The concept of punishment in the context of the criminal justice system is deeply rooted in philosophical and ethical principles. It serves several important purposes, and its justification is central to the functioning of any society. In this article, we examine the key justifications for punishment and their significance within the framework of criminal justice. Punishment is not based on random selection, but deliberately imposed on someone identified to have committed an offense.
Punishment has been in existence since time immemorial when man lived in a hunting and gathering society. As society evolves punishment takes a more rational face and a constructive justification for it rather than vengeance which was one of the justifications for punishment centuries ago. There are five main underlying justifications of criminal punishment : retribution; incapacitation; deterrence; rehabilitation and restitution.
Retribution is rooted in the belief that individuals who commit crimes should suffer consequences that are commensurate with the severity of their offenses. This principle aims to restore the moral balance disrupted by the crime, providing a sense of closure to victims and society as a whole. By holding offenders accountable for their actions, retribution seeks to deter future criminal behavior and uphold the social contract that underpins a functioning society. One of the earliest retributionists was Immanuel Kant in the eighteenth century. Kant sees the idea of punishment meted to the offender as a categorical obligation, and according to him: Punishment can never be administered merely as a means for promoting another Good, either concerning the Criminal himself or to Civil Society, but must in all cases be imposed only because the individual on whom it is inflicted has committed a crime.
Retribution in punishment follows the lex talionis doctrine of an “eye for an eye; a tooth for a tooth”. An individual deserves the penalty he gets because of the crime he has committed. If a person commits a crime, he must be given the exact punishment prescribed by law, “he must not be given a lesser penalty than he deserves,” which means that there is no act of plea bargaining in retribution. An individual who commits homicide, for example, must face the death penalty, because there is no provision for him to bargain to plead guilty for manslaughter for whatever reason. Likewise, punishment must not be above what he deserves. According to Rawls, retributionists have insisted upon the fact that” no man can be punished unless he is guilty, that is unless he has broken the law.
There are two versions of the retributive theory of punishment. First, the revenge theory is the lex talionis doctrine identified above. It treats all crimes as if they were of physical violence: if A is hurt by B, the latter would receive equal hurt. Punishment, therefore, is a collective expression of the private desire for revenge, and the suffering of the criminal is a source of psychological satisfaction to those whom he has injured. The reason why the state acts as the agent of punishment is mainly because private individuals would otherwise seek vengeance on their own thereby throwing it back into the primitive stage of man.
Some supporters of the retribution theory appealed to certain general principles of justice in addition to the ‘just desert’ argument, namely that there should be equality before the law. Thus:
There are many positive considerations in support of the retributive theory of punishment. Firstly, it is a particular application of a general principle of justice, namely, that equals should be treated equally and unequals unequally. This is the principle which has won very general acceptance as a self-evident principle of justice, It is the principle from which the more celebrated, yet opposed accounts of justice, are derived. It is a principle that has wide application and which underlies our judgments of justice in various areas. The criminal has made himself unequal in the relevant sense. Hence, he merits unequal treatment. In this case, unequal treatment amounts to deliberate infliction of evils – suffering or death.
The theory presents crimes as acts that deserve punishment; the theory does not have any aim for crime control, but focuses exclusively on the past criminal behavior and punishment given solely to express condemnation of that behavior; and related to the notion of just deserts’ are the ideas that punishment should fit the crime and that punishment must be equal in proportion to the seriousness of the crime.
Retribution theory is said to be of significance for two major reasons. First, the concept is a powerful influence on the mind of the public, and it helps to “shape reactions to the sanctions imposed by the legal system.” Second, the concept of “just desert” provides a check on the power of the state in determining the amount of punishment necessary to pay the price of crime, no more, no less.Without these checks, according to Lewis, society could punish the family of the criminal rather than the criminal himself, and of course, the state could lock up those who are simply deemed to be dangerous, ignoring any actual violation of the law.
In deterrence, what is of supreme importance is that punishment prevents crimes. According to Bentham writing on the Principles of Penal Law during the classical period in the nineteenth century, while basing his argument on utilitarianism, he posited that punishment may prevent the occurrence of crimes either by making it impossible or difficult for an offender to breach the law again or destroying both offenders and others and providing an opportunity for the reform of offenders. This utilitarian argument was based on the notion of free will, the idea that each individual weighs the consequences of his actions before deciding on what to do, and Bentham noted that every person:
conducts himself, albeit unknowingly, according to a well or ill-made calculus of pleasures and pains. Should he foresee that pain would be the consequence of an act that pleases him, this would act with a certain force to divert him from that action. If the total value of the pleasure, the repulsive force would be greater, the act would not occur.
According to Bentham, the justification for punishment is the general prevention of crimes. While punishment closes the path of crime, for the delinquent and those potential delinquents, it also serves as a source of security to all. Punishment in this case looks towards the future to prevent crime. Since the assumption is that a crime is committed because it procures certain advantages, then, according to Beccaria, for punishment to produce the effect that must be expected of it, it is enough that the harm that it causes exceeds the good that the criminal has derived from the crime. However, the classical school to which Bentham belonged was quick to point out that for deterrence to work, it is not by the severity of punishment alone, but must also be quick and certain.
According to Foucault, several measures must give the system of punishment its effectiveness following the general element of certainty:
(a) The laws that define the crime and lay down the penalties must be clear.
(6) The laws must be published so that everyone has access to them.
(c) The leader must renounce his right of pardon so that the force that is present in the idea of punishment is not attenuated by the hope of intervention.
(d) The laws must be inexorable, and those who execute them inflexible.
(e) No crime committed must escape the gaze of those whose task it is to dispense justice.
Deterrence is categorized into two: general and specific. General deterrence works with the rule of lateral effects, that is, the penalty must have its most intense effects on those who have not committed the crime. It follows that punishment is made to be swift and severe enough so that people in the general population will not want to commit crimes and that the prevention of criminal acts in the general population at large can be gained by the imposition of punishment on persons convicted of crimes and the belief that the pain of punishment must outweigh the benefits of crime. The concept is simply that “we punish John not because we believe that we can change the probable future course of John’s conduct, but because we think that by doing so we can keep Mark away from crime.
In specific deterrence, punishment should be severe enough to make the offender not have the desire to commit crimes in the future. The assumption here is that man can consciously weigh future pains and benefits, and would deliberately choose the happier path.
The idea of incapacitation is to prevent or reduce the possibility of future crimes by those convicted of crimes. An individual can be incapacitated temporarily or permanently. Temporary incapacitation is usually imprisonment, the idea of keeping the criminal in prison for a term. It is expected that during the term of imprisonment, the criminal is in no position to commit crimes since his liberty is seized and is under permanent supervision and surveillance.
Incapacitation of this type no doubt keeps the criminal restricted or confined to a particular institution, but does it prevent him from committing a crime even while in prison? We are aware that crimes do occur even within the prison wall. At the extreme of permanent incapacitation are the amputation of hands or wrists for thieves and castration for rapists; life imprisonment for chronic, violent, or habitual offenders; and death for capital offenders, such as murderers. The idea behind the latter is to eliminate the perceived dangerous persons in society.
The assumption is that mandatory imprisonment of career and repetitively violent offenders for lengthy periods, and removing such persons from society to put them out of circulation for long periods should reduce crime. It is said that incapacitation is a prediction-oriented theory, that is, the personality of the individual criminal is assessed based on the crime he committed thereby predicting the likelihood of him committing a similar crime.
Rehabilitation as a justification for punishment represents a more compassionate and forward-thinking approach to criminal justice. It recognizes that individuals who have committed crimes can change, given the right support and interventions. By addressing the root causes of criminal behavior and providing opportunities for personal growth and reform, rehabilitation not only benefits the individual offender but also society as a whole. In an era where criminal justice systems strive for fairness, effectiveness, and compassion, the rehabilitation justification for punishment stands as a beacon of hope for a better, safer future.
Rehabilitation is the most appealing justification for punishment. According to Packer, rehabilitation theory teaches us that ” we must treat each offender as an individual whose special needs and problems must be known to enable us to deal effectively with him.”Analyzing rehabilitation as a justification for punishment, Packer further noted that the rehabilitative ideal may be used to prevent crime by changing the personality of the offender; that punishment in the theory is forward-looking. that the inquiry is not into how dangerous the offender is but rather into how amenable to treatment he is. However, Packer also noted that the gravity of the offense committed may not give us a clue as to the intensity and duration of the measures needed to rehabilitate.
The rehabilitative ideals, in reality, tend to screen the actual conditions and activities in correctional institutions. Rather than being therapeutic, the rehabilitative ideal tends to be incapacitative to the extent that a prisoner might be kept for as long as is ‘necessary’, (an open-ended’ incarceration) until he is completely rehabilitated. It has led to increased severity of penal measures, especially with juvenile justice. An act that will ordinarily be overlooked were it committed by an adult, for example, is taken to the extreme as a punitive intervention resulting in indeterminate confinement of the juvenile for a long period.
Some scholars viewed restitution in the narrower context as a financial obligation, which is limited, determined by a court, and based on individual acts. They observed that restitution contains the best features of punishment, that is, deterrence and justice, and of “clinical treatment”, that is, the recognition of the psychological basis for behavior. They went ahead to provide a broader meaning of restitution. It is a constructive act, which is creative and unlimited, guided by self-determined behavior, and it has a group basis.
While punishment may be painful or uncomfortable, restitution is constructive to the extent that the offender provides something of himself and also compensates the victim. It involves not only the payment of money but also the provision of services. The first major concern of restitution therefore is the damage done as a result of the crime committed and the victim, an attempt to make the situation better than before the crime was committed. It therefore goes beyond what any law or court requires, beyond what friends and family expect, beyond what a victim asks, beyond what conscience or superego demands.
The justifications for punishment are complex philosophies and principles that guide our criminal justice systems. Different legal systems and societies prioritize these justifications to varying degrees, often aiming to strike a balance between retribution, deterrence, rehabilitation, and protection. As our understanding of justice evolves, so too do the methods and goals of punishment, reflecting our ongoing quest for a fair and equitable society.