2 theories of punishment.Theories analyzed: Retribution and Incapacitation.
Retributive theory
“Let the punishment fit the crime” captures the essence of retribution. Proponents advocate just deserts, which defines justice in terms of fairness and proportionality. . According to Kant and other retributivists, the guilty deserve punishment; punishment is their just desert. Punishment is proportional to guilt. Retributivists aim to dispense punishment according to an offender's moral blameworthiness (as measured by the severity of crimes of which the offender was convicted). Ideally, the harshness of punishments should be proportionate to the seriousness of crimes. . Kant, in particular, argues against consequentialism because he believes that it is never right to use individuals, even criminals, as means to an end.(http://catalog.flatworldknowledge.com/bookhub/reader/4373?e=storm_1.0-ch01_s05)
In reality, it is difficult to match punishments and crimes, since there is no way to objectively calibrate the moral depravity of particular crimes and/or the painfulness of specific punishments. Retribution is a backward‐looking theory of punishment. It looks to the past to determine what to do in the present. This theory is based on the idea of vindictive justice, or a tooth for a tooth and an eye for an eye. The principle is that if a man has caused the loss of a man's eye, his eye one shall cause to be lost; if he has shattered a man's limb, one shall shatter his limb; if a man has made the tooth of a man that is his equal fall out, one shall make his tooth fall out. This is to pay back the wrong-doer for his wrong-doing. It means that the wrong-doer has to be made to suffer by way of retaliation, even if no benefit results thereby to him or to others. ( Bedau & Kelly, 2003).
Morris Cohen has said that it is easy to dismiss the retributive theory with the remark that it is a remnant of the barbaric conception of vengeance. But the fact is that the early Greeks and many ancient spiritual books decried that one has an obligation to avenge the killing of a kinsman(Loewy ,2009).
The traditional code of honour still prevalent in many societies is that a gentleman must, at the risk of life, resent an insult to the extent of seeking to remove it with the blood of the offender. Even in the modern times, popular sentiment is that if a wife of a person is insulted or violated, he need not wait for a policeman; it is his duty to knock the offender down. Such a view prevails in almost all enlightened nations. (Loewy ,2009).
But the problem with the retributive theory is that it fails to suggest an acceptable criterion whereby to discriminate between just and unjust punishment. Kant offers us the principle of equality between the crime and the penalty. This sounds simple in the case of murder-a life for a life. But it is obviously not capable of being extended. Morris Cohen asks, “Can crime and punishment really be equated? What penalty can equal the crime of rape, kidnapping, forgery, dishonesty and so on?” For the state to exercise the same amount of brutality against the criminal that the criminal exercised against his victim would be demoralising to any community (http://catalog.flatworldknowledge.com/bookhub/reader/4373?e=storm_1.0-ch01_s05)
This theory of vengeance was, however, rejected with the ingress of the idea of refinement and the humanising of society. It came to be argued that the passion of revenge cannot be allowed to drive out reason. The feeling of retaliation will create demand for making punishment as severe as possible. It will only array man against man. The idea of treatment of criminals on the other hand will place a premium upon violence against criminals. Besides, in modern society, neither the victims of crime support the idea of physical torture of criminals nor the public opinion would tolerate sanguinary methods of punishment (Burchell and Milton,1997).
The argument is that if a criminal is not punished, the public would feel frustrated and its obedience of the law would appear meaningless. Punishment of criminals would help to unify society against crime and criminals and also maintain respect for law. If law-violators and law-conformists receive the same treatment, there would be no reason to abide by the law (Loewy ,2009).
Further arguments against retribution are the fact that it is now scientifically established through various empirical studies that the functioning of social systems and social structures is more responsible for crime than individual himself. As such, it would not be logical to give retributive punishment to those who commit crimes due to force of circumstances rather than their personality traits. Protecting the interests of criminals is as important today as protecting the interests of society or the victims. The offender does not seize to be human just because of their offenses and hence they still need to be treated as such. The punishment should therefore be proportional to the loss incurred. The present society stresses humanitarianism and scientific progress. The movement in such a society should be to prevent crime rather than make criminals suffer, which is largely repressive. Since almost all prisoners return to society, it is necessary that they must not be so stigmatised that they cannot take up lawful pursuits upon their release. Retributive punishment only makes criminals confirmed enemy of society. Religious conscience and moral and ethical principles have always emphasised the importance of forgiveness, pity, mercy, charity, and considered these values as supreme values. It is, therefore, only moral and proper to pardon the criminal. And this is missing in retributive theory( Bedau & Kelly, 2003).
Holding that if society fails to punish the offender, the victim and his relatives may take the law in their own hands is not correct. Today, the victims of crime tend to shrink from the idea of subjecting criminals to physical torture. In fact, the victim feels satisfied if his loss is restored or he is properly compensated. He disregards the causes that produce a criminal or the measures adopted for dealing with criminals. Resorting to the argument that a person can be prevented from indulging in crime by awarding him retributive punishment is invalid. Mackenzie has stated that it is only when an offender sees the punishment of his crime to be the natural or logical outcome of his act that he is likely to be led to any real repentance and it is only this recognition that is likely to lead others to genuine abhorrence of crime. We can't undo the past, so there is no reason as to why punishment should be so focused on the past. (Loewy ,2009).
In spite of these arguments, it may be pointed out that though reformation and in some cases deterrence receive more attention, yet retribution too continues to remain one of the purposes of punishment. (https://en.wikipedia.org/wiki/Punishment)
There are cases where retributive punishment is still considered necessary. The retributive punishment of imposing death penalty on offenders like Ranga and Billa in Delhi who had killed Chopra children was not condemned by society, nor has the retributive punishment to the terrorists of Punjab and Kashmir who had killed a large number of innocent persons of all religions Hindus, Sikhs, and Muslims been described as severe and unjustified. Rather, people look forward to having such offenders punished severely. It is in such cases of crime that retribution stands out distinctly as a purpose of punishment. ( Bedau & Kelly, 2003).
Law is put into own hands. There is absolutely no mitigation extended on the part of the offender. Consequences on the offender and his family will encounter are completely overlooked. Moderation of punishment is thrown into the trash. Respect for law is utterly ignored.
Incapacitation theory
This approach is used in identifying offenders or groups of offenders who are likely to do such harm in the future such special protective measures, usually in form of lengthy incarceration, are warranted. The incapacitative approach has no behavioural premise. It is neither linked with any particular causes of offending nor dependent on changing the behaviour of offenders. It looks mainly to predicted risk and to the protection of potential victims. This political premise is often presented as utilitarian, justifying incapacitation by reference to the greater aggregate social benefit and therefore sacrificing the individual's right not to be punished disproportionately to the wrong doing. It’s often argued that in these cases the rights of potential victims are being preferred to the rights of the offenders. This notion of conflict of rights between the potential victims and the offenders has been an issue of discussion. (https://en.wikipedia.org/wiki/Punishment)
The premise has short comings, one being that prediction of "dangerousness" tends to be wrong more often than not. The repeatedly confirmed fallibility of predictive judgements calls into question the justification for any lengthening of sentences on the basis of public protection. The political pressure to have some forms of incapacitative sentence available to the courts has been felt in most countries. (Martinson, 1979).
A popular reason for punishment is that it gets criminals off the streets and protects the public. The idea is to remove an offender from society, making it physically impossible (or at least very difficult) for him or her to commit further crimes against the public while serving a sentence. Incapacitation works as long as the offenders remain locked up. There is no question that incapacitation reduces crime rates by some unknown degree. The problem is that it is very expensive. Incapacitation carries high costs not only in terms of building and operating prisons. The State is obliged to spend a lot of money building prisons with very effective security in place so that the offenders do not escape. Also, the State is forced to increase the workforce and employ a lot of guards for the prisons. All this money is spent on offenders when it could be used for the direct benefit of the society. The guards and other workers in the prisons are at risk by being in regular contact with the offenders. They are also potential victims but they are exposed to grave risks and not protected. In those prisons, the offenders still need food for survival. Thus, more money being used by the State for the upkeep of the offenders. When it comes to stakes where it’s either the provision of food in prisons or medication in hospitals, arguments could arise. The offenders are still humans and have the right to life. Hence, starving them to death could be viewed as inhumane. On the other hand, it could raise conflicts because we cannot disadvantage the citizens(potential victims) by limiting supply of medication in hospitals for the upkeep of offenders. This conflict of interests encompasses arguments of what to forego and what or who to prioritize as both groups of people still need protection and still reserve human rights (Alkers and Sellers, 2013).
Incapacitation as a justification for punishment can be inherently problematic in both theory and in practice. Incapacitative sentences repunish individuals for previous crimes. Alternatively, sentences based on selective incapacitation punish individuals for crimes not yet committed. There is an inherent risk with selective incapacitation that some of the individuals who are identified as "dangerous" and thus incarcerated, would not have gone on to offend. (http://catalog.flatworldknowledge.com/bookhub/reader/4373?e=storm_1.0-ch01_s05)
In some instances, excessive use of incarceration is indicative of a grown class-based, racial tolerance. A panel strategy based around e concept of incapacitation places no emphasis on the crimes of the powerful. Therefore, white-collar, corporate and enviromental crimes, which are more costly and some would argue, more harmful to society, are overlooked. The emphasis instead is placed on street crime, which is disproportionately committed by the young and poor. Incapacitative sentences, which are frequently dispenses to young people, take no account of the fact that most individuals 'grow out' of their criminal activity. Many 'criminal careers' don’t last beyond the late teen years. Thus, long sentences without the possibility of parole make no allowance for the transitory nature of much law breaking. At times the death penalty is imposed as a means of permanent incapacitation. This is cruel, inhuman and degrading. Amnesty opposes the death penalty at all times regardless of who is accused, the crime, guilt or innocence or method of execution. The reasons why death penalty is wrong are numerous. It is irreversible and mistakes happen. Execution is ultimate, irrevocable punishment. The risk of executing an innocent person can never be eliminated completely. Since, 1973, for example,150 US prisoners were sent to death row but later were exonerated. Others have been executed despite serious doubts about their guilt.
Another argument is that death penalty does not deter crime. Countries who execute commonly cite the death penalty as a way to deter people from committing crime. This claim has been repeatedly discredited and there is no evidence that the death penalty is any more effective in reducing crime than imprisonment. Death penalty is often used within skewed justice systems. Some of the countries executing the most people have deeply unfair legal systems. Many death sentences are issued after confessions that have been obtained through torture. (Martinson, 1979).
The sentence is discriminating as one is more likely to be sentenced to death if they are poor or belong to a racial, ethnic or religious minority because of discrimination in the justice system. Also poor marginalised groups have less access to the legal resources needed to defend themselves. (Martinson, 1979).
There is also disruption of families when family members are locked up. Incarceration is not a single or discrete event but a dynamic process that unfolds over time. Children suffer nightmares and flashbacks to the arrest incident. Children in middle childhood who are in school at the time of the arrest may return to an empty residence and be unaware of the arrest of their mother. The management of the explanation; there is controversy surrounding the wisdom of providing children with information concerning the arrest and the reasons for their parent's incarceration. Some argue that children ought to be protected from the knowledge that their parents are incarcerated as a way of minimizing the trauma associated with the separation . Others argue that the emotional distress of children is exacerbated by the unwillingness of family, friends or caregivers to discuss their parent's incarceration. In most cases, mothers of newborn infants are permitted only a few days of contact before they must relinquish their infant and return to prison. As a result, there is little opportunity for the mother to develop a bond to the baby or for the baby to become familiar with the mother and form an attachment to her a critical developmental task for both mothers and infants(Martinson, 1979).
Even if a child-parent attachment bond has already developed, as in the case of infants who have been in their mother's or father's care for the first 9 to 12 months of life, the disruption associated with parental incarceration will likely adversely affect the quality of the child's attachment to their parent. There are a number of interpretative problems that merit elaboration. First, incarceration is often preceded by a period of familial instability, poverty, child abuse or neglect, marital discord and conflict, or father absence. A combination of these conditions may have already increased the base rates of children's problem behaviours. Consequently, without measures of the child's environment and behaviour prior to incarceration, it is difficult to attribute the problem behaviours to incarceration per se. Other events also transpire at the time of incarceration that could account for some of the negative effects on children. (http://catalog.flatworldknowledge.com/bookhub/reader/4373?e=storm_1.0-ch01_s05)
In conclusion, the two main models of punishment are based on utilitarianism and retributivism. The difference between these two can be roughly described as a difference between punishment with an eye toward the future and punishment for the sake of the past. That is, in brief, utilitarianism is a consequentialist theory and, as such, is concerned with future consequences of punishment. In contrast, retributivism sees punishment as the direct and deserved response to already committed crimes (Loewy ,2009).
