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Punishment

Punishment can be understood as either hard treatment like incarceration or fines, or express condemnation. There are several traditional rationales for justifying punishment: 1. Retribution - Punishment is a way to reset the balance and repay a debt to society after a wrongdoing. It removes any unfair advantage and condemns the wrongdoer. 2. Crime control - Deterrence (specific and general) aims to prevent future crimes by punishing wrongdoers. Incapacitation restrains individuals to prevent further crimes. 3. Rehabilitation - Some argue punishment could rehabilitate offenders, but empirically it does not work and can pathologize offenders rather than ensure accountability.

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24 views6 pages

Punishment

Punishment can be understood as either hard treatment like incarceration or fines, or express condemnation. There are several traditional rationales for justifying punishment: 1. Retribution - Punishment is a way to reset the balance and repay a debt to society after a wrongdoing. It removes any unfair advantage and condemns the wrongdoer. 2. Crime control - Deterrence (specific and general) aims to prevent future crimes by punishing wrongdoers. Incapacitation restrains individuals to prevent further crimes. 3. Rehabilitation - Some argue punishment could rehabilitate offenders, but empirically it does not work and can pathologize offenders rather than ensure accountability.

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Hamid Said
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© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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Punishment

Criminal Law
Hamid Said
What is punishment?

Theoretical
Hard treatment: incarceration, fine, or other material deprivation

Express condemnation:

Why is it necessary to justify punishment?


1. Intentional harm result
2. Violation of right intrinsic to society
3. Condemnation implies blameworthiness
4. Punishment is heavy coercion of the individual
Traditional Rationales
Retribution
- Retributive justice, resetting balance through repayment of some form
o Implicit idea is that the penalty or reaction to a behaviour is the appropriate corrective method
- Some view retributive justice as a moral correctness
- Others view it as a rebalancing
o Removes unfair advantage gained from wrongdoing
o Condemns wrongdoer, affirms rights/worth of victim
o Positive/negative retribution
 Positive retributivism is the general desert claim: x deserves y because of z
 Wrongdoer is morally blameworthy
 Also called “strong” retributivism
 Negative retributivism:
 Extrinsic reasons are required to justify punishment in retributivist format
 Act itself is not sufficient to justify punishment
 Utilitarianism is the extrinsic consideration in negative retributitism
o Retributivism in general, is a view that justifies punishment
o Retributiivsm can also be seen as justifying PFJ, e.g. avoidance of gross disproportionality
 Inherent in the criminal code, is the requirement to have lack of arbitrariness, requiring
views justifying punishment

Non-retributiivism reasons for proportionality


- 1. Condemnation that is apt/appropriate
- 2. Prioritization of wrongs
- 3. Marginal disincentive to serious crime
- 4. Opportunity to avoid specific punishment by refraining from any specified crime
o 1. Avoiding specific crimes to avoid specific punishments (positive retributivism may create
disproportionate results)
Crime Control: Specific/general deterrence, incapacitation)
- Specific/general deterrence
o Specific: preventing recidivism through punishment applied
o General: using rule of law as deterrent prior to commission
- Incapacitation:
o Deterrence vs. incapacitation
 Coercion vs. forced obedience through restraint
- Does punishment deter? Why/why not?
o Theory: sentence severity may not matter
 Mild/moderate sentences deter better than longer sentences
 Economic costs/social ramifications outweigh benefit
 Swiftness matter more
 Appropriate rule of law and odds of accountability are key
- Securing rights:
o Beyond social good:
 Crime control helps ensure charter rights, e.g. security of the person
 Consistency and the mere punishment itself are required to prevent crime
 Infrequent punishment leads to inconsistent rights enforcement

Rehabilitation

- Empirically: rehabilitation doesn’t work (stated)


- Theoretically:
o 1. Unjust/unduly long sentences
o 2. Can lead to pathologizing offenders as needing treatment, not accountability
Restorative Justice:
- Alternate theory to crime/justice punishment
- Dialogue, mutual understanding, reconciliation
- Healing and repair of fractured community relations
- Reintegration of offenders
- Related to aboriginal traditions (e.g. relates further to Truth and Reconciliation)

H.L.A Hart
- General justifying aims of punishment is purpose it serves (proportionality indicated)
- Restrictive principle: certain constraints on general justifying aim?
- Principles of distribution of punishment
o Who/how they may be punished
o Rights of individuals are involved in punishment process (e.g. s.7 charter/criminal)
- General justifying aim does not determine who/how to punish

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