Punishment is an essential tool for maintaining societal order and regulating behavior. Scholars like Edwin H. Sutherland, Nigel Walker, and John Hagan have delved into the theories and purposes of punishment, providing a comprehensive understanding of its complexity.
Sutherland emphasizes the societal response to wrongdoing and the justification of pain and suffering, while Walker characterizes punishment through seven features, including the unwelcome nature of punishment and the justifications provided.
On the other hand, Hagan identifies seven punishment goals, such as deterrence, rehabilitation, and restitution.
Understanding these theories provides insight into the intricate relationship between punishment, societal values, and the pursuit of justice and order.
By examining these perspectives, we can gain a deeper understanding of the multifaceted nature of punishment and its role in maintaining a just and orderly society.
Understand Punishment and Criminology.
Understanding the Concept of Punishment According to Edwin H. Sutherland
Professor Edwin H. Sutherland mentioned that the concept of punishment contains two essential ideas.
First, punishment is imposed by the group in its corporate capacity upon a person who is a member of the same group.
Second, punishment presupposes some pain or suffering justified by some value of the society or community.
Nigel Walker’s Seven Features of Punishment
Professor Nigel Walker mentioned seven features of punishment.
- First, punishment imposes something assumed to be unwelcome to the recipient.
- Second, punishment is imposed because of some reason. The punishment is intentional in the sense that it is not accidental.
- Third, the members of the society, organization, or family consider the people ordering the punishment to have the right to do so.
- Fourth, the crime for which punishment is imposed involves an action or omission which transgresses a law, rule, or custom.
- Fifth, the wrongdoer voluntarily did something or omitted to do something tantamount to violating some rule or custom. The punishers believe or pretend to believe that the wrongdoer has intentionally done so.
- Sixth, punishers try to justify the punishment and explain why the wrongdoer has been punished. In most cases, it is not the luxury or sadism of the punisher, but rather some reason justifying the punishment.
- Seventh, the value or belief of the punisher settles the question of whether it is punishment. The belief or intention of the wrongdoer here plays no role.
John Hagan’s Seven Purposes of Punishment
John Hagan has mentioned seven purposes of punishment:
- Restraint or incapacitation: to stop the behavior in question;
- Individual or specific deterrence: the use of punishment to reduce the likelihood that the person who receives it will offend again in the future;
- General deterrence: punishing one person to reduce the likelihood that others will pursue the same kind of behavior;
- Reform or rehabilitation: imposing a punishment, usually in this case called a “treatment,” to correct what went wrong in the person who committed the crime;
- Moral affirmation or symbolism: a punishment intended to reaffirm the moral norm that has been violated by making the offender a symbol of the consequences of violation and by, in this way, drawing “moral boundaries” between the “good” and “bad” in society;
- Retribution: the use of punishment to balance the harm done—in effect, to return the offenses in kind; and
- Restitution or compensation: the imposition of a sanction that also seeks to reestablish balance, but now usually with the currency of money.
The above goals overlap, and some of them are in conflict with each other. For example, it is very difficult to achieve retribution and rehabilitation at the same time. One possible way to reconcile this dilemma is to consider the prisons as therapeutic institutions.
Classical School’s Approach to Penal Policy
Classical schools advocated for an official penal policy to deal with offenders. Uniformity, certainty, celerity, and severity were the characteristic features of the penal policy.
Proponents of the classical school pondered that if offenders were dealt with immediately with appropriate punishment, crime would almost entirely disappear.
Classical thinkers believed in a quick and proper punitive social reaction to law-breaking. Advocates of the positive school considered any mode of punishment with much skepticism.
Positive School’s Perspective on Crime and Punishment
Positivists viewed that society had as much crime as it deserved because of biological, psychological, and social conditions.
The penal policy was relatively unimportant to positivists as they considered the causes of criminality lay in the biology of criminals and social conditions that were beyond the control of human beings or the elimination of which relied on the elimination of responsible social conditions.
Uniformity and Certainty in Classical Penal Policy
By uniformity, classical thinkers meant the similarity of punishment. They maintained that a similar penalty would be inflicted on all the offenders who committed a similar offense.
This type of predetermined penalty would have a deterrent impact on the prospective offenders who would measure the pain and pleasure of their criminal activities.
In maintaining uniformity of punishment, classicists did not take into account social status, wealth, religion, age, sex, or any other element or circumstance. This type of uniformity was an expression of democratic spirit, which was strong in European countries.
Certainty of punishment meant the frequency with which violators were detected, identified, convicted, and punished. Severity and celerity of punishment were important in that severe and prompt punishment would be effective in deterrence and reformation if all offenders were punished similarly.
Mitigation of Official Penalties in History
All these four elements of penal policy, namely uniformity, certainty, celerity, and severity, are closely related to each other, and it seems impossible to separate any one of these attributes from the others.
During earlier historical periods, officially prescribed punishments were not inflicted certainly, or any sort of uniformity was not maintained. Rather, penalties were mitigated in different ways.
One of the early methods of mitigating official penalties was “securing sanctuary.”
In the thirteenth century, a criminal had the opportunity to avoid punishment by claiming refuge in a church for a period of forty days. He was compelled to leave the church by a road or port assigned to him at the end of the specified period.
“Right of clergy” was the second system of mitigation of penalties. “Benefit of clergy” meant exemption from the death sentence for those male offenders who could read and were eligible for holy orders.
A third method of mitigation of penalties was the pardon. Under this system, the king had the discretion to relax the severity in individual cases. A fourth method of mitigating penalties was the denial of implementation of the officially prescribed punishment.
Corporal punishments and the death penalty disappeared from England, though the court imposed the sentences because of commoners’ sentiments who did not want the execution.
Societal Reaction to Crime and Punishment
Present official punishments are not imposed in all cases of lawbreaking. That is why social reaction to crime is not exactly reflected in the official statements. Money and influential people are punished less frequently and severely than poor, vulnerable people.
Both the formal and informal societal reactions to crime have been varied. Similarly, the rationale given to justify those reactions has varied as well. Different reasons have been put forward for justifying punishments at different times.
Among those, expiation, deterrence, retribution, reformation, income for the state, and promoting the group’s solidarity have been set forth as justifications for the punitive reaction at different times in history and in different places of human society.
The rationale given to justify the punishments, though, expresses the ethos of ruling elites but contains vestiges of the values of the commoners of a given society.
Diverse Views on Crime and Punishment
In every society, some groups do not endorse the majority view and have their own opinion about crime and punishment. The majority view everywhere constitutes Durkheim’s “collective conscience”.
But some rationale for justifying punishment is desirable, and dominating values always justify different types of punishments.
Retributive Philosophy
Victims, their families, or groups were permitted to avenge crime in different human societies. This practice is known as revenge, retaliation, or retribution, though these terms are not synonymous. The concept of retribution is still in practice and focuses on the offender’s conduct.
Revenge or retaliation means the earlier days’ practices when victims were permitted to inflict on the attackers the same amount of pain that the victim sustained.
The philosophy that lies behind the retributive theory is “an eye for an eye and a tooth for a tooth.” From about 1875 B.C., when the Code of Hammurabi was enacted, the leaders of society urged and the general population to accept that criminals deserved to be severely punished.
“The drama of wrongdoing and its retribution has indeed been an unending fascination for the human mind—” and historically, this occurred in different human societies.
In earlier times, retribution took the form of individual revenge. Later on, the state assumed the power to inflict punishment on citizens in its corporate capacity.
Thus, the state became the political counterpart of individual revenge. Sir James Stephen said that “Criminal procedure is to resentment what marriage is to affection: namely, the legal provision for an inevitable impulse of human beings.”
Retributive philosophy is said to underlie the crude animal instinct of human beings. It believes that such a punishment should be inflicted on the criminal that is commensurate with outweighing the pleasure derived from the crime.
The retributive theory treats it as an end in itself, which has no concern for attaining social security through the institution of punishment.
The adherents of retributive philosophy argue that the future effect of punishment on the criminal and other people of society is important.
If the criminal does not receive deserved punishment, a number of effects may ensue. The victim may seek individual revenge or may refuse to make a complaint or offer testimony. If that happens, the state will be handicapped in dealing with criminals.
In spite of its brutal aspect, retribution still exists as a very important philosophy of punishment. Retribution views punishment as a positive moral duty. It regards crime as a violation or disturbance of the divine or moral order.
When Cain kills Abel, the very earth cries for vengeance. The moral order can be restored, or the violation atoned for only by inflicting evil (generally pain) upon the one guilty.
The classical thinkers did not accept strict retributive philosophy; rather, they were against any punishment that was too harsh. They considered that punishment should fit the crime.
Any penalty in excess of this limit cannot ensure justice. In developed countries, like the USA, retributive philosophy was severely criticized by social scientists and judges for the most part of the twentieth century.
But since 1970, there has been an increased tendency among judges to give more credit to retributive philosophy in justifying capital punishment. The people also became disillusioned with the rehabilitation of the offenders.
The offenders should be punished (i) to express moral outrage in society and (ii) to justify the self-restraint of the people who do not commit any crime.
Deterrent Philosophy
Infliction of severe punishment on criminals deters others from committing crimes. The purpose of the deterrent philosophy is to achieve this social utility through the institution of punishment. The doctrine of hedonism tells us that the behavior of people is directed by their calculation of possible pain and pleasure that may result from their activities.
The proposition that punishment reduces crime is based on the hedonistic assumption of pain and pleasure. If people know that any activity will bring punishment (pain) for them, they will refrain from that activity.
In the major part of history, deterrence was regarded as the principal purpose of punishment. Penalties were public and brutal to set an example before other people.
Pillory, crucifixion, public hangings, and gibbeting the body show the public that if anybody commits a crime, he or she will receive this type of severe punishment. The philosophy behind this assumption is that the more severe the penalty is, the more effectively it will deter others from similar crimes.
Opponents of the deterrent philosophy argue that many criminals do not consider the penalty. This happens because criminals are not psychologically normal, or they act under the spur of the moment or under the pressure of emotion.
Sometimes, the contraband activity becomes more fascinating because of prohibition. During violating the law, what were their reactions that many prisoners had described, and they said that few of them gave much consideration to punishment?
“A refutation of hedonistic psychology and its conceptions,” in the sayings of Sutherland and Cressey, “is probably not sufficient to justify the rejection of the broader aspects of the deterrence argument.”
They said that in a broader perspective, criminal law and its application by police and courts probably have great effects on public morality.
Although specific severe punishments may have little immediate demonstrable effect in deterring specific criminals, the existence of the criminal code with its penal sanctions probably has a long-run deterrent effect upon the development of criminalistic ideology.
By means of the criminal law and the procedures for implementing the criminal law, including the imposition of swift and certain punishments, the undesirability and impropriety of certain behavior is emphasized.
Preventive Philosophy
Simple wisdom expects that prevention is better than cure. The proposition that “not to avenge crime but to prevent it” is the philosophy behind the preventive theory. The purpose of penal law is to make the threat generally known rather than putting it with an expectation to fully implement it.
Preventive theory becomes realistic and humane because of this rationale. It is a better alternative to retribution or deterrence, which no longer stands operational in dealing with crime and criminals.
Because of the humanizing influence of preventive philosophy on criminal law, utilitarians supported this theory.
They argued that the certainty of law, not its severity, had a real impact on offenders. In the course of time, the prison institution gained momentum because of the stronghold of preventive views. Prisonization incapacitates criminals by confining them within the boundary of prison.
By this method, criminals are segregated from society, and the security of societal people is ensured.
Adherents of preventive philosophy hold that privatization is the best mode of crime prevention as it removes criminals from society and, by incarceration, disables them from further commission of criminal activity. According to them, the purpose of punishment can best be served by preventive philosophy.
Reformative, Rehabilitative, or Corrective Philosophy
Over time, human attitudes became more rational and humane towards crime and criminals. The rehabilitation of offenders, not their punishment, became the prime concern. People started to dislike all types of corporal punishments.
As opposed to retributive, deterrent, and preventive philosophies, the reformative approach to punishment brought about a change in the outlook on how to deal with offenders.
In developed human societies, there was a shift from a retributive and deterrent attitude to a reformative attitude, where penal policy began to be formulated to bring about a positive change in wrongdoers through ethical and religious teaching.
The purpose of the reformative philosophy is to transform the offender into a law-abiding citizen.
Adherents of the reformative philosophy argue that wrongdoers should be confined in a reformatory, where they will be trained and later rehabilitated in a free society.
They advocate for narrowing the gap between incarcerated life and free life in society. Incarceration is a major obstacle to rehabilitating offenders, as it stigmatizes them, and people do not accept them as members of society.
Therefore, offenders should be placed in a free society and, through some mechanism, they should be made to understand that they have committed mistakes and given an opportunity to return to the normal life of a law-abiding citizen.
Mechanisms like parole, probation, and indeterminate sentences are recommended as measures to reform offenders.
The classical and neoclassical theories were premised on retributive and deterrent philosophies. According to classical thinkers, punishment should fit the crime. In contrast to classical theorists, positive thinkers provided that punishment should fit the criminal.
Their main concern was the criminal. To them, the social environment should be addressed to prevent crime. They favored indeterminate sentences and provided a foundation for the development of the philosophy of rehabilitation, a modern philosophy of incarceration.
As the causes of criminality lie in biological, psychological, or social conditions, offenders should be treated rather than punished.
Social scientists, therefore, began to develop treatment programs for institutionalized inmates. The backbone of the rehabilitation philosophy was the indeterminate sentence. As Sue Titus Reid put it:
“No longer would a judge sentence an offender to a definite term, as it could not be predicted in advance how much time would be needed for treatment and rehabilitation.
Consequently, in most jurisdictions, the legislature established minimum and maximum terms for each offense. In its purest form, the indeterminate sentence means that a person is sentenced to prison for one day to life.
Treatment personnel evaluate the person, recommend and implement treatment, and decide when that individual has been rehabilitated and can be released safely. The punishment fits the criminal, not the crime. In short, the basic philosophy is that we should incarcerate people until they are cured or rehabilitated.”
Modern people place their faith in the efficacy of the reformative philosophy. Still, at the same time, its inapplicability to different types of offenders should be kept in mind. Juvenile delinquents and first-time offenders respond favorably to reformative methods.
However, the response of recidivists and hardened criminals is not very good.
So, a classification of offenders according to age, sex, gravity of offense, and mental condition is desirable. Offenders may be classified as first offenders, habitual offenders, recidivists, juvenile delinquents, insane criminals, and sex offenders.
When any system is put into execution, many drawbacks arise, and the rehabilitative philosophy is not an exception to this. In the 1970s, many began to question this philosophy as offenders served longer terms than determinate sentences without knowing whether it was necessary for their rehabilitation.
Moreover, offenders never knew when they would be released; thus, the indeterminate sentence was referred to as the “never-knowing system.”
In the context of increasing dissatisfaction with the rehabilitative ideal and the volume of violent crime, people insisted on a get-tough sentencing policy.
By the late 1970s and early 1980s, many states had revised their sentencing statutes. It was followed by several other states and, finally, the federal government. Congress held that rehabilitation was no longer the goal of sentencing.
In 1989, the US Supreme Court held that the act [federal sentencing reform] has rejected “imprisonment as a means of promoting rehabilitation, and it states that punishment should serve retributive, educational, deterrent, and incapacitative goals.
In the 1990s, prison overcrowding and an increasing crime rate compelled people and policymakers to rethink get-tough sentencing policies.
Some scholars encouraged a return to rehabilitation. According to them, all criminal justice system problems should not be attributed to the rehabilitative ideal. In 1990, Cullen said that the American people “have not given up on rehabilitation”; they want the correctional system to do more than “punish and cage.”
Some studies and statutes reinforced the value of the rehabilitative perspective. Montana statutes provided that:
“The correctional policy of that state is to protect society by preventing crime through punishment and rehabilitation of the convicted… Furthermore, it is the state’s policy that persons convicted of a crime shall be dealt with in accordance with their individual characteristics, circumstances, needs, and potentialities.”
Recently, US courts are giving credit to the necessity of rehabilitation as a reason for punishment. For example, Idaho’s Supreme Court in a case recognizes four goals of punishment:
- Protection of society;
- Deterrence of the individual and the public generally;
- The possibility of rehabilitation; and
- Punishment or retribution for wrongdoing.