Introduction:
Law is the humanapproximationofjusticeandisnecessaryfororderandequality Itisnotedthat by living in groups,humansgiveupacertainamountoffreedomtobeprotectedbythelaw Ifhumansdo not comply with the agreed-upon laws of society, they must be subject to justice, whichmanifestsinthe form of punishment The concept of punishment can generally beunderstoodasasocial-controlfunction [19] but can also be described as a response to unacceptable behaviours committed by man [12] The response may vary in justification and degrees of success Inmanycases,thesuccessoftheresponsecan bedeterminedbythejustificationofthepunishment
A famous case of inappropriate justification for punishment was the Romans crucifying Jesus Christ, which was justified by the prosecution as incapacitation for committing blasphemy [16] Of course, this justification was not entirely valid, and the Romans feared the sociopolitical influence of Jesus at thetime.However,theeffectofsuchpunishmentwasthatGodabsolvedfollowersofChristianity of their sins in the eye of the Christian God [1], and the accused himself was resurrected three days post-mortem [17]. As such, the decision to punish Jesus seems to have failed the Romans as they could not deter Christianity. More importantly, the failure was due to the lack of valid justification for the punishment. If Jesus was punished for a legitimate reason and proportionately to his crimes, such as the manufactureofalcoholwithoutapermit,theoutcomemayhavebeendifferent.
A modern example of punishment appropriately justified was the conviction of Ghislaine Maxwell, a well-known socialite and later convicted paedophile and sex offender. Charged with sex trafficking and conspiracy in 2020 [5], Maxwell was sentenced to prison for 20 years [10]. The justification for this punishment was not only to deter potential perpetrators but also to incapacitate Maxwell from committing further crimes. Given that the victims have stated her conviction has given them closure [21] and that she has been removed from society, the punishment seems to haveworkedin favour of the courts, society, andthevictims Thesuccessofthiscasecanbeattributedtothefactthatthe prosecution found appropriate justification for sentencing, and the punishment was relatively proportionate
As briefly discussed above, the justification of punishment is of great importance when dealing with accused perpetrators of the law The evolution of law and ethics has meant that punishment has generallybecomemoretransparent,ethical,andconsistent Thisincreasedconsistencymeansthatmodern justifications for punishments can be simplified into four different categories: incapacitation,restoration, rehabilitation, and retribution We must thoroughly understand each justification to make accurate
convictions regarding legal dilemmas. This essay will discuss each method's theory, benefits, and limitationsbeforereachingaconclusiveevaluation.
RulesofMeasurementandClassification:
Before diving into the different conceptions of punishment, we must first understand how to classify the justification for punishment and how to measure itseffectiveness Firstly,forthepunishment to be effective, it must deter the criminal from further illegal acts and other members of society from committing similar crimes The punishment must be severe, certain, and swift to indicate effective deterrence Regarding classification, the justification for punishment canleanbetweenaforward-looking and backwards-looking agenda, Utilitarian and Deontological, respectively Utilitarianism means to be usefulandtoderivepracticalresultsfromthepunishment Deontologicalmeanstoaddresstheissueitself, sometimes regardless of the consequence for human welfare (Britannica) Another aspect in evaluating the validity of the justification for punishment is the real-world factors and consequences, including social, economic, and individual effects that may manifest. These factors may override the theoretical justification as they speak to the human implementation of such justice amidst real-world conditions.To reach a conclusive evaluation, various micro and macro examples will beusedtoinvestigatethebenefits andlimitationsofeachjustificationforpunishment.
Incapacitation:
Incapacitation referstopunishmentwherespecificcriminalcapacitiesarereducedtopreventtheir desire to commit more crimes(PHILOSOPHIESOFPUNISHMENT).Theconditionsofthispunishment can vary from economic restrictions to physical barriers. An exampleofeconomicincapacitationmaybe placing sanctions on rogue companies, thus preventing said companies from engaging in further illegitimate actions. An example of physical incapacitation may be confining a criminal in an isolated penitentiary, rendering the criminal unable to continue performing illegal activities. Both are examples where the opportunity for crime is decreased, thus discouraging additional illicit activity It is a specific deterrence and swift in applicationandcanbesevereindurationanddetail,meaningthatitisaneffective solutiontocrimeintheory
An advantage of incapacitation theory is that it deploys justice from a relatively utilitarian point of view, meaning thatnotonlywillthepunishmentdisciplinethewrongdoer,butitwillbringaboutsocial benefit It is also deontological because the offenceisaddressed,andthewrongdoerisdirectlypenalised In this context, incapacitation can act as social protection and defend law-abiding citizens from felons However, there are many disadvantages when incapacitation is put into practice Firstly, incapacitation often damages the punished person, making reintegration difficult Thereislittlehopeforacriminalwho
has been alienated from society, as in the modern framework, they will struggle to find work and living opportunities for the rest of their lives. Secondly, this form of punishment is highly costly, an example being the American prison system spiking 182 billion in maintenance costs in 2017 [14] In addition, foreign economic sanctions initiated bytheUSgovernmentcostthecountry1billionannuallyinnational income [8] Thirdly, and perhaps most importantly, incapacitation is not necessarily the most effective solution in nearly all cases of legal deviance Other conceptions of punishment can be applied that are morecost-effectiveandbeneficialfortheplaintiff,thedefendant,andsociety
Incapacitation theory, although long-standing in human history, is highly effective in theory
However, when put in practice, the economic, social, and individual complications render the method unviableinmanymodernjuridicalcircumstances
Restoration:
Restoration, a relatively new concept in punishment, refers to the process where the offender takes full responsibility for their misconduct and initiates restitutiontothevictim.Restorativejusticecan take multiple forms,suchaswrittenorphysicalrestoration.Anexampleofwrittenrestorationcouldbean apology from a criminal to his victim. An example of a physical restoration could be an arsonist paying the building manager sufficient fees to rebuild. Both are examples where the victimiscompensated,and the wrongdoer takes responsibility and issometimesforgivenbythevictim.Thisformofpunishmentcan be severe and strongly deters further misdemeanour. It is noted that the scale of restoration must be reasonable, as excessive or unrealistic demands may causefurthermayhem.However,ifthedemandsare proportionate and both prosecution and defence can act reasonably, restoration is an effective method of punishment.
An advantage of restorative justice is that it is oriented toward people's empathyforoneanother and resolves anger and alienation. This indicates that it stemsfromautilitarianpointofviewandaimsto resolve conflict instead of dwelling on the trauma. By appealing to the human desire for wholeness and closure, restorative justice provides amutuallybeneficialsolutionforbothpartiesinvolvedintheconflict [19] For example, in 2019, after a short confrontation outside an ATM, political philosophy professor Young Kun Kim was murdered by Matthew Lee, a struggling security worker Although Lee faced a 25-year sentence from the judge, Kim's family requested an apology from Lee The offender was apologetic and remorseful; the victim'sfamilywasgracefulandforgiving Asaresult,Lee'ssentencewas reduced from 25 years for second-degree murder to 10 years for manslaughter [15] In this case, both parties felt empathy for one another and resolvedtheconflicttogether,reflectingthetheoryofrestorative punishment in thebestlight However,restorativejusticehasdisadvantages;ifthetermsoftherestoration aredisproportionate,theconflictescalates,andmoredamageensues
An example would be France and Britain pressuring Germany to take responsibilityfortheFirst World War and surrendering 13% of their land after The Treaty of Versailles [2]. However, many Germans were left unsatisfied andhumiliated,eventuallyleadingtotheriseoftheNaziParty,resultingin the deaths of 50 million humans between 1939 - 1945 (Britannica) This example speakstothedramatic ramifications when restorative justice is not applied with empathy and deliberate considerations of consequence
Although restorative justice is the most utilitarian form of punishment–helping the victims and offenders recover and reconcile–it ultimately relies on empathy and good faith Restorative justice becomesdisproportionatewithoutthesetwovaluesinplaceandultimatelyleadstofurtherdestructionand damage
Rehabilitation:
Rehabilitation, a principle that focuses on reform of the offender, has been around foraslongas punishment itself, existing as a utilitarian alternative to harsher and more deontological methods of punishment, such as incapacitation and retributivism. Rehabilitation prioritises the well-being of the criminal and aims to reintegrate the reformed individual back intosocietyaftertheyhavebeenmedically deemed healthy. Rehabilitative punishment can take many forms, such as correctional facilities or treatment centres (PHILOSOPHIES). However,allformsofrehabilitativepunishmentinvolvesomelevel of incarceration, where either medical personnel can support the rehabilitative process or the prisoner is encouraged to reflect on their actions. This conception is not necessarily severe nor certain, as rehabilitation is different for every individual and therefore is not the most potent deterrent to crime. However, when done right, rehabilitation allowsthecriminaltorejoinhumanityasafunctioningmember ofsociety.
An advantage of the rehabilitative theory is thatiftreatmentspecifictothecriminalisemployed, the chance of recidivism decreases and the employability of the criminal increasesuponrelease.Astudy by the National Institute of Justice found that with effective treatment programs, the number of persons repeatedly committing crimes could decrease by around100,000intheUS[18] However,thisstatisticis conditional upon the quality of the rehabilitativeprogram Themaindisadvantageofrehabilitativetheory is that the programs are often economical and crude when put into practice Due to a decline in correctional budgets and fiscal constraints since the mid-1970s, the US prison system has prioritised incarceration over rehabilitation, meaning that only low-quality rehabilitation isavailablefortheaverage criminal [19] As such, the manifestation of rehabilitative punishment in Western societies is mainly underfundedandthereforedoesnotperformtothestandardsdescribedinprinciple
Despite the vast benefits of rehabilitative punishment theory, the real-lifeimplementationsofthe justification lack sufficient economic and social support, meaning that the criteria for this solution to be effective are not fulfilled Moreover, because high-quality, specific treatment cannot be provided toeach offender,large-scalerehabilitativepunishmentremainsunviableinthemodernpenalsystem
Retributivism:
Retributivism is one of the oldest justifications for punishment in the historyofhumanity Itwas first contextualised in legal writing as "an eye for an eye" in Hammurabi's Code (circa 1755–1750 BC) The interpretation of this justification alludes to punishing the offender proportionately to the crime committed [22] Retributivism is often a sub-justification for incapacitation Anexampleofretributivism in the modern juridical system is mandatory and determinate sentencing policies in the US [19]
Mandatory sentences giveconsistentpenaltiestooffendersofaspecificviolation Forexample,selling28 or more grams of crack cocaine comes with a minimum sentence of five years in federal prison [23] Determinate sentencing gives specific punishments that vary based on the severityoftheoffenceandthe prior criminal record [19]. An example of such sentencing would be a criminal being in prison for ten years instead of eight because of the criminal committing a similar offence in the past. Retributivism employs a deontological perspective regarding punishment and is the most backwards-looking justification for punishment discussed in this essay. Retributivism rarely prioritises social well-being. Given the long relationship between retributivism and punishment across human history, there are many casestudiestoevaluatehowvalidthejustificationofretributivismisinthemodernworld.
An advantage of retributivism is that it includes incapacitation, rehabilitation, and deterrence elements, making it awell-balancedjustificationforpunishment.Thisdiversityofeffectsisrarelyseenin other justifications of punishment. It allows the victim to heal, the offender to suffer, and society to be protected. In theory, retributivism ensures that the criminal will be punished, and the balance of society can be restored [6]. For example, Ted Bundy, a notorious serial killer, murdered and raped at least 30 victims between 1974and1978[3] HewascaughtandexecutedinFloridaStatePrisonin1989,showing no remorse for his killings and demonstrating symptoms of sociopathy throughout his trial [24] In this case, the retributive justification for capital punishment was highly appropriate, as the guilty was punished,thevictimsavenged,andsocietyprotected
A disadvantage of retributivism is that the principle has limited applicability in many petty offence situations Some examples where retributivism may be inapplicable include drunkenness, traffic violations, and drug abuse The punishments may become excessive or inadequate An example of excessive punishment is the case of Derek Harris, who was sentenced to life in prison for selling a Louisiana officer 069 grams of marijuana in 2012[13] Althoughhewasfreedafternineyearsinprison,
thepunishmentwasstillnotequivalenttotheseverityofthecrime.Anexampleofinadequatepunishment is the caseofCarolynBryant,thewomanwhoaccusedEmmettTillofflirtingwithher,ultimatelyleading to his lynching and death [20] Although her actions led to a man's death, she was never officially persecuted for her wrongdoings [9] Even though the Till familyisstillpushingforherinvestigation,she remains free of misbehaviour in the eyes of the law to this day [9] Once again, the punishmentwasnot equaltotheseverityofthecrime
Despite these objections, retributivismremainsadominantjustificationofpunishmentinWestern justice This justification appeals to the modern audience because retribution, in theory, is practically Newtonian "Every action hasanequalandoppositereaction"supportstheretributiveprincipleof"letthe punishment fit the crime" (PHILOSOPHIES), as well as theories of Karma in Hinduism and Buddhism [11] Judeo-Christian beliefs also supportthisdoctrine,asstatedinRomans2:1-16:"God'willrepayeach person according to what they have done'" [4] Asretributivejusticeissodeeplyrootedinhumanbelief, culture, and society, it's no wonder that despite its misgivings and shortcomings, it is considered the fundamentalexhibitionofjustice.
MyViewonJustificationsforPunishment:
Justifications for punishment should employ a more utilitarian perspective. Deontological justifications tend to have a multitude of shortcomings. These deficiencies are blatantlydemonstratedby justifications such as retributivism and incapacitation. Firstly, deontological justifications rarely address the causes of crime and focus on the crimes themselves. This means that the crime rate remains unchanged, draining precious resources while damaging families, communities,andthepunishedperson. Secondly and more importantly, retribution requires human beings to judge one another. The process of judgement is inherently flawed, and it is difficult to judge what someone deserves, meaning the scale of punishment becomes inconsistent. As a result, the fundamental principle that drives retributive justice (onegetswhatonedeserves)becomesimpractical.
Deontological justifications of punishment put into practice also bring up various real-world problems For example, labour exploitation is a common phenomenon worldwide, where the private sector can take advantage of prisoners to generate revenue In 2022, incarcerated workers in the US generated 2 billion USD in goods and 9 billion worth of prison maintenance services while being paid between 52 cents to nothing per hour [7] These factors allude to the fact that while the retributive and deontological justifications for punishment may have been the dominating system in the past, rapid urbanisationandglobalisationhaveshownthatourjustificationsforpunishmentmustchange
A lack offiscalandsocialsupportisthekeyhindrancetoutilitarianjustificationsforpunishment
The primary factor in making the utilitarian justifications, namelyrehabilitativeandrestorativejustice,is
specific help for each offender. If left unspecified, utilitarian justifications lose all efficacy. Economic support comes along with social and political support. People must advocate for politicians who acknowledge and support the reform and improvements of the penal system For example, suppose funding goes into developing and implementing restorative justice In that case, families, societies, and offenders all have a better chance of recovering from the trauma, thus avoiding the issues created by deontologicaljustificationsofpunishment
In conclusion, eachdeontologicalandutilitarianjustificationsofpunishmenthaveitsbenefitsand limitations Different justifications for punishment include incapacitation, restoration, rehabilitation, and retribution Although deontological justifications for punishment, such as incapacitation and retribution, were considered the true reflection of justice for nearly all of human history, modern times have shown thatwemustevolveourapproachtojusticeandpunishmentfortheindividualandgreatergood
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