Crime Control: Utilitarian and Retributive Justice Theories

A Review of the Effectiveness of Imprisonment using the Utilitarian and Retributive Justice Theories Background There are different theories that attempt to justify the use of punishment in the criminal justice system. Traditionally, there were few attempts to find justifications for the use of imprisonment since many thought it made sense for the state to punish an offender as provided for in the Criminal Justice System. However, owing to the development of the justice system and the critical appraisal of the usefulness of imprisonment, there is a greater focus on the philosophical underpinnings of punishment. It is therefore not a surprise that as opposed to times gone by, there is now a legitimate movement questioning the utility of capital punishment for capital offences.

This paper assesses the utility of imprisonment using the utilitarian and retributive models of justice. It shall define the said theories and illustrate how they apply to the criminal justice system. Thereafter, it shall use the said models in assessing whether or not the prison works. That is to say, it shall consider whether or not the use of prison to incarcerate offenders achieves the set objectives.

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The Theories of Punishment a. Utilitarianism and Punishment In criminology and penology, utilitarianism views imprisonment as a tool for balancing the happiness of the majority. That is to say, jail is meant to achieve the most happiness to the majority. Simply put, once a crime has been committed, the punishment of an offender is for purposes of the happiness of the members of the larger society. This theory borrows from the works of Jeremy Bentham and John Stuart Mill (Turner, 2015).

It goes without saying that once a crime is committed, the victims suffer. Whether it is robbery, murder, rape or theft; the victim will be unhappy for the loss or injury. Punishment therefore, should attempt to restore happiness.

The happiness is restored in the following ways. Firstly, once an offender is locked up, other potential criminals are discouraged from committing crime. Secondly, once the person the offender is behind bars, they will not be able to commit other crimes. Thirdly, the offender gets the opportunity to be rehabilitated as a person. In light of these three perspectives, the happiness in the society is enhanced. Therefore, punishment is good (Erzosky, 2015).

Other than the three grounds, happiness or unhappiness can be affected by the view which the society will have of the law enforcement agencies if the offenders are not punished. In the event they are rightfully punished for their wrongs, the general members of the society will view these agencies as being effective. If the society has faith in the abilities of these institutions, the degree of happiness and calm in the society is enhanced. b. Retributive Justice Retributive justice theory justifies punishment as deserving for every person who has committed a crime. In other words, where a person commits a crime, they are liable for punishment and the punishment meted on the offender must be coterminous or equal in

measure with the nature of the crime. If someone murders, they ought to be sentenced to death row. If a person commits a less serious crime, they can be committed to jail for a few years (Nozick, 1981).

According to Kant, this concept of retribution draws from the understanding that all humans are equal. Therefore, whoever commits a crime against a fellow human being has upset the balance of equality and is therefore deserving of punishment. This punishment can, according to him be viewed as a form of retaliation. Basically, the punishment is self inflicted. That is to say, it comes because of the very acts of the person receiving punishment (Alschuler, 2003).

Imprisonment in Penology In the study of punishment, there are many forms of punishment that the state can subject an offender to. They include but are not limited to Community Service Orders (CSO), death sentence, fines and incarceration. The latter form of punishment refers to committal of offenders to a pre determined amount of time behind bars. The length of incarceration varies from the lifetime of the offender to a few months. This depends on the nature of the offence that has been committed. With the war against death sentences, most death row inmates have their sentences converted to life imprisonment (Neumayer, 2008) The objectives of being held in prisons for offences committed are manifold. First, they are meant to be punishment for the offence committed. Any logical person would abhor the possibility of being locked up and separated from friends and family because of commission of offences. Therefore, this objective would work immediately the person is locked up. On the other hand, prisons are meant to be correctional centres for the offenders.

Some prisons have rehabilitation programmes where the offenders are trained to be able to fend for themselves, to reintegrate into society and to get spiritual and psychological help.

Other objectives would include the protections of the public from dangerous elements and deterrence. In terms of protection of the public, when an offender is locked up, they are kept away from the public and they will not be able to commit offences again. The latter objective of deterrence follows the logic that where the public knows that a crime is met by a similar punishment meted out to an offender, they will be discouraged from committing crimes. These objectives are found both in the utilitarian and retributive justice theories of criminology.

A Critical Review of the objectives as against the state of Prisons From the foregoing, it is evident that the objectives of the prison system are clearly matched by the two theories of utilitarianism and retributive justice. However, there is the fundamental question of whether the prisons systems really work. This is important as it tries to consider whether the objectives are really being met and whether then, there is need for reformation of the system.

Firstly, in terms of punishment, there is the critical question of whether or not imprisonment really meets the objective of retribution. It is the government that undertakes the process of charging, prosecuting and incarcerating the offender. The victim of the crime is reduced to a mere spectator. In as much as the offender receives punishment, the victim is, in the absence of the victim protection and compensation regime, left out of the entire process. The theory of retribution as discussed by Kant may not therefore fit seamlessly.

Secondly, under the utilitarian theory, imprisonment ought to help in reformation. The person who is locked up is expected to be a better person after imprisonment. However, this is not always the case. As a matter of fact, the system exposes first time offenders to the hardened criminals. What this does is that it gives persons who may have committed a crime out of passion or need the opportunity to be mentored by the real recidivists. To this extent, the

utility of the prison system is really brought into question. This explains the push to privatize the prison system (Nathan, 2003) It has been argued that our prison system has become open to drugs and violence. This being the case, the offenders who might not have been hardened criminals learn to survive within the walls of the prisons by engaging in these activities. When they come out, they cannot survive without drugs or violence. They therefore become candidates for re-arrest and reincarceration. This cycle may repeat itself over and over again. To this extent, the issue of reform becomes increasingly questioned (Easton, 2013).

Other than the deplorable conditions and overcrowding, the incarceration of an offender does not merely affect them in exclusion. There are children, wives or husbands. The utility to the society generally increases the happiness of those who will feel safe. However, it does not consider the offenders family that is innocent and might not have benefitted from the offence committed. Further, there are certain instances where the victim does not really consider the punishment of the offender as being necessary for them to feel better. Some want to forgive while others consider that the punishment will not do anything to return the victim to the state they would have been before the offence. (Bernaddo, 2014) On the question of inability to commit other offences, the ability of the prisons is really being put to question. It has been stated that there are instances where certain offenders are still able to operate the criminal gangs even from behind bars. This being the case, that objective is not really being met then. Further, if the first time offenders come out as hardened criminals, that possibility outweighs the utility of inability during the time behind bars.

Despite the forging there are ways in which the prison system seems to be working. Firstly, it is absolute that in terms of punishment, aside from the challenges that have been identified in the preceding sections, the offender is punished if they are locked up. This goes further to

assuring the public that any offender will receive their due punishment in the event they do not obey the law.

Secondly, the incarceration ensures that the freedom and liberty of the offender is limited and they cannot move around freely. They therefore cannot commit offences at that time. The utilitarian objective of incapacitation of an offender is therefore met. Other than the modification from the preceding sections, an offender in the jail cells cannot commit a crime.

Finally, in enhancing the confidence of the society at large in the abilities of the criminal justice system- including the judiciary and the office of the prosecutor- there is apparent effectiveness. It is important that the system is seen to be working for purposes of not just enhancing public approval but also as a warning to other members of the public as to the certainty of punishment in the event a member of the public breaches the criminal code.

Conclusion In sum, there are ways in which the imprisonment helps to realize the objectives of the criminal justice system. This is especially the case when it comes to retribution or punishment. Further, in limiting the movements of the offender the imprisonment system is also useful. It would be unsafe of the offender were left to roam the streets as though they did not commit any offences.

However, there have emerged weaknesses in the system that call for a rethinking of the system or more investment by the government in order to make the system work as would be expected. As it has emerged from the preceding sections, there are challenges that need to be addressed. These include a review of the offences that require incarceration for purposes of reducing congestion, mainstreaming victim protection and compensation by both the offender

and the state, better facilities for rehabilitation and total separation of capital offenders from the minor offenders. These steps will help to enhance the utility of the prison system.

As it stands therefore, this paper concludes that the system works. However, there are certain gaps that need to be further addressed through reform for purposes of attempting to achieve all the objectives. Further, the apparent conflict between the utilitarian approach and the retributive justice model can be harnessed through harmonization. A purely retributive regime may harden offenders. On the other hand, the utilitarian approach may even punish the wrong persons for the happiness of the majority. However, a harmonized approach may render the system more useful by focusing on all the affected persons. That is the offender, the public and the victims of crime. However, caution must be taken to prevent a scenario where the prisons are too soft and become holiday camps for offenders.

References Turner, P.N., 2015. Punishment and Discretion in Mill's Utilitarianism. Utilitas, 27(2), pp.165-178.

Ezorsky, G. ed., 2015, Philosophical perspectives on punishment. Suny Press.

Nozick, R. 1981, Philosophical Explanations. Cambridge, MA: Harvard University Press. pp. 366- 368.

Alschuler, A.W., 2003. The changing purposes of criminal punishment: A retrospective on the past century and some thoughts about the next. The University of Chicago Law Review, 70(1), pp.1-22.

Neumayer, E. 2008 Death penalty: the political foundations of the global trend toward abolition.Human rights review, 9 (2). pp. 241-268 Nathan, S., 2003. Prison privatization in the United Kingdom. Coyle, A., A. Campbell and R. Neufeld (eds) Capitalist Punishment: Prison Privatisation and Human Rights, London: Zed Books.

Easton, S., 2013. Protecting prisoners: The impact of international human rights law on the treatment of prisoners in the United Kingdom, The Prison Journal, 93(4), pp.475-492 Bennardo, K., 2014. Incarcerations Incapacitative Shortcomings. Santa Clara L. Rev., 54, p.1.