Essay on Criminal Justice

Some people would take the purpose of punishment to be expiation or atonement for the crime. While some other major schools of thought, taking its lead primarily from Jeremy Bentham’s eighteenth-century utilitarianism, find the justification for criminal sanctions in the good that they engender (Allen 88). The predicted benefits of condemning the particular defendant as a criminal and depriving him of his liberty outweigh the costs imposed on the imprisoned convict and his or her family.

Help With Essay on Criminal Justice
Help With Essay on Criminal Justice

The diverse rationales of punishment fall into two groups that should be neatly distinguished. One group finds the justification of a criminal sanction in the predicted consequences of condemning the particular defendant as a criminal and depriving him of his liberty. Among these rationale are general deterrence, which means that the good of punishing one criminal derives from the likelihood that others will thereby be influenced not to commit the same crime; special deterrence, which means that the punished offender will be deterred from future offences after his release; rehabilitation or reform, which means that as a result of treatment during incarceration, the convicted offender will be cured of the impulse to engage in criminal activity; and incapacitation which means that during his confinement, the offender will not pose a threat to people outside his/her confinement (Kadish & Schulhofer 80).

All of these predicted goods are highly speculative. The degree to which punishment achieves any of these ends is disputed, and in the particular case, it is almost impossible to predict the incremental value of punishing one more offender, or punishing a repeated offender, one more time (Kadish et al 98). In contrast to these speculative goals, which turn on what will happen in the future, a fairly certain consequence of coercive confinement is that during the period of confinement, the offender will not pose a threat to persons outside the prison. We may refer to this consequence of punishment, which is achieved as well by civil commitment, simply as the value of isolation.
In contrast to these consequentialist goals, the principle of retribution holds that punishment is just regardless of its consequences (Kahan 127). Of course, desirable consequences may follow from punishment, but these incidental benefits do not enter into a retributive rationale. What makes punishment just, regardless of the social good that might follow, is that it is a fitting social response to the commission of the crime (Kahan 127).

Both consequentialist and retributive rationales of punishment bear serious flaws. The defect in the theories of social protection is that if they become the exclusive rationale for punishment, they focus attention on the good that will follow and ignore the desert of the particular suspect (Singer&Gardner 33). As the National Socialists well knew in controlling inmates in slave labour camps, occasionally hanging an innocent person effectively deters disobedience by other inmates. As to dangerous suspects, the values of special deterrence and isolation may be realized regardless of whether the dangerous person has committed an offence. Judges in traffic courts are readily tempted by the philosophy that regardless of whether the particular suspect has committed the violation, a punitive fine will make him drive more carefully in the future (Singer&Gardner 77).

The goal of rehabilitation is particularly insidious because the coercive power of the state is cloaked by benevolent motives; if the suspect is “sick” and in need of treatment, it seems totally irrelevant whether on a particular occasion he “happened” to commit a crime (Allen 88). Looking to the good that will follow from punishment distracts the attention of the judges from the past and, in particular, from the particular offence that the defendant has committed. Not only does the point of requiring an actual offence become unclear, but the appropriate length of imprisonment comes to depend more on the projected dangerousness of the offender (or on his need for treatment) than on the gravity of the offence triggering the conviction (Allen 108). Thus the goals of social protection tend to suppress two important principles of justice; first, that only the guilty should suffer conviction and punishment; and, secondly, that the extent of punishment should be proportionate to the crime committed.

These potential injustices are compounded by indeterminate sentencing, which trades on a mixture of benevolent rehabilitative motives and the social interest in maximizing the isolation of dangerous offenders. The anxieties suffered by inmates subject to the discretion of parole boards has awakened widespread sympathy for the dignity of inmates and induced a greater commitment to respect for their personal autonomy (Cederblom & Blizek 118). This shift in attitude is due, in no small measure, to the highly effective way in which inmates have pressed their complaints upon the public, the courts, and the political process (Cederblom & Blizek 80). We are now inclined to see the rehabilitative idea of earlier decades not as a sincere effort to help, but as a systematic dehumanization of offenders. Disparities in sentencing for the same offence, which would not bother us if we believed in the virtues of individualized treatment, have now become a matter of national concern (Singer & Gardner 100). It may be that the rehabilitative ideal was too deeply and too naively held, for the failure to produce results has generated widespread cynicism in the United States, both about rehabilitation and indeterminate sentencing.

This disillusionment, and perhaps the natural ebb and flow of intellectual history, has rekindled interest in retributive theories of punishment. In my opinion, retribution offers the highest yield to society. Retribution simply means that punishment is justified by virtue of its relationship to the offence that has been committed. It is obviously not to be identified with vengeance or revenge, any more than love is to be identified with lust. It is also distinguishable from the other arguments that it is socially desirable to channel the hostile energies of society into the punishment of criminals; not to do so would supposedly risk the greater evil of private vendettas and blood feuds (Singer et al 148). The critical feature of a retributive argument is that if it is sound, it justifies punishment as of the moment that the punishment is imposed. One need not wait to see whether the predicted good (deterrence, avoiding private vendettas) actually accrues.

Of course, the word “retribution” is not in itself an argument for making criminals suffer. Nor in a secular society is it much of an argument to refer to the Biblical injunction of an “eye for an eye . . .” One way to make out an argument for retributive punishment is to focus on the criminal act as the source of the offender’s obligation to suffer punishment. Herbert Morris has developed the theory that the offender is duty-bound to suffer punishment, for his offence creates an imbalance of benefits and burdens in the society as a whole (Kadish et al 138). This argument makes some sense with regard to crimes that tempt many of us, such as illegal parking, or even cheating on our income tax. Yet it is less plausible to argue that we all suffer a burden in abstaining from the core crimes of murder, rape, arson, robbery, and burglary.

Whether Morris’ case for retributive punishment is correct or not, it provides a model of clarity for the analysis of just punishment. He grounds the duty to suffer punishment in the act of wrongdoing and its consequences, not merely in the offender’s having wicked thoughts or even in his acting in a way properly subject to blame (Kadish et al 133). Of course, someone might be able to argue that acting out wicked thoughts in itself creates a duty to suffer punishment. Yet we should need some convincing arguments to explain why that duty is incurred.

Thus, the ore of punishment is too rich to be sifted adequately in one light sweep. Such categories of punishment as deterrence, rehabilitation, and incapacitation–are grouped under the general heading of “social protection” as the purpose of punishment. On the other hand, retribution suggests that punishment speaks to the wrong represented by the criminal act. Therefore, analysis of punishment seeks a middle position in this philosophical debate.

Works Cited
Allen, F. The Borderland of Criminal Justice. Boulder, CO: Lynne Rienner Publishers, 1964.

Cederblom & Blizek, W. Justice and Punishment. New York: Free Press, 1977.

Kadish, S.H. & Schulhofer, S.J. Criminal Law and its Processes: Cases and Materials. New York: Routledge, 1995.

Kahan, Dan M. Ignorance of Law Is an Excuse–But Only for the Virtuous, 96 MICH. L. REV. 127, 141 (1997)

Singer, Richard G. & Gardner, M. Crimes and Punishment in Criminal Law. New York: Routledge, 1996.

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