Chapter 2: Why do We Punish?

Deterrence

Discouraging future criminal acts by both the offender and others in the population. Punishment either keeps criminals from reoffending or prevents others from committing a crime in the first place. (Retribution as Nonutiltarian)

Rehabilitation

Providing the offender with skills, attitudes, and norms that enable them to be law-abiding. Shape offenders into law-abiding citizens. Punishment can change people from criminals to law-abiding citizens. (Retribution as Nonutiltarian) Seems unusual to view attempts at _____ to be punishment. But any action depriving people of their liberty against their will is essentially punitive. Began with Quakers' desire to reclaim the offender's soul. Progressed to the contemporary version as way to reintegrate the offender back into society.

Chemical treatment

This includes chemical intervention such as Antabuse for alcoholics and methadone for heroin addicts in an attempt to force abstinence or to reduce sexual drive or interest (that is, chemical castration). (Common Types of Technological Incapacitation)

Critical organ surgery

This includes operating on specific regions of the brain in an attempt to lessen a propensity toward violence (that is, psychosurgery) or surgical removal of both testicles in order to reduce sexual drive or interest (that is, surgical castration). (Common Types of Technological Incapacitation)

Community reparation boards

This is a post-conviction use of restorative justice wherein board members meet with the offender and victim to determine how the offender will repair the harm done and to identify strategies for reducing future offending. These trained board members also monitor and supervise the offender's progress. (Examples of Restorative Justice Practices: Restorative Practices in the Community).

Technological incapacitation

Using technologies such as critical organ surgery, chemical treatment, and electronic monitoring to restrict an offender's freedom of movement. Alternative to incapacitation through imprisonment..

General deterrence

seeks to prevent crime by using punishment to discourage people from committing a crime in the first place. Show people considering a criminal act the consequences they will suffer. Goal is to discourage them from misbehaving in the first place.

Incapacitation

Restricting an offender's freedom of movement through isolation from the general population. Punishment protects society by restricting the offender's access to people and their property. (Retribution as Nonutiltarian)

Proportionality over equivalence

Retribution's goal is to match penalty and crime. Can be done via lex talionis (law of retaliation), where punishment is equivalent to the crime. - Life for life, eye for eye, etc. More likely today is seeking PROPORTIONAL than EQUIVALENT punishment. - Goal is to find correct balance between punishment and severity of criminal act.

Reparative probation program

A Vermont restorative justice program at the post-conviction stage that combines a suspended probation sentence with elements of community reparation boards.

Lex talionis

The law of retaliation.

Attention to the victim

Unlike the other punishment philosophies, restoration considers harm to victim when deciding appropriate punishment. Based on "norm of reciprocity"

Why punish?

Answering this question helps society determine if justice has been done.

Use of surgical and chemical castration in the twentieth and twenty-first centuries.

1996: Czechoslovakia authorizes surgical castration for sex offenders who volunteer for the procedure (Council of Europe, 2009); California passes the nation's first law requiring chemical castration of repeat child sex offenders on parole. Offenders may opt for surgical castration (Norman-Eady, 2006). 1997: Texas allows voluntary surgical castration of incarcerated sex offenders and Florida requires chemical castration for certain repeat offenders (Norman-Eady, 2006). 2008: Louisiana allows judge to order chemical castration for convicted rapists and other sex offenders (Millhollon, 2008). 2009: Poland becomes the only European country making chemical castration mandatory for adults who rape children or immediate family members (Easton, 2009). 2010: South Korea and ask mandatory chemical castration of child sex offenders upon court order. This could include first time offenders (Hyun-jung, 2010). 2015: Guam becomes the only US territory to adopt chemical castration for persons convicted of sex crimes and who are eligible for parole or postprison supervision (KUAM News, 2015). Sources: Council of Europe. (2009). Report to the Czech government on the visit to the Czech Republic carried out by the European Committee for the Prevention of Torture and Inhumane or Degrading Treatment or Punishment (CPT). Retrieved from http://Council of Europe website: www.cpt.coe.int/documents/cze/2009-08-inf-eng.htm; Castration of sex offenders. Connecticut General Assembly, OLR Research Report 2006-R-0183. Retrieved from https://www.cga.ct.gov/2006/rpt/2006-R-0183.htm.

Citizen circles

An Ohio restorative justice program at the prisoner reentry stage that encourages community collaboration with offenders during their supervision in the community. During parole, a group compromised of the offender, the offender's family, ex-convicts, employers, victims, the police, and faith-based staff, joins to assist in the reentry process by providing employment opportunities and positive social support. (Examples of Restorative Justice Practices: Restorative Practices in the Community).

Victim-offender mediation

An application of restorative justice principles at the sentencing stage by having mediation sessions involving both offender and victim take the place of traditional sentencing by a judge. This is a process wherein the victim, offender, and community representative work out their version of what would be a fair or just way to restore the balance that the crime upset. The emphasis is less on the sanction (for example, apology, financial compensation, and community service) than on getting the offender to take responsibility, expressed remorse, and repair the damage. (Examples of Restorative Justice Practices: Restorative Practices in Sentencing)

Elements of retribution

Formal penal sanction: Retribution is applied in the name of the public when a law has been violated. For example, a judge sentences Lynn to prison for committing theft. Equity: Retribution maintains that similar crimes and similar criminals should be treated alike. Two people committing burglary for the first time should receive similar sentences and a person committing burglary for the first time should not be punished as harshly as persons committing their third burglary. Just deserts: Punishment must be proportional to the seriousness of the offense and the culpability of the offender. A person who commits assault should be punished more severely than one who damages property, and a person who purposely struck another in the head with a beer bottle should receive a harsher penalty than one who recklessly ran toward a door and unintentionally hit another in the face with a book. (What retribution is and isn't).

Electronic monitoring

Freedom to move about is restricted through the use of monitoring devices that inform authorities of the offender's location and/or movements. (Common Types of Technological Incapacitation).

General incapacitation

Imprisonment is acceptable and desirable on an extensive scale for a wide range of offenders as a means of crime prevention. • It favors broad use of imprisonment as a way to achieve large gains in crime prevention by locking away even minor offenders. • Sentences are based on crime characteristics that society has decided present a serious and continued threat to public safety. • A potential problem is over-prediction, resulting in unnecessarily long prison terms for people who would not have re-offended. Imprison both major and minor offenders for large gains in crime prevention.

Selective incapacitation

Imprisonment is reserved for those very few offenders who must truly be locked away for society's protection. • Imprisonment is reserved for a select group of especially dangerous repeat offenders. • Sentences are based on offender characteristics that predict certain offenders will commit serious crimes at a higher rate if they are not locked away. • A potential problem is discrimination if characteristics used to identify repeat offenders are more commonly found among racial or ethnic minorities.

How it differs from revenge

Informal sanction: Revenge is applied individually in retaliation for perceived wrong. For example, Laura spreads rumors about Lynn as payback for Lynn snubbing Laura. Irregular: When revenge is sought, there can be considerable variation in what is considered appropriate retaliation for similar wrongs. Even the mistreated individual may retaliate differently from separate wrongdoers. Both Scott and Mary pushed Tammy into the mud, but Tammy pushes Scott back and simply frowns at Mary. Unbalanced: The person seeking revenge often favors a punishment that is disproportionate to the harmful act. Steal my neighbors car and I think you should be placed on probation; steal my car and I want you to be put in jail for three years. (What retribution is and isn't).

How utilitarianism influenced the deterrence philosophy

Jeremy Bentham was an eighteenth-century British philosopher who argued that actions are moral if they are useful or utilitarian and benefit the general welfare. Cesare Beccaria was an eighteenth-century Italian criminologist who believed that punishment should only be used to achieve good. Building on Bentham Beccaria, the deterrence philosophy argues that punishment is utilitarian and desirable since it benefits the general welfare by helping to reduce crime.

Retribution

Just and adequate punishment. Punishment is applied because it is the right thing to do, not because it will achieve some end. (_____ as Nonutiltarian)

The history of rehabilitation as a punishment philosophy

Late Eighteenth Century: Rehabilitation as reclamation (Aimed to rescue wrongdoers from the evil that had overcome them. Pennsylvania Quakers believed imprisonment would bring the offender back to the correct way of living). Late Nineteenth Century: Rehabilitation as reformation (Saw offenders as responsible for changing themselves. Society should provide opportunities from among which offenders must select those most helpful to them). Twentieth Century (especially 1960s & 1970s): Rehabilitation as individualized treatment (Viewed criminal behavior as similar to a treatable illness. Following a medical model, the offender was examined, diagnosed, and then treated). Twenty-First Century: Rehabilitation as re-entry (Is a contemporary view that focuses less on offender treatment and more on how the offender can be re-integrated into the community).

Victim impact classes

Restorative justice program, typically offered in prison, wherein prisoners hear violent crime survivors share their experiences with the hope of affecting positive change in the offender. These are sessions attended by prisoners while incarcerated where violent crime survivors share their experiences with the hope of affecting positive change in the offender. (Examples of Restorative Justice Practices: Restorative Practices in Prison).

Restoration

Restoring the victim, community, and offender through accountability, respect for the law and the legal process, and attention to victim needs.

Specific deterrence

Seeks to prevent crime by using punishment to discourage a person from committing additional crimes. Applied to a person who has already misbehaved. Goal is to discourage that person from offending again.

What do the laws say?

Some states provide reasons for punishment in statutes or other legislative documents. Sometimes find reference to goals of promoting respect for the law, facilitating uniformity in sentencing, securing restitution for the victim, and providing restoration and healing. More often find reference to deterring the offender from future criminal acts, protecting the public, rehabilitating the offender, and punishing the offender.

Evidence-Based Practice—Does it work? Research supporting restorative justice programs

The Indianapolis (Indiana) Family Group Conferencing Experiment implemented a restorative justice diversion program for the young, first-time juvenile offenders. CrimeSolutions.gov (Office of Justice Programs, 2013b) gives the program and evidence rating of "promising" based on a study by McGarrell and Hipple (2007) finding that, compared with a control group, persons in the treatment program were rearrested a significantly lower level (8% versus 15%) during the period of 13 to 26 weeks following initial arrest. Another program identified as "promising" is the Clark County (Georgia) Victim Impact Panel's (VIPs), which is a restorative justice program operate through the courts (Office of Justice Programs, 2013a). The program's goal is to keep offenders convicted of driving under the influence (DUI) from drinking and driving in the future. Rojek Coverdill, and Fors (2013) found after five years, 16% of the offenders who attended victim impact panels were rearrested, compared with 34% of the offenders who did not attend.

1. Certainty. 2. Severity. 3. Swiftness.

The lack of a specific deterrence effect might be due to problems society has in achieving what three key requirements of an effective deterrent system?

Restorative justice

The process, also called community justice, wherein victim, offender, and community representatives determine a fair or just way to restore the balance that the crime had upset.

Iron law of imprisonment

The realization that almost all prisoners will return to free society. Refers to idea that essentially all prisoners—except the few who die in custody—will return to live in free society. Links to contemporary approach of rehabilitation as reentry. With the flow of released prisoners back into community, need is for programs geared to reintegration and restoration.

Norm of reciprocity

The view of punishment as a natural response, of reciprocation, to a wrongful act. Make victim and community whole again by restoring things to how they were before the crime occurred.

Certainty

This is problematic because _____ is realistically achieved only if citizens are willing to be constantly monitored so that all criminal acts are known to the authorities and can thereby be punished. However, less intrusive tactics such as hotspot policing (focusing police resources on a small geographic area where crime is high or increasing) can be effective by increasing the perception that criminals will be caught and punished (Nagin, 2013).

Severity

This requirement may be possible, but there is a problem that "_____" for one person may be "mild" to another. In addition, research shows that increasing the _____ of punishment does little to deter crimes since criminals generally know little about the punishment attached to specific crimes. As Nagin (2013) puts it, a criminal is more likely to be deterred by seeing a police officer with handcuffs and a radio then through the passage of a new law increasing penalties.

1. Formal penal sanction. 2. Equity. 3. Just deserts.

Today, retribution—but not revenge—is considered a legitimate punishment philosophy because it includes what three key elements?

Swiftness

______ will likely be achieved only by restricting the due process currently provided to defendants and the rights to appeal now granted to convicted offenders.