Principles of Law: An analysis of Retribution and Restoration principles in Society
According to Garland (1990), punishment is “the legal process whereby violators of criminal law are condemned and sanctioned in accordance with specified legal categories and procedures” (p. 17). While this process is an integral part of the Criminal Justice System (CJS), its operation is informed by the disciplines of criminology, sociology, and philosophy- all of which examine its nature through different viewpoints (Banks, 2017). While criminologists are concerned with the technical and penal procedures of punishment (Garland, 1990), and sociologists examines what punishment is ultimately intended for (the “is” of punishment) (Banks, 2017: 105), philosophy concerns itself with the purpose of punishment (i.e. why does society punish?). It is through the latter that theories denoting the rationale behind punishment and their success are identified. To that end, this essay examines those theories of Deterrence, Retribution, Incapacitation, Rehabilitation, and Restoration/Reparation in an effort to outline the role and importance each has in the practice of punishment.
The philosophical basis for punishment is found in two main types of theories: utilitarian theory and retributive theory (Banks, 2017), due to the focus each would place on the uses of punishment. Utilitarian theory seeks to maximize the net benefit relative to the harm caused (Hudson, 1996) and therefore favours punishment as deterrence where the aim is to punish the offender in hopes of limiting future crimes (Banks, 2017). This idea of limitation extends to the individual (individual deterrence), where the possibility of reoffending is decreased, and to general society (general deterrence) where the punishment is aimed at deterring future crimes of a similar nature (Hudson, 1996). For example, the use of boot camps as an alternative to prison sentences are aimed at modifying an individual offender’s behaviour to “shock” them out of committing future offences (Jones, 2012), while significantly increasing the penalties incurred for driving under the influence (DUI) could be seen as an attempt at general deterrence to dissuade potential drunk drivers (Banks, 2017).
Critics of this utilitarian conception of punishment argue that the valuation of net benefits relative to harms is a problematic concept. To utilitarians, a punishment is only justified if it inflicts less harm than the benefit of having reduced crimes of that nature (Banks, 2017). In cases where a certain punishment is deemed to deter the same amount of crime, the preferable punishment would then be the one which inflicts the lesser amount of harm on the criminal (Banks, 2017). Ten (1987) gave a hypothetical situation where petty thefts were rampant in society. This would mean that even though each individual theft is minor, the overall harm being caused is significant and therefore warrants a significant punishment for petty thefts. A criminal caught for petty theft would thus suffer an exponentially higher punishment than intended for a crime of that nature.
How successful punishment is in deterring crimes, however, is hard to discern. From an empirical perspective, many have argued that punishment does not have any individual deterrent effect (Ten, 1987), or a general deterrent effect beyond certain, isolated examples (Beyleveld, 1979). Tullock (1974), however, contended that many regression studies showed a positive correlation between increasing the severity/frequency of punishment and a decrease in the associated crime, although it has been argued that this negative association could be due to lower sanctions being an effect, and not the cause, of higher crime rates. Andenaes (1972) noted that deterrence had worked in certain situations, referencing a study where the change in a department store’s treatment of amateur shoplifters prompted them to experience emotional distress and a subsequent change in behaviour, compared to professional shoplifters who had accepted their treatment as thieves as a consequence of the practice.
Andenaes (1972) also highlighted the two positions often debated on the issue of the deterrent effects of punishment. According to utilitarians, particularly Bentham, a criminal makes a rational calculus of the costs (the risks of punishment) and benefits associated with a certain action before committing it, whereas the alternative viewpoint suggests that law-abiding citizens are inhibited not by a rational calculus but rather moral concerns and established norms governing behaviour. A criminal, therefore, does not make rational choices, rather they act out of emotional instability, a lack of self-control, or through having internalised values of a criminal subculture. He argued that different crimes such as murder or drunk driving have different social contexts, motivations, and decision-making capabilities on part of the offenders which makes generalizations regarding the effects of punishment as a tool of deterrence difficult.
Retributive theories, on the other hand, argue that the focus of punishment ought not to be on benefiting society, rather on allocating moral blame to the offender (Banks, 2017). The basic premise of Retribution is that a society has a moral order of accepted behaviour defined by those who institute the rules and acting through the CJS allocates blame for criminal acts that go against these rules (Bean, 1981). Another important aspect of Retribution is that the punishment ought to be proportionate to the harm caused (Banks, 2017).
In trying to justify punishment as a retributive act, various viewpoints were put forth. According to von Hirsch (1994: 120-121), punishment connotes the idea of censure, where a message is sent to the offender that society disapproves of their conduct that wilfully harmed someone else. Morris (1994) argued that this would help the criminal understand the severity of their behaviour and thus adopt behaviour in line with societal norms in the future. An example of this communicative aspect of punishment could be seen in the form of paying a fine vs. paying taxes, where both involved payments to the state but the former had negative stigmas associated with it. Duff (1999) believed that this communicative aspect required the recipient to be an active participant in the process and appeal to their rational understanding. Furthermore, the extent of this stigma ought to be proportional to the harm of the offence.
Another stance on punishment as retributive is the unfair advantage theory (Banks, 2017). It views the offender as having benefited unfairly at the cost of the victim through their criminal action, making punishment a means of restoring fairness (Ten, 1987: 5). Herbert Morris, for example, argued that criminal law provided benefits to citizens in the form of protections of civil liberties and personal autonomy in exchange for non-interference in others’ abilities to enjoy the same (Banks, 2017). A criminal who then violates these laws yet continues to enjoy its benefits gains an unfair advantage, one that ought to be removed through the use of punishment (Banks, 2017). Lastly, some, such as James Fitzjames Stephen, argue that punishment is justified due to the expression of hatred denoted in the sanctions, thus satisfying society’s sentiment against criminal behaviour (Banks, 2017).
Critics of Retribution, however, have argued that retributive punishments amount to ideas of vengeance (Hudson, 1996: 39). Intuitively, this may seem plausible due to the focus on the past actions of the offender with a disregard towards their treatment and rehabilitation. However, Nozick (1981) believed that revenge was a personal affair, containing an emotional expression of hatred against a perceived wrongdoer (rather than an actual criminal per se) with no limitation on the inflicted punishment (as opposed to legal punishments with sentencing limits).
Practically, this principle is perhaps best illustrated in the influential theory of just deserts which gained traction in the 1980s (Banks, 2017). The central focus of just deserts was the retributive aspect of punishment but where earlier criminologists thought retribution was akin to vengeance, just deserts maintained the belief in treatment programs for offenders however contended that incarceration was not purposed for this endeavour (Banks, 2017). In its wake, the practice of indeterminate sentencing, which attempted to sentence according to the needs of the offender rather than a focus on the offence (Duff and Garland, 1994: 12) was repealed to introduce more consistent guidelines for sentencing and reducing the discretion of judges to depart from sentencing guidelines (Banks, 2017). Von Hirsch (1998), in elaborating on the proportionality element in just desert punishments, argued that a broad look into the effect on a victim’s standard of living could be used to decide the level of harm inflicted.
Hudson (1996: 46) however, noted the central problem in just desert theory is a lack of a defining principle to gauge the proportionality of a punishment. Due to deciding the scale of punishments by first identifying the most severe punishment as the benchmark, it is possible to have situations with a mismatch of punishment and offence. For example, if the death penalty is deemed to be the most severe form of punishment, then long prison sentences would qualify as punishments for lesser offences despite imprisonment itself being a relatively higher form of punishment (Banks, 2017).
It is argued that both, retributive and deterrent aspects of punishment focus on the crime and the punishment, without examining the social context of the offence and the criminal (Banks, 2017). Often, the utilitarian and retributive approaches represent a dichotomy of thinking about the justifications for punishment with other theories being some level of applied, practical amalgamation between the two.
For example, while utilitarian theory does believe in changing an offender’s behaviour, the principle of rehabilitation believes this change should be refraining from criminal conduct due to believing it to be wrong rather than out of fear of punishment (Banks, 2017). Rehabilitation theory treats crime as a social disease where the circumstances surrounding a criminal (such as poverty) push them into such conduct, making treatment of offenders a central concern and often monitors offenders beyond the sentencing stage (Bean, 1981). Treatment programs involving education, job training, medical care, etc. help reintegrate offenders into society (Bean, 1981: 54).
However, it has been argued that rehabilitation unwarrantedly assumes crime to be a social disease, removing the aspect of agency on the part of the offender (Bean, 1981: 64; Hudson, 1996: 29). Additionally, Martinson (1974) believed that treatment programs may work for certain individuals depending on their background and the offence, but as a general strategy had little success in rehabilitating ex-convicts. It is this view that led to the prominence of just desert theory in the 1980s and an abandonment of rehabilitation as an aim of punishment (Banks, 2017). Rotman (1994: 286) however believed in a “right’s-oriented rehabilitation” approach, which laid an obligation on the state to rehabilitate the offender in addition to its adopted burden of punishing the criminal, thereby separating the idea of rehabilitation from the idea of punishment.
Incapacitation, on the other hand, looks to limit the activity of the offender so as to prevent further offending- usually through placing them in custody for long periods of time or even through punishments such as parole, which limit their activity through supervision (Banks, 2017; Ten, 1987: 8). Utilitarian theory sees this limit on the ability to reoffend as positive, although this would happen regardless of whether the aim of the punishment was to deter, rehabilitate, or reform. Some have argued that an incapictory approach would help limit crimes from “career criminals” who have a high propensity towards committing certain types of crimes (Banks, 2017: 117-118). Policies such as three-strikes legislation, and mandatory minimum sentences reflect this thinking as the former could be used to establish a pattern of criminal behaviour whilst the latter ensures a custodial period regardless of social context.
The problem with this type of approach however is that it relies on predicting criminality by assuming that certain criminals are more likely to offend/reoffend, meaning that is plausible that innocent people may end up being punished (Banks, 2017). The probability of this happening likely increases if examined from a general aim of reducing crime rates, as a large number of people would need to be incarcerated to account for the uncertainty regarding which specific individuals would offend/reoffend (Banks, 2017).
Lastly, restoration is based on providing relief for the victim, offender, and the community at large (Banks, 2017). As Braithwaite (1998: 323) argued, restorative justice has been “the dominant model of criminal justice throughout most of human history for all the world’s peoples”. This approach incorporates the use of the CJS as a means of redress to the victim, satisfy the needs of the offender, and restore the sense of security and harmony in the community- which traditionally had been ignored by western legal systems under the assumption that a punishment served on behalf of the victim would be enough to restore their sense of security (Braithwaite, 1998). Finding its roots in reparation court orders (Banks, 2017), restorative justice emphasises the use of restitution and community service orders to “repair” the relationship between the victim, offender, and the community (Bazemore and Dooley, 2001: 108).
Critics, however, believe that restoration assumes that it is generally possible to reach consensus between all parties affected through a crime when in fact this is largely not the case (Banks, 2017). Garland (1990) argued that the process of punishment and the connotations attached to them serve to satisfy the emotions of the victim, to make them feel that the system is acting on their behalf to punish perpetrators- whereas restorative justice would deprive them of this closure.
In summation, it can be observed the theories examining why society punishes are largely a result of the philosophical discussion of punishment. Broadly speaking, the utilitarian conception of focusing on the future benefits and the retributive conception of looking at the past actions of the offender offer the dichotomous ends of the thought spectrum. Deterrence is a utilitarian theory that believes in the purpose of punishment to be that of stopping future crimes through individual and collective sanctions. Although it is criticised for an ambiguous valuation metric that could theoretically lead to disproportionate punishments. Retribution and just deserts theory, on the other hand, believe the main purpose of punishment to be attributing moral blame to offenders based on the harm they have caused to society. Multiple explanations expand on this concept such as the unfair advantage theory or the censure and expressive communication aspects of punishment, however similar critique regarding how the proportionality of punishments are decided, exist here as well. Rehabilitation falls on the utilitarian side of the thought process however aims to reintegrate offenders into society through positive-value inculcation rather than fear of punishment, although is criticised to idealistically treating all crime as a social disease rather than an action on behalf of a criminal. Incapacitation aims to reduce crime through removing criminals from society while restoration adopts a holistic approach to repair the damaged relationship in society as a result of crime. Ultimately, a thorough understanding of punishment likely requires an examination of factors that go beyond just the philosophical aspect.
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