Critically Evaluate the Justifications for the Use of Punishment in Modern Society

It is controversial and heavily disputed whether punishment serves a function within society, and if so what this function is. Furthermore, the type of punishment given and the reasons for it is strongly contested. Early forms of punishment within British society included hanging, drawn & quartered, stoning, branding and whipping, to name a few. As society has progressed, and modern society developed after the 1700s, there has been a general trend towards the punishments becoming less violent in themselves and more about controlling people, and managing the risk that people pose to society (Durkheim, 1965).
There are two main justifications used for the implementation of punishment, particularly of harsh punishments, such as the death sentence in the USA (Pojman, 2004). Utilitarian views are ‘forward looking’ at crime, and believe that punishments deter people from committing further crimes and potential future offenders (Hudson, 2003; McLaughlin, Muncie & Hughes, 2003). This makes the assumption that that crime is a rational choice on behalf of the offender, and that it is weighed up by the gains versus the losses; thereby, punishment makes crime less favourable as a choice. The second justification is that punishment is a form of retribution. Pojman (2004) stipulates that all guilty people and only guilty people deserve to be punished, and that the severity should be balanced, proportionate to the crime committed. So if someone murders another person, they deserve to lose their life. Hudson (2003) highlights that retribution is also about the victims feeling that justice has been served and that society has taken heed of their suffering.
The aim of the report is to highlight the main strengths and concerns within these justifications of the use of punishment. It will then go on to look at other theories that oppose the use of punishment and discuss their application to modern society.
Utilitarian Support for Punishment
Beccaria (1974) made the supposition that people are not innately altruistic, and without punishment they would choose to commit acts that are in their own self interest rather than in the greater good of society. For the punishment to be an effective deterrent it is important that the punishment is severe enough to deter by outweighing the offenders potential illegitimate gains, and that it is delivered promptly as this increases the association between the act and the consequential punishment. The punishment needs to be certain, otherwise people may think that they can avoid the negative outcome and commit crimes. The deterrence theory was created from the view that individuals are responsible and should be held accountable for their actions (McLaughlin, Muncie & Hughes, 2003).
Utilitarian’s are not interested in the causes of crime, only in the act committed. This draws out important questions. What is fair and just punishment? When does the punishment equal the act? Pojman (2004) believes that punishment should be exactly equal, i.e. ‘eye for an eye’. He justifies the death sentence by this view, believing that all murderers make a rational choice to kill and should be dealt with in a similar fashion. Furthermore, Pojman (2004) supports Beccaria (1974) in agreeing that punishments should be delivered in a timely fashion and widely seen by others in society, thereby advocating the use of public executions, without an appeals system to slow the process down. This raises concerns about the reliability of the judicial system to identify the innocence of people, and may result in the danger of increased false positive error rates, whereby the Government murders innocent people. The worry is that a punishment such as execution is irreversible compared to non violent punishment methods.
Another concern with this classical criminology perspective and particularly the outlook of Louis Pojman (2004) is subjective nature of the severity of punishments. For example, the more a crime is publicised, the more crime is committed, the heavier the punishment than the offence may necessarily warrant (Beccaria, 1974). Bright (2004) supported this assertion, by stating that the South of the US conducts 85% of executions and has the highest murder rate in America, compared to the Northeast which has the fewest executions and lowest murder rate. Pojman (2004) himself, shows the subjective nature of punishment, when he proposed that CEO’s whom violate the public’s trust should receive the death sentence, this does not seem balanced or impartial given the offence, but appears to be more about one person’s feeling of injustice, and vengeful for the actions committed. If punishments should be equivalent to the acts committed, then it would be justified to execute a child, if a child kills their pet knowing it to be wrong. This is not too far from what is allowed to happen in the United States, as children can receive the death penalty. Then this raises the question of whether a child is responsible for their actions, and whether all people are wholly responsible and to blame for their actions. The discussion of responsiblity can be emotive, as Pojman (2004) argued that ‘evil’ murderers should be held fully accountable, otherwise they do not receive their ‘just deserts’.
A third criticism surrounds the morality of punishment. It could be argued that punishment equivalent to the acts of a perpetrator is degrading for the society that uses them. For example, if someone was found guilty of rape, should a civilised modern society rape the offender as punishment? (Bright, 2004). Society may be viewed as a role model of appropriate behaviour. If this is the case then, surely a society that condones the use of violence to others, whether or not it feels the actions are justified, are hypocritical; as individuals may believe their actions of killing another person to be equally justifiable. Furthermore, degrading and violent punishments are contradictory to religious beliefs of the sanctity of life, as the old saying goes… ‘Two wrongs do not make a right’.
A supporting argument of punishment and the use of the death penalty as a deterrent is the lack of supporting evidence for the use of any form of punishment in deterring crime. Pojman (2004) touches on this by highlighting that there is no substantial evidence supporting or refuting the death penalty. Pojman (2004) postulated that it would be unjust to avoid killing people as a punishment, due to a lack of evidence, when his own commonsense informs him that it is a worthy deterrent, as people want to avoid death at all costs. The author of this essay would argue that a lack of substantial evidence does not mean that a form of punishment should be used, as there is no evidence to the contrary. Neither is a commonsense belief in the deterrence effect of death on people, a significant justification for an irreversible decision. Commonsense is not founded in fact and can have misperceptions about other people’s intentions and feelings. It is easy to assume that murderers are all alike, and demonise the actions of these people, as their behaviour appears far from rational understanding. As Bright (2004) highlights, the facts about murderers can dispel the demonization, as the majority of murder (particularly those people on death row in America) are of low intelligent, suffer from mental disorders and are easily influenced and persuaded. This leads back to the first criticism that people whom murder may be particularly vulnerable to false confessions, misrepresentations and prejudice which may lead to a larger proportion of innocent people being convicted, and given heavier punishments than other people with a higher intelligent, and professional standing who commit the same offence. Surely it would be commonsense to appreciate those serious serial murders, such as Ted Bundy, Fred & Rosemary West, would not be deterred by a possible death sentence, due to their egotistical and delusional nature, and their belief in the low likelihood of being caught (based upon their ability to murder a number of people without detection).
Retribution View of Punishment
This view is about people receiving their ‘just deserts’; someone being punished because they deserve it. This is ‘backwards’ looking, on past crimes and is not interested in potential future crimes. It has similarities to the idea of punishment being a deterrent, as it is focussed on the severity of the punishment in accordance to the crime committed, but the reason for this is to be fair and just, rather than as a future deterrence (McLaughlin, Muncie & Hughes, 2003; Hudson, 2003).
Retribution has been considered, by scholars, to be vengeful in nature and a poor rationale for the use of punishment. Though as the retributionist theory has progressed, it has made a clear distinction between vengeance and retribution; retribution being rationalised and allowing a scale of punishment dependent upon the offence (Hudson, 2003). The main point of this theory is that only people who have committed a wrongful act are to blame and should be rightly punished, and the punishment of innocent individuals if it served a future greater good, is not acceptable. There are strengths to this theory, as it protects the rights of the innocent and is anti-discriminatory, as punishment should be equal for all cases irrespective of the public attitude, sexual or racial prejudice (Hudson, 2003).
Retribution theory is weaker when explaining why punishment should be used. It was in the 1990s that an explanation was offered, as a way of society being clear about what it felt was acceptable and unacceptable behaviour. Punishment is a way of upholding society’s rules and laws and helping people to co-operate together. Without punishment the balance of society cannot be maintained (Hudson, 2003). The main criticism of this theory is the idea that criminals act on free will, and that they can be punished and then in future go on to make more rational and pro-social choices. Research on crime statistics have shown that crime rates fluctuate depending on a number of environmental factors, outside of offenders’ control. People of low intellect tend to commit more property offences (Quetelet, 1842); the majority of person to person crimes occurred in the summer months, and property crimes in the winter months (Quetelet, 1842). Furthermore, crimes in countries where there is a greater disparity between people’s finances indicate that societal factors play a part in crime, and that society has some responsibility for the crime rates it faces. Lea & Young (1984) stated that relative deprivation increased the propensity to crime, and a society where people had low expectations were more likely to be law-abiding than those with higher expectations as to their rightful standard of living. Hence, is it right to place all the blames on the individual when society plays a part in increasing the propensity for crime?
In reality, punishment seems to be a method of ridding society of its social ills and problems, with an increasing need for space in which to incarcerate them. This is particularly evident in the current political climate in Great Britain, where Judges have been order to provide punishments for only those grave offenders, that the people need protecting from. There is no consideration of the impact that the punishment has on the individuals concerned, and whether their suffering is equivalent to the acts (Davis, 1998). Emile Durkheim (1965) demonstrated that crime is normal. Society without crime is impossible. Crime is as a product of society, in terms of what society deems ‘normal’. Hence if a society was full of perfect individuals, the slightest misdemeanour would be classed as gross or criminal and the punishment given equal to criminal acts. So if crime is a normal part of society where people differ from collective consciousness, then punishment is not appropriate as a remedy. If crime was pathological in nature, it supposes that crime can be eradicated through punishment. So if this is not the case then punishment must serve another purpose (i.e. retribution for victims).
Alternative Views Opposing the Use of Punishment
‘Positive’ criminology largely criticises the above justifications, such as Beccaria’s (1974), that crime occurs because the criminal wanted to do it. It opened up a new question about why criminals offend, and whether future crime could be prevented by addressing the causes, rather than punishing the offenders. It contained a more ‘positive’ outlook regarding offenders, seeing them as people with needs and desires, with difficult social, environmental, health and personality factors; interacting together to lead to criminal acts (McLaughlin, Muncie & Hughes, 2003). The primary criticism of deterrence theory in particular is that punishment cannot deter from offending, if the offender is going back into the same environmental circumstances, with the same societal factors. It could be argued that by punishing people that it is increasing the propensity to crime. It is creating ‘outsiders’ who develop their own criminal subculture (Becker, 1963).
A racial criticism of punishment is one made by Davis (1998). She proposed that racism occurred in the Criminal Justice System (CJS) and as a result people of minority races are a scapegoat and unfairly punished for crimes that they have not committed. Rather than trying to understand why there is a large proportion of ethnic minorities in prison systems and addressing the problem, punishment seeks to stigmatise and produce fear about other races in the societal population.
Lombroso & Ferrero (1895) felt that there was a biological basis to crime, and they demonstrated that the craniums of females who commit crime are similar in shape to males. It is important to note that this study was not replicated and that their views regarding women’s ability to commit crimes was sexually discriminatory, i.e. they are a weaker sex, with maternal instinct, and that committing crime undermines this natural female attributes, thereby having more similarities with males. The biological basis was further supported by the studies on identical, fraternal twins and adoptees. Mednick, Gabrielli, & Hutchings (1987) explained these studies have shown genetics plays a part in criminality, as the rate of offending correlated higher for twins that had been separated at birth, than fraternal twins that did not share the same genetics. However, this only represents a small proportion of the answer.
Eysenck (1987) believed that personality factors, such as extraversion, psychoticism, and neuroticism impacted on the propensity to commit crime, i.e. extraverts are less easily conditioned and therefore are harder to conform. Psychotics are more aggressive and anti-social in nature. Eynseck, Rust & Eyenck (1977) studied conmen, and found a correlation between these personality traits, i.e. more extraverted. This has been replicated by Mitchell et al (1980) and Schwenkmezger (1983) who found violence corresponded more to psychoticism characteristics.
Felson (2000) provided an outlook on crime that suggested crime can be prevented through changes in the environment and reducing the chance and variables for crime, i.e. removing the criminal’s opportunity. Society has crime because it enables a greater opportunity to criminals by the way that society is structured, i.e. people going to work, smaller and greater valued goods. Hudson (2003) explained that reducing the opportunities for crime can deter criminals without any need for punishment, i.e. people keeping valuables out of sight, using house alarms. This view is popular with Governments as this is easily implemented with everyone in society playing a part in taking responsibility for crime reduction.
A number of postulations have been made about the future of punishment within modern society. Ferri (1968) believed that in the future the penal system will diminish and social justice will increase, in changing the social and physical environments and increasing preventative legislation rather than punitive measures to decrease crime. This works well with Braithwaite’s idea on ‘Reintegrative shaming’ (Braithwaite, 1989). This idea is based on the idea of the power within communities and the ability of shame to be a powerful deterrence of crime and other anti-social behaviour. Rather than blame and outcast people, the balance can be addressed though a Restorative Justice approach, whereby co-operation between the offender and the victim, in coming to a solution that would be appropriate to help both people and restore the damage that has been caused by the offence (Hudson, 2003). This has been used with the Thames Valley Police (Hudson, 2003) with relative success in helping people to make significant changes in their lives to avert needing to enter the prison system. Economically this is more cost effective for society.
Summary
It is possible to imagine a society which accepts some responsibility for crime and that uses positive reinforcement and a ‘positive’ outlook on crime and offenders to enable them to reintegrate to become a viable part of society. A society of this type would benefit economically from the low costs associated with the punishment of crime. Unfortunately humans appeared to need retribution and a sense of fairness in equalling the pain suffered. A society ruled totally by fear of punishment and death is a heart-rending picture.