Theories of punishment Flashcards
What is punishment?
- The intentional infliction of suffering
- (a) coercion, (b) suffering, (c) intention and (d) relation (between the offence and the punishment
- Criminal law entails a vertical relationship between the state and the citizens
What is Hart’s definition of punishment?
(i) pain of hardship
(ii) for an offence against legal rules
(iii) of an actual or supposed offender for his offence
(iv) intentionally administrated by humans being other than the offender
(v) imposed by an authority constituted by the legal system against which the offence is committed
What influence did the Enlightenment have on criminal law?
- Beccaria and Montesquieu - More procedural safeguards and more efficient in repression and prevention
- Enlightenment as a reaction to the Ancien Régime - Need for a good justification (Subsidiarity, proportionality, Legality, Acts and not mere intentions, Non-retroactivity)
- Kant - The man has free will, and as such should be held responsible for the crimes of which he is guilty - Retributivism
- Bentham - Man strives for happiness/pleasure while trying to avoid suffering/pain (and thereby can be controlled) - Utilitarianism
What are the main lines of a retributive theory of punishment?
- Man has free will and is responsible for his conduct - Punishment requires guilt (a wrongful and blameworthy act)
- Punishment should be proportional to the seriousness of the offence and the culpability of the offender:
- Positive theories The crime should be repaid in full
- Negative theories (mixed between retributive and utilitarian) - A crime can be repaid in full but that is not necessary
What are the rationales behind punishment according to retributivism?
Because a crime has been committed - The focus is on the past, regardless of the goals/effects of punishment because it is:
- Purifying
- Restores the status quo ante
- Restores the balance between benefits and burdens
- Satisfies feelings of vengeance
- Expresses moral disapproval
What is the criticism of retributivism?
- Punishment does not have a purifying effect
- The crime cannot be undone - The status quo ante cannot be restored
- Restoring the balance - Nope, what about attempt and preparation?
- Feelings of revenge - Because we have these feelings does not mean that they should be satisfied
- Moral disapproval - It remains to be seen that moral rejection of crime results in moral improvement of offenders
What are the main lines of a utilitarian theory of punishment?
- Man can be influenced by biological, psychological and social factors - Culpability does not play any role, what matters is whether the offender can act differently in the future if he is punished
- The punishment should be proportional to the crime depending on the risk which the offender poses to society and the seriousness of the crime and fit these 3 criterion:
- It actually prevents future crimes
- No instrument of lesser evil exists
- It does not inflict more damage on the offender than it would on the victim and the community if the crime would go unpunished
What are the rationales behind punishment according to utilitarianism?
For the prevention of future crimes via:
- Incapacitation
- Deterrence (special or general)
- Social re-integration and rehabilitation
- Strengthening of norms
- Prevention of taking justice into one’s own hands
What is the criticism of utilitarianism?
- Recidivism numbers are still very high
- No offender does a cost-benefit analysis before committing an offence
- Dehumanisation of the offenders
- Allows the punishment of innocent people
What are the other theories of punishment?
- Retribution still constitutes the general justification for punishment but the demands of retribution are mitigated by utilitarian considerations = Negative theories of retribution
- Prevention is the general justification for punishment but excessive punishment are prevented:
- Only someone guilty can be punished
- Punishment must be proportional to the seriousness of the crime and the culpability of the offender
What is penal welfarism?
- Man is a reasonable and moral being - All people are born naked and poor and sensitive to pain, cruelty and empathy - The weaker man is manipulable and capable of moral improvement
- The focus is on resocialisation and re-integration of offenders
- 1945 to 1975
What is ‘Nothing works’?
- Crime and recidivism rates are rising = Nothing works - Attention is drawn to retribution and just deserts - Increase in imprisonment for prevention of harm
- 1975 to 1985
What is the risk society?
- Crimes are seen as risks that have to be managed by criminal law
- Feelings of revenge are intensified and tolerance is reduced
- Revenge, deterrence and incapacitation are the main goals of punishment
- Feelings of fear dominate
- 1985 to 2001
What is our current use of criminal law?
- Security has become the main goal of justice
- Increasing of penalisation of crimes at early-stages
- Decreasing in procedural protection of suspects
- Increase in the imposition of duration of sanctions
- Re-socialisation is considered to be in the hands of the offender
Could the position of the victim influence criminal law?
- Since Napoléon, victims cannot anymore directly participate in criminal law
- There could be a revival of restorative justice - For the victim to ‘forgive’ the offender - The offender must repay its debt via positive actions towards society instead of negative actions towards the offender
