Theories of punishment Flashcards
Punishment
Hart definition :
- Pain or hardship
- For an offence
- Against an offender
- Intentionally administrated
- Imposed by an authority
Walgrave definition :
- Coercion
- Suffering
- Intention
- Relation
Retributive theory of punishment - Definition
Offenders should be punished because they deserve to be punished :
- Purifying
- Restores balance between benefits and burdens
- Satisfies vengeance
- Expresses moral disapproval
- Restore status quo ante
The act justifies the punishment.
Principle of guilt (free will) - Only the guilty should be punished.
Principle of proportionality.
Regardless of the consequences of punishment.
Negative retributivism v positive retributivism
Negative retributivism :
- Crime must be punished because of the act but the kind of punishment depends on the gravity of the crime (not always full punishment)
Positive retributivism :
- Crime must be punished (full punishment)
Retributive theory of punishment - Criticism
- Vengeance v. retribution
- Can two wrongs make a right ?
- Retribution is an immoral rationalisation for punishment
- Why does justice require harm ? Why not compensation, reparation or even forgiveness ?
- How do you determine which punishment fits the crime ?
- How free is our so called free will ?
- Why should moral rejection be punishment ? Shouldn’t it take place in the community ?
- Sometimes there is no balance to restore.
- The status quo ante can never be restored
Free will v determinism
Free will - The ability to choose to act differently (Kant)
Determinism - Free will is determined by the law of physics and the past genes
Utilitarian theory of punishment - Definition
An offense is not punished because of the act itself but because the punishment will have good consequences (deterrence).
Focus on the person.
Reasons :
- Specific deterrence (preventing the offender from re-offending)
- General deterrence (dissuading other people from offending)
- Rehabilitation (reforming the criminal)
- Incapacitation (protecting society from the criminal)
Needs :
- Goal
- Proportionality
- Subsidiarity
Utilitarian theory of punishment - Criticism
- How can one be punished if he is not guilty ? Ignores the principle of guilt.
- How can the success of deterrence be measured ?
- Passionate crimes - Utilitarian bases its appreciation on the presumption that everyone is rational. That is not the case.
- What if you are innocent ? It still works in the sense of deterrence…
- Offenders used as way to achieve something = Against HR.
Alternative theories
Rehabilitation theory - Alternative forms of punishment
Combination theory - Both retributive and utilitarian
Restorative theory - Focus on the victim through compensation (to both the victim and society)
Influence of enlightenment
More procedural safeguards
Efficiency in prevention and repression
Retributive (common law) v utilitarian (civil law)
Criminal law includes :
- Last resort (Ultima ratio)
- Proportionality
- Legality (certainty)
- Focus on act, not intention
- Retrospective
Kant
Moral reality - Man has free will and is guilty for his acts
Bentham
Empirical reality - Greatest happiness for greatest number of people
Goals of punishment
- Penal welfarism (1945 - 1975) - Focus on reintegration
- Nothing works (1975 - 1985) - Crime rates rising -> Reinvention of retribution and prisons
- Crime fighting (1985 - 2001) - Professionalizing and instrumentalising criminal law
- Security policies (2001 - present) - Increase in penalization of preparatory stages, restricting liberty
- Victim and restorative justice - Victims have been regaining a role in criminal law
