Remedies and Restitution: Justifying Punishment - Essay Example

Remedies and Restitution: Justifying Punishment Most often severe punishments come under criticism because of the tough clause attached to it. This includes severity, life imprisonment, death sentences and long duration of imprisonment for simple offences. But it should be reminded in the minds of people that the severity of punishment determines whether a crime will be repeated by a criminal or if a person with criminal instincts will attempt a crime in the society. For this reason, criminals are sentenced with punishment according to the seriousness of the crime to avoid repetition and to send a message to the society about the amount of punishment a person will face if the person is caught for crime. Therefore punishment must act as a deterrent as well as retribution in order to reduce crime. The amount of punishment for various crimes predicts the future behaviour and choice of people with criminal backgrounds. Politicians campaign about tough punishments to discourage people who have a tendency to commit crime. Tough punishments were imposed on criminal to substantiate the concept of deterrence evolved among the followers of social thinker Jeremy Bentham in England. Bentham’s philosophy of utilitarianism states that a prospective criminal calculates from the point of view of benefits as well as costs of the person’s action. Hence before committing a crime of stealing property or money, the person will consider the amount of punishment received by a criminal for similar crime and thereby there are chances for deterrence. Deterrence may be divided into general and specific deterrence. General deterrence is defined as a condition when the general public presume that the cost of an offence is more than its benefits by considering the intensity of punishment for an offence. The effectiveness of general deterrence increases when the general public is continuously informed about the probability and intensity of punishment for various offences. The information should create a feeling that offenders will be caught, prosecuted and awarded specific punishment for a specific offence. When people are fully aware about the methods of punishment for specific crimes, people will develop an instinct to get rid of criminal activities and when they know that punishment is severe, it will instigate fear about the outcome of committing offence. Public hanging of criminals was believed to be an efficient public deterrent. However, specific deterrence is the contrast of general deterrence. It applies and aims to change the decision and attitude of criminal who have already committed offence. The severity and type of punishment for criminals are awarded according to the type of offence so that it discourages them from committing the crime again. The intensity of punishment should make the criminal repent and say that the crime is bad and that they will not repeat it for the fear of another punishment. The concept of deterrence is a complex one. While advocating punishment to encourage deterrence, legal authorities believe that individuals think before they commit a crime. But this does not hold good for most of the criminals who commit offence under the influence of alcohol or drugs or people who have mental sickness or psychological problems. Deterrence is not applicable for people who perform a spontaneous act of stealing or damaging property. In certain cases criminals feel that the likelihood of getting caught is less and so the concept of general and specific deterrence is defeated. To create more awareness about general deterrence, criminals should be prosecuted quickly, specifically and with severity so that they are awarded punishment at the same speed. But in practice, punishments are not given with these factors as the basic criterion.1 General deterrence is a reformative theory. Hence specific deterrence will become practical only if the criminal undergoes a period of corrective treatment to withhold the person from offensive tendencies and repetition. Retributive theory indicates that it is morally correct for a society is to punish a criminal. General and specific deterrence deals with reformation of the criminal and advocates punishment for correction. Both the deterrence method considers the efficiency of punishment and does not deal with justice. The retributive theory is retrospective in effect wherein it considers the crime of the individual and the state of mind when the crime was committed. Therefore the theory stands for justice and efficiency of prevention and deterrence is considered as a secondary factor. Several arguments state that individual criminals are not deterred by the severity of punishment as stated by theories of specific deterrence. However, a survey by C.L.Ten indicates that general deterrence is effective in a society though the extent of its effectiveness cannot be determined. Hence justice is closely associated to retribution because social efficacy is the objective for the correctness of deterrence measures. Thus, guilt and innocence does not have a place in avoiding crime in the society. The severity of crime and the severity of punishment are not justified by both specific and general deterrence because capital punishment cannot be awarded for traffic violation and a jail term cannot be sentenced to prevent murder. Thus retribution provides justice to find a balance between crime and punishment. 2 The effect of deterrence on the society is limited; however, it has an impact on the offender. The matter of concern is the amount of punishment required to restrict the criminal from repeating the crime. In these circumstances the amount of punishment for the present crime will determine the rate of deterrence for a future criminal instinct in the same person. The generalisation is that post violence experience of criminal influences future pre-violence expectations. This will happen when the criminal has received a good amount of punishment for a previous crime. The deterrence caused by punishment can be used to enforce other laws for crime. However deterrence through punishment is effective only for criminals who have performed a crime one or more times. In these circumstances retribution is taken into consideration so that punishments are justified with reference to the crime that has already been committed. There are two significant differences between retribution and deterrence. Deterrence involves the adoption of various factors while calculating the amount of punishment and these factors should be compared by considering whether the punishment acts as a deterrent or retribution. A change in well being of a person, as in punishment cannot become a deterrent for future crime. Hence the retributive effect of the punishment has to be calculated and this turns out to be a problematic task. The task of passing the right punishment can be calculated using four possibilities evolved from evaluative and relational elements from a criminal point of view so that the punishment has a retributive effect and it acts as a deterrent. However, based on the punitive effect, retribution and deterrence are different and for any punishment to impose a retributive effect, the relational and evaluative factors must stand as justice to the victim and should not stand from the criminal’s point of view. For this reason, it may be understood that while defining retribution, all the factors concerned must satisfy from both the perspective of justice and correction. 3 Retribution does not calculate the future outcomes that are likely to arise from the punishment but it considers only the past deed of a criminal and proposes to impose a particular level of suffering on the criminal. Under retribution, the level of suffering equals to the weight of the criminal act performed by an individual. Retribution comes under debate because of theological ideas of divine or cosmic justice and the idea that society need not put suffering on individual for the crime they commit. When these ideologies are considered retribution becomes a problematic concept. But the ideology of deterrence and retribution continue to be the common justifications for punishment. Hence the amount of repentance a criminal has to exhibit is restricted to these justifications. In the case of specific deterrence, repentance is a significant factor because there is less probability for people who repent to repeat a criminal act than those individuals who do not repent from the punishment. Punishment as a deterrent is clearly a threat on the individual and threat works because of the human character of fear that thinks from the perspective of a person’s self. The objective of punishment as a deterrent is to put control on the society and arrive at moral implications and spiritual revival of individuals. Now the question is about the amount of punishment for criminals who repent and criminals who do not repent. For this reason retribution may be classified into grievance retributivism and character retributivism. Under grievance retributivism punishment is justified for the wrongful action whereby the wrongdoer is indebted to the victim and related individuals. Character retributivism is imposed on a person for a wrong action that comes from the person’s bad character. Exceptions to grievance retributivism occur when the extent of harm done to a victim is lessened due to the repentance of the offender. This is because, in majority of the cases the victim experiences harm as a result of degradation or insult when the offender acts superior to the victim and treats the victim as an object. The insult on the person is lessened when the wrongdoer repents and this gives opportunity for forgiveness. Most often victims do not consider the repentance part but they count on the amount of injury undergone by them. 4 The case of Regina v. Secretary of State for the Home Department, Ex Parte Hindley may be examined to justify that punishment serves as deterrence and retribution for a criminal action. Myra Hindley was undergoing a mandatory life imprisonment for murder. In February 1997, the Secretary of State for the Home Department headed by Mr.Michael Howard judged that Myra Hindley should undergo a whole life imprisonment based on the case so that the requirement of retribution and deterrence will be satisfied. The case was re-examined by the Home Secretary on 19th November 1997 and affirmed that even after considering Hindley’s progress in jail the Home Secretary found no reason to reduce Hindley’s tariff and this re-examination found no reason to evade from the previous sentence that required whole life tariff due to the circumstances of the case. Further appeal by Hindley on 5th November 1998 was dismissed by the Court of Appeal. The legislation of the Parliament has varying rules for reducing the term of mandatory life sentence prisoners and discretionary life sentence prisoners. But there are certain arguments that oppose mandatory life sentence which says that this type of tariff is basically unlawful. The punishment is considered to be unlawful because the prisoner does not have the right to go on parole and it is against the tariff systems that considered revival of tariff after completing a specific period of time in prison. According to section 1 of the Act of 1965 read with section 27 of the Act of 1952, life imprisonment means a sentence which lasts over a definite period and may comprise a period that lasts during the natural life of the prisoner. There have been several provisions subsequent to the enforcement of this act and the judge has the discretion to conclude whether a fixed term is sufficient to substantiate the aspects of deterrence and retribution according to the severity of the crime. Lord Bingham of Cornhill C.J. had stated that, pure punishment is substantiated for a heinous crime when the criminal is forced to undergo a sentence which is not less than lifelong imprisonment. From a broader perspective it may be conceived that there is no reason to decrease the decree of punishment by reducing life term imprisonment and should be understood according to its contextual meaning. In the case of Hindley, the legislation was interpreted from the principle context and hence her appeal was denied. The denial of appeal was justified because a whole life sentence was an expression of the requirement under deterrence and retribution and that an early release of a prisoner would be inappropriate for the requirement. The Secretary of State however did not deny a chance for early release if the prisoner showed exceptional progress during the jail term. Most of the mandatory life imprisonment sentences do not allow parole and the Parole Board is required to give opinion about possible risk and the Board has no right to challenge the legislation if parole is not allowed for prisoners. In gruesome criminal cases, whole life tariff does not satisfy the expression in terms of the duration due to the severity of crime and even if the prisoner is in jail until the natural end of life the requirements of retribution and deterrence will not be mitigated. The repeated submission of appeal in this case failed because Hindley was involved in three murders and she confessed about her involvement in two other murders only when she was interrogated by the police during the trial. Consequent to her confession, Hindley’s appeal was considered based on her involvement in five murders which happened as a result of intimidation and influence by a person called Brady. When the evidence was examined for five murders, Hindley was not to be convicted with a higher tariff but while considering appropriate retribution and deterrence for murders, the Secretary of State had to consider that she committed the offence by knowing the fate of other victims of Brady. The repeated dismissal of appeal was due to the severity of crime committed by Myra Hindley. Though Hindley committed the crime under the dominance and influence of Brady, the legislation seeks that whole life tariff be bestowed on her because if Hindley had not participated in the murder of five children, all those children would have lived. The crime committed by Ian Brady and Hindley were exclusively evil. The murders were gruesome because the duo abducted children, terrified, tortured and then killed them. The active involvement of Hindley led to the panic of the victim’s families. This was considered as a rare and wicked crime of those times. The arguments from Hindley’s counsel on this case were examined with similar earlier cases of murder and there was a clear differentiation between deterrence and retribution and risk and led to the substantiation of the fact that tariffs can be reviewed. But to gain the confidence of the general public, the judicial system has the obligation to take the appropriate judgment, it was concluded that the mandatory life imprisonment of Hindley cannot be reduced. The revelation of Myra Hindley about her involvement in other murders was not considered because the sum of offence performed by her contributed to a grave crime and the severity of crime increased. Due to the intensity of the crime and to justify the appropriateness required for the expression of deterrence and retribution Myra Hindley’s case failed and the case was dismissed. 5 Many lawyers feel that restitution leaves a lot of blank and undefined spaces and there are no adequate references that justify the idea. Restitution is either unknown, misunderstood or ignored in law. These are some of the reasons why restitution is unappealing and holds the position of a fading discipline though restitution case law is gaining significance in federal courts. Restitution finds application mostly in claims for equitable monetary relief and in intellectual property. Agencies which book case under the restitution policy are not perturbed by the uncertainties of this law but are continuing to win numerous cases which win them good amounts in terms of claim for unjust enrichment. The uncertainty and confusion is common among the courts and lawyers are rather encouraging this type of case that includes repeated claims and strained understanding of the law since there is no enough resistance or counter pressure. The conventional role of courts in equity was to safeguard the victim and ensure that they avail justice for cases which would otherwise erode through the loopholes of the systems of the court, due to the greater discretion available for judges in these courts and the authority that allows them to do justice. But the conventional concept is utilizing the exceptional authority by thinking out of the box and do not provide justice to the victim. Hence justification has to be brought under the jurisdiction of courts and it should be evaluated for the application of restitution availed by various agencies. The case of Great-West Life & Annuity Insurance Co.v. Knudson12 may be evaluated. In this case, the district court of Connecticut judged that a significant conclusion of the Supreme Courts verdict indicates that remedies in restitution and unjust enrichment cannot be accounted at face value. The court summarized that a person cannot escape the charges for damage by requesting for monetary benefit as compensation. The difference between criminal restitution, specific restitution and unjust enrichment leads to a great amount of misunderstanding in this case. The misunderstanding is multiplied by the fact that certain cases stand for implied jurisdiction use, and abuse the word restitution for justifying the correctness of a particular remedy. Under this category, the Federal Trade Commission and the Food and Drug Administration usually book cases for compensation of revenues and justify that restitution is measured on the basis of profits that arise from the cases that justify restitution.6 However the FTC and FDA have not required compensation where the plaintiff should compensate the defendant for the worth of any assets or services received or purchased by the plaintiff. In a case related to FTC as defendant, the uncompensated asset value of the product was allowed to be retained by the customer as per the agency’s remedy for consumer redress where certain courts have chosen an enigmatic response according to the Ninth Circuit’s opinion in Figgie International. This method of restitution is applicable in circumstance where the product purchased by a customer has some value. The verdict in Figgie International, 994 F.2d at 606 stated that the courts have earlier refuted the statement that restitution is applicable only when the products purchased has no value. This statement states that a defendant is not eligible for compensation if the product has some value. The reference to the case of Figgie International thus raises questions because the claim of FTC as per section 19 that stands for remedies states that the requirement for compensation may be included, however it is restricted and may pave way for reformation of an agreement, the refund of cash or the return of the product or the payment of damages. The appropriate remedy clause under section 19 becomes unimportant because claim as per section 19 clearly separates the claim from Section 13 (b) and the following verdict evolved from the Figgie International case. The district court directed Figgie International to fully refund all the customers who purchased Vanguard heat detectors considering that the value of the product was nominal under the given circumstances and that the company and the distributors made misrepresentations while selling the product. Figgie International argued that the minimum value factor was irrelevant and that the product had some value. We may agree to the argument of Figgie about the some value factor and the fact that the court has exercised too much discretion in concluding that the value was less but the verdict should be considered from the larger interest of the public and the conclusion as harmless. Similar verdicts has been arrived at for various other cases where the argument that compensation is provided only when the product have no value, and one such case is FTC v. International Diamond Corp., 1983-2 Trade Cases Par.65,506, (N.D. Cal.1983) (“Diamond I”). In the case of International Diamond, section 13(b) passed a verdict according to conventional remedies even though the subsection stated that appropriateness of rescission and restitution is applicable when the goods are not essentially worthless. The verdict for this case concluded that the final argument of the defendant was that restitution is applicable when the goods bought by the consumer has no value and depends on the cases settled before Heater v. FTC, supra. The administrative redress of the courts is a hindrance for justice to the plaintiff. The Ninth Circuit in the case of Heater v. FTC supra concluded that the commission did not have the power to develop an administrative redress and ended in the self imposed nugatory. 7 Kant is considered to be an extreme retributivist while dealing with judicial punishment and he explains the requirement of punishment to deter offence. According to Kant, criminal punishment has to be calculated to balance the victim’s empirically visible losses in level and kind, with an exception when this kind of punishment is not possible. This is when the court cannot determine the most deserving tariff for the criminal. Punishments send a message to the society that crime is morally disapproved. This expressive method to discourage crime is not Kant’s ideology but it will assist law enforcers in taking forward the ideology where the severity of punishment is equivalent to the intensity of offence and pragmatic reasons cannot hold back this ideology for the sake of exceptions.8 Bibliography Cole, George F. and Smith, Christopher E. Criminal Justice in America, Thomson Wadsworth, Florence, 2004. Gray, Christopher B. The Philosophy of Law: An Encyclopedia, Taylor & Francis, New York,1999. Hill, Thomas E., Kant on Punishment: A Coherent Mix of Deterrence and Retribution? Retrieved on August 25th 2008 from http://www.ingentaconnect.com/content/oso/116051/2000/00000001/00000001/art00011;jsessionid=1njr1nrwsdeyi.alice?format=print Reiff, Mark R. Punishment, Compensation, and Law: A Theory of Enforceability, Cambridge University Press, New York, 2005. Murphy, Jeffrie G. Getting Even: Forgiveness and Its Limits. Oxford University Press US, Washington D C, 2003. Roach, G.P., A default rule of omnipotence: implied jurisdiction and exaggerated remedies in equity for federal agencies, Fordham Journal of Corporate & Financial Law, 2007, Retrieved August 25, 2008 from http://findarticles.com/p/articles/mi_qa4048/is_20070101/ai_n18781204 Cases Referred Regi. v. Secretary of State for the Home Department, Ex parte Hindley [1998] UKHL [1998]Q.B. 751. Retrieved from http://www.parliament.the-stationery-office.co.uk/pa/ld199900/ldjudgmt/jd000330/hind.htm on August 25th, 2008. FTC v. International Diamond Corp., 1983-2 Trade Cases Par. 65,506, (N.D. Cal. 1983) ("Diamond I"). Read More