Theories of Punishment and Abolishing Punishment - Research Paper Example

THEORIES OF PUNISHMENT- 'ABOLISHING PUNISHMENT' Introduction Conventional wisdom dictates that punishment is an important instrument for social control. It functions to provide individual freedom within a coercive legal framework in a variety of ways. (Hart, 1968, 23) Punishment sets standards for conduct and attaches consequences for deviating outside of those behavioural standards, leaving the individual with a choice. (Hart, 1968, 23) Popular belief supports the view that institutional punishment is justified and necessary in a civilized society. (Hampton 1984, 203) For this reason theories of abolitionism are typically rejected as absurd and entirely unjustified. (De Folter, 2004, 40) However, when one examines the nature and theories of punishment, abolitionism has its merits and can provide alternatives to punishment that are conducive to theories of punishment. This paper explores the nature of punishment and demonstrates that abolitionism is not inconsistent with theories of punishment. The Objectives of Institutional Punishment: Abolitionist Arguments Institutional punishment evolved as a means of social revenge, primarily because criminal conduct was taken to be a deliberate act for which an outraged society was entitled to respond.(Taft, 1964, 21) Punishment therefore emerged as a balancing mechanism between the evildoers and the outraged society. (Taft, 1964, 21) Cumulatively, criminologists typically agree that punishment has three primary purposes, the prevention of crime, maintaining the “morale of conformists” and for rehabilitating the offender. (Toby, 1964, 533) Ultimately, the three underlying purposes of punishment have developed into four widely used and accepted theories of punishment. They are the retributive theory, the deterrent theory, the preventative theory and the reformative theory. (Cragg, 1992, 1-7) In short, each of these theories have as the purpose the containment of crime by one theoretical framework or another. Ultimately each theory has its advantages and disadvantages. (Cragg, 1992, 1-7) Retributionists are more concerned with a measure of social revenge. This theory is predicated on the concept that society, outraged by a deliberate and entirely voluntary evil act, is entitled to retaliate. To this end, retributionists take the position that an offender deserves his/her punishment because he/she has committed a wrong. To this end, punishment can only be administered if a wrong has been committed. The theory of retribution is characterized by the following: The offender’s conduct is of a specific culpability. The penalty will offer some measure of satisfaction with respect to the harm caused. Like punishment is meted out for similar offences. The offender is responsible for his conduct and knew in advance the consequences of his conduct. The offender has gained some satisfaction from his conduct. (Rawls, 1955, 3-21) Retribution hones in on the idea of “just desserts” rather than exacting revenge.(Cottingham, 1979, 116) Obviously, it is entirely undesirable and impractical to respond to a rapist by punishing him with rape, or by robbing a robbing. With the exception of murder, in many jurisdictions, retribution seeks to enforce a punishment regiment which reflects the nature of the crime committed. Only in jurisdictions where murder is punishable by death are crimes punished by meting out the result caused by the wrongful act. Ultimately the punishment should generally be such that society is not tempted to take matters into their own hands.(Gibbs, 1978, 298) The difficulty with retribution is that it only explains why punishment is meted out rather than justify it. For instance, it only relates to offering some form of justice for society who identifies with the victim. Retribution does not in and of itself provide a solution for the problems that plague the criminal justice system, such as recidivism. Punishment for the sake of social revenge does not by itself invoke the kind of response from the criminal that the criminal justice system should endeavour to achieve. (Judah, 2004, 1-6) The practice of imposing mandatory minimum sentences for specific offences has only resulted in prison overcrowding to such an extent that imprisonment becomes purely punitive, with little chance of rehabilitation. Moreover, there is evidence that extended and/or repetitious imprisonment breeds apathy. (Judah, 2004, 1-6) As a result, the risk of recidivism increases and society for whom retribution is warranted does not benefit. (Judah, 2004, 1-6) Aside from the social costs of repeat offending and the failures attributed to pure retributive justice, society suffers a financial costs as ultimately the tax payers fund the prison facilities. (Judah, 2004, 1-6) Any successful criminal justice system should seek to illicit atonement from the criminal. Atonement and reconciliation are the cornerstones of restorative justice. (Barton, 1999, 111) Unlike retributive justice, restorative justice has the capacity to engage morals. As Braithwaite explains: “Restorative Justice is an approach to justice that has both a process element and a values conception. Restorative Justice is a process where all stakeholders involved in an injustice have an opportunity to discuss its effects on people and to decide what is to be done to attempt to heal those hurts.” (Braithwaite, 2002, 111) Restorative justice functions to support abolitionism in that it achieves primarily the same functions that the four theories of punishment attempt to achieve. What distinguishes restorative justice from theories of punishment is that it does not seek to merely punish the offender. It seeks to rectify the wrong rather than to avenge the wrong. Criminologists generally agree that restorative justice is an effective means of reducing and perhaps preventing recidivism and has the capacity to rehabilitate offenders. This is because, in theory at least, restorative justice can not only engage morals, it can develop social relations and morality, provide both moral and psychological healing and give rise to some measure of “reintegrative shaming.” (Barton, 1999, 111) So in many ways, restorative justice can achieve retribution, rehabilitation, deterrence and prevention without punishment. In general crimes are committed because the offender suffers from a degree of disconnect from morality. Bandura argues that whenever any person, irrespective of age or status commits a criminal offence he or she typically becomes morally disengaged. (Bandura, 1990, 161) Criminologists for the most part, take the position that restorative justice brings the offender and the victim in contact and by negotiating restitution and eliciting an apology, it is likely that the offender will become morally engaged. Retribution alone cannot achieve this end, neither can rehabilitation, deterrence and preventative theories. Neither of these theories specifically focus on the relationship between the victim and the offender. When the victim and the offender are denied contact, the offender is likely to alienate himself from the offence or may understate it. (Bandura, 1990, 162) The deterrence theory, like the retributive justice theory focuses entirely on the offender and would-be offenders. Deterrence principles function on the premise that should an offender suffer punishment, others would be so negatively impacted by it they will refrain from committing similar or identical crimes. (Sutherland, Cressey, and Luckenbill, 1992, 310) The underlying belief is that the more severe the punishment the more likely deterrence will be effected. (Horton and Leslie, 1978, 167) However, this approach has the capacity to backfire in that too severe and brutal a punishment can garner public sympathies in favour of the offender rather than the victim. In other words, when society is not outraged by an offence and holds the belief that the punishment is too severe, they may not cooperate with the criminal justice system. Witnesses may refuse to testify and juries may refuse to convict. (Horton and Leslie, 1978, 276) Deterrence theorists also advocate that the more severe the punishment, the more likely it is that the criminal will be rehabilitated. The idea is that once the offender is punished, he will seek to avoid punishment in the future. In other words, he will not re-offend. However, the impact of punishment on human beings is not an exact science and to claim that punishment acts as a deterrence is scientifically unproven.(McManus, 1985, 417) The deterrent effect of punishment depends upon a number of unpredictable factors. For example, the psychological characteristics of the offender will determine whether or not he or she is deterred by the threat of penal sanctions, as will antecedents. Likewise, the attitudes of the officials that mete out punishment will determine the deterrent impact. The severity and predictability of the punishment as well as the community’s concerns are all factors that contribute to the deterrent effect of punishment.(Brooker, 2006, 469) In fact studies conducted by the United Nations’ Committee for the Prevention of Crime, the European Parliament and the European Council conclude with respect to capital punishment and crime in general that: “...violent crime follows a curve that is a function of social and economic conditions and the evolution of the moral values of society at a given moment. It is unaffected by existence or absence of capital punishment. In other words the death penalty does not reduce nor does its abolition increases it.”(Qaz, 1989, 16-17) The preventative theory functions on the belief that by incapacitating the offender via punishment, for example, incarceration he cannot re-offend.(Mahajan, 2006,138) Punishment by incarceration has a two-tiered goal. First it alienates the offender from society and at the same time prevents his access to the means by which to commit an identical or similar crime. (Mahajan, 2006,138) These goals are buttressed by the belief that alienation and rigorous labour will cultivate degradation and remorse and may ultimately eliminate any motives for future criminal conduct. (Mahajan, 2006,138) The preventative theory fails to take into account the fact that imprisonment can induce apathy just as easily as it can induce remorse. (Robbins, 2001, 1115) Moreover, repeat offenders are an indication that the punishment goals of the preventative theory are not capable of justification. Like the deterrence and retribution goals, the goals of the preventative theory can be achieved without punishment. The reformative theory takes a more positive approach to punishment, taking the view that punishment should be purely for rehabilitative purposes. (Raphael, 2003, 7) This theory was born out of the concept that should the offender be subjected to sufficient punishment, reformation would automatically follow. Developments over the years have tempered this approach so that the focus shifts from the crime and to the criminal. The new approach advocates less emphasis on punishment and more attention to improving the offender. However, the rate of imprisonment and the resulting problems of prison overcrowding makes it entirely impractical for any realistic attempt at rehabilitation. (Raphael, 2003, 7) Prisons barely have the resources to pay attention to individual offenders and quite often the mere fact of overcrowding itself renders incarceration a severe punishment by itself. (Raphael, 2003, 7) The inherent flaws in the various punishment theories indicate that punishment is not entirely justifiable. Restorative justice provides a more practical approach to prevention, reformation, retribution and deterrence than punishment does. The logical conclusion is that restorative justice alone justifies the abolitionist theory. Restorative justice opens up an opportunity for the victim to let the offender know how and to what extent the offender’s conduct disrupted their lives and brought about injury. When these kinds of confrontations take place, it becomes increasingly difficult for the offender to downplay the seriousness of the crime. Moreover, it becomes more difficult to remain morally disengaged when the offender is in direct confrontation with his or her victim. Restorative justice, by placing the offender in a position where he is forced to face society’s disapproval of his or her conduct in a very personal way, can build and cultivate social relations . Offender/victim confrontations draws this out by placing the offender in direct or indirect confrontation with his or her victim. By virtue of the confrontation the victim has an opportunity to and will likely explain why the conduct is unacceptable, impermissible and intolerable. Von Willigenburg explains how restorative justice functions to develop social relations and morals in the following way: “Bringing criminals face to face with the consequences of their acts (for instance, by exposing them to their victims so that [they] may be in touch with the havoc caused in the lives of others) may induce a finetuning of moral perception. It may shape their imagination which is necessary for them to grasp what is real and to break through their self-preoccupied veil which partially seems to conceal from them what is going on when people are the victims of seriously criminal acts.” (Von Wiligenburg, 1996, 137) When confrontation under the auspices of restorative justice is combined with restitution or even an apology, the offender benefits from the knowledge that he or she can re-enter society with the public’s perception something of value was learned as a result of the victim/offender encounter. In other words, victim/offender confrontations can build a foundation for a full moral and fact-based discussion of the offending conduct and its consequences. Criminologist Von Willigenburg (1996) explains, that many criminals go on to become repeat offenders because they are morally bankrupt.(130) Morals are already frayed the moment the first crime is committed. As a result there is a danger that unless the offender is rehabilitated he or she may remain morally bankrupt, and this is so whether the offender it punished or not. Crimes are not consistently punished by the criminal justice system with the result that many offenders never account for their conduct. Restorative justice provides a means by which criminals are at least accountable to their victims. The UK’s Criminal Justice System describes the merits of restorative justice as follows: “Where the restorative justice process involves those close to the offender, it can help mobilise the networks of support and control that can prevent further offending. And by directly involving participants in a fair and respectful way, it is argued that restorative justice can help promote greater compliance not just with the outcome of the restorative process, but with the law itself.”(Criminal Justice System, 2003) According to criminologist Braithwaite, reintegrative shaming is one of the most important features of restorative justice. Braithwaite explains: “Crime is best controlled when members of the community are the primary controllers through active participation in shaming offenders, and, having shamed them, through concerted participation in ways of integrating the offender back into the community of law abiding citizens. Low crime societies are societies where...communities prefer to handle their own crime problems rather than hand them over to professionals.”(Braithwaite, 1989, 8) Restorative justice seeks to force the offender to the realization that his conduct is not approved of and even so, he is still a human being capable of rehabilitation and can regaining or earn a measure of self-respect as well as the respect of others. Only after an offender is aware of why his conduct is reprehensible and that there is a measure of hope vested in his rehabilitation, restoration and healing will automatically follow. Reintegrative shaming works by condemning the conduct and instilling confidence in the offender by fostering mercy and re-acceptance. Conclusion It is generally agreed that moral disengagement provides the primary disposition toward criminal conduct. Punishment alone cannot engage morals and neither can it benefit society if a morally disengaged criminal is released from the penal system, morally disengaged. The abolitionists theorize that there are other means by which retribution, reformation, prevention and deterrence can be achieved and that punishment alone does not satisfactorily achieve these goals. Restorative justice, not only provides a more effective approach to reformation, prevention, deterrence and retribution, but it also overcomes the problems associated with prison overcrowding. It focuses more narrowly on the individual who committed the crime and the individual who was harmed by the crime. Bibliography Bandura, A. (1990) “Mechanisms of Moral Disengagement.” Cited in Reich, W. (ed). Origins of Terrorism. Cambridge: Cambridge University Press, 161-191. Barton, C. (1999) “Empowerment and Retribution in Criminal Justice.” Journal of Professional Ethics, 7(3&4) 111-135. Braithwaite, John. 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