Retributivism and Utilitarian: Theory of Punishment

Introduction to Theories of Punishment

Punishment has always been the traditional method of crime control. Punishment is the intentional infliction of torture and hurt, yet punishment has been an area of significant dispute (Hucklesby & Wahidin, 2013). When looking at theoretical justifications for punishment outside the criminal justice system, it is important to address the main theories of punishment and what they aim to achieve. These theories can be placed under two categories – Utilitarianism and Retributivism.

Utilitarianism: A Forward-Looking Theory

The utilitarian theory believes the use of punishment is validated as it can aid the prevention of future crime and reduce the consequences of crime. In order to lower the crime rate, the offender's suffering must be counterbalanced by preventing future pain to individuals (Cavadino and Dignan, 2007). Thus, it acts as a forward-looking theory and can be seen as a moral response against wrongdoers (famously promoted by Jeremy Bentham, 1748-1832) considering that it creates significant happiness for the greatest number of people. Therefore, this makes punishment morally right in the eyes of a utilitarian.

Retributivism: A Backward-Looking Theory

In contrast, retributivism penalises wrongdoers for the illegal acts committed, so it is considered a backwards-looking theory (Brooks, 2012). The main rationale for retributive punishment is that the offender is deserving of it (Murphy, 2007) and the punishment should be in proportion to the crime (Brooks, 2012). Retributivism was established in the lex talonis – “an eye for an eye, a tooth for a tooth, a life for a life” (Exodus 21, 23-5) and Kant’s retributivists believe that retribution “should not be a means to an end, but an end in itself” (Newburn, 2017, p. 558). Retributivists may argue that the harshness of sanction is not arranged with prospective deterrent influence, nevertheless retributivists still believe criminals should revaluate the consequences of committing a crime. (Brooks, 2012).

Alternative Punishments: ASBOs, Civil Injunctions, and Parenting Orders

ASBOs, civil injunctions and parenting orders have been popular uses of punishment outside of the criminal justice system. ASBOs are governmental arrangements that offer protection to the community from actions that are expected to create distress or annoyance (Home Office, 2002). They are not intended to penalise the delinquent or act as penalties, although a breach can result in a criminal sentence (Home office, 2002). Civil injunctions took over from several previously used devices like the ABSO. The court has to be satisfied that the individual has participated is likely to participate in behaviour that is able to cause inconvenience and trouble before granting an injunction (Crime and Disorder Act, 1998). Different to the ASBO, a criminal record is not obtained when an injunction is breached. Yet punishments can include supervision within the community or even imprisonment for those over the age of 14 (Wigzell, 2014). Parenting orders can be given to parents whose child has received an ASBO, a Child Safety Order or has been found guilty of an offence (Holt, 2008).

This essay will criticise and assess the theoretical justifications for the use of punishment outside the criminal justice system, whilst considering the use of ASBOS, civil injunctions and parenting orders in terms with the justifications.

Deterrence: Individual and General Perspectives

Primarily, deterrence, rehabilitation and incapacitation can be placed into the ideology of utilitarianism.

Deterrence believes that the rate of crime is reduced because of the fear of punishment offenders could suffer (Cavadino and Dignan, 2007). Micheal Howard, the Home Secretary at the time, expressed at the Conservative Party Conference (1993) that deterrence allows those who are enticed into committing crime, to think twice about the consequences before carrying out the offence (Cavadino and Dignan, 2007). If the nation is worried about the consequences, then the people will not offend (Brooks, 2012). There are two forms of deterrence – individual deterrence and general deterrence.

Individual deterrence is aimed at the offender and uses a personal fear calculation, where the shock of the sanction counterbalances the desire to offend, resulting in a decrease in further offences being committed (Hucklesby and Wahidin, 2013). A justification for the use of parenting orders is individual deterrence. Parenting orders can be appointed to parents of a child that has acquired a child safety order, an ASBO or has been found guilty of a crime (Holt, 2008). The Government holds the view that by imposing a formal requirement on parents to pay a penalty has a consequential effect which brings home the realities of their children’s behaviour and the implication of their own actions into family life (Home Office, 1990). Which, should act as a big enough deterrent to the family for the criminal act to not occur again, especially in vulnerable and impoverished families. This is further supported by the use of The Troubled Families programme, which was an initiative for families facing various issues involving crime and anti-social behaviour. The aim of the program was to deal with problems before further action is needed. The first stage of the TF scheme operated from 2012 – 2015 and helped 99% of 120,000 families (Bate and Bellies, 2019). Yet, this statistic was challenged when an evaluation of the scheme found little proof that was significant enough to produce results (Aldridge, 2019).

Empirical data displays that individual deterrence is disadvantageous (Helen, 2010), especially when looking at ASBOs. As in the term of June 1st 2000 to December 31st 2012, 24,323 ASBOs were distributed. 58% of the ASBOs issued were breached more than once. Of those breached, 75% were violated repeatedly (Home Office, 2014). In contrast, 63% of individuals who were sent a warning letter before obtaining an ASBO did not receive another action to prevent anti-social behaviour (National Audit Report, 2006) so it could be claimed that ASBOs are seen as a deterrence in some cases. It is also argued that civil injunctions do not act as a good enough deterrent as there is no criminal offence attached if the order is breached (Youth Justice Board, 2015).

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Alternatively, general deterrence involves social control. This perspective uses a social fear calculation, as the person is not exposed to suffering but is an observer of the suffering of the society (Hucklesby and Wahidin, 2013). ASBOs are seen to have a component of general deterrence, as they are governmental orders that offer protection to the community from actions that are expected to create distress or annoyance (Home Office, 2002). They are orders that require individuals within the community to help with the evidence collection and also helping in the enforcement of breaches (Home Office, 2002). General deterrence is built from the concept that penalizing one individual could deter others from performing similar actions (Mathiesen, 2006). This is a main reason as to why the government use ASBOs, parenting orders and civil injunctions, to try and deter others from committing similar offences. General deterrence is an attempt by the state to communicate through penal law, but messages can be reinterpreted or never received by the intended group (Mathieisen, 2006). This can show that general deterrence is ineffective especially in relation to the communication of ASBOs, parenting orders and civil injunctions when looking at breach rates. On average, an ASBO is breached 5 times, and it is reported that over two thirds of juveniles breached their ASBO more than once at the end of 2013 (Home Office, 2014). This shows that ASBOs do not act as a good enough deterrent from committing the offences, as the National Audit Report (2006) found that the program in place was not working for long-standing persistent criminals. This is supported by Edward Leigh, the chairman of the Commons Public accounts committee who supervises the National Audit Report (2006) stated that often delinquents respond to ASBOs by mocking the government and ruining the lives of the local community, instead of being shocked into correcting their attitude. The Ipsos MORI survey (2005) identified that there was support from the public for ASBOs, however judgements are split on their success. Those who knew of ASBOs, four in ten sensed they were successful in preventing individuals from partaking in anti-social behaviour.

Advocates for general deterrence believe that harsher punishments can intimidate prospective offenders (Walker, 1993). There is evidence that argues that wrongdoers who experience harsher punishments (including punishments directed at deterrence) are expected to reoffend (Lipsey, 1992). A research study on youths in London found that if a boy commits a crime, the most successful way to prevent reoffending is to not convict him on the first offence (West, 1982). This evidence is contradictory to common sense as it shows that there is no deterrent effect through the use of punishment, or that any wrongdoer is actually deterred. Although, it is proposed that sanctions have alternative effects which could counterbalance the deterrent effect. Mathiesen (2006) argues that the law in advanced capitalist-patriarchal societies penalise the poor the hardest, so general deterrence is not a way of preventing crime in society, but a way of keeping the poorest people in order. A National Audit report (2006) confirmed this as they found that it was those living in underprivileged communities who were more likely to suffer.

Additionally, advocates for this justification accept that the deterrence is dependent upon several factors, including when the offence has occurred during the criminals career, the extent of the wrongdoing, or the norms that are being breached (Wright, 1994). The rationale of deterrence has also been challenged. People don’t often weigh out the costs and benefits before committing a crime. Emotions are also strong influencers when calculating actions, and are not often thought about in advance (Golash, 2005). The certainty of being convicted is also very significant when assessing the effectiveness of deterrence. The lower the anticipated risk of being caught by the offender, the lower the chance the penal law will intimidate the offender against carrying out unlawful actions in the future (Andeneas, 1974).

There are several complications with deterrence. One of the criticisms is that deterrence is insignificant, because individuals who abstain from troublesome actions do so because of causes unrelated to penal law. Moral sense and family ties can act as an obstacle inhibiting the crime, while a minority of offenders may grow out of crime (Golash, 2005). In addition, there has been interest regarding the publicity and ‘naming and shaming’ of ASBO recipients as a disregard of human rights (Burney, 2005); however as stated by the Home Office (2005) exposure is necessary if the public are to assist agencies in stopping anti-social behaviour. Exposure is essential in terms of restoring the public’s confidence in that something is being done, it allows the local community to be able to notify the government of any breaches and act as a deterrent to offenders (Millie, 2008). Commentators emphasize that it does overuse its bias against the offender in specific areas but the authority’s response is that, even though ASBOS may break human rights (the right to respect private and family life and the right to freedom of expression), it can be overthrown in favour of a proportional reaction to combat crime and disorder (Respect, 2008). The matter of naming and shaming can be problematic for juveniles. Naming and shaming cannot be distinct, and shame without a reintegrative procedure is expected to be ineffective (Ahmed et al., 2001). It adds to the outcast aura which can be harmful to the identity and future of a child. It could increase resistance and boldness, with the ASBO acting as a badge of bravery (Burney, 2005). Several studies have proposed that ASBOs are seen more like a badge of honour with minors creating a self-fulfilling prophecy and living up to the labels (Wain and Burney 2007).

Rehabilitation and Incapacitation: Utilitarian Approaches

Although rehabilitation may not be a justification for ASBOs, civil injunctions and parenting orders, it is a justification for utilitarian punishment. Raynor and Robinson (2005) recognise there is a number of definitions, that argue rehabilitation is a necessary part of punishment and is a way of undoing the damaging drawbacks that punishment created. Rehabilitation is recognised as an effort to convert the offender to the individual they were before the offence had taken place. It also believes that the individual has deteriorated as a result of committing the crime (Hucklesby and Wahidin, 2013). Wrongdoing is perceived as a social illness so if the problems are correctly identified, the offender can be cured. As a result of this, advocates concentrate on treating the criminogenic symptoms which draws in the main rationale for positivist criminology (Hucklesby and Wahidin, 2013). Several academics have highlighted the evidence: crime is not an illness but in fact a social construct and offenders may be no different to the law abiding society (Scott, 2008). By concentrating on the wrongdoer rather than the crime, rehabilitation is deeply deterministic and refuses human agency and moral decisions (Golash, 2005). There is also a risk that many of the claimed ‘cures’ create more damage than the crime they handle (Boonin, 2008). Rehabilitation can also be seen as unjust and hinder procedural rights, as rehabilitative punishments can be excessively long and indeterminate, as the wrongdoer must transform before the scheme of treatment can finish (Hudson, 1996). Supporters of rehabilitation have been hesitant to accept that the solutions that are tackled through coerced imprisonment are actually a method of punishment (Wootton et al, 1978). Martinson (1974) found that rehabilitation in the community has been proven to be widely unsuccessful in the reduction of future offending, with only a number of cases proving successful.

The final theoretical justification for utilitarian punishment is incapacitation. Incapacitation appears to be straightforward, and has a specific fit with the basic role of imprisonment (Zimring and Hawkins, 1995), which in turn removes the ability to engage in further crime. It also appears to be infallible in terms of meeting its aims (Bentham, 1830). ASBOs are considered to have an element of incapacitation as there is the implementation of curfews and bans from associating with certain people, which is a restriction and forfeit of freedom. Hucklesby and Wahidin (2013) claim that incapacitation could lead to the postponement of crime, with the criminal having a tendency to reoffend when returning to the community. Incapacitation also has what Honderich (2006) calls capacitating results, which gives increase in opportunities for new wrongs or could treat criminals in such a way that they will participate in further criminal acts when released. It is said that the removal of wrongdoers only has an effect for a number of years before their place is occupied by new criminals (Hucklesby and Wahidin, 2013). Additionally, Tarling (1993) has identified that a rise in prison populations by 25% would reduce recorded crime by only one per cent. Another problem is that by basing punishments on these unreliable predictions, Von Hirsch (1987) argues that the wrongdoer will be given a harsher sentence and will be unjust punishment. Scott (2008) highlights the critical question of false negatives and false positives. Not only does it contradict the key principles of penal law that the legally guilty should be punished, additionally we have no capability to correctly forecast the number of future offences (Mathiesen, 2006). The issues of false positives and false negatives indicates the hazards of predicting future actions (Hucklesby and Wahidin, 2013).

Retribution: The Principle of Proportionality

In contrast, retribution stands as a single objective, as retributivism concentrates purely on the offender suffering the consequences for their misbehaviour because they deserve it, and not to improve future society (Newburn, 2017).

Retribution can take many forms of punishment including restrictions of freedom, incapacitation and loss of status (Case et al., 2017). Retributivism is rooted in the foundation that through hurting others in the past, the criminal deserves to be hurt. In doing this, retributivists concentrate on the wrongdoers guilt and connect the punishment with the crime, which is known as the principle of proportionality (Hucklesby and Wahidin, 2013). Additionally, this supplies a moral structure that claims that the innocent should not be penalised (Hucklesby and Wahidin, 2013). Retributivism is regarded as a fundamental justification for parenting orders, as the government assumes the enforcement on parents of a official requirement to pay penalties has an consequentialist effect and will bring into reality the result of the child’s behaviour and the consequences of their actions.

Retributivism has been critiqued by several academics. Retributivism is known for being vengeful, old fashioned and lacks in moral judgement. Although the perspective is backwards-looking, it is criticised for its attempt to explain an element of a procedure that merges the formation of norms relating to further criminal behaviour (Wacks, 2017). Retributivism believes that the country has not only a right but an obligation to punish merely on the fact that an offence has been committed (Wacks, 2017). Hucklesby and Wahidin (2013) also query whether the requirement for pain and torment is healthy, as the emotions that can follow punishment can be harmful to the offender. Although retributivism struggles to justify the reasons for punishment, what punishments are deserved or why that state is given the authority to undertake such damage. This is endorsed by Lyons (1984) who asserts that retribution is ineffective because it accounts for too little or too much. If punishment is accounted for, it will be accounted for in numerous cases and by numerous individuals. Although it is uncertain that they succeed in justifying any retribution at all, notably by legal jurisdiction, because they do not explain why someone possesses the right to penalise or why the right to penalise is reserved to the state (Wacks, 2017). This is supported by Hudson (1996) who argues that retribution fails to prove why the right to punish is reserved to the government, particularly if there are other means of punishment and education which do not involve physical punishment such as rehabilitation. It argues that there should be punishment that restores balance but doesn’t explain why the punishment should involve pain (Hucklesby and Wahidin, 2013).