Thus, a most important part of the theory of punishment is the careful articulation of the norms that provide these constraints on the practice and their rationale.
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As for individual acts of punishment—typically, the sentence a court metes out to a convicted offender and the infliction of that sentence on the offender—their justification falls within the justification of the practice itself. In any case they could not be reasonably be justified purely on consequentialist grounds as an act-utilitarian might wish to do. Sentencers lack sufficient information about all the actual or probable effects of inflicting one rather than another punishment on a given offender at a given time.
They lack as well the opportunity and time to secure such information and to use it to inform their sentences. As a result sentencers must content themselves with a largely procedural justification of most of the punishments they impose. Insofar as the system of punishment on which they rely is essentially just, none of the sentencing acts that the institution warrants are unjust they may, of course, be unwise.
The best justification of punishment is also not purely retributivist. Moore It is arguable, however, whether the guilty always do deserve to be punished; it is also arguable whether, even when they do they ought always to get what they deserve; and it is further arguable whether when they ought to be punished as they deserve, the punisher always knows what it is they deserve except in the purely procedural sense alluded to above; see also below Bedau We cannot meet these challenges to the deontological retributivist by insisting that punishment is nothing more than a necessary conceptual consequence of living under the rule of law Fingarette Even apart from the problems above, retributivists have yet to construct a nonarbitrary way of deciding what sentence the guilty offender deserves as punishment.
Retributivists, ancient and modern, have always been lured by one or another form of lex talionis Davis , despite objections dating from post-biblical times to the present Walker Nor does it suffice to abandon like-for-like retaliation in punishment in favor of restating the basic retributive principle in nontalionic form: Severity in punishment must be proportional to the gravity of the offense. Few will argue against this principle, but it still leaves us with a spectrum of alternatives among which to choose, marked at one end by a positivistic legalism offenders deserve whatever the penal code provides as their punishment and at the other end by an inchoate moralism offenders deserve whatever accords with their moral culpability and the harm they have caused.
All retributive attempts to specify the penalty schedule linking crimes to their punishments fail because the proportionality principle underdetermines the schedule.
Punished for Purpose
There is no nonarbitrary way to locate either the end points of maximum and minimum severity defining the penalty schedule or the intervals between adjacent punishments Pincoffs And retribution cannot supply the further information needed. As a result, every penalty schedule purporting to incorporate retributive principles exclusively fails to the extent that any given punishment cannot be justified by those principles alone.
But the basic insights of retributivism cannot be merely brushed aside. There is a role for desert in a liberal theory of punishment, but its scope needs careful restriction. The retributivist relies on the assumption that the criminal laws whose violation makes one eligible for punishment protect genuine individual rights.
Were this not so, the retributivist could not claim that justice requires punishment for the violation of the law.
The Purpose of Criminal Punishment
Nor could the retributivist claim that the resentment or indignation directed toward offenders is fitting, rather than merely ill-disguised anger. Retributivism, whether in law or morals, without an appeal, tacit or express, to the justice of punishment is inconceivable—or inconceivably distinct from mere retaliation or revenge Nozick , Henberg Once this is acknowledged there emerges an unmistakable forward-looking, nonretributive point to introducing liability to punishment for law violation, publication of this liability so that it works as a threat, and expectation of increased compliance with the law because of dislike of the perceived punitive threat by most people and their unwillingness to risk incurring what is threatened for noncompliance.
Risk of punishment provides an incentive for any normal person to comply with just laws protecting individual rights. No purely backward-looking conception of the practice of punishment, focused exclusively on the desert of the offender, can accommodate provisions for this incentive. On the view sketched so far, a system of punishment under law is fundamentally a technique of social control Gibbs , and its employment is justified to the extent that it actually protects such social justice as society through its laws has achieved.
This purpose is external, not internal, to the practice of punishment. To accept this conception of punishment is to concede the central claim of the consequentialist, not that of the retributivist. The institution of punishment so conceived is thus not justified on purely deontological or on purely consequential grounds, because punishment manifests some features of each line of consideration, even though the principles justifying it are nonretributive.
Nevertheless, punishment retains some retributive elements, conceptually and normatively. Any given act of punishment may look starkly retributive to the one who undergoes it—the sentence imposed is a deprivation inflicted on someone found guilty, and not on anyone else, and it is imposed solely because of that finding. Against this background we can now consider a step-by-step argument for a liberal justification of punishment.
Punishment in Ancient Athens
The general idea has been presented in various forms and fragments over the past half century by many writers. We can begin with an empirical generalization of unimpeachable reliability: Some kinds of intentional human conduct are harmful to others, and it is inappropriate to expect teach, require people who have been victimized by such harm either to forgive those who harmed them or to suffer the harm in silence.
Private retaliation must also be pre-empted by general confidence that offenders will be arrested, tried, convicted, and sentenced by the authorities. In a just society, undeserved victimization is understood to violate individual rights and is therefore prohibited by law and is punishable. Thus the color and texture of any possible justification for punishment will depend upon more general political and moral theory, consistent with the responsibilities for legal protection afforded by a just society. Justification for punishment under law thus emerges as a contingent matter, inescapably dependent on other and deeper normative considerations that only a theory of social justice can provide.
To repeat, in a society that takes justice seriously, such intentionally harmful conduct will be prohibited by law and, and if and when it occurs, condemned under the law. To do otherwise would be to fail to protect and vindicate the rights of individuals that the criminal law is principally designed to protect. The central instrument of such condemnation is the penal sanction attached to the law that defines certain harmful acts as crimes. In a just society that is also a rational society, unlawful harmful conduct is preferably prevented before the fact rather than punished after the fact. There are exceptions, of course; justified civil disobedience is one of them.
But compliance is not so valuable that it is worth trying to increase it at any price, especially at the price of irreparable invasions of personal liberty. But if willing compliance is not forthcoming, then society must settle for second-best—unwilling compliance—since it is preferable to noncompliance. Prohibition by law plays an essential role in securing grudging compliance, and the principal vehicle for such prohibition is the punitive sanction attached to violation of the criminal law.
No doubt, non-deterrent effects of the sanction system, such as the expressive affirmation of shared values, are more important for general compliance than are the deterrent effects. Still, once such sanctions are in place, they create public liability to authorized punishment. Even in a just society, not every person will comply with the law, and not everyone who does comply will do so out of respect for the rights of others, that is, out of recognition of others as persons with rights deserving mutual respect.
Here we encounter in another form the fundamental rights-protecting principle on which the system of punishment is built: It is better to increase law compliance by liability to sanctions of those who would otherwise violate the law than it is to permit them to act on their perverse autonomy without any socially imposed cost to themselves, since that would require us to tolerate the victimization of the innocent.
Such toleration would be at odds with the moral urgency of protecting rights. For this reason, rational self-interested persons acting behind a veil of ignorance would choose to impose on themselves and on others a liability to criminal sanctions for certain law violations. If the punitive sanction is to function effectively as a preventive of noncompliance, then it must be perceived not only as a legitimate threat but also as a credible threat.
Its legitimacy is established by its protection of individual rights, its authorization by constitutional procedures, and its administration through due process and equal protection of the law. Its credibility is established by its being generally perceived to be both reasonably severe hence unpleasant and effectively enforced hence arrest and its consequences is likely for anyone who does not comply.
There are, however, constraints in the use of penal threats and coercion even to preserve a just social system. Four are particularly important for a liberal theory of punishment. His liability to punishment is determined by his own acts and omissions in regard to those laws. All and only punishments that are the product of a system of law consistent with the foregoing constraints may be said to be deserved by the offender.
That is, we have only the vaguest idea of the just or deserved punishment for a given offender guilty of a given crime apart from the sentencing schedule provided by the laws of a just society and thus laws that conform to the constraints above. The punishment deserved is the punishment authorized under a fair penalty schedule; no other conception of deserved punishment can be defended; the perennial lure of an illusory independent criterion for desert, founded ultimately on intuition, as well as of utilitarian calculations, must be resisted.
Given this account of desert, anyone both liable and eligible for punishment deserves to be punished, and ceteris paribus ought to be punished. The argument for imposing deserved punishments so defined on guilty offenders is thus in part an argument from consistency.
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It is inconsistent to specify liability and eligibility conditions for punishment and then not apply the sanction so authorized when the facts in a given case show that it is warranted. It is unfair to the law-abiding for law-breakers to incur no socially approved cost for their misconduct; it is unfair because it would create a class of harmful free riders in the society.
The socially approved costs of crime imposed on offenders consist mainly in the deprivations authorized by the punitive sanction. Fairness to the law-abiding also suggests that society ought to expend a reasonable fraction of its resources in combating crime and preventing victimization. The creation of a punitive sanction in the name of fairness and under the circumstances specified above is justified.
So is the infliction of such a sanction in the name of compliance with the law. Therefore, the practice of punishment, including creating liability to punishment, using sanctions as a threat and an incentive for compliance and actually inflicting the punishment where eligibility conditions are met, is justified. The foregoing argument incorporates deontological and consequentialist considerations. It is better than a pure retributivism because it shows why a system of punishment is needed and how that system is to be nested into the larger political and moral concerns of a just society.
It is better than a pure consequentialism, because it constrains punitive interventions with individual liberty to the bare minimum consistent with achieving the purpose of punishment and it is consistent with the rights of offenders. Through the punishment system, all are given fair warning that they put their own rights at risk if they intentionally engage in certain kinds of harmful conduct H.
https://tingwiggkangbers.tk Hart Furthermore, punishment coincides with an ordered hierarchy of moral norms. The system of punishment that emerges under this theory is liberal and non-paternalistic, respects the nominal autonomy of all persons equally, and acknowledges the contingency of its justification as applied in any given case. It is also true that the system of punishment that emerges under this argument leaves punishment in any actual individual case something of a ritual—in some cases an empty ritual, and in any case a highly formalized act whose exact expressive function and incapacitative effects are uncertain.
Acts of punitive deprivation must be imposed on each convicted offender without the comfort of believing, much less knowing, that the purposes for which the system of punishment was designed and maintained will really be advanced by inflicting a given punishment. Too much punishment vs. Some have been led by this fact to view punishment with considerable distrust, because we cannot count on it having any beneficial effect on the punished Duff —or on the rest of society. Nevertheless, the stigma of punishment can go too far, in effect rendering sentences indeterminate.
Notice, finally, that the entire argument for the justification of punishment unfolds in the belief that alternative, non-punitive methods of social control have been examined and rejected or severely limited in scope on the ground that they will not suffice—or will not work as well as punitive methods in securing compliance with just laws.
Many details remain to be specified before we have a comprehensive liberal theory of punishment in hand. Philosophy can, of course, help supply certain desiderata of the theory, such as specification of the quality and quantity of deprivations the modes of punishment appropriate to include in the penalty schedule; construction of the schedule coordinate with the class of crimes; identification of subordinate norms to supplement those already mentioned, which serve as constraints on the schedule and the imposition of sanctions on any given offender; and specification of the norms that make it appropriate to reduce or even waive punishment in favor of some nonpunitive alternative response in a given case K.
But philosophy alone cannot provide the necessary details; philosophical argument by itself would underdetermine a penal code and has no means to administer one. Yet the heart of a liberal theory of punishment in practice lies in its code of sanctions and their fair administration. Further development of this theory, and its full policy implications, must take place in another forum. The editors would like to thank Bliss Carnochan for spotting a mistake in an earlier version of this entry; the statistics concerning the number of prisoners in federal and state prisons were in error and they have now been fixed.
Background 2. Theory of Punishment 3. Consequentialist or Deontological Justification 4. Liberal Justification 5. Background Philosophical reflection on punishment has helped cause, and is itself partially an effect of, developments in the understanding of punishment that have taken place outside the academy in the real world of political life. Theory of Punishment The prevailing features in the modern theory of punishment were developed by analytic philosophers half a century ago. Consequentialist or Deontological Justification For several decades philosophers have over- simplified the picture of possible forms of normative justification in ethics, policy formation, and law into two alternatives: consequentialist and deontological.
Liberal Justification We can begin with an empirical generalization of unimpeachable reliability: Some kinds of intentional human conduct are harmful to others, and it is inappropriate to expect teach, require people who have been victimized by such harm either to forgive those who harmed them or to suffer the harm in silence.
Punitive severity must accord with the relative severity of the crime: The graver the crime, the more severe the deserved punishment. The severity of the crime is a function of the relative importance of the reasons we have to dissuade people from committing it, reasons that will make reference to harms done to victims, to social relationships, and to the security of our rights. Punitive severity is also subject to the principle of minimalism less is better , that is, given any two punishments not ruled out by any of the prior principles and roughly equal in retributive and preventive effects for a given offense and class of offenders, the less severe punishment is to be preferred to the more severe.
Conclusion The foregoing argument incorporates deontological and consequentialist considerations. Bibliography Ackerman, Bruce A. Allen, Francis A. Beccaria, Cesare, , On Crimes and Punishments , tr.
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