed that retributivist measures may be tempered by utilitarian concepts – i.e., retributivism specifies the range of the penal measures, and utilitarian considerations adjusts the punishment within the specified range (Haist, 2009). This in essence is the theory of “limiting retributivism”. First the appropriate range of punishments is determined consistent with retributivist factors (e.g. blameworthiness and culpability of the criminal). Then, the specific punishment may be adjusted within the specified range, depending upon utilitarian considerations such as deterrence or incapacitation. Thus, where the judge believes that the perpetrator’s act was uniquely motivated by the circumstances and which he may not likely repeat, the sentence may be the shorter end of a range of prison terms; but if the offender is a rescidivist or a repeat offender, then the chances of recurrence is high and for the purpose of deterrence and incapacitation, the sentence would comprise the longer end of the range of prison terms specified for the crime (Haist, 2009:806). Other arrangements that harmonize and combine retributivist and utilitarian approaches are being developed by legal theorists, such as sequencing of sanctions from reparation, to crime prevention, to retribution (Yacoubian, 1998). Summation In sum, five points on either retributivism, utilitarianism, or both, are presented below Point 1: Utilitarianism is progressive in that it encompasses deterrence, rehabilitation, and protection of society. Utilitarianism therefore is of great use to society because it provides criminal punishment a practical, preventive role that conveys tangible social benefits. Point 2: Retributivism restores justice and addresses the gravamen of the crime. Retribution is a crucial concept in civilization, and provides some measure of closure where no restoration is possible. An example of retributivist punishment is those pertaining to Nazi war crime offenders Point 3: Certain circumstances are appreciated differently under each framework. Certain circumstances, such as mental disorders or psychopathic conditions, are treated divergently by each framework. Mental disorders tend to mitigate the sentence under retributivism, but would likely aggravate the sentence under utilitarianism. Point 4: Both frameworks are viewed as important in contemporary penal theory. Point 5: Both frameworks may be harmonized to create a system of penal determination. The studies by Yacoubian (1998) and Haist (2009) point to the possibility and the actuality that the rationale behind retributivism and that behind utilitarianism do not exclude each other, and may be combined to fine tune the penal system. Read More