Punishment is a legal process and complex phenomenon, shaped by social and historical forces which has a range of effects that reach beyond the population of offenders. Punishment ensures that we are protected from criminals and they pay for their consequences, as Garland states, punishment is a ‘process whereby violators of the criminal law are condemned and sanctioned in accordance with specific legal categories and procedures’ (1990:17). The main purpose of punishment is to prevent crime, however, principles of distribution in relation to the conflicting views of the types of punishment that certain types of offenders or offenses should receive change and evolve over time. For example, there is general consensus that murder is one of the worst crimes and therefore should receive the most serious sentence, however, in relation to the possession of drugs such as cannabis not everyone has the same views, and this affects the types of punishments given as well the justifications that underlie them (Barkan, 2001). Even in relation to offenses we consider as the most serious such as murder, the sanctions they should receive are still highly debated, for instance, capital punishment was used in ancient times for murder as well as another 220 crimes including minor theft, known as the ‘Bloody Code’, which involved punishments such as hanging until the Murder (Abolition of Death Penalty) Act (1965) suspended the death penalty in Great Britain and replaced it with the mandatory sentence of life imprisonment for just murder moderated by the Criminal Justice Act 2003 (Logan, 2013:36). The first main school of thought is reductivism, also known as consequentialism, which is mainly concerned with the prevention of future crime through deterrence, rehabilitation and incapacitation and the second school of thought is retributivism which is concerned with the offense itself and receiving a proportionate punishment, although these two are not necessarily mutually exclusive. This essay aims to explore the underlying justifications of punishment in relation to utilitarianism and libertarianism whilst considering their individual aims of punishment, criticizing them and seeing how such reasoning has evolved since the 20th century up until current developments.
Utilitarian approaches first advocated by Bentham have shaped reductivism, where punishment is justified if it prevents greater harm to society than the harm that is inflicted through punishment, or as he stated it should achieve ‘the greatest happiness of the greatest number’ (1907, cited in Hudson, 2003:19). One of the aims of reductivism is deterrence which can be distinguished into individual and general deterrence, where the former is to with stopping offenders from re-offending again and the latter is to do with preventing other potential offenders from offending. General deterrence would ideally aim to show others in society that behaving in a particular way in unacceptable and therefore acting out in a similar way will result in them receiving a similar punishment. However, Hiroshi et al (1990) has drawn on several criticisms in relation to this, problems arise in relation to who gets to decide the severity of punishments, how we can be sure that society is aware of the consequences for all types of offenses and lastly what may be a severe punishment to someone may not be severe to someone else and even if it is, we can not be sure that it prevents offending. For example, America has one of the harshest punishments as it still carries the death penalty as well as maximum security prisons, yet they have the highest crime rates in the world (Rubin, 2018:5). In relation to individual deterrence, the aim here is to prevent the individual from re-offending in order to tackle recidivism rates. The fear of pain here plays a substantial role in both individual and societal levels as the objective of the criminal justice system is to show both, that the pain that will arise from punishment and humiliation is not worth the crime by convincing potential criminals to not take risk and afterall criminals are ‘utterly indifferent from the rest of us… [they are not] indifferent to the risks and gains of crime’ (Wilson, 1983; 2013: 336). Therefore, as Beccaria believed, the criminal is viewed as a rational actor who we should be able to influence to make the right choices by weighing up the consequences and benefits of a crime through deterrence. However, the issue with this approach is that not all criminals are able to make rational decisions as there are individuals who are not afraid of pain or additionally, the benefits may outweight the consequences as the severity of a punishment is subjective and what is severe to one may not be to another. West argued that there is evidence of quite the opposite effect as it was found detention center regimes such as the ‘short, sharp, shock’ introduced in the 1980s simply did not work and in fact argued that the harsher the penalty, the more likely an individual is to re-offend (1982, cited in Cavadino & Dignan, 2007:39). These anti-deterrent effects may be a consequence of labeling effects, where individuals are stigmatized by being labeled ‘criminals’ and this process can make it difficult for them to become a law-abiding citizen (ibid.: 40). This, in turn, makes us question whether deterrence is only useful and limited to particular crimes or whether it has any value at all.
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On the other hand, incapacitation is focused on removing and isolating (physically) the criminal from society in order to protect the public and prevent any further crime in the future. In the United Kingdom, this is done by imprisonment which is the punishment given to serious offenses where danger is posed in hopes to remove criminals and make them realize their wrongdoings. Michael Howard who was the Conservative Home Secretary in 1993, argued that ‘prison works’ and that it protects us ‘from murders, muggers and rapists’ which may work temporarily or in relation to specific offenses such as theft or in to relation driving disqualifications and preventing motoring offenses (Burnett and Maruna, 2004: 390). Despite this seeming to resolve the ‘problem’, prisons are becoming overcrowded and are very expensive to maintain. Additionally, prison is seen as an ineffective punishment due to offenders’ recidivism rates being high which is a common occurrence and therefore only removing any danger from society temporarily and not dealing with the long-term effects of criminals possibly re-offending as recidivism rates for adults are 28.7% and for juvenile offenders, they are 42.3% (Ministry of Justice, 2018). There are also problems within the criminal justice system as crime still occurs within the prison and some offenders go on to commit even more crimes and become more experienced by learning the tricks through other criminals who have committed much more severe crimes. Sentencing is also difficult as although a ‘life sentence’ may sound very severe, it does not mean life in prison, as individuals can sometimes serve the tariff periods and be released based on good behavior which they may have simply followed the rules in order to minimize their sentences and serve as low as 7 years for serious offenses (Zimring and Hawkins,1997). So far, incapacitation and deterrence have been explored and it can be argued both aims of punishment also aim to send society a message in relation to the kind of behaviors that are seen as acceptable/not acceptable which is also known as denunciation and it can be considered as a justification in its own right. After all, our legal system has always been influenced by societal norms and through the punishments that arise through incapacitation and deterrence, we can also see the co-existence of denunciation and how it has evolved accordingly.
When penological thought became dominated by the ‘rehabilitative ideal in the 1950s and 1960s, rehabilitation became important and was seen as a way of reducing crime by reforming and treating individuals so that their character is modified and they do not re-offend. Despite this being the introduction of rehabilitation as a form of punishment, Robinson argues the rehabilitative ideal has been able to still be alive in our late modern society through its evolution and can therefore be characterized as utilitarian, managerial and expressive (2008:430). The first visions of rehabilitation where the focus was on welfare and making the state responsible for the stigmatization of punishment by providing offenders legitimate social opportunities and re-integration into society no longer apply as a central theme as, pubic policy is more focused on placing society’s interests and the prevention of future victimization at heart and above offenders’ needs. This utilitarian rehabilitative ideal has also led to rehabilitation evolving and as Garland argues it is only effective in cases where effective risk management is undertaken, the focus is on providing interventions for offenders who are seen as eligible based on the criteria of posing a high risk to society (ibid.:434). In addition to this, rehabilitation can be seen in expressive terms in relation to communicating to the offender as well as the wider society the moral wrong that the offender has caused which does not correspond with society’s beliefs which in itself overlaps with the aim of denunciation and it is another form in which this can be achieved by sending a message to society. It is also important to note that in our modern society, individuals are not seen as passive but rather, active individuals who make rational decisions and this has led to the idea of moralism being central in rehabilitative programs where individuals realize how their actions have affected other people’s lives as well as society’s. This, in turn, has led to the argument that restorative approaches may be better equipped to deal with this as such programs do incoporate the acknowledgment of a moral discourse and the damaging impact of one’s criminals actions (Dignan, 2005: cited in Robinson, 2008: 439).
Retributivism is usually seen as an alternative to the reductivism justifications of punishment and became prevalent in the 1970s as it supports the idea that the criminal should be punished because it is deserved and therefore it is the right thing to do. Kant argued that we must find punishment on blame and treat an offender as a rational blameworthy individual in a society of equals where we all agree on what happens to an individual who disobeys the law and everyone is treated equally when this occurs- idea of Lex Talionis from the biblical times, also known as ‘eye for an eye (Whitman, 2004: 94). The implications that arise from this are that ideas of vengeance have been used to justify the atavistic nature of harsher punishments such as capital punishment when this is not necessarily the case as retributivist ideas are based on more humane justifications where the individual simply receives a punishment that is proportionate rather than a more punitive sentence. Carvalho and Chamberlen (2018: 223) in fact argue that the reason for a need for harsher punishment in our contemporary era is actually to do with a need for social solidarity that is achieved through punishment, which is experienced by the anxiety and social insecurity of our society and therefore this is resolved by punishing harsher and giving us a sense of an effective criminal justice system. Equally, it is very hard to enforce an idea of equality and proportionality in a westernized society where social schism exists, groups in power may see other individuals as outsiders and therefore have much more punitive attitudes towards them in order to deal with the threat imposed, which may explain America’s harsh punitive practices (Markel, 2001: 2215). Retributivism may not be seen as a justification by itself, however, it can be argued that it can co-exist within consequentialism, where an offender is given a punishment that they deserve but that punishment should also have deterrent effects so that it also prevents future crime (Dolinko, 1997).
Alternatively, Garland argues that currently the criminal justice system is taken into unfamiliar territories where the ideological perspectives mentioned earlier may be outdated and an unreliable guide due to the existence of victim impact statements, community sentences, electronic monitoring and sentence guidelines laws (1991: 8). As a result, we can see the emergence of restorative justice as an alternative punishment, where the parties affected by a crime are brought together in order to take part in a discussion of what happened, see how individuals were affected and discuss the implications for the future, thus placing the victim at the heart of the sentencing process (Rossner, 2017: 269). Restorative justice was originally seen as a counter-argument to retributivism and punishment practices, however, it is now seen as an alternative punishment and a ‘tool’ that can be used instead. Therefore, restorative justice could provide the basis of a more balanced criminal justice system that considers the needs of victims, offenders and the community, where the criminal justice system across the country are encouraged, rather than obliged, to use this method which has actually been implemented when dealing with young offenders under the 1998 Crime and Disorder Act (Dignan, 2007: 324). Although critics of restorative justice claim that no actual beneficial outcomes arise, there is only positive evidence shown by comparisons made to control groups of criminals who were dealt with by the criminal courts, as offenders were able to remain crime-free successfully and recidivism rates did not increase as a result (Latimer et al, 2001, cited in Morris, 2006: 467).
Alternatively, abolitionism is worth mentioning in relation to the rationale of punishment as, although it is a strategy aimed at the suppression of punitive punishments, it is also a philosophical perspective that challenges the conventional definitions of punishment as a whole (Ruggiero, 2010). Since our understanding of crime have changed and academic literature views crime as a social construct, there are arguments that it should not be tackled the way it is but instead the root of the problem and why a crime occurred in the first place should be tackled. This can be linked to capitalist ideas of criminals being seen as deviant and rebelling against the government whereby, different classes are driven to oppression and control through punishment rather than help. However, if we were to remove prisons from the social and ideological landscapes of our society, what would be the alternative strategies and institutions used? Davis (2003:108) argues that there would be difficulty in dealing with large amounts of people who have offended but this issue could be resolved by looking at schools and health care systems as alternatives. Equally, there are already political projects being considered towards the movement of decriminalization in relation to certain types of offenses such as the ‘War on Drugs’ where treatment-based programs are seen as an alternative. This has already been implemented in the Netherlands as well as has a history of legalized sex work, such decriminalization would advance the abolitionist strategy of incarceration by reducing the number of people sent to prison and focusing on rehabilitation (Boyd and Lowman, 1993).
In conclusion, crime is an extremely complex social phenomenon and due the development of new and advanced societies, our understanding of it has changed. Not only is there a co-existence of justifications in relation to punishment as a whole but this can also be seen with particular institutions such as prisons, as what may have been the rationale behind prisons 200 years ago may be different from modern prisons today where there are elements such as rehabilitation programs incorporated and opportunities for offenders to reintegrate back into society through academic courses being offered within prisons. Therefore, as explored it can be very difficult to pinpoint the exact justifications underlying imprisonment and other punishments at a given time, which can in turn affect other policy areas in relation to probation services, the availability of rehabilitation programs and even sometimes the law itself in order to reflect society’s shifting sentiments. Public opinion is equally important when it comes to politicians, policy-makers and also judges when passing sentences as they have a duty to lead public views in order to maintain trust in the political process and criminal justice administration (Roberts and Hough, 2002:6). Nevertheless, there still remains scope for the transformation of public opinion of the different forms that punishment can take further to what we have already witnessed as public conceptions will continue to change and be reflected in the laws and therefore, punishment itself.
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