Chapter 10 Why punish the guilty?

Question 1

What is the forward-looking theory of punishment?

Answer 1

Punishment would be right if and only if it were expected to bring about good consequences in the future.

Question 2

What is considered in the forward-looking approach to punishment?

Answer 2

When choosing which punishment is apt, an enforcer should pick the one that would involve the least expense, pain and other costs while producing the most desirable consequences for society in the long run.

Question 3

What is the backward-looking theory of punishment?

Answer 3

Look backward into the past in order to ascertain whether a given penalty would now be justified.

Question 4

What is considered in the backward-looking theory of punishment?

Answer 4

1. Nature of the crime committed
2. Proportionality between the nature of the crime and the penalty is inherent.

Question 5

How does South Africa have a mix of the two philosophies?

Answer 5

1. Tends to prescribe more than the least amount of punishment necessary for good outcomes, with appeals by the prosecution sometimes leading to greater penalties for offenders thought to fit their crimes (retributive)
2. Permits imposing greater penalties in cases of recidivism.

Question 6

What is the utilitarian theory of punishment?

Answer 6

1. Punishment of some kind is justified if and only if it would minimise harms and maximise benefits for society in the long run
2. A particular degree and type of punishment is justified if and only if it would minimise harms and maximise benefits for society in the long run.

Question 7

What are Bentham’s three different ways that punishment is likely to minimise pain and to maximise pleasure in the long run taking everyone’s interests into account?

Answer 7

1. Incapacitation
2. Reform
3. Deterrence

Question 8

What is deterrence?

Answer 8

Striking fear into the offender and other members of the society, so that they will choose not to commit a crime in the future.

Question 9

What is an important factor when deciding whether the infliction of punishment would be morally justified in utilitarianism?

Answer 9

Deterrence.

Question 10

What is incapacitation?

Answer 10

Imprisonment, offender being physically restrained from committing another crime in the case that they want to do so.

Question 11

What is reform?

Answer 11

Reform of an offender’s character that they no longer have an interest in committing crime in the future.

Question 12

According to Bentham, what are the exceptions to the justification of punishment?

Answer 12

1. When crimes would occur even if punishment were inflicted
2. Where even if punishment would likely prevent some crimes or other harms, this good would be outweighed by the bad of punishment (tax)
3. When the good resulting from punishment could be obtained without the bad of punishment and by using some other means that would involve no or less pain (theory).

Question 13

What are the negatives of a punishment system?

Answer 13

1. Costs a lot of money
2. Risks making the mistake of imposing penalties on innocent parties.

Question 14

How would a forward-looking theorist argue that these negatives are plausibly justified?

Answer 14

By the expected positive of having a punishment institution.

Question 15

How is the utilitarian rationale for punishment counterintuitive?

Answer 15

1. Utilitarianism could recommend harsh penalties for trivial crimes, if a small number of the former would prevent a large number of the latter
2. Prescibe not punishing those guilty of serious crimes at all, when punishing them is not necessary to prevent other serious crimes or otherwise do some good for society relative to a non-punitive response.

Question 16

What are the negatives of the backward-looking accounts of punishment?

Answer 16

1. It cannot account for the worth of a punishment system and the harm it creates
2. Does not appeal to future benefits

Question 17

What is the positive of the backward-looking approach?

Answer 17

Proportionality is inherent to them.

Question 18

What is Kant’s theory?

Answer 18

Dignitarianism.

Question 19

What is Hampton’s expressive version of retributivism?

Answer 19

The view that State punishment is justified because it is the right way for it to disapprove of those who have degraded others upon breaking laws.

Question 20

What is the deeper reason for the State to express disapproval according to Hampton?

Answer 20

To affirm the superlative inherent value(dignity) of victims in the face of denigrating mistreatment by offenders.

Question 21

What is the point of punishment for Hampton?

Answer 21

Victims need recognition for the way they have been degraded

Question 22

What is the right amount of punishment in Hampton’s view?

Answer 22

Whatever is proportionate to the seriousness of the offence.

Question 23

What is Hampton’s theory of punishment?

Answer 23

Expressive theory of punishment aka Symbolic value of punishment.

Question 23

What are the issues with Hampton’s expressive theory of punishment?

Answer 23

1. Unable to provide an adequate explanation of why only punishment of the offender would adequately express respect for the victim’s value
2. Symbolic considerations cannot truly be worth the costs of punishment.

Question 24

What is the symbolic value of punishment theory?

Answer 24

Theory that emphasizes the communicative and expressive functions of punishment and argues that punishment serves not only to respond to the wrong done by the offender but also to affirm the moral worth of the victim and the values of the community.

Question 25

What is the Reconciliation Act?

Answer 25

An Act that forbade the punishment of many of those guilty of human rights violations during apartheid.

Question 26

What is the TRC?

Answer 26

A commission tasked with granting amnesty from criminal and civil prosecution to those who confessed to apartheid-era political crimes.

Question 27

How did the TRC operate?

Answer 27

1. To obtain amnesty, offenders were required to make full disclosures about their wrongdoing, but were not required to express remorse about what they had done or apologise to their victims
2. Amnesty was not contingent on victims having forgiven offenders or consented to amnesty being granted.

Question 28

What is Tutut’s defence of reconciliation?

Answer 28

1. Follows from an ubuntu ethic characteristic
2. Seeking reconciliation/restorative justice is more a personal approach than seeking retributive justice.

Question 29

How does Tutu explain ubuntu?

Answer 29

We exhibit ubuntu to the extent that we are party to harmonious relationships with other people.

Question 30

What does Tutu recommend?

Answer 30

An approach that seeks to repair the broken relationship between the offender and their victim so that is ideally good for both persons.

Question 31

What are the criticisms of Tutu’s defence of reconciliation?

Answer 31

1. Tutu presumes that reconciliation should come instead of punishment, when it can after punishment.
2. Punishment is required for reasons of retribution, even if not for those of reconciliation

Question 32

How does Tutu respond to the retributivist?

Answer 32

1. Invoke an ubuntu ethic that is prima facie attractive and entails the rejection of retribution
2. TRC was in the circumstances the best way of expressing disapproval of offenders and of standing up for victims

Question 33

What is the retributive alternative to the TRC?

Answer 33

Trials.

Question 34

What are the shortcomings with the retributive alternatives to the TRC?

Answer 34

1. Courts would not have done as well at providing information about crimes that had been committed
2. Not enough judicial resources available to prosecute everyone
3. Offenders would have been inclined to protect themselves in trials by withholding the truth, if not by lying

Question 35

What is Hampton’s suggestion to make the TRC more valuable for victims?

Answer 35

Obtain comprehensive information about the wrongs that took place and then to make public announcements of them.

Question 36

What are the two major rationales for punishment that straightaway justify the death penalty?

Answer 36

1. Deterrence
2. Proportionate punishment to the crime.

Question 37

On what basis does Bentham reject the rationales for the death penalty?

Answer 37

1. Confinement does incapacitate
2. What scares people from committing serious crimes is much more the chance of getting caught than the harshness of the penalty if they get caught.

Question 38

What does Hampton argue against the death penalty and other forms of corporal punishment?

Answer 38

1. The retributivist who is committed to reasserting moral truth must beware that their way of reasserting it does not implicitly deny for the criminal what it seeks to establish for the victim
2. If the retributivist wants to establish the relative equality of victim and offender, they do not want to treat the offender in such a way that their value as a human being is denied.