theories of punishment Flashcards
Retributive theories
- Coherence between punishment and guilt in the sense of culpability
- A crime can only be repaid with punishment if it has been committed freely - person is a subject
- Crime is central not the offender
- Absolute theory because punishment is imposed regardless
Why should people be punished according to retributive theories ?
- Punishment is intrinsically good because its purifying
- Restores the status quo ante
- Restores the balance between benefits and burdens
- Satisfying feelings of vengeance
- Expresses moral disapproval
severity of punishment in retributive theories
- Depends on the seriousness of the criminal act
- Punishment lies on measure of guilt
positive vs negative retributive theories
positive = a crime should be repaid in full to the seriousness of the crime and to the extent of the guilt
negative = a crime can be repaid in full but that is not necessary
- harsh consequences of retrubutivisim are litigated by utilitarian
- technically a mixed theory bc it also has utalitarian elements
criticism of retributive theories
- punishing offenders is an unverifiable dogma
- punishment rarely has a purifying effect on the offender as they cannot easily re-integrate into society
- the past cannot be undone so it is difficult to return to the original status quo
- one wrong cannot be erased by another wrong
- not all crimes create an advantage for the offender- e.g. attempts
- some crimes are better described as putting the victim at a disadvantage
- the need for revenge embodies something of the need of justice
- contradicts the basic moral intuition that you shall not harm others
- moral rejection should take place within the community not criminal law
utilitarian theories of punishment
- culpability doesn’t matter
- centred around whether the offender will act differently in the future
- offender is the main focus
- punishment is a measure to protect society
severity of punishment in utilitarian theories
- crime is viewed as a social risk that should be controlled by means of punishment
- punishment is justified when;
- it actually prevents future crimes
- subsidiarity = no instrument or lesser evil exists that has at least the same preventative effect
- proportionality = it does not inflict more damage on the offender than would be inflicted on the victim if the crime were to remain unpunished
criticism of utilitarian theories
- the realisation of prevention by punishment can hardly be measured in practice
- disputed realisation of prevention by means of punishment
- may be punishing innocent people
- may be dehumanising since it views people as objects
punishment concerns - utilitarian
- incapacitation
- deterrence
- social re-integration
- strengthening of norms
- prevention of taking justice into one’s hand by channelled state vengeance
mixed theories
1) retribution constitutes the general justification for punishment
- demands of retribution are mitigated through utilitarian considerations
- may decide not to inflict punishment on utilitarian grounds
- continental doctrine
2) prevention forms the general justification for punishment but excessive punishments are prevented by using criteria that are central to the framework of retribution
- only someone who has been found guilty of committing a crime can be punished
- punishment cannot be more severe than is proportional to the seriousness of the crime and culpability of the offender
- anglo-saxon doctrine
criticism of mixed theories
- trying to unite two contradicting theories that clash
- difficulty balancing the concepts
risk society
- a phase of development of modern society in which the social, political, ecological and individual risks created by the momentum of innovation increasingly allude the control and protective institutions of industrial society
- how the risks and hazards systematically produced as part of modernisation can be prevented
- successor of the welfare state
impacts of risk management
- may lead to over criminalisation
- punishment creates order
- increased political concern has had a significant impact on contemporary concept of crime
culture of control
- emphasis is on the consequences of crime and how to contain and control them
- re-emergence of punitive sanctioning
- decline of rehabilitation ideal
- fore-grounding of the victim
- increased focus on prevention
consequences of culture of control
- changed the culture that enlivens the structure of the justice system
- E.g penal modalities like parol have become more security-minded instruments for crime control
- E.g drug users committing drug related crimes are not seen as victims of poor social circumstance but as a risk to public security that needs to be controlled
legal paternalism
the state may limit people’s autonomy and right to self-determination as long as it is in their best interest
principle of welfare
- individual autonomy needs to be balanced against the state’s duty to maintain the social conditions that allow the flourishing of autonomy
- this principle is dangerous because it may lead to political abuse
- risk of discriminating and marginalising others
harm principle
people should be allowed to do and say what they want unless their conduct is harmful or increases unreasonable risk of harm to others
- harm to self or safeguarding society’s moral values are not enough ground for intervention
- conduct has to be wrongful
principle of individual autonomy
- an individual’s capacity to be one’s own person, to govern oneself, to take action based on one’s own reflections
- focuses on individual choice
- building block for criminal liability
- people should only be held liable for their voluntary behaviour
- militates against legal paternalism
- related to harm principle
exclusionist version of harm principle
- harm is the sole necessary ground for criminalisation
- criminalisation is not permissible in order to prevent immoral/ offensive, but harmless conduct
inclusionist version of harm principle
- offence is a legitimate ground for criminalisation - limited to most serious cases
- ## more central role should be given to moral wrongfulness
harm prevention principle vs harmful conduct principle
HPP
- focuses on the consequences intended by the criminalisation itself
- if it is ineffective then no grounds for legislation
- may provide legitimate grounds for criminalisation without HCP being fulfilled
HCP
- focuses on the harmful consequences of the criminalised acts
- criminalisation of conduct is justified if its harmful
- doesn’t depend on preventative effects
abstract endangerment offences
the statutory offence description prohibits conduct that is not harmful or poses any concrete risk, but conduct that creates danger only in the abstract
- e.g. drunks driving, speeding
definition of harm
Feinberg
- twarthing, setting back or defeating of an interest
- interest = all things which one has at stake
- when one is harmed one or more of their interests are left in a worse state than before
simester and von Hirsch
- relate harm to an impairment of a person’s resources
- resources = longer terms means or capabilities that someone possesses
- the things that one can rely upon to sustain or enhance well being
- moral wrongfulness is a necessary condition for criminalisation
- defend negative version of legal moralism
