Sentencing on Retributive Principles Is the Most Effective Means of Producing Less Punitive Outcomes - Essay Example

Basing sentencing on retributive principles is the most effective means of producing a less punitive range of outcomes. Retributive Justice has gained a lot attention in the last few decades of the twentieth century. Even though it has been practiced, discussed and critiqued for centuries it did not have many takers in the early and mid twentieth century. But in the last three decades of the twentieth century, it has gained a lot of popularity among law makers, political philosophers and criminal law theorists1. The retributivist theory which was thought to be dead has now come back alive and so has the arguments around the theory. Retributive principle has had both supporters and critics. Many believe that retributive justice is the way to go as it brings justice to the victim and punishes the offender. But its critics argue that it is based on negative emotions such as revenge and does not contribute positively. It is backward looking and not forward looking. This debate has been on for a long time and many scholars and researchers have tried to address this issue. One of the main arguments supporting retributive justice is that it helps in reducing similar offences and injustices in the future. This essay revolves around this idea. The author of this essay believes that basing sentencing on retributive principles is the most effective means of producing a less punitive range of outcomes. This essay is aimed at justifying this ideology. In order to effectively justify the above, it is first necessary to understand retributive justice. And then the author argues why it is an effective means of producing less punitive range of outcomes. Retributive Justice Retributive Justice is based on a simple concept that the wrongdoers or criminals must be punished and the punishment should be proportional to the damage caused. In simple words, people must get what they deserve. This means that a labour who works hard deserves to be rewarded while those who break the rules deserve punishment. Also everybody has a choice in the way they treat others. Hence, people only deserve to be treated the way they choose to treat others. It is on these simple ideas that the retributive principles are based2. The simplicity of the idea behind retributive principles is what has lead to the confusion over retributive justice and has attracted criticism. The basic requirement of retributive justice is that punishment is proportional to the crime and cases that are similar must be treated in the same way. Wrongdoers inflict harm and cause damage and hence the punishment and blame that they deserve must be in direct proportion to the damage and harm caused3. Criticism of Retributive Justice Retributive principles have been criticised by many. One of the main criticisms of retributive justice is that it is backward looking. The retributivist theory does not look into the future but is only concerned about the crime committed in the past. Punishment is only looked from the perspective of a victim or the aggrieved party. Punishment according to retributive principles is a response to the crime and not a way to bring about social good (to the offender or the society). Critics of retributive principles take utilitarian views to support their argument. Utilitarian justice is forward looking and punishment is looked at as a tool to bring in social benefits. The severity of the punishment is not proportional to the crime but is with a purpose to reduce such crimes or offences4. Failure to take various factors such as social, economical, etc into account during imposing a penalty is another argument that critics use against retributive principles. That is if an offender is awarded with a penalty only based on the factor that it is proportional to the crime committed, then it might not be an effective one. For example, if a millionaire and an unemployed offender are both awarded the same penalty or fine based on the crime committed, then it might create an unjust situation. For the unemployed offender the penalty can be too punitive while for the millionaire it can be very less. Hence, critics argue that punishment must not be based on the severity of the crime committed but must be awarded based on the various social and economical factors of the offenders in order for it to be true justice5. The most commonly used and popular criticism of retributive principles is that the judgements based on retributive principles are contaminated by negative emotions. Nietzche lists the various emotions that influences retributive justice and terms them as reactive affects. The emotions are envy, revenge, cowardice, resentment, sadism, guilt, fear, hostility, cruelty, etc6. Critics argue that retributive justice is motivated by irrational and emotional impulsions. It is not just the criminals who act on these negative emotions but also the victims. Victims are also affected by these negative emotions and hence the so called justice to the victim might not be an effective one. That is, there is a tendency to slip from retributive principles to an emphasis on negative emotions such as vengeance7. In such situations when the punishment is influences by such negative influences, it fails to satisfy the principles of proportionality. The reason for this is that negative emotions lead to punishments that are dependent on the anger or reaction provoked by the crime rather than the actual severity of the crime. Support for Retributive Justice The need for retributive justice is best described by Immanuel Kant. He dismisses the idea of using judiciary as a tool to do good to the society. He believes that the main purpose of judicial punishment is to punish the offenders and in no way must try to do good for the criminal or the society. He says that, “Judicial punishment can never be used merely as a means to promote some other good for the criminal himself or for civil society, but instead it must in all cases be imposed on him only on the ground that he has committed a crime.”8 So in no case should an offender or a criminal be let away with punishment. No matter what the reasoning, if an offender is not punished, then justice is not done. Punishment must be regarded as justice and must not be viewed in any other form of negative emotion such as revenge or anger. Justice is done only when the guilty is punished9. Hence, only sentencing based on retributive principles leads to justice. It is argued by many that by offending or breaking rules, offenders and criminals gain an unfair advantage and only way to undo this is to punish them according to retributive principles. There punishment according to retributive principles will lead to reinforcement of the laws broken and deny unfair advantage to those who have violated rules. Hence, retributive justice restores offenders and victims of their rightful position. The right way to view justice is as a response to a past event of wrongdoing or injustice and the main purpose of punishment is to balance the scales of justice. Retributive justice is the only way of doing it. Retributive Justice leads to less punitive range of outcomes This is the main idea behind this paper. Basing sentencing on retributivist principles is the most effective means of producing a less punitive range of outcomes. The very first factor that supports the above statement is that if sentencing is not based on retributivist principles then the punishment of the court will encourage and in fact create more crimes. Punishment must be proportional to the crime committed. This is well supported by Beccaria’s argument. Beccaria argues that if an individual is given an .option to choose between two crimes, one less serious than the other, that are entitled to the same punishment then it is more likely that he would choose a more serious crime which would give a greater advantage or benefits. He bases this argument on this understanding of the human nature which according to him is self interested or hedonistic. Hence, he states that a criminal a opt for a crime through which he gains more but the consequences and risk involved are the same as committing a lesser crime with fewer advantages. This can be best understood by the following example: The punishment for robbing $500 and $5000 from a bank were the same, and then the thief would more likely choose to rob $5000. Therefore if the punishment is not proportional to the crime, which is not based on retributive principles, then it is more encouraging for criminals to engage in more serious crimes10. Another reason why sentencing based on retributive principles leads to less punitive range of outcomes is that punishment based on it inculcates the law-abiding ideology11. That is it makes it clear that breaking laws or committing crimes is wicked and deserves punishment. This will imbibe a feeling of fear into the minds of the people. Fear will deter people from committing crimes. This fear is an important factor and plays a crucial role in reducing similar crimes in the future. They will think before they act on negative emotions and breaking laws or committing crimes. In the absence of the punishment people are free to act at will and indulge criminal and anti-social acts. Hence, retributive justice leads to less punitive range of outcomes when compared to other forms of justice. According to many other forms of justice, punishment is forward looking where it is seen as a tool to bring about social good in the future. Punishments based on the other forms of justice such utilitarian and reformative principles try to avoid crimes by trying to reform the criminals. But retributive justice even though is backward looking it helps in preventing crimes in the future as it sends a clear cut message that the guilty will punished and the punishment will be proportional to the severity of the crime or the violation12. Hence, this just does reduce crimes from past criminals but from the overall society. Hence, Basing sentencing on retributivist principles is the most effective means of producing a less punitive range of outcomes. Conclusion The paper has successfully explained how sentencing based on retributivist principles is the most effective means of producing a less punitive range of outcomes. Retributive justice is based on the ideology that punishment must be in proportion to the crime committed and all similar cases must be treated accordingly. Retributive justice has found itself many critics as well as supporters in the society. Even though the approach of retributive justice is criticised by many as according to them no good can come out with an eye-to-eye approach punishment, retributive justice leads to less punitive range of outcomes. The reason for this is that it imbibes fear among the minds of the criminal as they know that the penalty for committing the crime will be as severe as the crime itself. Apart from fear it also ensures that the laws and rules are not broken or violated. Unlike other forms of justice, the punishment will be proportional to the crime and committed and hence it will play on the minds of the criminals. They will not have an option to choose between any lesser of the crime. Also, retributive justice makes an overall impact on the society and not just on the criminals. It is not targeted at reforming the criminals but punishing them and in doing so it makes an overall impact on the society by reducing future crimes. Hence, basing sentencing on retributivist principles is the most effective means of producing a less punitive range of outcomes. Bibliography Beccaria, C. On Crimes and Punishments. [1764]. Translated by Richard Davies and Virginia Cox. In On Crimes and Punishments and Other Writings, edited by Richard Bellamy. Cambridge: Cambridge University Press, 1995. Cavadino, M & Dignan, J. The Penal System: An Introduction (2nd ed.). London: Sage, 1997. Cavadino, M & Dignan, J. The Penal System: An Introduction. (4th ed.). CA: SAGE Publications Ltd. 2007. Cragg, W. The Practice of Punishment: Towards a Theory of Restorative Justice. New York, Routledge, 1992. Galligan, D.J. “The Return to Retribution in Penal Theory, in C.F.H. Tapper”, ed., Crime, Proof and Punishment. Butterworths, London, 1981. Kant, I & Ladd, J. Metaphysical elements of justice: part I of The metaphysics of morals, Indianoplis: Hackett Publishing. 1999. Köneke. V. Retributive Justice: Psychology of Justice. Norderstedt: GRIN Verlag. 2009. Martin, J. The English Legal System (4th ed.), p. 174. London: Hodder Arnold. 2005. Minow, M. Between Vengeance and Forgiveness. Boston, Massachusetts: Beacon Press, 1998. Murphy, J. G. Retribution Reconsidered. Norwell, Massachusetts: Kluwer Academic Publishers, 1992. Ngugi, J. (2010). A proposal to establish Restorative Gacaca Court System in Kenya. [Online]. Available at: http://smu.edu/education/disputeresolution/A%20proposal%20to%20establish%20restorative%20Gacaca%20court%20system%20in%20Kenya%20(Ngugi).pdf. Accessed on 10th August 2011. Law Library - American Law and Legal Information. ‘Retributivism - How Is Retributivism To Be Justified?’. Law Library. < http://law.jrank.org/pages/1955/Retributivism-How-retributivism-be-justified.html>, 1995 (Accessed 29 July 2011) Rachels, J. "Punishment and Desert." In Ethics in Practice, ed. Hugh LaFollette. Malden, Massachusetts: Blackwell Publishers, 1997. Rachels, J. The elements of moral philosophy, New York: McGraw-Hill. 2007. Schoeman. F.D. Responsibility, character, and the emotions: new essays in moral psychology. NY: Cambridge University Press. 1987. Read More