Section 2.5: Theories of Punishment

The theory of punishment heavily influences the way people view criminal punishments they support. This means that people tend to agree with the theory that leads to the outcome they think is appropriate. This belief system about the purpose of punishment often extends to the political sphere, where politics and correctional policy are closely linked.

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In the United States, changes in correctional policy were largely influenced by the political climate of the time. During the more liberal 1960s and 1970s, criminal sentences were mainly determined by the judicial and executive branches of government. Legislatures focused on creating sentencing laws that prioritized rehabilitation. However, during the politically conservative 1980s and 1990s, lawmakers shifted much of that power away from the judicial and executive branches. The political rhetoric of this time emphasized “getting tough on crime,” with retribution, incapacitation, and deterrence becoming dominant correctional goals. Rehabilitation became less of a priority during this period.

Deterrence 

For many years, people have believed that fear of punishment can stop unwanted behavior. This idea has been popular among criminal justice thinkers, who have formalized it in various ways. One of the most well-known formulations comes from the Utilitarian philosopher Jeremy Bentham. He identified three essential elements for deterrence: punishment must be prompt (what he called celerity), certain, and appropriately severe (severity). These elements are applied under the theory of rational choice, which suggests that people weigh the rewards of a crime against the potential punishment. If the punishment is viewed as more severe than the rewards, they will not commit the crime. Criminologists sometimes refer to this decision-making process as a cost-benefit analysis.

When evaluating whether deterrence is effective, it is essential to distinguish between general and specific deterrence. General deterrence operates on the premise that punishing one person sets an example for others who might be considering the same unlawful act. On the other hand, specific deterrence assumes that individuals penalized by the law will not re-offend because they have learned their lesson.

Critics of the deterrence theory point out that high recidivism rates show that the theory does not work. Recidivism refers to the relapse into criminal behavior. This means that those punished by the criminal justice system tend to re-offend at a high rate. Some critics also argue that rational choice theory is flawed, as crimes of passion and those committed under the influence of drugs or alcohol are not the results of rational cost-benefit analysis.

Despite criticisms, rational choice theories remain critical to understanding how the criminal justice system works. This is because almost the entire criminal justice system is based on this theory. The idea that people commit crimes because they choose to do so is the foundation of criminal law in the United States. In fact, for almost every felony under American criminal law, the intent element must be proven beyond a reasonable doubt before a conviction can be obtained. Without a culpable mental state, very few crimes can be considered.

🔍 Reflect

How do the principles of general and specific deterrence aim to prevent crime, and what are the challenges and criticisms associated with the deterrence theory in the criminal justice system?

Incapacitation 

Incarceration is a widely used method of incapacitation in the criminal justice system, aimed at preventing criminals from committing further offenses by keeping them locked up in secure environments. Although this goal is reasonably practical, it has a significant downside: it is only effective if the offender is in custody.

Undeniably, incarceration as a means of incapacitation reduces crime to some extent. The criminal is removed from society and no longer poses an immediate threat to the public. However, the primary issue with this approach is its high cost.

The social and moral costs of incarceration are significant, as offenders are removed from their homes, families, and workplaces, which can result in the breakdown of relationships and the loss of employment opportunities. Moreover, long prison sentences can severely impact mental health, and some offenders may never fully recover from the experience.

In addition to these social and moral costs, substantial financial costs are associated with incarceration. Lengthy prison sentences lead to large prison populations requiring significant resources to maintain. This has created a massive prison industrial complex, which, in turn, has resulted in a crippling financial burden on many states. Furthermore, the cost of building and maintaining prisons can be exorbitant, and these costs are passed on to taxpayers. The significant financial burden of maintaining a prison system has led many states to seek alternative, more cost-effective methods of punishment.

Given these challenges, many scholars have proposed alternative approaches to incapacitation that focus on prevention rather than punishment. One such approach is the use of electronic monitoring, which allows offenders to be monitored remotely while living in the community. This less costly approach allows offenders to maintain ties with their families, communities, and workplaces.

Another approach to incapacitation is community-based supervision, which involves using probation and parole officers to supervise offenders in the community. This approach has been shown to be effective in reducing recidivism rates, as offenders are closely monitored and held accountable for their behavior.

Finally, restorative justice is another alternative approach to incapacitation that focuses on rehabilitating offenders and restoring harm caused by their criminal behavior. This approach promotes healing and reconciliation between the offender, victim, and the community rather than simply punishing the offender.

While incapacitation is a practical criminal justice goal, its costs are substantial. Alternative approaches, such as electronic monitoring, community-based supervision, and restorative justice, may be more effective and cost-efficient in reducing recidivism rates and promoting the rehabilitation of offenders.

🔍 Reflect

What are the social, moral, and financial costs of incarceration as a means of incapacitation, and how might alternative approaches like electronic monitoring, community-based supervision, and restorative justice address these challenges?

Rehabilitation 

Rehabilitation is a noble objective of state punishment, aimed at helping offenders become productive and law-abiding members of society. Various approaches have been suggested throughout history on how to provide this aid. During the formation of our modern correctional system, rehabilitation was the primary model. The term “corrections” implies that the idea was to assist offenders in becoming non-offenders. The system provides several programs, including education, faith-based, drug treatment, anger management, and others, aimed at helping offenders improve their behavior.

However, the results of rehabilitation efforts have been disappointing when measured by recidivism rates. Those who receive assistance from the criminal justice system tend to re-offend at similar rates to those who serve time in prison without rehabilitation. Rehabilitation advocates argue that previous efforts failed due to insufficient funding, poor planning, or poor implementation.

Rehabilitation programs are time-consuming and expensive, requiring considerable resources. Offenders need access to education, job training, counseling, and other services to aid in their recovery. These resources can be challenging to obtain, especially for those who lack financial resources. Furthermore, determining which individuals are most likely to benefit from rehabilitation is difficult. Some people may be more receptive to assistance than others, and some may require more intensive interventions.

Despite these challenges, rehabilitation remains an essential component of the criminal justice system. Efforts to aid offenders should continue to ensure that they can lead productive and law-abiding lives. The system should aim to improve the quality of rehabilitation programs to make them more effective in reducing recidivism rates.

One way to achieve this is to address the underlying causes of criminal behavior, such as poverty, mental illness, and addiction. Providing resources to tackle these issues can help prevent individuals from becoming offenders in the first place. Drug courts are an example of how the system is moving towards a more rehabilitative approach, with first-time and non-violent offenders given a chance to improve their behavior.

Another approach is to focus on evidence-based practices. These are programs that have been scientifically tested and proven to be effective in reducing recidivism rates. Evidence-based programs can help ensure offenders receive appropriate assistance, reducing the risk of ineffective interventions.

In conclusion, rehabilitation is an important goal of the criminal justice system, aimed at helping offenders become productive and law-abiding members of society. While rehabilitation efforts have had mixed results, it remains a critical aspect of the system. The system should aim to improve rehabilitation programs to make them more effective, addressing the underlying causes of criminal behavior and focusing on evidence-based practices.

🔍 Reflect

What challenges have hindered the effectiveness of rehabilitation programs in reducing recidivism, and how can focusing on evidence-based practices and addressing underlying causes of criminal behavior improve rehabilitation outcomes?

Retribution 

Retribution is a fundamental concept in the criminal justice system that refers to punishing offenders for their wrongdoing. The goal of retribution is to ensure that offenders receive the punishment that they deserve in proportion to the severity of their offense.

The doctrine of proportionality is a critical component of retribution, which holds that the punishment should fit the crime. This means that the severity of the punishment should be appropriate to the seriousness of the offense committed. The idea of proportionality was first advocated by the Italian criminologist Cesare Beccaria, who believed that the harsh punishments of his time were often disproportionate to the crimes committed.

Just deserts reflects the notion that individuals who commit crimes should be held accountable for their actions and punished accordingly. The principle of just desert is often used to describe a deserved punishment proportionate to the crime committed. In other words, the punishment should be commensurate with the offender’s culpability for the crime.

Despite the importance of the doctrine of proportionality in retribution, it is difficult to achieve in practice. One reason is that it is challenging to measure criminal culpability objectively. Determining a proportionate punishment is based on legislative consensus, which can be imprecise and subjective. The interpretation of what constitutes an appropriate punishment can vary depending on the particular circumstances of the offense.

Furthermore, the concept of proportionality can be challenging to implement in practice, as there may be competing goals in the criminal justice system, such as deterrence, rehabilitation, and incapacitation. The need to balance these objectives with the principle of proportionality can be complex and require careful consideration.

Retribution is a critical component of the criminal justice system that seeks to ensure offenders receive the punishment they deserve. The doctrine of proportionality is a crucial principle in retribution that holds that the punishment should fit the crime. However, achieving proportionality can be challenging due to the subjectivity of measuring criminal culpability and the competing goals of the criminal justice system. Despite these challenges, the principle of proportionality remains a fundamental aspect of retribution and underscores the importance of holding offenders accountable for their actions.

🔍 Reflect

Why is the doctrine of proportionality important in the concept of retribution, and what challenges arise in ensuring that punishments are proportionate to the severity of the crime?

A Racist System?

The United States is a multiracial and multiethnic country, but this diversity has led to racism. Racism is the belief that one race is superior to another. In America, racism manifests as white Americans discriminating against racial and ethnic minorities. Historically, these minorities have not been given equal footing in important aspects of life like employment, housing, education, healthcare, and criminal justice. When this unequal treatment is willful, it can be referred to as racial discrimination. The law forbids racial discrimination in the criminal justice system, just as it does in the workplace (Stewart & Patten, 2016).

Disproportionate minority contact refers to the disproportionately high number of minorities who come into contact with the criminal justice system. This problem is present in the adult and juvenile systems at every level. As the gatekeepers of the criminal justice system, the police are often accused of discriminatory practices.  Courts are not immune to cries of racism from individuals and politically active groups. For example, African Americans are still incarcerated for drug offenses at a rate much higher than whites, despite using drugs at similar rates (Alexander, 2010).

The literature on disproportionate minority sentencing distinguishes between legal and extralegal factors. Legal factors are those things we accept as legitimately, as a matter of law, mitigating or aggravating criminal sentences. Such things as the seriousness of the offense and the defendant’s prior criminal record fall into this category. Extralegal factors include things like class, race, and gender. These are regarded as illegitimate factors in determining criminal sentences. They have nothing to do with the defendant’s criminal behavior and everything to do with the defendant’s status as a member of a particular group.

One way to measure racial disparity is to compare the proportion of people that are members of a particular group (their proportion in the general population) with the proportion of that group at a particular stage in the criminal justice system. According to the Bureau of Justice Statistics (2022), African Americans made up 13.4% of the U.S. population in 2020, but they accounted for 28.5% of all arrests in 2019. From this information, we can see that the proportion of African Americans arrested was more than double what we would expect.

The disparity is even more pronounced when it comes to drug crime. According to the National Association for the Advancement of Colored People (NAACP) (2022), African Americans represent only 13% of the population of drug users. However, they account for 29% of those arrested for drug offenses and 34% of those incarcerated in state prisons for drug offenses.

There are three primary explanations for these disparities in the criminal justice system. The first is individual racism. Individual racism refers to a particular person’s beliefs, assumptions, and behaviors. This type of racism manifests when the individual police officer, defense attorney, prosecutor, judge, parole board member, or parole officer is bigoted. Another explanation for racial disparities in the criminal justice system is institutional racism. 

Institutional racism manifests itself when departmental policies (both formal and informal), regulations, and laws result in unfair treatment of a particular group. A third (and controversial) explanation is differential involvement in crime. The basic idea is that African Americans and Hispanics are involved in more criminal activity, which is tied to social problems like poor education, poverty, and unemployment.

While it does not seem that bigotry is present in every facet of the criminal and juvenile justice systems, there appear to be pockets of prejudice within both systems. It is difficult to deny the data: Discrimination occurs in areas such as the use of force by police and the imposition of the death penalty. 

According to a report by the National Association for the Advancement of Colored People (NAACP, 2022), African Americans are incarcerated at a rate five times greater than whites. The report further reveals that, as of 2021, African Americans accounted for 33% of the sentenced prison population, while non-Hispanic whites accounted for 29%, Hispanics 23%, and non-Hispanic Asians 2%.

The disparity is also evident in drug offenses. African Americans and Latinos are more likely to be arrested and incarcerated for drug offenses than whites, despite similar rates of drug use across races (Drug Policy Alliance, 2022). As of 2021, African Americans represented 13.4% of the U.S. population but accounted for 28.5% of arrests for drug abuse violations (Federal Bureau of Investigation, 2022). In comparison, whites represented 61.5% of the U.S. population but accounted for 66.4% of arrests for drug abuse violations (Federal Bureau of Investigation, 2022).

The causes of the disparities in the criminal justice system are complex and multifaceted. While individual racism and institutional racism remain factors, research has also highlighted the role of socioeconomic and environmental factors, including poverty, limited educational opportunities, and discrimination in housing and employment (Alexander, 2020).

The criminal justice system must continue to address these disparities and work towards more equitable and just outcomes for all individuals, regardless of race or ethnicity. This can involve policy changes, including reforms to drug laws and mandatory minimum sentences, and efforts to address systemic inequalities in education, employment, and other areas contributing to the cycle of poverty and crime (Development Services Group,  2022).

🔍 Reflect

What are the main factors contributing to racial disparities in the criminal justice system, and how can policy changes and reforms address these inequalities to promote a more just and equitable system?

References

• Alexander, M. (2020). The new Jim Crow: Mass incarceration in the age of colorblindness. The New Press.
• Drug Policy Alliance. (2022). Racial disparities in drug arrests. 
• Federal Bureau of Investigation. (2022). Uniform Crime Reporting Program: Arrests by Race, Ethnicity, and Sex, 2019. Washington, DC: U.S. Department of Justice.
• National Association for the Advancement of Colored People. (2022). Criminal justice fact sheet. 
• Development Services Group, Inc. (2022). Racial and ethnic disparity in juvenile justice processing. Literature Review. Office of Juvenile Justice and Delinquency Prevention.  

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Last Modified:  05/16/2024

This work is licensed under an Open Educational Resource-Quality Master Source (OER-QMS) License.