ethical ch.6

in 1972 and 1976 the U.S. Supreme Court stated that it considered retribution

"a legitmate justification for capital punishment" Furman v. Georgia 1972, Gregg v. Georgia 1976

systems of retribution for crime have long existed, with the best known being the lax talionis of biblical times, calling for

"an eye for an eye, a tooth for a tooth, and a life for a life"

feinberg indicated that punishment should also reflect

"attitudes of resentment and indignation, and...judgements of disapproval and reprobation, on the part of the punishing authority himself or of those 'in whose name' the punishment is inflicted

forgiveness has no degrees but may take the form of

"disinterested" or "interested" forgiveness, with the victim being interested and the sentencing authority disinterested

in contrast to the philosophical view of punishment, the sociological perspective is concerned with the

"is" of punishment— that is, what punishment is actually intended for— and the nature of penal systems

the notion of the expressive or communicative character of punishment is closely associated with the idea of

"punishment as censure". This conceptions recognizes punishment as comprising not merely harsh treatment but also elements of condemnation, denunciation, and censure

dehumanization theory describes this extreme form of denunciation (seeing offenders as irredeemably evil) as "animalistic dehumanization," referring to

"the denial of attributes that are uniquely human"

Another definition of punishment, proposed by David Garland, is

"the legal process whereby violators of criminal law are condemned and sanctioned in accordance with specified legal categories and procedures"

why should offenders be punished?

- they deserve to be punished - punishment will stop them from committing further crimes -punishment tells victims that society disapproves of the harm that they have suffered -punishment discourages others from doing the same thing -punishment protects society from dangerous or dishonest people -punishment allows offenders to make amends for the harm they have caused -punishment ensures that people understand that laws are there to be obeyed

for moral philosophers, the "ought" of punishment is of great importance and leads to a set of questions, including the following

-what should be the goals of punishment? -what should be the values contained in and promoted by the criminal law? -what is the purpose of punishment?

flew argues that punishment, in the sense of a sanction imposed for a criminal offense, consists of five elements

1) it must involve an unpleasantness to the victim 2) it must be for an offense, actual or supposed 3) it must be of an offender, actual or supposed 4) it must be the work of person agencies; in other words, it must not be the natural consequence of an action 5) it must be imposed by an authority or an institution against whose rules the offense has been committed. If this is not the case, then the act is not one of punishment but is simply a hostile act. Similarly, direct action by a person who has no special authority is not properly called punishment and is more likely to be revenge or an act of hostility

3 core principles of restorative justice

1) justice required the healing of victims, offenders, and communities injured by crime 2) victims, offenders, and communities should be permitted to actively involve themselves in the justice process in a timely and substantial manner 3) roles and responsibilities of the government should be rethought, and in its promotion of justice, government should be responsible for preserving a just order, and the community should be responsible for establishing peace

the difference between desert and deterrent approaches is that

a moral judgment is required from the offender under just deserts that is not required under a purely deterrent punishment

retributionists claim a moral link between punishment and guilt and see punishment as

a question of responsibility or accountability the retributivist sees a legal set of rules set by society as representing and reflecting the moral order. they are not concerned about the consequences of a wrongful act or about what might happen in the future

rights oriented rehabilitation

accepts the offenders liability to receive punishment but claims a corresponding right on his or her part to "return to society with a better chance of being a useful citizen and staying out of prison" this perspective is often terms state-obligated rehabilitation and contends that if the state assumes the right to punish, it should ensure that no more harm is inflicted than was intended when the sentence was pronounced.

moral justification for punishment is a separate issue from the legal justification because

although the law may provide for the infliction of punishment, society's moral justification for punishment still has to be established

retribution is done for a wrong, while revenant may be done for

an injury or harm or slight and need not be a wrong

mixed retributivism

argues for punishment as an institution to be justified on utilitarian grounds whereas its actual implementation is to be justified on retributive grounds.

to utilitarians, a "right" punishment (or one with the greatest utility) is one that is

beneficial to the general welfare of all those affected by the criminal act

time served is a

concrete act communicating apologies through repentance

the contrast between the two theories lies in the fact that for utilitarians, the aim of punishment is to

control future action, whereas the retributivists see the aim in terms of desert

in social terms, research has concluded that punishments depend less on philosophical arguments and more on the

currents and movements in social thinking and in climates of tolerance and intolerance. Garland summarized social theory about punishment as "that body of thought which explores the relations between punishment and society, its purpose being to understand punishment as a social phenomenon and thus trace its role in social life"

some retributivists argue that punishment is morally justified because it gives satisfaction. this conception of the purpose of punishment became known as

denunciation theory

the difference between rehabilitation and deterrence is that

deterrence attempts to convince us to avoid crime out of fear of punishment, whereas rehabilitation attempts to convince us to avoid crime because we should not perform crime

in addition to these five elements, Ben and Peter's add that the unpleasantness should be an

essential part of punishment

time-series studies

explores the effect of specific policy initiatives, such as police crackdowns on open-air drug markets. Nagin finds that such policy targeting has only a temporary effect and is therefore not a successful deterrent

we use the word punishment to describe anything we think is panful.

for example, we refer to a "punishment work schedule" or a "punishing exercise program"

there seems to be little agreement among researchers that punishment has a

general deterrent effect

for von Hirsch, censure is simply

holding individuals accountable for their conduct and involved conveying the message to perpetrators that they have willfully injured someone and must face the disapproval of society for that reason. censure expressed through criminal law has the role of providing third parties with reasons for not committing acts defined as criminal. In other words, censure can have a deterrent effect. It may also express retributive and even rehabilitative goals.

Gordon Tullock, after surveying the economic and sociological methods of deterrence, concludes that multiple regression studies show empirically that

increasing the frequency or severity of the punishment does reduce the likelihood of a given crime being committed.

individual deterrence

involves deterring someone who has already offended from re-offending. (Boot Camps, Scared Straight) individual deterrence relies on offenders receiving a taste of the punishment they will receive if they reoffend, and it can be seen operationally in "short, sharp, shock punishments"

general deterrence

involves dissuading potential offenders from offending at all by way of the punishment administered for a particular offense general deterrence takes the form of legislation imposing penalties for specific offenses in the belief that those penalties will deter or prevent persons from committing those offenses. An example of general deterrence would be significantly increasing the penalties for DUIs in an effort to deter citizens from drunk driving

therefore, deterrence is a forward-looking punishment theory because

it looks to future criminality

in contrast to utilitarians, retributivists focus their line of reasoning on the offenders

just desert (a proportionate punishment) and not on the beneficial consequences of punishment.

deontological theory argues that we should rehabilitate criminals not because we wish to save costs or reduce crime, but because it is

just to do so and because each person possesses moral worth.

retribution is the theory that punishment is

justified because it is deserved. Retribution does not concern itself with public goods or with the safety or security of society or the moral improvement of the criminal.

the fundamental difficulty with deserts theory is that it

lacks any principle that determines a properly commensurate sentence.

ecological studies

look for a negative association between crime rates and punishment levels that can be interpreted as having a deterrent effect. Nagin points out that a number of such studies have been able to isolate a deterrent effect

jeremy bentham is considered the

main proponent of punishment as deterrence

it has also been contended that "retributive hatred" can be

morally permissible in the service of defending "certain values of the self," especially self respect when a person has been victimized by criminal conduct.

by the 1980s, the retributionist theory of just deserts has become the

most influential theory of punishment

during the 1970s, criminologists reconsidered the idea of retribution and advanced new formulations. By the 1980s, the

new retributionist theory of just deserts had become influential.

communicative theory: prison is seen as

offering an opportunity for reflection and reformation.

through the incapacitative approach, offender are

placed in custody, usually for long periods of time, to protect the public from the chance of future offending.

the notion of communicative practice assets that

punishment communicates to the criminal a response appropriate to the crime committed the element of communication requires that the person to whom the communication is directed must be an active participant in the process and must receive and respond quickly to the communication. Additionally, the communication should appeal to the persons rational understanding.

fundamentally, the concept of desert conveys the idea that

punishment for violating the law is morally permissible because offenders deserve to be punished.

just deserts proponents emphasize the notion that

punishment should be proportionate; that is, there should be a scale of punishments with the most serious being reserved for the most serious offenses, and penalties should be assessed according to the seriousness of the offense. This is often called tariff sentencing.

the basic principle of the lex talionis is that

punishment should inflict the same on offenders as offenders have inflicted on their victims.

an early focus on deterrence as a rationale for punishment gave way to a focus on

reform and rehabilitation. This in turn has led to a return to punishment based on the nation of retribution and just deserts

people are deterred from actions when they

refrain from carrying them out because they experience an aversion to the possible consequences of those actions.

restorative justice sees social support and social control of offenders as the means to

rehabilitation

restorative justice means

restoring victims as well as offenders and the community

some restorative justice proponents argue that repair in relation to offenders involves a focus on

restoring, strengthening, and building relationships between offenders, victims, and communities

past-oriented theories (theories that focus on the past actions of the offender) are referred to as

retributivist because they seek retribution from offenders for their crimes. the retributivist conception of punishment includes the notion that the purpose of punishment is to allocate moral blame to offenders for the crimes and that their future conduct is not a proper concern for deciding punishment.

in addition to restoring lost property or personal injury, restoration means bringing back a

sense of security

criminologists and policy makers, who focus on penalties for offenses and policy concerns relevant to the punishment of offenders, offer a third perspective on punishment.

some critics, such as Philip Bean, argue that criminology has tended to ignore the moral and sociological implications of punishment in favor of the social and personal characteristics of offenders as well as the nature of penal institutions and methods of social control

denouncing criminality can clearly include conduct by the community that Bennett refers to as "alienation"—

that is, withdrawing from wrongdoers, "cutting them off, no longer treating them as people with whom we share a community"

perceptual studies

the data come from surveys. Such surveys have found that self-reported criminality is lower among those who see sanctions, risks, and costs as higher. Nagin therefore concludes that, collectively, the operations of the criminal justice system exert a substantial deterrent.

unfair advantage theory

the effect of criminal law is to confer benefits on society because others are not permitted to interfere with areas of an individuals life, given that certain acts are proscribed and prohibited. To gain benefits of noninterference, individuals must exercise self restraint and not engage in acts that infringe the protected areas of the lives of others. it follows that when people violate the law but continue to enjoy its benefits they take an unfair advantage of others who follow the law— they are free riders.

advocates of desert focus on two dimensions only

the harm involved in the offense and the offenders culpability

to utilitarian philosophers such as Bentham, punishment can be justified only if

the harm that it prevents is greater than the harm inflicted on the offender through punishing him or her. in this view, therefore, unless punishment deters future crime, it simple adds to the totality of human suffering. In other words, utilitarians justify punishment by referring to its beneficial effects or consequences. in this sense, utilitarian theory is a consequentialist theory that considers only the good and bad consequences produced by an act as morally significant

restorative justice proponents emphasize

the need to support both victims and offenders and see social relationships as a rehabilitative vehicle armed at providing formal and informal social support and control for offenders.

the message communicated by punishment must focus on and be justified by

the offenders past offense and must be appropriate to that offense.

a rehabilitation theory holds that punishment should aim at

the reformation of offenders and assist their transition from criminal to law abiding citizen.

for the utilitarian who regards punishment as bad in itself, a particular punishment will be justified only if

the suffering it inflicts is less than the harm caused by the criminal act that would have taken place had there been no punishment

retributivist believe that wrongdoers deserve to be punished and that the punishment imposed should be in proportion to

the wrongdoing the offender committed

programs that do not include all three parties (victims, offenders, and community) are not considered

true restorative justice programs because at least one important component of the triangle is absent

individual deterrence- boot camps

used as an alternative to imprisonment and are clearly aimed at subjecting offenders to a regime that will shock them out of any further criminal conduct

theories that set the goal of punishment as the prevention of future crime (deterrence) are usually referred to as

utilitarian because they are derived from utilitarian philosophy.

in sociological terms, punishment raises questions such as

why particular punishments are used and why they are no longer used, why a punishment like capital punishment has been abandoned to a great extent in the west, and why imprisonment has become the major form of punishment for criminal activity