Strengths and Weaknesses of Retributivism - Coursework Example

Strengths and weaknesses of retributivism By Introduction Retributivism is a criminal justice theory which demands that a criminal in retribution is punished due to the harm inflicted. The theory is used to offer justice basing on principles such as; the victims who commit offenses that are morally unacceptable deserve to be punished. Secondly, it is recognized as a good decision for a punisher to administer the punishment required without being concerned about the long term benefits (Alexander, 2010). The third principle illustrates that, punishing an innocent person is never allowed. According to the theory, people are punished only when they deserve it. A person deserves punishment only when they have done something wrong. The retributivist believes that the result of a punishment is to ensure the victim or criminal suffers for the offense they have committed. Rehabilitative and utilitarian theories are the two contrasting theory targeting punishment. Rehabilitationists are utilitarian with a gentler and kinder programs aimed at preventing crimes, education and reforms (Gerber& McAnany, 2008). They often consider crime as a disease and not a fault of the victim. Punishment is therefore a cure to those who suffer from the disease. Utilitarian believes that retribution is an evil, yet they justify its major achievement of preventing a crime. The three theories support the presence of the various institutions meant for punishment. Strengths Retributivism focuses on the end result provided by a punishment institution. It justifies the presence of criminal law. It answers questions such as the degree of punishment for a certain offense committed by a criminal. It has implications on what is considered illegal by the law. It gives rise to another theory known as legal moralist theory. According to Legal moralist theory, the law has to forbid those behaviors that are morally unacceptable. The criminal may not be punished if the offense committed is considered moral. Retributivism is therefore used by institution to justify punishment because it is able to give answers to degree of punishment the offender is entitled to (Alexander, 2010). The existence of a positive result justifies the punishment accorded. It affects the understanding based on the fact of whether the victims’ dignity was a concern when the punishment was being administered. People are made to understand that they have to receive punishment in an event of committing an offense. The issues affect the justification of the punishment to the people. It is a different question on whether the positive results are a concern in establishing the reason for punishing an offender. There are two ways that proves retributive reasoning can be important in the society, the theory influences how an individual is to be punished even if result achieved are not instrumentally correct. The theory, moreover, affects the establishment of the institutions concerned with punishing wrong doers. The institutions are developed without a concern on instrumental good that will be associated with them (Corlett, 2009). It may look easier to allow punishment to a victim while appealing to positive desert, without being concerned about the benefits achieved. The institutions where punishment takes place do not run on only positive desert. Saying such does not justify that institutions of punishment are meant to be consequentialist. A retributivist observes desert as a justification of coming up with such an institution with a mandate of punishing the people who commit offenses. Weaknesses Attempts have been made to limit the questions answered by retributive theory. The theory answers judge’s questions on the reason for punishing the offender, but fails to indicate what offenses are to be criminalized. Utilitarianism theory gave reasons for punishing the offender. However the theory too had some shortcomings (Tonry, 2011). It failed to give a concrete reason on distribution of punishment in other offenses. Retributive theory is less understood compared to the other theories. Its simplicity is among the causes of misunderstanding. The theory asserts that victims should be punished because they deserve it. The theory has prevented vengeful people from taking advantage now that the law permits the state to give punishment to the offenders . If the victims are punished by the law, the peoples’ need will be satisfied. The punishment therefore ensures the importance of justifying continuous preference where the offender is punished and such raises satisfaction. The theory is however, inconsistent when it is compared to others .Important to the theory, is a belief that giving punishment to the offenders is justified. The theory is not based on the benefits that emerge after the punishment is administered. The theories are considered better because of the result that comes out of their practice (Corlett, 2009). Some of the benefits include decreasing violence especially by the vigilante group, many citizens have continued to prefer punishments and social cohesion has been maintained. However, a retributivist does not believe that a victim should be punished because of the goods that are experienced at the end. The theory remains simple by the fact that the offender deserves punishment for the wrong they have done. The theory should not be confused with other theories which justify punishment of the offender because moral outrage of the society is expressed. Such theories depend on the society’s approval. Other theories lower the quilt’s punishment to an instrumental good as per the society’s decision. A retributivist understands that the guilty has to be punished in order for the justice to be served. Weaknesses The establishment of correctional institutions may sometimes have shortcomings. A lot of money is spend in construction of such institutions; these money can be diverted in infrastructure development, building schools and medical research centers (Cragg, 2011). Innocent victims are convicted in such centers, some victims are punished disproportionately and sometimes victims who are not entitled to punishment suffer in such institutions. The institutions have indirectly harmed the convicts’ family members, due to lose of support. It is unbelievable that costs incurred are justified by the essence of giving punishment to the victims. Justifying this cost should only be based on the result of punishment. For example if the punishment will result to a decline in the rate of crime. More questions have emerged on the benefits of having such institutions in place, there exist a number of cases that shows fewer benefits are achieved after spending a lot in bringing up such institutions (Corlett, 2009). Punishment institutions will continue to punish individuals who commit offenses even if the benefits are outweighed by the cost incurred. Retributivism contain both consequentialist elements and deontological. Its unenthusiastic desert is considered deontological (Dolinko, 2009). A conceptual point is when an innocent person is not punished. However, deontological point happens when one is found guilty and is denied his rights of getting punished. A conflict then emerges between a retributivist and a negative retributivist. A retributivist adds positive desert element to the reasons cited by the latter. The negative retributivist will justify punishment to a wrong doer by citing certain consequentialist goals. A consequentialist end up rejecting all the restrictions citing use of people as a way of deterring others and the presence of a right which is not capacitated even if it is considered dangerous, and thereby no need of citing forfeiture of rights in justification of harsh treatment. Retributivism believes that, it is good if a victim is punished by an institution that is legitimate. The reason has an element of consequentialism. The good is to be compared in order to decide the best thing to do. Therefore, most retributivists will punish one individual if by practicing that it will impact on more than one person who deserved the punishment equally. Retributivism can be understood appropriately as not just having an element of consequentialist, but as being in possession of an element of instrumentalist, that punishment is considered a valuable element to a wrongdoer as they achieve the suffering that they so deserve. It can also be considered non- instrumental if punishment is the desert object. In such a case punishment will not be linked to the good of suffering. Therefore, punishment is meant to be a proper desert object. Justifying the desert object is the core focus in punishment justification. If harsh treatment and censure are deserved, then avoiding the right of not being punished is considered unproblematic. Censure respects the victim’s rights. Therefore a challenge directed to the theory, is to justify whether the victim deserves harsh treatment. There exist two strategies that a retributivist can use to justify harsh treatment, linking the treatment to other form of justice and associating it with a punishment theory. Conclusion Retributivist theory has been applied in various punishment institutions all over the world. However, much criticism has been directed toward it. Arguably one of the reasons for criticizing the theory is based on the fact that it does not give enough reasons on why offenders deserve punishment that are usually harsh (Dolinko,2009). The type of punishment provided is therefore incomplete. In addition the theory is not concerned with the other goods that are connected to the punishment. In other words, people should be accorded a fair charge in avoiding punishments especially if they chose not to do wrong. A utility ought to exist in cases where people decide to commit an offense. References Alexander, L. 2010. Retributivism and the inadvertent punishment of the innocent. Law and Philosophy, 6(30), 233-246. Corlett, J. 2009. Making Sense of Retributivism. Philosophy, oxford university press , 122-234. Cragg, W. 2011. Retributivism and its critics: Papers of the special Nordic conference held at the University of Toronto, 25-27 June 1990. Stuttgart: F. Steiner Verlag. Dolinko, D. 2009. Some Thoughts About Retributivism. Ethics,Toronto justice press 537-537. Gerber, R., & McAnany, P. 2008. Contemporary punishment: Views, explanations, and justifications. Notre Dame [Ind.: University of Notre Dame Press. Tonry, M. 2011. Retributivism has a past: Has it a future? Oxford: Oxford University Press Read More