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Home , Denunciation (penology), Punishment

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5

The Purpose of Criminal

perspectives about the issue of punishment: oes have the right to punish? Is the philosophical, the sociological, and the the infliction of punishment morally D criminological. Each perspective represents justifiable? These complex questions will be a different and distinct way of looking at addressed in the following discussion of the the issue of punishment, and each will be rationale, justification, and nature of punish- addressed in this chapter. ment. Rules about punishment, such as how much punishment can be inflicted and for what kinds of behavior, are of course con- tained in and regulations, so in this sense WHAT IS PUNISHMENT? justifies punishment. However, the moral We use the word punishment to describe any- justification for punishment is a separate issue thing we think is painful; for example, we from the legal justification because, although refer to a “punishing work schedule” or a the law may provide for the infliction of pun- “punishing exercise program.” We also talk ishment, society’s moral justification for pun- of punishment in the context of or ishment still has to be established. teachers disciplining children. However, in In order to better understand the nature of this discussion we will consider punishment punishment, it is first necessary to examine its in a particular sense. Flew (1954 in Bean conceptual basis, and then consider the various 1981: 5) argues that punishment, in the sense theories that have been developed to morally of a sanction imposed for a criminal offense, justify society’s infliction of punishment. These consists of five elements: theories are , retribution, just deserts, rehabilitation, incapacitation, and 1. It must involve an unpleasantness to the more recently, restorative . As well, it is victim. important to appreciate that there are three 2. It must be for an offense, actual or supposed.

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3. It must be of an offender, actual or • They deserve to be punished. supposed. • Punishment will stop them from committing 4. It must be the work of personal agencies; in further . other words, it must not be the natural • Punishment tells the victim that society dis- consequence of an action. approves of the harm that he or she has 5. It must be imposed by an authority or an suffered. institution against whose rules the offense • Punishment discourages others from doing has been committed. If this is not the case, the same thing. then the act is not one of punishment but is • Punishment protects society from dangerous simply a hostile act. Similarly, direct action or dishonest people. by a person who has no special authority is • Punishment allows an offender to make not properly called punishment, and is more amends for the harm he or she has caused. likely to be or an act of hostility. • Punishment ensures that people understand that laws are there to be obeyed. In addition to these five elements, Benn and Peters (1959 in Bean 1981: 6) add that the Some of the possible answers to the question unpleasantness should be an essential part of of why offenders should be punished may what is intended. conflict with each other. This is because some The value of this definition of punishment answers are based on reasons having to do resides in its presentation of punishment in with preventing whereas others are terms of a system of rules, and that it distin- concerned with punishment being deserved guishes punishment from other kinds of by an offender (Hudson 1996: 3). When a unpleasantness. Another definition of punish- court imposes a punishment on an offender, ment proposed by Garland is “the legal it often tries to balance the sorts of reasons process whereby violators of are for punishment noted earlier, but sometimes condemned and sanctioned in accordance with certain purposes of punishment dominate specified legal categories and procedures” other purposes (p. 4). Over time there have (Garland 1990: 17). This chapter will not be been shifts in penal theory, and therefore in concerned with punishment that takes place in the purpose of punishment due to a complex schools, within families, or in other institu- of reasons including politics, public pol- tions, but instead will discuss forms of punish- icy, and social movements. Consequently, in ment that take place as the result of legal a cyclical process, an early focus on deter- processes defined above. It will examine the rence as the rationale for punishment gave major arguments relating to punishment, illus- way to a focus on reform and rehabilitation. trate the ways in which those arguments relate This, in turn, has led to a return to punish- to justice and the justice system, and examine ment based on the notion of retribution and how that system would be affected should one just deserts. argument prevail over another. The concept of punishment has been theorized by moral philosophers, social theo- rists, and criminologists, and these various THEORETICAL APPROACHES approaches will be considered in this chapter TO PUNISHMENT in order to provide a better basis for under- Thinking about the issue of punishment gives standing the place of punishment within the rise to a number of questions, the most funda- criminal justice system and society in general. mental of which is, why should offenders be As Garland (1990) argues, punishment is a punished? This question might produce the complex concept, and an approach to punish- following responses: ment that is limited to a reading of moral 05-Banks.qxd 1/30/04 4:40 PM Page 105

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Box 5.1 Punishment and History

Before the installation of constitutional governments in most of western Europe in the eighteenth and nineteenth centuries, penalties were arbitrary, dependent on the whims of monarchs or the local nobles to whom they delegated authority to punish. There was very little proportionate graduation of penalties, with available for every- thing from murder and high to fairly minor theft (as reflected in the old saying “one might just as well be hanged for a sheep as a lamb”). (Hudson 1996: 19)

fails to represent the full dimension ; this chapter will explore the philo- and complexity of the subject. For moral sophical and sociological perspectives. philosophers, the “ought” of punishment is of great importance and leads to a set of ques- WHY PUNISH? THE tions including PHILOSOPHICAL APPROACH

• what should be the goals of punishment; In the philosophical debate about punishment, • what should be the values contained in and two main types of theories of punishment dom- promoted by the criminal law; inate: utilitarian theory and retributive theory. • what is the purpose of punishment? (Utilitarian theory is discussed more fully in Chapter 9.) These philosophical theories have In contrast to the philosophical view of pun- in turn generated further theoretical discussions ishment, the sociological perspective is con- about punishment concerned with deterrence, cerned with the “is” of punishment; that is, retribution, incapacitation, rehabilitation, and what punishment is actually intended for, and more recently, . the nature of penal systems (see Hudson 1996: Theories that set the goal of punishment as 10). The third perspective on punishment is the prevention of future crime (deterrence) are offered by criminologists and policy makers, usually referred to as utilitarian because they who focus on penalties for offenses and policy are derived from utilitarian philosophy. Past- concerns relevant to the punishment of offend- oriented theories (theories that focus on the past ers. Some critics, such as Bean (1981: 9), argue actions of the offender) are referred to as ret- that has tended to ignore the ributivist because they seek retribution from moral and sociological implications of punish- offenders for their crimes. The retributivist con- ment in favor of the social and personal char- ception of punishment includes the notion that acteristics of offenders, as well as the nature of the purpose of punishment is to allocate moral penal institutions and methods of social con- blame to the offender for the crime and that his trol. In the same vein, Nigel Walker (1991) or her future conduct is not a proper concern points out that the practical ends of penal for deciding punishment (Hudson 1996: 3). action, particularly with the aims of sentenc- Theories of deterrence, retribution, just deserts, ing and the administration of and rehabilitation, and incapacitation as well as the probation, are concerns that pay little atten- idea of restorative justice will be considered in tion to the philosophy or sociology of punish- this chapter. Each of these theories tries to ment. The criminological perspective will be establish a basis for punishment as a response to discussed in Chapter 6 in the context of the question “why punish?” 05-Banks.qxd 1/30/04 4:40 PM Page 106

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Box 5.2 Draconian

The notion of “draconian punishments” derives from the laws promulgated for Athens in 621 B.C. by Draco (see, for example, Carawan 1998). It appears from later accounts of the Draco code that the punishment of death was prescribed for even the most trivial offenses. Draconian punishments are essentially deterrent in nature, being so severe as to dissuade most people from committing crimes. Draconian-type notions of punishment are often advocated by those in the “get tough on crime” lobby.

CASE STUDY 5.1 THE NATURE OF THE PUNISHMENT:

On May 4, 1994, Michael Fay, a U.S. teenager who had pleaded guilty to several acts of in Singapore, was caned by Singapore’s authorities (in Nygaard 2000: 1). He was stripped, bent at the hip over a padded trestle, tied down at his ankles and wrists, and his buttocks were lashed by a martial arts specialist four times with a four-foot long, half-inch wide stick of rattan soaked in antiseptic. Fay, 18, had lived in Singapore since 1992, and was sentenced to four months in , a fine of $2,230, and the caning after his guilty plea. The of corporal punishment secured great media attention in the United States, with many people expressing their views. President Clinton, in a personal letter to the Singapore president, urged him to spare the rod and revoke the punishment, which Clinton described as ”extreme.” Also, 24 U.S. senators appealed to the presi- dent of Singapore that clemency would be “an enlightened decision.” However, U.S. public opinion expressed support for the punishment, some even writing to the Singapore Embassy in Washington expressing their approval. In Dayton, Ohio, where Fay’s father lived, citizens supported the punishment by a 2 to 1 margin. The Singaporean courts and government rejected the various appeals for clemency, except for reducing the number of lashes. A Home Affairs Ministry official stated that Singapore was able to keep its society orderly and crime free because of its tough laws against antisocial crimes and that Singapore did not have a situation where acts of vandalism were commonplace like New York where even police cars were vandalized.

Deterrence do, in fact, deter, it is hard to determine whether the kind of penalty or its severity has People are deterred from actions when they any effect on whether a particular penalty is refrain from carrying them out because they successful. Some question whether deterrence have an aversion to the possible consequences is morally acceptable. They argue that it is of those actions. Walker (1991: 15) suggests unacceptable because it is impossible to that although penologists believe that penalties achieve, and if deterrent sentences are not 05-Banks.qxd 1/30/04 4:40 PM Page 107

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successful, inflicting in the name of public welfare and maximizing the happiness deterrence is morally wrong (p. 13). of all, this means that utilitarians are willing to To utilitarian philosophers like Bentham, punish the innocent in order to achieve that punishment can be justified only if the harm objective (p. 4). that it prevents is greater than the harm Those supporting the theory of punishment inflicted on the offender through punishing as deterrence distinguish between individual him or her (Hudson 1996: 18). In this view, deterrence and general deterrence. Individual therefore, unless punishment deters further deterrence involves deterring someone who crime, it simply adds to the totality of has already offended from reoffending; gen- suffering. In other words, utilitarians justify eral deterrence involves dissuading potential punishment by referring to its beneficial effects offenders from offending at all by way of the or consequences. In this sense, utilitarian punishment administered for a particular theory is a consequentialist theory that consid- offense (Hudson 1996). Individual deterrence ers only the and bad consequences pro- relies on offenders receiving a taste of the pun- duced by an act as morally significant (Ten ishment they will receive if they reoffend, and 1987: 3). Bentham is considered the main pro- can be seen operationally in the “short, sharp, ponent of punishment as deterrence, and he shock punishments” such as boot camps, expressed his early conception of the notion as which are used as an alternative to imprison- follows: ment and are clearly aimed at subjecting offenders to a regime that will shock them out and pleasure are the great springs of of any further criminal conduct. General human action. When a man perceives or deterrence takes the form of legislation impos- supposes pain to be the consequence of an ing penalties for specific offenses in the act he is acted on in such manner as tends that those penalties will deter or prevent with a certain force to withdraw him as it persons from committing those offenses. An were from the commission of that act. If the example of an attempt at general deterrence apparent magnitude be greater than the magnitude of the pleasure expected he will would be significantly increasing the penalties be absolutely prevented from performing it. for driving under the influence (DUI) in an (in Bean 1981: 30) effort to deter citizens from drunk driving.

Becarria took a similar position to Bentham, Does Deterrence Work? arguing that “the aim of punishment can only be to prevent the criminal committing new Beyleveld (1979, cited in Hudson 1996: 23) crimes against his countrymen and to keep after carrying out a comprehensive review of others from doing likewise” (in Bean 1981: 30). studies that have considered the deterrent Utilitarians understand punishment only as a effects of punishment concluded that, means to an end, and not as an end in itself. They perceive punishment in terms of its ability . . . there exists no scientific basis for to reduce crime and do not focus on the pun- expecting that a general deterrence policy, which does not involve an unacceptable ishment that “ought” to be imposed on offend- interference with human rights, will do any- ers. To utilitarians, a “right” punishment (or thing to control the crime rate. The sort of one with the greatest utility) is one that is bene- needed to base a morally ficial to the general welfare of all those affected acceptable general policy is lacking. There is by the criminal act (Bean 1981: 4). Critics of some convincing evidence in some areas that utilitarianism argue that because utilitarians some legal sanctions have exerted deterrent see the aim of punishment as promoting effects. These findings are not, however, 05-Banks.qxd 1/30/04 4:40 PM Page 108

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generalizable beyond the conditions that of punishment as sufficient to outweigh a were investigated. Given the present state of likely gain, a potential criminal applying a knowledge, implementing an official deter- rational approach will choose not to break the rence policy can be no more than a shot in law. The alternative position considers this the dark, or a political decision to pacify model unrealistic, arguing that people remain “public sentiment.” law-abiding, not because they fear the criminal law, but as a result of moral inhibitions and The empirical evidence suggests that, gener- norms of conduct. Criminals, they argue, do ally, punishment has no individual deterrent not make rational choices but act out of emo- effect (Ten 1987: 9). Walker (1991: 16) argues tional instability, through lack of self-control, that evidence from research studies has estab- or as a result of having acquired the values of lished that capital punishment has no greater a criminal subculture (p. 345). Andenaes effect than life . Nagin (cited in points out the dangers of generalization; that Ten 1987: 9) comments on the difficulty in is, he suggests it is necessary to distinguish distinguishing between individual deterrence between various offenses such as murder or and rehabilitation. In another overview of drunk driving. Offenses vary immensely in research on deterrence, Nagin (1998: 345) terms of an offender’s motivation, and any identifies three sets of studies, which he refers realistic discussion of general deterrence ought to as interrupted time-series studies, ecological to take into account the particular norms and studies, and perceptual studies. circumstances of each particular type of The first set, time-series studies, explores offense. He also notes that the threat of pun- the effect of specific policy initiatives such as ishment, although directed to all persons, police crackdowns on open-air drug markets. affects individuals in different ways (p. 346). Nagin finds that such policy targeting has only For example, in his view, the law-abiding citi- a temporary effect, and is therefore not a zen does not need the threat of the law to successful deterrent. remain law-abiding. On the other hand, the Ecological studies look for a negative criminal group may well fear the law but still association between crime rates and punish- break it, and the potential criminal might have ment levels that can be interpreted as having a broken the law if it had not been for the threat deterrent effect. Nagin points out that a of punishment. It follows that the threat of number of such studies have been able to iso- punishment seems relevant only to the poten- late a deterrent effect. tial criminal. In some cases, however, there is In perceptual studies, the data comes from evidence that punishment has a deterrent surveys. Such surveys have found that self- effect on individuals. Andenaes refers to a reported criminality is lower among those who study of department store where see sanctions, risks, and costs as higher. Nagin amateur shoplifters were treated as thieves by therefore concludes that, collectively, the oper- the store management and reacted by chang- ations of the criminal justice system exert a ing their attitudes and experiencing great emo- substantial deterrent effect. tional disturbance (1972: 343). This contrasts In discussing whether the threat of punish- with the professional shoplifter who does not ment has a deterrent effect, Andenaes (1972: register any shock at getting caught and 345) explains that two positions are usually accepts jail as a normal hazard of the trade. debated. Bentham’s position is that man is a Tullock (1974: 109), after surveying the rational being who chooses between courses of economic and sociological models of deter- action having first calculated the risks of pain rence, concludes that multiple regression and pleasure. If, therefore, we regard the risk studies show empirically that increasing the 05-Banks.qxd 1/30/04 4:40 PM Page 109

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frequency or severity of punishment does that a utilitarian would have to accept what reduce the likelihood of a given crime being would be considered an excessive sentence for committed. However, Blumstein, Cohen, and the one petty thief unlucky enough to be Nagin (1978: 66) contend that although the arrested and convicted (Ten 1987: 143–144). evidence does establish a negative association between crime rates and sanctions, this does Retribution not necessarily establish the general deterrent effect of sanctions. This is because, in their Retribution is the theory that punishment is view, the negative association can be justified because it is deserved. Systems of ret- explained by lower sanctions being the effect, ribution for crime have long existed, with the and not the cause, of higher crime rates. best known being the lex talionis of Biblical Overall there seems to be little agreement times, calling for “an , a tooth among researchers that punishment has a for a tooth, and a life for a life” (Hudson general deterrent effect. 1996: 38). Retributionists claim a moral link between punishment and , and see pun- ishment as a question of responsibility or How Much Punishment Must Be accountability (Bean 1981: 14–15). Once Imposed to Deter? society has decided upon a set of legal rules, For the utilitarian who regards punishment the retributivist sees those rules as representing as bad in itself, a particular punishment will be and reflecting the moral order. Society’s accep- justified only if the suffering it inflicts is less tance of legal rules means that the retributivist than the harm caused by the criminal act that accepts the rules, whatever they may be; would have taken place had there been no pun- accepts that the rule makers are justified in ishment. If various forms of punishment would their rule making; and claims that those who achieve the same result, a utilitarian will opt for make the rules provide the moral climate the most lenient punishment that minimizes the under which others must live. Accordingly, potential suffering. It follows that if a sentence retributivists cannot question the legitimacy of capital punishment or the lesser punishment of rules. They argue that retribution operates of a term of imprisonment are both equally on a consensus model of society where the effective in deterring murder, the utilitarian community, acting through a legal system of will choose the lesser punishment and regard rules, acts “rightly,” and the criminal acts capital punishment as unjustified. However, “wrongly” (Bean 1981: 17). It follows that the utilitarian approaches can result in the inflic- retributivist position makes no allowance for tion of excessive punishment. Ten (1987: 143) social change or social conditions, looking gives the example of petty thefts being wide- instead only to crime. Raising the issue of the spread in society with hundreds of cases occur- social causes of crime or questioning the effec- ring, frequently perpetrated by efficient thieves tiveness of punishment are irrelevant consider- who are difficult to catch. The harm caused by ations to a retributivist. each individual theft is minor, but the total It has been suggested by van den Haag harm, according to utilitarian approaches, is (1975) and Kleinig (1973) that in historical great and may, therefore, be greater than the terms, the lex talionis did not operate as a harm caused by severely punishing one minor demand for retribution. Instead, it set a limit criminal. If a newly enacted law were to on the nature of that retribution, and therefore impose a punishment of 10 years imprison- prevented the imposition of excessive penalties ment on a petty thief, and no less a penalty in the course of acts of vengeance. Capital pun- would have a deterrent effect, it is arguable ishment may be the only form of punishment 05-Banks.qxd 1/30/04 4:40 PM Page 110

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still supported by appeals to the lex talionis. A number of explanations have been The basic principle of lex talionis is that pun- suggested to justify retribution, including the ishment should inflict the same on the offender notion that retribution is a payment of what is as the offender has inflicted on his or her owed; that is, offenders who are punished are victim. It can, therefore, be seen as a crude for- “paying their debt to society” (Walker 1991: mula because there are many crimes to which 73). Walker notes that this seems to confuse it cannot be applied. For instance, what pun- the “victim” with “society” because we gener- ishment ought to be inflicted on a rapist under ally do not perceive offenders as liable to pay lex talionis? Should the state arrange for the compensation or make restitution to their vic- rape of the offender as his due punishment? In tims; furthermore, if society is compensated addition, the lex talionis can be objected to for anything at all, it is for a breach of its peace because its formula to determine the correct (p. 73). punishment considers solely the harm caused Censure is also an important component in by the crime and makes no allowance for the retributivist thinking. For example, Andrew mental state of the offender or for any miti- von Hirsch, the leading theorist on just deserts gating or aggravating circumstances associated sentencing, writes: with the crime. Thus, even though a person’s death may have been brought about acciden- . . . desert and punishment can rest on a tally or negligently, the lex talionis, strictly much simpler idea, used in everyday dis- applied, would still call for the imposition of course: the idea of censure . . . Punishment connotes censure. Penalties should comport the death penalty (Ten 1987: 152). A further with the of crimes so that the objection is found in the view that in a civi- reprobation on the offender through his lized society, certain forms of punishment are penalty fairly reflects the blameworthiness considered too cruel to be defended as valid of his conduct. (in Walker 1991: 78) and appropriate. For example, a sadistic mur- derer may horribly his or her victim, For von Hirsch (1994: 120–121), censure is but society would condemn the imposition of simply holding someone accountable for his or that same form of punishment on the offender. her conduct and involves conveying the mes- It can also be said that although the death sage to the perpetrator that he or she has penalty may constitute a just punishment willfully injured someone and faces the disap- according to the rule of lex talionis, it should proval of society for that reason. On the part nevertheless be abolished as part of “the civi- of the offender, an expression of concern or lizing mission of modern states” (Reiman remorse is expected. As well, the censure 1985). expressed through criminal law has the of Retributivists believe that wrongdoers providing third parties with reasons for not deserve to be punished and that the punish- committing acts defined as criminal. In other ment imposed should be in proportion to the words, censure can have a deterrent effect. the offender committed. In con- Some theorists of desert argue that notions of trast to utilitarians, retributivists focus their censure cannot be adequately expressed ver- line of reasoning on the offender’s just desert bally or symbolically, and that hard treatment (a proportionate punishment) and not on is needed to properly express societal disap- the beneficial consequences of punishment. proval. The notion of the expressive or com- Retributivists ask questions such as “Why do municative character of punishment is closely offenders deserve to be punished?” and “How associated with the idea of “punishment are their just deserts to be calculated and as censure.” This conception recognizes pun- translated into actual sentences?” ishment as comprising not merely harsh 05-Banks.qxd 1/30/04 4:40 PM Page 111

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treatment, but also elements of condemnation, a response appropriate to the crime committed. , and censure. Thus, for example, Communication requires that the person to punishment in the form of a fine is quite dif- whom the communication is directed must be ferent from the payment of a tax, although an active participant in the process and must both involve payment to the state. In the same receive and respond to the communication. vein, imprisonment contrasts with other forms Additionally, the communication should of such as quarantine or detention appeal to the person’s rational understanding. for psychiatric disorders (Duff and Garland The communication must be focused primarily 1994: 13–14). Imprisonment, it is argued, car- on the offender being punished as a response ries with it an expressive function of censure, to him or her, and must be justified by his or whereas detention for reasons of quarantine or her offense (Duff 1999: 50). The message com- for mental disorder does not. Feinberg (1994: municated by punishment must focus on and 74) explains the expressive function of punish- be justified by the offender’s past offense and ment in the following terms: must be appropriate to that offense. Duff (1999: 50) argues that the message communi- Punishment is a conventional device for the cated should be the degree of censure or con- expression of attitudes of resentment and demnation the crime deserves. In the context indignation, and of judgments of disap- of criminal law, censure might be communi- proval and reprobation, on the part either of cated in a formal of guilt or the punishing authority himself or of those through a system of harsh punishments such “in whose name” the punishment is inflicted. Punishment, in short, has a sym- as imprisonment, fines, or community service. bolic significance largely missing from other Duff (1999: 51) argues that the aim of hard kinds of penalties. treatment is ideally to cause the offender to understand and repent the crime committed. It Feinberg (1994: 76) further argues that pun- should attempt to direct his or her attention to ishment expresses more than disapproval; it the crime, and give him or her an understand- amounts to a symbolic method of hitting back ing of crime as a “wrong.” It should also cause at the criminal and of expressing “vindictive the offender to accept the censure that punish- resentment.” In similar fashion, H. Morris ment communicates as deserved. By undergo- (1994: 92) contends that punishment serves to ing hard punishment, the offender can become teach offenders a moral lesson so that in the reconciled with the community and restored process of being punished and being made back into the community from which the aware that a crime violated communal values, offense caused him or her to be excluded. they will come to see what is good and choose Philosophers such as Duff (in Walker 1991: it in the future. According to this account, the 79) see the main benefit of punishment as the aim of punishment is to persuade and not to effect on the offender. They argue that punish- manipulate or coerce. However, as Morris ment has the effect of restoring the offender to himself points out, this approach does not the community in the same way that penance account for the punishment of those who are restores a penitent to the communion of the already repentant, nor is it able to cope with church. Nozick sees retributive punishment as a those who understand the values of society but message from those whose values are assumed are indifferent or opposed to them (p. 106). to be correct and normative to someone whose Over the last two decades, the notion of act or omission has displayed incorrect and punishment as a communicative practice has non-normative values (in Walker 1991: 81). developed (Duff 1999: 48). This notion asserts Walker (1991: 81) explains that “man is a rule- that punishment communicates to the criminal making animal,” and that rules and notions of 05-Banks.qxd 1/30/04 4:40 PM Page 112

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rules are acquired during childhood. Rules, in whether it can be applied to an actual society. the form of transactions involving promises, In other words, do those who commit crimi- establish codes of normative conduct including nal acts actually take an unfair advantage for “penalizing rules” that specify action to be themselves? taken against those who infringe the rules Finally, some retributivists argue that pun- (Garfinkel in Walker 1991: 84–85). It follows ishment is morally justified because it gives that failing to penalize an offender for infring- satisfaction. James Fitzjames Stephen, an ing the rules would itself be an infringement of English Victorian judge, is often cited as an those rules; thus, an unpunished infringement advocate of this theory. He expressed his view would create two infringements. of punishment as follows: Another theory that attempts to justify pun- ishment as a retributive act is that an offender I think it highly desirable that criminals should be viewed as a person who has taken should be hated, and that punishments an unfair advantage of others in society by inflicted upon them should be so contrived committing a crime, and that imposing pun- as to give expression to that hatred, and to justify it so far as the public provisions of ishment restores fairness (Ten 1987: 5). means for expressing and gratifying a Philosophers such as Herbert Morris, John healthy, natural sentiment can justify and Finnis, and Jeffrie Murphy subscribe to the encourage it. (in Bean 1981: 21) unfair advantage theory. For example, Morris argues that the effect of criminal law is to con- Is Retribution in Fact Revenge? fer benefits on society, because others are not permitted to interfere with areas of an individ- Retributive theories of punishment argue ual’s life since certain acts are proscribed and that punishment should be imposed for past prohibited. In order to gain the benefits of crimes and that it should be appropriate to the noninterference, individuals must exercise self- nature of the crime committed; that is, the restraint and not engage in acts that infringe severity of the punishment should be commen- the protected areas of the lives of others (in surate with the seriousness of the crime. Ten 1987: 53). It follows that when a person Sometimes, retributive punishment is confused violates the law but continues to enjoy its ben- with notions of revenge. Critics of retribution- efits, he or she takes an unfair advantage of ist theories of punishment argue that retribu- others who follow the law. Punishment, it is tion is basically nothing more than vengeance. argued, is therefore justified because it However, Nozick argues that there is a clear removes this unfair advantage and restores the distinction between the two because “retribu- balance of benefits and burdens disturbed by tion is done for a wrong, while revenge may be the criminal activity. done for an injury or harm or slight and need The unfair advantage argument has been not be a wrong” (1981: 366). He also points challenged by those who argue that it distorts out that whereas retribution sets a limit for the the nature of crime itself. For example, the amount of punishment according to the seri- wrongfulness of rape does not merely consist ousness of the wrong, no limit need be set for of taking unfair advantage of those who obey revenge. In this sense, therefore, revenge is per- the law. Also, it is difficult to show that offen- sonal whereas the person dispensing retribu- ders have in any real sense “willed” their own tive punishment may well have no personal tie punishment (Murphy 1994: 44). Addition- to the victim. As Nozick points out, “revenge ally, although unfair advantage might consti- involves a particular emotional tone, pleasure tute an ideal theory for the justification of in the suffering of another” (1981: 367). A punishment, the question arises about further distinction between the two is that 05-Banks.qxd 1/30/04 4:40 PM Page 113

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retribution in the form of punishment is well as a set of standards that would help in the inflicted only on the offender, but revenge may process of deciding the sentence. be carried out on an innocent person, perhaps Among the retributivists, Kant argued that a relative of the perpetrator. the aim of penalties must be to inflict desert, and that this was a “categorical imperative.” (Kant’s categorical imperative is discussed as Just Deserts an aspect of deontology in Chapter 8.) By this Up until about 1970, criminologists gener- he meant that inflicting what was deserved ally thought of retribution as vengeance. rendered all other considerations irrelevant During the 1970s, criminologists reconsidered (Walker 1991: 53). Just deserts proponents the idea of retribution and advanced new for- emphasize the notion that punishment should mulations. By the 1980s, the new retributionist be proportionate; that is, there should be a theory of just deserts had become influential scale of punishments with the most serious (Hudson 1996: 39). Importantly, the new being reserved for the most serious offenses, thinking indicated that although there should and that penalties should be assessed accord- continue to be treatment programs, a defen- ing to the seriousness of the offense (Hudson dant would not ordinarily be incarcerated in 1996: 40). This is often called tariff sentenc- order to receive treatment (N. Morris 1974). ing. In this method of punishing, the offender’s Influential writings such as Struggle for Justice potential to commit future offenses does not (American Friends Service Committee 1971) come into consideration, but his or her previ- and Doing Justice (von Hirsch 1976), which ous are taken into account because were written in the aftermath of the riot at most proponents of just deserts support reduc- Attica Prison in 1971, elaborated on the new tions in sentence for first offenders. Desert the- retributivism in philosophical and civil libertar- orists contend that punishment should convey ian terms. This theory gained support as a reac- blame for wrongdoing, and that blame is tion against the perceived unfairness of systems attached to offenders because they have done that favored treatment that had developed over wrong. Consequently, the blameworthiness of the first half of the 20th century, especially the the offender is reflected in the punishment use of the indeterminate sentence. This form of imposed. Thus, advocates of desert focus on sentence vested the power of determining the two dimensions only—the harm involved in date of release to a parole board, and signifies the offense and the offender’s culpability. Von the practice of individualized sentencing. The Hirsch (1998: 669) enlarges on these two main latter attempted to sentence according to elements, stating that, in looking at the degree the treatment needs of the offender, rather than of harm, a broad notion of the quality of life is the seriousness of the offense (Duff and Garland useful because “invasions of different interests 1994: 12). One of the criticisms of indetermi- can be compared according to the extent to nate sentencing was the fact that the sentencing which they typically affect a person’s standard courts had a wide discretion in choosing a sen- of living” (1998: 670). As to culpability, he tence, and although they tended to adopt tariffs suggests that the substantive criminal law, for classes of crime, individual judges could which already distinguishes intentional from depart from them without providing reasons. reckless or negligent conduct, would be useful Along with the just deserts movement, many in sentencing law. states and federal sentencing authorities Von Hirsch (1998: 667) argues that a repealed indeterminate sentencing laws with the focus on the censuring aspect of punishment aim of reducing judicial discretion in sentencing has coincided with a change in criminological and promoting consistency and certainty, as thinking. Criminologists had previously 05-Banks.qxd 1/30/04 4:40 PM Page 114

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regarded the blaming aspects of punishment as 1996: 44). The sentencing judge is required to stigma that might create obstacles to the rein- locate the appropriate cell on the grid for the tegration of the offender into the community offender being sentenced, where the severity of and might also cause the offender to reinforce the offense and the number of previous convic- his or her own , making him or her tions intersect. Each cell stipulates a presump- more likely to continue offending. Desert the- tive prison term that represents the normal orists now emphasize that responding to crim- period of incarceration for a standard case of inal acts with a process of blaming encourages that offense. In addition to the presumptive the individual to recognize the wrongfulness of sentence, there is a band indicating the range the action, to feel remorse, and to make efforts that should apply in the actual case. For to refrain from such conduct in the future. In example, in the case of an aggravated burglary, contrast, a deterrent punishment requires the where the offender has three previous convic- individual to simply comply or face the conse- tions, there is a presumptive term of 49 months quences. The difference between the two and a range of 45 to 53 months. The actual approaches is that a moral judgment is sentence depends on aggravating and mitigat- required from the offender under just deserts ing factors. According to Hudson (1996: 45), that is not required under a purely deterrent sentencing guidelines have had the effect of punishment. During the 1980s, many states, as reinforcing relatively lenient punishments in well as the Federal Sentencing Commission, states with that tradition, although states with introduced desert-based sentencing schemes a history of imposing severe punishments, such (Hudson 1996: 43). as New Mexico and Indiana, have produced In considering questions of severe schedules and guidelines. and seriousness, the issue arises as to how The fundamental difficulty with deserts offenses are to be ranked in terms of their seri- theory is that it lacks any principle that deter- ousness. Who is to determine the degrees of mines a properly commensurate sentence seriousness? In some jurisdictions, the judge’s (Hudson 1996: 46). Deserts are determined by views determine the issue; other approaches a scale of punishment that fixes the most include the use of sentencing commissions and severe penalty. This might be imprisonment or legislating sentencing schedules. In California, death. It then determines ordinally propor- the Determinant Sentencing Laws allow politi- tionate penalties for lesser offenses. It follows cians and others to raise the tariffs for offenses that if imprisonment is the most severe in response to public or media pressure in penalty, then proportionality will provide order to give effect to “get tough on crime” shorter terms of imprisonment and noncusto- policies (Zimring 1976). dial penalties for lesser offenses. If the term of Some critics argue that just deserts theory imprisonment for severe offenses is moderate, leads to harsher penalties, but von Hirsch then short sentences and penalties such as pro- (1998: 672) contends that the theory itself does bation will soon be reached on the scale of not call for harsher penalties, and that sentenc- seriousness. If the penalty for the most serious ing schemes relying specifically on just deserts offenses is death, it follows that long terms of theory tend not to be severe. He draws atten- imprisonment will be proportionate penalties tion to sentencing guidelines in Minnesota and for less serious offenses. This is the situation Oregon that provide for modest penalties by that prevails in many states. U.S. standards. The Minnesota Sentencing Many argue that retribution based on Guidelines provide a grid with a horizontal just deserts fails to account for the problem axis showing previous convictions and a of just deserts in an unjust world. Just deserts vertical axis showing offense type (Hudson theory ignores social factors like poverty, 05-Banks.qxd 1/30/04 4:40 PM Page 115

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disadvantage, and discrimination, and (Bean 1981: 32). The strength of the utilitarian presumes equal opportunity for all. Tonry argument is that rules can be changed accord- (1994: 153) notes that most sentencing com- ing to changes in society, but that no such missions in the United States will not allow change is built into theories of retribution. judges to bring personal circumstances into Can a retributivist ever be forgiving or mer- account in their sentencing decisions, despite ciful? During the sentencing process, offenders the fact that the average offender has a back- often say they are remorseful for their actions, ground that is likely to be either deeply dis- and in this sense remorse represents regret advantaged or deprived. Zimring (1994: 165) and self-blame. Those charged with the task suggests that desert sentencing fails to take of determining the sentence are urged to account of the fact that there are multiple dis- accept statements of remorse as mitigating cretions involved in the sentencing power. He factors. The issue, therefore, is whether gen- points to the legislature that sets the range of uine remorse should lead a sentencer towards sentences, the prosecutor who has the legal leniency. If the sentencer is a utilitarian, he authority to select a charge, the judge as the or she will be concerned only about whether sentencing authority, and the correctional a remorseful offender will be less likely to authority, which is able to modify sentences reoffend. However, for the retributivist, the after incarceration, as constituting a multi- question is whether remorse should mitigate plicity of decisions and discretions that make culpability (Walker 1991: 112). According the task of achieving just and proportionate to Walker, forgiveness has no degrees but sentences extremely problematic. Since pros- may take the form of “interested” or “dis- ecutors and legislators act under political interested” forgiveness, with the victim being influence and attempt to implement policies interested and the sentencing authority dis- that reflect public opinion, the sentencing interested. He suggests that whether from a process is not the monopoly of the judge, utilitarian or retributivist viewpoint, the sen- but is all too often an expression of varying tencing authority must choose the sentence perspectives based on periodic concerns about that is most appropriate, and that a retribu- whether current reflect notions of tivist may take extenuating circumstances being “tough on crime.” into account. He considers, however, that for- giveness, being an act of absolution, should not be considered an extenuating circumstance Reconciling Utilitarian and (p. 113). Thus, according to Bean, “forgive- Retributive Theories ness is a moral sentiment where ill-will is no Is it possible to reconcile utilitarian and longer retained. It may occur before or after retributive theories of punishment? For punishment but does not affect it” (1981: 99). utilitarians, desert is not seen as necessary to Mercy must be distinguished from forgive- justify punishment nor as a reason for ness because granting mercy is an act, but for- punishment because desert does not look to giveness is an attitude of mind (Walker 1991: the consequences of punishment—it simply 115). Mercy may be prompted by expressions punishes. For the utilitarian, the only good of remorse or by a statement that the victim reasons for punishment relate to the conse- has forgiven the offender. Walker argues that quences of that punishment. The contrast mercy is not equivalent to “reasoned leniency” between the two theories lies in the fact that and that mercy, in effect, suggests other consid- for utilitarians, the aim of punishment is erations such as proportionality and any suffer- to control future action, whereas the ing experienced by the offender, and mitigation retributivists see the aim in terms of desert generally (p. 116). Fundamentally, therefore, 05-Banks.qxd 1/30/04 4:40 PM Page 116

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mercy is a synonym for various kinds of Bean (1981: 64) outlines the strengths of leniency and has no force or effect of its own. the rehabilitation position as being its empha- sis on the personal lives of offenders, its treat- ment of people as individuals, and its capacity Rehabilitation to produce new thinking in an otherwise rigid Retribution and deterrence involve a penal system. He suggests its weaknesses process of thinking that proceeds from the include an unwarranted assumption that crime crime to the punishment. However, rehabilita- is related to disease and that social experts tion is a more complex notion involving an can diagnose that condition; treatment pro- examination of the offense and the criminal, grams are open-ended and do not relate to the and a concern for the criminal’s social back- offense or to other defined criteria; and the ground and punishment. Further, those in fact that the offender, not being seen as fully favor of rehabilitation theories acknowledge responsible for his or her actions, is capable of the possibility of additional problems develop- manipulating the treatment to serve his or ing during the offender’s sentence or treatment her own interests. In addition, rehabilitation that may be unconnected with the offense and theory tends to see crime as predetermined by which may require an offender to spend addi- social circumstances rather than as a matter of tional periods in treatment or confinement choice by the offender. This, it is said, denies (Bean 1981: 54). the agency of the offender and arguably treats Utilitarian theory argues that punishment an offender in a patronizing, infantilizing way should have reformative or rehabilitative (Hudson 1996: 29). effects on the offender (Ten 1987: 7–8). The Indeterminate sentences gave effect to the offender is considered reformed because rehabilitative perspective because terms of the result of punishment is a change in the imprisonment were not fixed at trial, but offender’s values so that he or she will refrain rather the release decision was given to insti- from committing further offenses, now believ- tutions and persons operating within the crim- ing such conduct to be wrong. This change can inal justice system, including parole boards, be distinguished from simply abstaining from probation officers, and social workers. The criminal acts due to the fear of being caught notion of rehabilitation enjoyed considerable and punished again; this amounts to deter- political and public support in the first half of rence, not reformation or rehabilitation by the 20th century, but modern rehabilitation- punishment. Proponents of rehabilitation in ists now argue that fixed rather than determi- punishment argue that punishment should nant sentences should be the context for be tailored to fit the offender and his or rehabilitation (Hudson 1996: 64). They argue her needs, rather than fitting the offense. that with indeterminate sentences, offenders Underpinning this notion is the view that become preoccupied with their likely release offenders ought to be rehabilitated or date, and this leads to their pretending to have reformed so they will not reoffend, and that made more in treatment than is really society ought to provide treatment to an the case. offender. Rehabilitationist theory regards The demise of rehabilitation as a theory of crime as the symptom of a social disease and punishment began in the 1970s and was the sees the aim of rehabilitation as curing that result of a complex set of factors, one of which disease through treatment (Bean 1981: 54). was a much quoted article by Martinson In essence, the rehabilitative philosophy denies (1974) who argued that “nothing works”; that any connection between guilt and punishment is, that no treatment program works very suc- (p. 58). cessfully in preventing reoffending, and that 05-Banks.qxd 1/30/04 4:40 PM Page 117

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no program works better than any other. offenders act out of choice. However, they Martinson later attempted to rectify this pes- suggest that the offenders’ choices are often lim- simistic view of rehabilitation and treatment ited because of circumstances and social condi- by acknowledging that some programs work, tions like poverty and inequality, which might sometimes, for some types of offenders.1 lead people into crime. Therefore, Hudson Nevertheless, from that point on, policy mak- (1996: 66) claims, the state should recognize ers and legislators abandoned rehabilitation as that it plays a part in causing crime and should an objective of punishment. On the issue of recognize its role toward crime prevention by indeterminate sentencing, the publication of providing rehabilitation to assist the offender in Criminal Sentences: Law without Order by not committing further crime. The offender, on Marvin Frankel, then a federal judge, which his or her part, has a corresponding obligation argued that judges exercised “almost wholly to take part in rehabilitation programs offered unchecked and sweeping authority” in sen- by the state. In this view, rehabilitation may be tencing (1972: 5), provided substantial sup- seen as an alternative to punishment rather than port to the proponents of determinate as something to be achieved through the means sentencing. By the 1980s, the retributionist of punishment. As Carlen (1994: 329) con- theory of just deserts had become the most tends, a purely punitive approach to sentencing influential theory of punishment. does little to decrease crime and serves only to Nowadays, rehabilitationists contend that increase the prison population. their rationale for punishment is the only one that combines crime reduction with respect for Incapacitation an offender’s rights. According to this view, although capital punishment and long terms of Penal practice has always tried to estimate imprisonment may deter and will certainly the risk that individual offenders might commit incapacitate, rehabilitation can be accom- crimes in the future and has tried to shape penal plished only if criminals re-enter society; conse- controls to prevent such crimes from happen- quently extreme punishments should be ruled ing. Through the incapacitative approach, out. Rotman (1994: 286) for example, argues offenders are placed in custody, usually for long in favor of a “right’s oriented rehabilitation,” periods of time, to protect the public from the which accepts the offender’s liability to receive chance of future offending (H. Morris 1994: punishment but claims a corresponding right 238). In utilitarian theory, incapacitation is seen on his or her part to “return to society with a as a good consequence of punishment because, better chance of being a useful citizen and stay- when serving his or her sentence, the offender is ing out of prison.” This perspective is often removed from society and is therefore unable to termed “state-obligated rehabilitation,” and commit further offenses. This applies regardless contends that if the state assumes the right to of whether the offender is deterred, reformed, punish, it should ensure that no more harm is or rehabilitated through the punishment he or inflicted than was intended when the sentence she is given. Incapacity may also be present in was pronounced. That is, the intent of the other forms of punishment such as parole, in prison sentence is deprivation of and not the sense that although the offender is free from loss of family ties or employability (Gallo and incarceration, he or she is placed under supervi- Ruggiero 1991). Rotman (1994), for one, sion, which may restrict his or her opportunity argues that a failure to provide rehabilitation to commit crime (Ten 1987: 8). amounts to cruel and unusual punishment. Some criminologists claim that certain Carlen (1994) and Matthews (1989) argue that offenders commit crimes at very high rates, states are entitled to punish offenders because and that applying a policy of selective 05-Banks.qxd 1/30/04 4:40 PM Page 118

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incapacitation aimed at these “career criminals” • Is it ethical to base punishment on inaccurate will assist with the aims of crime prevention. predictions? There are two basic objections to following • Is it ethical to punish a repeat offender for a policy of incapacitation based on selecting a past crime he or she committed and has offenders for this kind of punishment. The already been punished for? first is that predicting criminal dangerousness is problematic and will inevitably mean that The notion of incapacitation is reflected in such a number of persons will suffer incapacitation punishment policies as three-strikes legislation, who would not have committed further crimes mandatory minimum sentences, and truth in if left free, because, given the inaccuracies sentencing. These polices will be discussed as of prediction, it is necessary to lock up or penal policies in Chapter 7. incapacitate large numbers of nondangerous offenders so we can ensure we incapacitate Restorative Justice dangerous offenders. Second, there is the moral objection that it is wrong in principle Braithwaite (1998: 323) argues that restora- to punish offenders based on a prediction tive justice has been “the dominant model of of their future conduct; that is, they ought criminal justice throughout most of human to be punished for what they have done and history for all the world’s peoples,” and that not for what they might do in the future. it is grounded in traditions from ancient Morris (1994: 241) argues that sentences Greek, Arab, and Roman civilizations and in intended to incapacitate an offender ought to Hindu, Buddhist, and Confucian traditions. be permitted only where there exists reliable Braithwaite emphasizes that restorative justice information showing a high probability of means restoring victims as well as offenders future offending. Morris suggests that taking and the community. In addition to restoring account of dangerousness in the future lost property or personal injury, restoration should be considered to be statements about means bringing back a sense of security. He an offender’s present condition and not as a points to the and disempowerment prediction of future conduct. suffered by victims of crime. He observes that Some of the problems inherent in incapaci- Western legal systems generally fail to incorpo- tative sentencing include the following: rate victims’ voices because the justice system often excludes their participation. Restoring • it works only if we lock up those who would harmony based on an acceptance that justice have committed further offenses if they had has been done is, in his view, inadequate. been left free; Essentially, restorative justice proponents • if those we lock up are not immediately emphasize the need to support both victims replaced by new recruits; or and offenders, and see social relationships as a • if the crimes committed after release are not rehabilitative vehicle aimed at providing for- so frequent or serious so as to negate the effects of the crimes prevented through mal and informal social support and control incapacitative sentencing. for offenders (Bazemore and Schiff 2001: 117). Rather than separating out the offender as a Ethical questions that arise from the sentenc- subject for rehabilitation, restorative justice sees ing rationale of incapacitation include (also see social support and of offenders Travis 2002): as the means to rehabilitation. The origins of restorative justice in the • Is it ethical to punish persons for crimes not United States lie in part in court orders for yet committed? reparation taking the form of restitution 05-Banks.qxd 1/30/04 4:40 PM Page 119

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and community service. Since the 1970s, particular form of rehabilitation. However, restitution and community service have been Bazemore and Dooley concede that there is an employed as sentencing tools in criminal and absence of theory to explain how the opera- juvenile courts, and during the 1980s an tion of restorative justice is supposed to bring expansion occurred in victim–offender media- about a change in the offender. Some restora- tion programs resulting partly from interest in tive justice proponents argue that repair in restitution and community service programs relation to offenders involves a focus on (Bazemore and Schiff 2001: 25). Along with restoring, strengthening, and building relation- the increased interest in these alternative sanc- ships between offenders, victims, and commu- tions, attention to the interests of victims nities (p. 111), and therefore intervention increased during the 1990s, focusing on repair intended to prevent future crime must focus and healing influenced by the “faith commu- not only on the offender’s obligation to repair nity” and feminists (p. 26). Today, numerous harm done to victims and the community, but programs can be brought under the rubric of also on the need to repair broken relationships restorative justice, but they often remain between the offender and the community, the small-scale experiments and tend to be associ- victim and the community, and the victim and ated with community approaches to crime the offender. control. Critics of restorative justice point to its too- In considering the nature of a restorative ready assumption that it will be possible to justice approach to offenders, it is useful to secure agreement between offenders, victims, note the three core principles suggested by Van and communities. Garland (1990) notes that Ness and Strong (1997: 8–9). one of the functions of punishment is to relieve the feelings of victims and communities where 1. Justice requires the healing of victims, crimes are committed, and that restorative jus- offenders, and communities injured by tice avoids the ceremonies and rituals of crim- crime. inal law that recognize these emotions (in 2. Victims, offenders, and communities should Hudson 1996: 150). In addition, it can be be permitted to actively involve themselves argued that a greater reliance on restorative in the justice process in a timely and sub- justice and a consequent restriction on the stantial manner. 3. and responsibilities of the govern- operation and expression of criminal law ment should be rethought and in its promo- might lead to a situation in which those vic- tion of justice, government should be tims processed through restorative justice responsible for preserving a just order and might come to believe or feel that the harm the community should be responsible for they have suffered is of less importance than establishing peace. “real crime.” Feminists, who have argued for severe sentencing for domestic violence, have Restorative justice may be considered unique adopted this argument. and in its emphasis on not just one component of punishment show the limits of tolerance, and the criminal justice system such as punish- depenalizing through restorative justice ment, but as incorporating victims, offenders, processes tends to suggest that society has a and the community in its strategies and different attitude towards certain kinds of designs. behavior (Hudson 1996: 151). Von Hirsch, in In relation to offenders, Bazemore and his investigation into the basis for restorative Dooley (2001: 108) state that there is a nor- justice, contends that no clear principles have mative focus on harm and repair. Repair, in been formulated for restoring the harm done the context of restorative justice, implies a by offenders to community standards, and 05-Banks.qxd 1/30/04 4:40 PM Page 120

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unlike victim restitution, which involves a task be justified ethically?” To answer this question, of mediation between the victim and the one must first look at the purpose of criminal offender, there are no disputed claims involved punishment and question the various rationales in crime because, for example, a robber appro- put forward for punishment, such as deter- priates something that is clearly the property rence, incapacitation, rehabilitation, just of the victim (1998: 674–675). Volpe (1991) deserts, retribution, and restorative justice. has warned of the propensity of restorative Sociological perspectives on punishment justice to widen the net of social control. include the thinking of Durkheim, Weber, the Marxist tradition, and post-Marxist sociolo- gies of punishment, particularly that pro- WHY PUNISH? THE pounded by Foucault. Sociologists expand SOCIOLOGICAL APPROACH the notion of punishment to “penality,” which In sociological terms, punishment raises ques- they explore in various at various tions such as why particular punishments were times. Hudson defines penality as used and why they are no longer used; why a punishment like capital punishment has been . . . the complex of ideas (about proper abandoned to a great extent in the West; and punishment, about effective punishment), why imprisonment has become the major institutions (laws, policies and practices, agencies and buildings) and relationships form of punishment for criminal activity. (who has the power to say who is punished, In social terms, research has concluded that whose ideas count, what is the relationship punishments depend less on philosophical of those who punish and are punished to the arguments and more on the currents and rest of society) involved in the punishment movements in social thinking and in climates of offenders. (1996: 6) of tolerance and intolerance. A focus on history and changes in social conditions has Only a broad outline of the various perspec- illuminated the relationship between punish- tives on penality will be provided here. ment and society, which in turn has broadened According to Durkheim, society has an the investigation of the notion of punishment objective apart from the individuals into questions concerned with how order and who comprise it, and he argues that people authority are maintained in society. Garland behave according to social rules that, together (1990: 10) summarizes social theory about with customs and traditions, form a culture punishment as: “that body of thought which for a particular society (in Hudson 1996: explores the relations between punishment 81–86). Durkheim took a functionalist and society, its purpose being to understand approach; that is, he examined aspects of punishment as a social phenomenon and thus social life in terms of the functions they per- trace its role in social life.” formed in society. He applied this approach to Garland (1990) has argued that punishment punishment by looking at the functions that is the product of social structure and cultural punishment fulfills in maintaining social order. values. Thus, whom we choose to punish, how Durkheim identified beliefs and sentiments we punish, and when we punish are deter- held by members of society, which he called mined by the role we give to punishment in the “conscience ,” and argued that society. If we construe criminal punishment as crimes are those acts which violate that con- a wrong for a wrong, then we must conclude science collective and produce a punitive reac- that society is, in a sense, wronging the tion (in Garland 1990: 29). He developed offender. We must therefore ask, “can the two laws of penal . The first is that infliction of pain or a wrong upon an offender punishment is more intense the less developed 05-Banks.qxd 1/30/04 4:40 PM Page 121

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a society is and the more the central power Weber’s ideas on punishment are implied within that society is of an absolute nature. rather than made explicit in his notions about Thus, in industrial societies, collective senti- authority and power in modern society. ments are embodied in law rather than in Having identified three types of authority, , so crimes are seen as wrongs against the traditional, the charismatic, and the legal, individuals. He tried to demonstrate that Weber promoted legal authority—the process penalties changed from ancient societies to his of making rules by those given the right to time, from aggravated penalties such as death rule—as being the most appropriate form of with torture and mutilation to reduced forms rule for modern societies. For Weber, legal of punishment. In his second law, he develops authority carries with it a duty to obey laws. the notion of punishments having lesser inten- He argued that systems of laws might be sity, arguing that imprisonment will become rational or irrational; in a rational system of the main punishment replacing death and criminal law, crimes would be defined and torture. rules put forward for adjudicating those Overall, Durkheim sees the function of pun- crimes. He favored formal rationality, which ishment as promoting social solidarity through he termed “bureaucratic rationality,” and the affirmation of values, and argues that pun- saw this as an essential feature of a modern ishment’s importance lies in its expression of state. His notion of bureaucratic rationality outrage upon the commission of an offense. He appears in certain features of modern believed punishment to be a “passionate reac- society, such as our processes for making tion” to crime, and this expressive view of pun- judgments according to rules and the way ishment can be seen in modern-day notions of in which office holders exercise authority. censure in retributivism. His focus was not, Developments such as a professional police therefore, on whether punishment was effective force and a judiciary as well as due process in controlling crime, but in its function as a can be traced to the bureaucratization of means of maintaining social solidarity through society. expressions of outrage and through the affir- Marxist perspectives on punishment evolve mation of societal values. Among critics of out of Marx’s concern for the place of capi- Durkheim, Garland (1990) suggests that talism and the relations between production Durkheim’s analysis of punishment is focused and society. In his view, institutions like law too strongly on punishment’s expressive func- are shaped to parallel the relations of pro- tion, causing all other explanations to be duction and the maintenance of the capitalist discarded. Nevertheless, Garland (1990: 252) system. Marxist penologists have argued that points out that Durkheim’s insight into the role punishment regulates the supply of labor; this of punishment—as one of expressing commu- view was put forward in 1939 by Rusche nity outrage against criminal acts—does single and Kirchheimer in Punishment and Social out one aspect of punishment that seems to res- Structure (in Howe 1994: 12). In discussing onate in the context of today’s debates about the history of punishment in Europe from “getting tough on crime.” In similar fashion, the 13th century until the development of Mead in The Psychology of Punitive Justice capitalism, the authors perceive the severity of contends that the indignation that members of punishment as being tied directly to the value society feel towards the criminal amounts to a of labor. Thus, the severity of punishment, cultural sublimation of the instincts and hostil- they argue, is relatively lenient when labor is ities that the individual has tamed in the inter- scarce and its value high, whereas when est of social cooperation with others (in labor is abundant, punishments become more Garland 1990: 64). intense. 05-Banks.qxd 1/30/04 4:40 PM Page 122

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Another key aspect of their view is the commonly used today both in that form and principle of less eligibility (Howe 1994: 12). in the notion of “paying a debt to society” The argument is that the conditions the (Garland 1990: 113). Marxist analysis of offender will experience in prison must be society generally has been heavily criticized worse than anything he or she is likely to by feminists for ignoring gender and for out- endure outside the prison in order to restrain moded interpretative frameworks (Howe the “reserve army of labor” from crime; that 1994: 41). is, to serve as a deterrent to the lowest social In 1977, Michel Foucault published classes. The idea of less eligibility encompasses Discipline and Punish: The Birth of the Prison, matters like discipline, diet, accommodation, revolutionizing the study of penality and pun- and general living conditions in prisons. ishment by presenting the notion of penality Rusche argued that this principle limited penal and highlighting discipline as the key element reform because punishments and prison con- in modern forms of punishment. In his com- ditions could not be improved beyond a point plex exploration of penality, Foucault follows that would bring the offender into line with an approach that examines the issue from the the standard of life of the least advantaged ground up through a detailed examination of nonoffender (in Howe 1994: 20). This analy- penal practices. His central focus is the exer- sis has been criticized for its economic reduc- cise of power in modern society and its link- tionism (it only offers an economic argument ages with knowledge to exercise power of and to explain changes in punishment) (Howe over the body. Describing first the effect and 1994: 20). Nevertheless, it has led to a series of content of the public execution, Foucault studies that have tested the basic framework shows how the infliction of pain on the body and found some correlation between punish- gave way to an exercise of power through the ment and the labor market in the United States new practice of disciplining the individual over time. The important point is that the through institutions such as the factory and authors, together with other Marxists, have the modern prison, and how this led to the provided the insight that all punishment can- development of a class of “delinquents.” not be understood simply as a response to Foucault claims that disciplinary regulation is crime. In other words, when changes in the use the fundamental principle of social control in of imprisonment and other punishments are modern society and is most fully realized in the examined in historical contexts, other factors form of the prison. appear to have influenced their development. Foucault (1977) emphasizes the role of Other Marxist theorists like Melossi and punishment in producing the “right-thinking Pashuknis have asked why imprisonment per- citizen”; that is, the trained and disciplined sists, as opposed to other forms of punish- individual (Hudson 1996: 7). Foucault draws ment. One answer from Pashuknis is that there on both Weber (in his emphasis on bureaucra- is a correspondence between the development tization) and Durkheim (in his description of wage labor, which puts a price on time, and of punishment as an expressive force) in his paying for crime by “doing time.” In this account of penality. However, he adopts a sense, Marxist theory concerning the relations much broader analytic framework that links of production is found mirrored in the punish- punishment and penality and connects them ment of imprisonment, and Marxists therefore directly to changes in society and to the exer- argue that a crucial principle in society is the cise of power over the individual. Foucault’s exchange of equivalence. Punishment, there- ideas have inspired many followers including fore, becomes an exchange transaction in David Garland who, in Punishment and which the offender pays his debt, an expression Modern Society (1990), argues that a full 05-Banks.qxd 1/30/04 4:40 PM Page 123

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understanding of punishment and penality The emergence of just deserts theory in the should incorporate the theoretical insights of 1980s put an end to indeterminate sentencing all the writers discussed in this section, and introduced sentencing guidelines and together with those of Norbert Elias and his sentencing commissions as attempts were made notion that the West has undergone a “civiliz- to fix proportionate sentences. Just deserts ing process” that has sensitized society against theory lacks any principle that determines harsh punishment. Importantly, Garland has what amounts to a properly commensurate drawn attention to the need to consider pun- sentence, and it ignores social factors as well ishment not simply as the consequence of a as the multiple decisions and discretions that criminal act, but as a “complex social institu- go into the sentencing decision. tion” requiring us to think beyond simply Rehabilitation shows a concern for an crime control. Punishment, he argues, should offender’s social background and regards be viewed as a social institution, and its social crime as the outcome of a social disease that role and significance can be properly under- should be cured through treatment. In the stood only through developing the insights of past, indeterminate sentences supported social theorists. rehabilitation programs because the release decision was given over to boards and not determined by the court. The idea that “noth- SUMMARY ing works” brought about the demise of reha- The morality of punishment rests upon bilitation, which had been the dominant theories of deterrence, retribution, just deserts, rationale for punishment until the 1970s. It rehabilitation, incapacitation, and most has now been displaced by just deserts and recently, restorative justice. These theories incapacitation. attempt to justify society’s imposition of pun- According to incapacitation theorists, plac- ishment on offenders and try to provide an ing offenders in custody for lengthy periods of adequate ethical rationale for inflicting harm. time protects the public from the chance of Deterrence maintains that people are deterred future offending, but this means that offenders from crime because they are concerned about are being punished based on a prediction of the possible consequences of their actions. what they might do in the future. It raises the Utilitarian philosophers first put forward this question of whether it is ethical to punish justification for punishment. A number of persons for crimes they have yet to commit. studies have considered the effectiveness of Restorative justice is a newcomer to the deterrence as a theory, but there is no clear field of penal theory, and some suggest that it conclusion about whether deterrence works. lacks theoretical support. However, its empha- Retribution theorists argue that punishment sis on community involvement in solutions to is justified because it is deserved, and punish- crime and emphasis on the victim have ment therefore becomes a question of responsi- attracted a body of support, at least at the bility and accountability for acts that harm local level, where it has been employed to society. In retribution theory, the punishment deal with delinquency and relatively minor imposed should be proportionate to the wrong- offenses. doing. Retribution is justified in a number of The philosophical approach to punishment ways, including the notion that offenders is concerned with the “ought” of punishment, are paying their debt to society, that they are whereas the sociological approach raises ques- being censured by society, and that punishment tions about the use and severity of particular has an expressive character that ought to be punishments and the relationship among communicated to an offender. punishment, society, and social change. The 05-Banks.qxd 1/30/04 4:40 PM Page 124

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