Theories of Punishment - Research Paper Example

? Theories of Punishment The main aims of developing theories of punishment if to provide the reasons for the necessity ofpunishment and the extent of the imposition of punishment. Many controversies and debates surround the various justifications of punishments. The aim of this paper is to describe in detail, the various theories of punishment. These will include retribution, deterrence, social control theory, humanitarian theory, contract theory, benefits and burdens theory, victim-oriented theory, rehabilitation, expression theories as well as just deserts theory. Introduction Punishment is an institution but not actions. It entails certain standards of conducts and involves an authoritative process aimed at generating these standards of conduct. In addition, punishment entails an authoritative process of resolutions to enforce sanctions, and certain aspects of practical control over resources of particular persons. Moreover, punishment does not necessarily entail imposing harm on someone who has committed a crime. It goes beyond the mere inflicting of harm to include an assertion to a particular kind of institutional authority, even when the family is such an institution. To impose punishment on an individual entails asserting assert a right and recognizing a compulsion to punish anyone likewise circumstanced and behaved, even though that other individual were only a sibling. In addition, punishment is never the secluded act of a person, rather, it entails acting an officer or agent taking part in a system for implementing an authoritatively propagated standard (Binder, 2002). Several theories offer the moral justification of punishment. In this regard, there are heated debates entailing different ways of describing the moral standpoint of punishment. The problem of how and when the state should impose punishment on an individual turns to the question of how and when certain individuals should punish other individuals (Binder, 2002). The contemporary debate of theories of punishment circulates utterly around two differing positions of the punishment theory. On one hand is the assertion of retribution, which deems that punishment to an individual should only occur when it is evident that the person concerned warrants to undergo suffering for the damage he inflicted. On the other hand, the other position is the deterrence of utilitarian assertion, which deems that punishing an offender is significant since it helps to prevent prospective crimes in the society. This means that punishing a criminal would deter future crimes. The former assertion takes offenders separately, in that it centers on the ethical standing of the individual offender in relation to his act. Conversely, the latter conceals the individual in goodwill of the society and establishes the legality of the decision to in relation to its social welfare effects (Finkelstein, 2011). Utilitarianism and punishment The principle of utilitarianism in the concept of punishment asserts that the judgment of communal or social aspects ought to occur with regard to the extent to which they advance collective satisfaction. In addition, the theory asserts that there should be consideration of the fulfillments and displeasures that a particular course of action generates in each affected individual. The suitable policy is that which prompts fulfillment, in view of the number of affected individuals. In addition, this policy will depend on both the concentration and extent of fulfillment or displeasure for each individual. In addition, the proponents of this principle assert that the determination of the justification and use of punishment should occur in line with the principle of utility. This principle also asserts that punishment is an evil since it inflicts harm or displeasure to those punished. In this regard, the principle claims that the imposition of punishment should only occur when it is evident that it can bring about other greater fulfillments (Hirsch, 1992). Despite its strong assertion, the utilitarian theory presents several imperative limitations on the type or severity of punishment imposed. In this regard, due to some forms of punishment, some imposed charges cost more than the fulfillments they attain. In addition, some forms of punishments lead to societal and personal harms that override their crime-controlling effects or other benefits. This implies that charges imposed for punishment should not override the benefits anticipated. In addition, the preferred forms of punishments are those that can attain maximum benefits to the society with minimal punishment charges. This also implies that there should be proper prioritization of punishment due to limited resources (Frase, 2005). Deterrence Theory Deterrence theory maintains that punishment imposed on a criminal should be just adequate to deter prospective crimes. The major assumption that founds deterrence theory is the assertion that like other ordinary citizens, the prospective offender, is a rational actor. This theory operates by altering the costs and benefits of the circumstances so that delinquency becomes an unpleasant alternative. This implies that potential offenders would restrain from committing a crime due to the possible penalties. Since deterrence occurs on a rational choice platform, the probability of detection and trial feature heavily in its calculus. Generally, offenses that are not easily detectable need equally more severe charges to uphold similar anticipated value of punishment. This implies that offenses with slight or no chance of detection should have quite severe punishment in those occurrences when detected. On the other hand, crimes with detection likelihood approximately 100% do not need such escalation (Carlsmith et al, 2002). Proponents of the deterrence theory also assert that the ultimate justification of punishment should be on the grounds of general prevention of future crime. This is because in some instances, the crime committed might be less than the prospective crimes. On the other hand, in the case of a crime committed as a separated fact, punishment of the crime would not be necessary since the crime may not have the likelihood of future recurrence. In such a case, imposing punishment would mean adding one evil to another. However, when we regard that a scot-free crime opens the path of other or similar crimes, not only to the same criminal but also to other prospective offenders, the society recognize that punishment imposed on the individual becomes a basis of security for all (Allen, 2004). Deterrence theory necessitates that the crime rate and exposure of the verdict be in proportion to the harshness of the punishment but that perception rate and punishment be inversely proportionate to each other. In addition, deterrence theory is comparatively indifferent to the extent of the harm or the justifying conditions, which are of vital importance (Carlsmith et al, 2002). Social control theory Social control theory entails the aspects of punishment that would ensure the protection of the entire society and the maintenance of order in the community. In addition, the theory distinctively tackles features, which establish the involvement of an individual in delinquency. In this regard, sociologists have established different causes for compliance and noncompliance to social standards. In addition, social control theory evaluates how the institution of regulations and standards in a society upholds a level of consistency and order. The theory asserts that social constancy depends on the anticipations and compulsions individuals hold regarding each other according to affability and good manners. Consecutively, this generates a form of societal morality and maintains law and order (Jeanty, 2010). The central foundation of the Social control theory is establishing the limitations that thwart a person from contravening the law or engaging in criminal activity. The positions of friends, family, values, beliefs and law implementation are significant in promoting the personal propensity to conform in the society. In addition, the social control theory involves two major areas of influence: “informal control systems and formal control systems.” The basis of both control systems occur on a set of standards often accepted by the society. In this regard, the foundation of formal control systems occurs within the legal system and law implementation institutions. On the other hand, informal control systems accrue from social groups, including family, friends and customs associations (Jeanty, 2010). Rehabilitation theory The rehabilitation theory asserts that after imposition of punishment, the criminal recognizes his mistakes and promises to modify his behavior once out of prison. In this regard, punishment helps in reforming the offender and makes him a responsible person in the society. The formal and inspiring denunciation by society imposing the punishment is a significant means of bringing about this acknowledgment of guilt and the desire to change. In addition, this theory deems that through punishing other criminals, various individuals engaging in criminal activities learn from these punishments and change their behavior. Conversely, even though this form of rehabilitation produces positive results, the primary purpose of rehabilitation id to transform the behavior of the actual criminal. Even if many people assert that all criminals are often sick and therefore need treatment, most advocates of this theory assert that punishment helps to educate the criminal. The major aim of this theory is to explain the justification of punishment in terms of changing the behavior of the offender and others who might contemplate to engage in criminal activity (Allen, 2004). Humanitarian theory The humanitarian theory of punishment asserts that punishment of an offender even if the offender deserves the punishment is a form of revenge. Therefore, the advocates of this theory deem that punishment is immoral and against the dictates of human rights. This theory further claims that the only motive behind punishing an offender should be to deter future crimes or to help in altering the behavior of the offender. In addition, this theory asserts that there should be a consideration of the psychological state of the offender, and the reasons for punishment should be to alter the cognitive behavior of the offender. This implies that the society is moving from the severe and self-righteous idea of offering the wicked their deserts to the benevolent and progressive means of nurturing the psychologically sick. This also implies that psychotherapy can be useful in curing the tendency to steal or engage in criminal activities. This provides a connotation that failure to provide this cognitive intervention, the offenders will continually commit crimes (Lewis, 2011). Victim-Oriented Theory The victim-oriented theory is another punishment theory that most researchers and criminologists have not developed much study. There is a general tendency of criminologists failing to study the link between the offender and the victim. The victim-oriented theory asserts that the most vital justification of imposing punishment should be to protect the rights of individuals. This provides the implication that it would make sense if punishing a criminal were due to reasons of deprived rights. This means that the premise of punishment should only occur if the aid offender violated the rights and freedoms of the victim. Otherwise, it would not be fair to punish an offender is he or she did not in any means violate the rights of the offended person. The theory also asserts that imposing punishments on an individual merely because of violating set regulations is not justifiable since regulations and standards might be utterly unfair and arbitrary. A good example is in the case of drug crimes. In his sense, a person who uses certain prohibited drugs will receive punishment simply because he violated the standards but he might not have violated the rights of any other person (Chiesa, 2007). In the same sense, corrective justice aims at seeking fairness between the criminal and victim by rendering the criminal to chastisement and telling the victim an apprehension for his or her forerunner suffering. The major challenge for criminologists is to provide a connection between the victims and the justification of punishment. This implies that the justification of any form of punishment should consider the victim involved. In this case, the justification and aim of imposing punishment would be to satisfy the wishes of victims to observe the suffering of those who perpetrated crimes against them (Fletcher, 1999). Retributive theory Retribution is the most extensively distinguished non-utilitarian theory of punishment. This theory offers the assertion that punishment of an offender should only occur if he or she had actually perpetrated the act. This implies that the proportion of their blameworthiness should be the main benchmark in determining the occurrence of punishment. To establish this extent of blameworthiness, two major elements determine this. These are the nature and severity of the harm inflicted or menaced by the offense and the criminal’s extent of responsibility in committing the offense. Proponents of this theory perceive it as the only and major justification for punishment. The aim of the theory is to provide the assertion that criminals should only receive punishment when they deserve the punishment (Frase, 2005). The retribution theory could also represent the assertion for the natural justification of requirement of punishing an evil person and rewarding a good person. The only limitation of this assertion is that it does not offer the level and severity of the punishment hence generating unfairness. This is because a person might receive punishment in a less or more degree than he deserves (Allen, 2004). Proponents of this theory would discard the notion of internal discrepancy for they would argue that corrective justice is not collective. This means that the fact that Retributivists do not consider it necessary to seek for minimizing the number of rights infringements by preventing future infringements does not stand in pressure with their dismissal of the legality of infringements of rights (Finkelstein, 2011). Benefits and Burdens theory The benefits and burdens theory centers on the law as a mutually beneficial entity. In this case, it necessitates each person to cease from rapacious behavior. The assertion of this theory rests on the connotation that through ceasing from deviant behavior, the individual benefits others and in turn benefits through their reciprocal self-restraint. This implies that the person who oppresses others-while still benefiting from their self-control attains an unfair advantage. The theory extends beyond unclear concepts of "paying back" bad behavior or "righting" the ethical balance. It further points to a precise undeserved benefit attained by the criminal. In this sense, the undeserved advantage is that of benefiting from others' self-control while not equally re- straining individually (Hirsch, 1992). One limitation of the theory is that it requires a daring conviction in the justice of the fundamental social structures. Unless the prevalent political and social structures thrive in offering joint support for all members, including criminals, then the wrongdoer has not essentially gained from others' law-abiding actions. Another limitation of this theory is that it cannot center on factual benefits the criminal attain, since some of the worst offenses can be quite unbeneficial whereas other theft offenses may offer the criminal with a substantial profit (Hirsch, 1992). Expressive Theories The expressive meaning of punishment upholds the normative force of the law. The law would lose its authority if there were no condemnation of the violations of the law. Public expressive theories assert that denunciation of the offender through punishment eliminates doubt from other parties. In addition, figurative denunciation of illegal behavior helps the state to renounce the illegal act. These theories also assert that punishment must entail reference to both some sort of severe punishment as well as this symbolic implication. In addition, expressive theories assert that condemnation with no the obligation of any extra cost is not punishment (Gert et al, 2004). Hirsch (1992) adds that expressive theories are those that found desert assertions on the reproach features of punishment. In this regard, these theories assert that punishing an offender entails inflicting something agonizing or unlikable to him, since he has perpetrated a crime in a manner that expresses disapprobation of the criminal for his wrong. In addition, handling the criminal as a wrongdoer is essential to the notion of punishment. Just Deserts Theory The other theory of punishment is Deserts theory, which is retrospective instead of eventual. According to this theory, the retaliator needs not to care of future products, only with offering chastisement suitable to the particular harm. Even though it is definitely preferable that the chastisement serve a derived function of preventing future wrongdoing, its validation lies in righting a wrong, not in accomplishing some future advantages. The fundamental assertion of just deserts theory is that the punishment should be in proportion to the damage (Carlsmith et al, 2002). Contract theory It is evident that there are many conflicts in application of deterrence and retribution theories of punishment, which are the major sources of modern debate. In this sense, there is the need of developing a punishment theory that solves the fundamental problems associated with these two major theories. In this regard, the development of contract theory of punishment provides a contemporary move to sole the problem that punishment on these perceptions entails traveling across persons (Finkelstein, 2011). According to the contract theory, a member of the supposed punishment contract would ponder whether he might possibly expect to gain under the worst-case situation, which is the case whereby he himself ultimately becomes subject to the punishment. Besides reflecting on the advantages of the extra avoidance under the improved sentence for theft, a social contractor must consider the value to him of that augmented security for property against the harm he would undergo due to extra years in prison. Since the odds of losing property are low, against the situations of an extended sentence, the subsidiary increase in protection effectiveness is unlikely to overshadow the noteworthy loss in worth the rational agent would affix to an extra period of loss of freedom (Finkelstein, 2011). Conclusion Several researchers have developed various theories for the justification of punishment. Most of these theories offer moral grounds concerning imposition of punishment. Most minor accrue from the two major theories of punishment, namely retribution and deterrence. There is a lot of contemporary debate surrounding these theories with numerous critics. However, the main aim of theories of punishment ifs to explain the necessity of punishment and the degree of its imposition. Due to the much debate surrounding the punishment theories, there s need of more extensive research to come up with theories that are more elaborate and justifications of punishment. References Allen, R. (2004). Divine Punishment as a Problem in Theodicy. Retrieved from Binder, G. (2002). Punishment Theory: Moral or Political? Buffalo Criminal Law Review, 5, 321-371. Carlsmith, K.M. et al. (2002). Why Do We Punish? Deterrence and Just Deserts as Motives for Punishment. Journal of Personality and Social Psychology, 83, 2, 284-299. Chiesa, L. E. (2007). Taking Victims Seriously: A Dworkinian Theory of Punishment. UPR Law Review, 76, 1, 117-128. Frase, R.S. (2005). Punishment Purposes. Stanford Law Review, 58, 67-83. Finkelstein, C. (2011). Punishment as Contract. Ohio State Journal of Criminal Law, 8, 319-340. Fletcher, G.P. (1999). The Place of Victims in the Theory of Retribution. Buffalo Criminal Law Review, 3, 51-63. Gert, H.J. et al. (2004). Hampton on the Expressive Power of Punishment. Journal of Social Philosophy, 35, 1, 79-90. Hirsch, A.V. (1992). Proportionality in the Philosophy of Punishment. Crime and Justice, 16, 55-98. Jeanty, J. (2010). About the Social Control Theory. Retrieved from Lewis, C.S. (2011). The Humanitarian Theory of Punishment. Retrieved from Read More