Purpose of punishment

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5
The Purpose of Criminal Punishment

perspectives about the issue of punishment:
D oes society have the right to punish? Is
the infliction of punishment morally
justifiable? These complex questions will be
the philosophical, the sociological, and the
criminological. Each perspective represents
a different and distinct way of looking at
addressed in the following discussion of the
the issue of punishment, and each will be
rationale, justification, and nature of punish-
addressed in this chapter.
ment. Rules about punishment, such as how
much punishment can be inflicted and for
what kinds of behavior, are of course con-
tained in laws and regulations, so in this sense WHAT IS PUNISHMENT?
law justifies punishment. However, the moral We use the word punishment to describe any-
justification for punishment is a separate issue thing we think is painful; for example, we
from the legal justification because, although refer to a “punishing work schedule” or a
the law may provide for the infliction of pun- “punishing exercise program.” We also talk
ishment, society’s moral justification for pun- of punishment in the context of parents or
ishment still has to be established. teachers disciplining children. However, in
In order to better understand the nature of this discussion we will consider punishment
punishment, it is first necessary to examine its in a particular sense. Flew (1954 in Bean
conceptual basis, and then consider the various 1981: 5) argues that punishment, in the sense
theories that have been developed to morally of a sanction imposed for a criminal offense,
justify society’s infliction of punishment. These consists of five elements:
theories are deterrence, retribution, just
deserts, rehabilitation, incapacitation, and 1. It must involve an unpleasantness to the
more recently, restorative justice. As well, it is victim.
important to appreciate that there are three 2. It must be for an offense, actual or supposed.

103

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104 ETHICS AND THE CRIMINAL JUSTICE SYSTEM

3. It must be of an offender, actual or • They deserve to be punished.
supposed. • Punishment will stop them from committing
4. It must be the work of personal agencies; in further crimes.
other words, it must not be the natural • Punishment tells the victim that society dis-
consequence of an action. approves of the harm that he or she has
5. It must be imposed by an authority or an suffered.
institution against whose rules the offense • Punishment discourages others from doing
has been committed. If this is not the case, the same thing.
then the act is not one of punishment but is • Punishment protects society from dangerous
simply a hostile act. Similarly, direct action or dishonest people.
by a person who has no special authority is • Punishment allows an offender to make
not properly called punishment, and is more amends for the harm he or she has caused.
likely to be revenge or an act of hostility. • Punishment ensures that people understand
that laws are there to be obeyed.
In addition to these five elements, Benn and
Peters (1959 in Bean 1981: 6) add that the Some of the possible answers to the question
unpleasantness should be an essential part of of why offenders should be punished may
what is intended. conflict with each other. This is because some
The value of this definition of punishment answers are based on reasons having to do
resides in its presentation of punishment in with preventing crime whereas others are
terms of a system of rules, and that it distin- concerned with punishment being deserved
guishes punishment from other kinds of by an offender (Hudson 1996: 3). When a
unpleasantness. Another definition of punish- court imposes a punishment on an offender,
ment proposed by Garland is “the legal it often tries to balance the sorts of reasons
process whereby violators of criminal law are for punishment noted earlier, but sometimes
condemned and sanctioned in accordance with certain purposes of punishment dominate
specified legal categories and procedures” other purposes (p. 4). Over time there have
(Garland 1990: 17). This chapter will not be been shifts in penal theory, and therefore in
concerned with punishment that takes place in the purpose of punishment due to a complex
schools, within families, or in other institu- set of reasons including politics, public pol-
tions, but instead will discuss forms of punish- icy, and social movements. Consequently, in
ment that take place as the result of legal a cyclical process, an early focus on deter-
processes defined above. It will examine the rence as the rationale for punishment gave
major arguments relating to punishment, illus- way to a focus on reform and rehabilitation.
trate the ways in which those arguments relate This, in turn, has led to a return to punish-
to justice and the justice system, and examine ment based on the notion of retribution and
how that system would be affected should one just deserts.
argument prevail over another. The concept of punishment has been
theorized by moral philosophers, social theo-
rists, and criminologists, and these various
THEORETICAL APPROACHES
approaches will be considered in this chapter
TO PUNISHMENT
in order to provide a better basis for under-
Thinking about the issue of punishment gives standing the place of punishment within the
rise to a number of questions, the most funda- criminal justice system and society in general.
mental of which is, why should offenders be As Garland (1990) argues, punishment is a
punished? This question might produce the complex concept, and an approach to punish-
following responses: ment that is limited to a reading of moral

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The Purpose of Criminal Punishment 105

Box 5.1 Punishment and History

Before the installation of constitutional governments in most of western Europe in the
eighteenth and nineteenth centuries, penalties were arbitrary, dependent on the whims of
monarchs or the local nobles to whom they delegated authority to punish. There was very
little proportionate graduation of penalties, with capital punishment available for every-
thing from murder and high treason to fairly minor theft (as reflected in the old saying
“one might just as well be hanged for a sheep as a lamb”). (Hudson 1996: 19)

philosophy fails to represent the full dimension corrections; this chapter will explore the philo-
and complexity of the subject. For moral sophical and sociological perspectives.
philosophers, the “ought” of punishment is of
great importance and leads to a set of ques- WHY PUNISH? THE
tions including PHILOSOPHICAL APPROACH

• what should be the goals of punishment; In the philosophical debate about punishment,
• what should be the values contained in and two main types of theories of punishment dom-
promoted by the criminal law; inate: utilitarian theory and retributive theory.
• what is the purpose of punishment? (Utilitarian theory is discussed more fully in
Chapter 9.) These philosophical theories have
In contrast to the philosophical view of pun- in turn generated further theoretical discussions
ishment, the sociological perspective is con- about punishment concerned with deterrence,
cerned with the “is” of punishment; that is, retribution, incapacitation, rehabilitation, and
what punishment is actually intended for, and more recently, restorative justice.
the nature of penal systems (see Hudson 1996: Theories that set the goal of punishment as
10). The third perspective on punishment is the prevention of future crime (deterrence) are
offered by criminologists and policy makers, usually referred to as utilitarian because they
who focus on penalties for offenses and policy are derived from utilitarian philosophy. Past-
concerns relevant to the punishment of offend- oriented theories (theories that focus on the past
ers. Some critics, such as Bean (1981: 9), argue actions of the offender) are referred to as ret-
that criminology has tended to ignore the ributivist because they seek retribution from
moral and sociological implications of punish- offenders for their crimes. The retributivist con-
ment in favor of the social and personal char- ception of punishment includes the notion that
acteristics of offenders, as well as the nature of the purpose of punishment is to allocate moral
penal institutions and methods of social con- blame to the offender for the crime and that his
trol. In the same vein, Nigel Walker (1991) or her future conduct is not a proper concern
points out that the practical ends of penal for deciding punishment (Hudson 1996: 3).
action, particularly with the aims of sentenc- Theories of deterrence, retribution, just deserts,
ing and the administration of prisons and rehabilitation, and incapacitation as well as the
probation, are concerns that pay little atten- idea of restorative justice will be considered in
tion to the philosophy or sociology of punish- this chapter. Each of these theories tries to
ment. The criminological perspective will be establish a basis for punishment as a response to
discussed in Chapter 6 in the context of the question “why punish?”

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Box 5.2 Draconian Punishments

The notion of “draconian punishments” derives from the laws promulgated for Athens in
621 B.C. by Draco (see, for example, Carawan 1998). It appears from later accounts of
the Draco code that the punishment of death was prescribed for even the most trivial
offenses. Draconian punishments are essentially deterrent in nature, being so severe as to
dissuade most people from committing crimes. Draconian-type notions of punishment are
often advocated by those in the “get tough on crime” lobby.

CASE STUDY 5.1 THE NATURE OF THE PUNISHMENT:
CORPORAL PUNISHMENT

On May 4, 1994, Michael Fay, a U.S. teenager who had pleaded guilty to several
acts of vandalism in Singapore, was caned by Singapore’s authorities (in Nygaard
2000: 1). He was stripped, bent at the hip over a padded trestle, tied down at his
ankles and wrists, and his buttocks were lashed by a martial arts specialist four times
with a four-foot long, half-inch wide stick of rattan soaked in antiseptic. Fay, 18, had
lived in Singapore since 1992, and was sentenced to four months in prison, a fine of
$2,230, and the caning after his guilty plea.
The sentence of corporal punishment secured great media attention in the United
States, with many people expressing their views. President Clinton, in a personal letter
to the Singapore president, urged him to spare the rod and revoke the punishment,
which Clinton described as ”extreme.” Also, 24 U.S. senators appealed to the presi-
dent of Singapore that clemency would be “an enlightened decision.” However, U.S.
public opinion expressed support for the punishment, some even writing to the
Singapore Embassy in Washington expressing their approval. In Dayton, Ohio, where
Fay’s father lived, citizens supported the punishment by a 2 to 1 margin. The
Singaporean courts and government rejected the various appeals for clemency, except
for reducing the number of lashes. A Home Affairs Ministry official stated that
Singapore was able to keep its society orderly and crime free because of its tough laws
against antisocial crimes and that Singapore did not have a situation where acts of
vandalism were commonplace like New York where even police cars were vandalized.

Deterrence do, in fact, deter, it is hard to determine
whether the kind of penalty or its severity has
People are deterred from actions when they any effect on whether a particular penalty is
refrain from carrying them out because they successful. Some question whether deterrence
have an aversion to the possible consequences is morally acceptable. They argue that it is
of those actions. Walker (1991: 15) suggests unacceptable because it is impossible to
that although penologists believe that penalties achieve, and if deterrent sentences are not

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successful, inflicting suffering in the name of public welfare and maximizing the happiness
deterrence is morally wrong (p. 13). of all, this means that utilitarians are willing to
To utilitarian philosophers like Bentham, punish the innocent in order to achieve that
punishment can be justified only if the harm objective (p. 4).
that it prevents is greater than the harm Those supporting the theory of punishment
inflicted on the offender through punishing as deterrence distinguish between individual
him or her (Hudson 1996: 18). In this view, deterrence and general deterrence. Individual
therefore, unless punishment deters further deterrence involves deterring someone who
crime, it simply adds to the totality of human has already offended from reoffending; gen-
suffering. In other words, utilitarians justify eral deterrence involves dissuading potential
punishment by referring to its beneficial effects offenders from offending at all by way of the
or consequences. In this sense, utilitarian punishment administered for a particular
theory is a consequentialist theory that consid- offense (Hudson 1996). Individual deterrence
ers only the good and bad consequences pro- relies on offenders receiving a taste of the pun-
duced by an act as morally significant (Ten ishment they will receive if they reoffend, and
1987: 3). Bentham is considered the main pro- can be seen operationally in the “short, sharp,
ponent of punishment as deterrence, and he shock punishments” such as boot camps,
expressed his early conception of the notion as which are used as an alternative to imprison-
follows: ment and are clearly aimed at subjecting
offenders to a regime that will shock them out
Pain and pleasure are the great springs of of any further criminal conduct. General
human action. When a man perceives or deterrence takes the form of legislation impos-
supposes pain to be the consequence of an ing penalties for specific offenses in the belief
act he is acted on in such manner as tends
that those penalties will deter or prevent
with a certain force to withdraw him as it
persons from committing those offenses. An
were from the commission of that act. If the
apparent magnitude be greater than the
example of an attempt at general deterrence
magnitude of the pleasure expected he will would be significantly increasing the penalties
be absolutely prevented from performing it. for driving under the influence (DUI) in an
(in Bean 1981: 30) effort to deter citizens from drunk driving.

Becarria took a similar position to Bentham,
Does Deterrence Work?
arguing that “the aim of punishment can only
be to prevent the criminal committing new Beyleveld (1979, cited in Hudson 1996: 23)
crimes against his countrymen and to keep after carrying out a comprehensive review of
others from doing likewise” (in Bean 1981: 30). studies that have considered the deterrent
Utilitarians understand punishment only as a effects of punishment concluded that,
means to an end, and not as an end in itself.
They perceive punishment in terms of its ability . . . there exists no scientific basis for
expecting that a general deterrence policy,
to reduce crime and do not focus on the pun-
which does not involve an unacceptable
ishment that “ought” to be imposed on offend-
interference with human rights, will do any-
ers. To utilitarians, a “right” punishment (or thing to control the crime rate. The sort of
one with the greatest utility) is one that is bene- information needed to base a morally
ficial to the general welfare of all those affected acceptable general policy is lacking. There is
by the criminal act (Bean 1981: 4). Critics of some convincing evidence in some areas that
utilitarianism argue that because utilitarians some legal sanctions have exerted deterrent
see the aim of punishment as promoting effects. These findings are not, however,

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generalizable beyond the conditions that of punishment as sufficient to outweigh a
were investigated. Given the present state of likely gain, a potential criminal applying a
knowledge, implementing an official deter- rational approach will choose not to break the
rence policy can be no more than a shot in law. The alternative position considers this
the dark, or a political decision to pacify
model unrealistic, arguing that people remain
“public sentiment.”
law-abiding, not because they fear the criminal
law, but as a result of moral inhibitions and
The empirical evidence suggests that, gener- norms of conduct. Criminals, they argue, do
ally, punishment has no individual deterrent not make rational choices but act out of emo-
effect (Ten 1987: 9). Walker (1991: 16) argues tional instability, through lack of self-control,
that evidence from research studies has estab- or as a result of having acquired the values of
lished that capital punishment has no greater a criminal subculture (p. 345). Andenaes
effect than life imprisonment. Nagin (cited in points out the dangers of generalization; that
Ten 1987: 9) comments on the difficulty in is, he suggests it is necessary to distinguish
distinguishing between individual deterrence between various offenses such as murder or
and rehabilitation. In another overview of drunk driving. Offenses vary immensely in
research on deterrence, Nagin (1998: 345) terms of an offender’s motivation, and any
identifies three sets of studies, which he refers realistic discussion of general deterrence ought
to as interrupted time-series studies, ecological to take into account the particular norms and
studies, and perceptual studies. circumstances of each particular type of
The first set, time-series studies, explores offense. He also notes that the threat of pun-
the effect of specific policy initiatives such as ishment, although directed to all persons,
police crackdowns on open-air drug markets. affects individuals in different ways (p. 346).
Nagin finds that such policy targeting has only For example, in his view, the law-abiding citi-
a temporary effect, and is therefore not a zen does not need the threat of the law to
successful deterrent. remain law-abiding. On the other hand, the
Ecological studies look for a negative criminal group may well fear the law but still
association between crime rates and punish- break it, and the potential criminal might have
ment levels that can be interpreted as having a broken the law if it had not been for the threat
deterrent effect. Nagin points out that a of punishment. It follows that the threat of
number of such studies have been able to iso- punishment seems relevant only to the poten-
late a deterrent effect. tial criminal. In some cases, however, there is
In perceptual studies, the data comes from evidence that punishment has a deterrent
surveys. Such surveys have found that self- effect on individuals. Andenaes refers to a
reported criminality is lower among those who study of department store shoplifting where
see sanctions, risks, and costs as higher. Nagin amateur shoplifters were treated as thieves by
therefore concludes that, collectively, the oper- the store management and reacted by chang-
ations of the criminal justice system exert a ing their attitudes and experiencing great emo-
substantial deterrent effect. tional disturbance (1972: 343). This contrasts
In discussing whether the threat of punish- with the professional shoplifter who does not
ment has a deterrent effect, Andenaes (1972: register any shock at getting caught and
345) explains that two positions are usually accepts jail as a normal hazard of the trade.
debated. Bentham’s position is that man is a Tullock (1974: 109), after surveying the
rational being who chooses between courses of economic and sociological models of deter-
action having first calculated the risks of pain rence, concludes that multiple regression
and pleasure. If, therefore, we regard the risk studies show empirically that increasing the

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frequency or severity of punishment does that a utilitarian would have to accept what
reduce the likelihood of a given crime being would be considered an excessive sentence for
committed. However, Blumstein, Cohen, and the one petty thief unlucky enough to be
Nagin (1978: 66) contend that although the arrested and convicted (Ten 1987: 143–144).
evidence does establish a negative association
between crime rates and sanctions, this does
Retribution
not necessarily establish the general deterrent
effect of sanctions. This is because, in their Retribution is the theory that punishment is
view, the negative association can be justified because it is deserved. Systems of ret-
explained by lower sanctions being the effect, ribution for crime have long existed, with the
and not the cause, of higher crime rates. best known being the lex talionis of Biblical
Overall there seems to be little agreement times, calling for “an eye for an eye, a tooth
among researchers that punishment has a for a tooth, and a life for a life” (Hudson
general deterrent effect. 1996: 38). Retributionists claim a moral link
between punishment and guilt, and see pun-
ishment as a question of responsibility or
How Much Punishment Must Be
accountability (Bean 1981: 14–15). Once
Imposed to Deter?
society has decided upon a set of legal rules,
For the utilitarian who regards punishment the retributivist sees those rules as representing
as bad in itself, a particular punishment will be and reflecting the moral order. Society’s accep-
justified only if the suffering it inflicts is less tance of legal rules means that the retributivist
than the harm caused by the criminal act that accepts the rules, whatever they may be;
would have taken place had there been no pun- accepts that the rule makers are justified in
ishment. If various forms of punishment would their rule making; and claims that those who
achieve the same result, a utilitarian will opt for make the rules provide the moral climate
the most lenient punishment that minimizes the under which others must live. Accordingly,
potential suffering. It follows that if a sentence retributivists cannot question the legitimacy
of capital punishment or the lesser punishment of rules. They argue that retribution operates
of a term of imprisonment are both equally on a consensus model of society where the
effective in deterring murder, the utilitarian community, acting through a legal system of
will choose the lesser punishment and regard rules, acts “rightly,” and the criminal acts
capital punishment as unjustified. However, “wrongly” (Bean 1981: 17). It follows that the
utilitarian approaches can result in the inflic- retributivist position makes no allowance for
tion of excessive punishment. Ten (1987: 143) social change or social conditions, looking
gives the example of petty thefts being wide- instead only to crime. Raising the issue of the
spread in society with hundreds of cases occur- social causes of crime or questioning the effec-
ring, frequently perpetrated by efficient thieves tiveness of punishment are irrelevant consider-
who are difficult to catch. The harm caused by ations to a retributivist.
each individual theft is minor, but the total It has been suggested by van den Haag
harm, according to utilitarian approaches, is (1975) and Kleinig (1973) that in historical
great and may, therefore, be greater than the terms, the lex talionis did not operate as a
harm caused by severely punishing one minor demand for retribution. Instead, it set a limit
criminal. If a newly enacted law were to on the nature of that retribution, and therefore
impose a punishment of 10 years imprison- prevented the imposition of excessive penalties
ment on a petty thief, and no less a penalty in the course of acts of vengeance. Capital pun-
would have a deterrent effect, it is arguable ishment may be the only form of punishment

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still supported by appeals to the lex talionis. A number of explanations have been
The basic principle of lex talionis is that pun- suggested to justify retribution, including the
ishment should inflict the same on the offender notion that retribution is a payment of what is
as the offender has inflicted on his or her owed; that is, offenders who are punished are
victim. It can, therefore, be seen as a crude for- “paying their debt to society” (Walker 1991:
mula because there are many crimes to which 73). Walker notes that this seems to confuse
it cannot be applied. For instance, what pun- the “victim” with “society” because we gener-
ishment ought to be inflicted on a rapist under ally do not perceive offenders as liable to pay
lex talionis? Should the state arrange for the compensation or make restitution to their vic-
rape of the offender as his due punishment? In tims; furthermore, if society is compensated
addition, the lex talionis can be objected to for anything at all, it is for a breach of its peace
because its formula to determine the correct (p. 73).
punishment considers solely the harm caused Censure is also an important component in
by the crime and makes no allowance for the retributivist thinking. For example, Andrew
mental state of the offender or for any miti- von Hirsch, the leading theorist on just deserts
gating or aggravating circumstances associated sentencing, writes:
with the crime. Thus, even though a person’s
death may have been brought about acciden- . . . desert and punishment can rest on a
tally or negligently, the lex talionis, strictly much simpler idea, used in everyday dis-
course: the idea of censure . . . Punishment
applied, would still call for the imposition of
connotes censure. Penalties should comport
the death penalty (Ten 1987: 152). A further
with the seriousness of crimes so that the
objection is found in the view that in a civi- reprobation on the offender through his
lized society, certain forms of punishment are penalty fairly reflects the blameworthiness
considered too cruel to be defended as valid of his conduct. (in Walker 1991: 78)
and appropriate. For example, a sadistic mur-
derer may horribly torture his or her victim, For von Hirsch (1994: 120–121), censure is
but society would condemn the imposition of simply holding someone accountable for his or
that same form of punishment on the offender. her conduct and involves conveying the mes-
It can also be said that although the death sage to the perpetrator that he or she has
penalty may constitute a just punishment willfully injured someone and faces the disap-
according to the rule of lex talionis, it should proval of society for that reason. On the part
nevertheless be abolished as part of “the civi- of the offender, an expression of concern or
lizing mission of modern states” (Reiman remorse is expected. As well, the censure
1985). expressed through criminal law has the role of
Retributivists believe that wrongdoers providing third parties with reasons for not
deserve to be punished and that the punish- committing acts defined as criminal. In other
ment imposed should be in proportion to the words, censure can have a deterrent effect.
wrongdoing the offender committed. In con- Some theorists of desert argue that notions of
trast to utilitarians, retributivists focus their censure cannot be adequately expressed ver-
line of reasoning on the offender’s just desert bally or symbolically, and that hard treatment
(a proportionate punishment) and not on is needed to properly express societal disap-
the beneficial consequences of punishment. proval. The notion of the expressive or com-
Retributivists ask questions such as “Why do municative character of punishment is closely
offenders deserve to be punished?” and “How associated with the idea of “punishment
are their just deserts to be calculated and as censure.” This conception recognizes pun-
translated into actual sentences?” ishment as comprising not merely harsh

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treatment, but also elements of condemnation, a response appropriate to the crime committed.
denunciation, and censure. Thus, for example, Communication requires that the person to
punishment in the form of a fine is quite dif- whom the communication is directed must be
ferent from the payment of a tax, although an active participant in the process and must
both involve payment to the state. In the same receive and respond to the communication.
vein, imprisonment contrasts with other forms Additionally, the communication should
of detention such as quarantine or detention appeal to the person’s rational understanding.
for psychiatric disorders (Duff and Garland The communication must be focused primarily
1994: 13–14). Imprisonment, it is argued, car- on the offender being punished as a response
ries with it an expressive function of censure, to him or her, and must be justified by his or
whereas detention for reasons of quarantine or her offense (Duff 1999: 50). The message com-
for mental disorder does not. Feinberg (1994: municated by punishment must focus on and
74) explains the expressive function of punish- be justified by the offender’s past offense and
ment in the following terms: must be appropriate to that offense. Duff
(1999: 50) argues that the message communi-
Punishment is a conventional device for the cated should be the degree of censure or con-
expression of attitudes of resentment and demnation the crime deserves. In the context
indignation, and of judgments of disap-
of criminal law, censure might be communi-
proval and reprobation, on the part either of
cated in a formal conviction of guilt or
the punishing authority himself or of those
“in whose name” the punishment is
through a system of harsh punishments such
inflicted. Punishment, in short, has a sym- as imprisonment, fines, or community service.
bolic significance largely missing from other Duff (1999: 51) argues that the aim of hard
kinds of penalties. treatment is ideally to cause the offender to
understand and repent the crime committed. It
Feinberg (1994: 76) further argues that pun- should attempt to direct his or her attention to
ishment expresses more than disapproval; it the crime, and give him or her an understand-
amounts to a symbolic method of hitting back ing of crime as a “wrong.” It should also cause
at the criminal and of expressing “vindictive the offender to accept the censure that punish-
resentment.” In similar fashion, H. Morris ment communicates as deserved. By undergo-
(1994: 92) contends that punishment serves to ing hard punishment, the offender can become
teach offenders a moral lesson so that in the reconciled with the community and restored
process of being punished and being made back into the community from which the
aware that a crime violated communal values, offense caused him or her to be excluded.
they will come to see what is good and choose Philosophers such as Duff (in Walker 1991:
it in the future. According to this account, the 79) see the main benefit of punishment as the
aim of punishment is to persuade and not to effect on the offender. They argue that punish-
manipulate or coerce. However, as Morris ment has the effect of restoring the offender to
himself points out, this approach does not the community in the same way that penance
account for the punishment of those who are restores a penitent to the communion of the
already repentant, nor is it able to cope with church. Nozick sees retributive punishment as a
those who understand the values of society but message from those whose values are assumed
are indifferent or opposed to them (p. 106). to be correct and normative to someone whose
Over the last two decades, the notion of act or omission has displayed incorrect and
punishment as a communicative practice has non-normative values (in Walker 1991: 81).
developed (Duff 1999: 48). This notion asserts Walker (1991: 81) explains that “man is a rule-
that punishment communicates to the criminal making animal,” and that rules and notions of

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rules are acquired during childhood. Rules, in whether it can be applied to an actual society.
the form of transactions involving promises, In other words, do those who commit crimi-
establish codes of normative conduct including nal acts actually take an unfair advantage for
“penalizing rules” that specify action to be themselves?
taken against those who infringe the rules Finally, some retributivists argue that pun-
(Garfinkel in Walker 1991: 84–85). It follows ishment is morally justified because it gives
that failing to penalize an offender for infring- satisfaction. James Fitzjames Stephen, an
ing the rules would itself be an infringement of English Victorian judge, is often cited as an
those rules; thus, an unpunished infringement advocate of this theory. He expressed his view
would create two infringements. of punishment as follows:
Another theory that attempts to justify pun-
ishment as a retributive act is that an offender I think it highly desirable that criminals
should be viewed as a person who has taken should be hated, and that punishments
an unfair advantage of others in society by inflicted upon them should be so contrived
as to give expression to that hatred, and to
committing a crime, and that imposing pun-
justify it so far as the public provisions of
ishment restores fairness (Ten 1987: 5).
means for expressing and gratifying a
Philosophers such as Herbert Morris, John healthy, natural sentiment can justify and
Finnis, and Jeffrie Murphy subscribe to the encourage it. (in Bean 1981: 21)
unfair advantage theory. For example, Morris
argues that the effect of criminal law is to con-
Is Retribution in Fact Revenge?
fer benefits on society, because others are not
permitted to interfere with areas of an individ- Retributive theories of punishment argue
ual’s life since certain acts are proscribed and that punishment should be imposed for past
prohibited. In order to gain the benefits of crimes and that it should be appropriate to the
noninterference, individuals must exercise self- nature of the crime committed; that is, the
restraint and not engage in acts that infringe severity of the punishment should be commen-
the protected areas of the lives of others (in surate with the seriousness of the crime.
Ten 1987: 53). It follows that when a person Sometimes, retributive punishment is confused
violates the law but continues to enjoy its ben- with notions of revenge. Critics of retribution-
efits, he or she takes an unfair advantage of ist theories of punishment argue that retribu-
others who follow the law. Punishment, it is tion is basically nothing more than vengeance.
argued, is therefore justified because it However, Nozick argues that there is a clear
removes this unfair advantage and restores the distinction between the two because “retribu-
balance of benefits and burdens disturbed by tion is done for a wrong, while revenge may be
the criminal activity. done for an injury or harm or slight and need
The unfair advantage argument has been not be a wrong” (1981: 366). He also points
challenged by those who argue that it distorts out that whereas retribution sets a limit for the
the nature of crime itself. For example, the amount of punishment according to the seri-
wrongfulness of rape does not merely consist ousness of the wrong, no limit need be set for
of taking unfair advantage of those who obey revenge. In this sense, therefore, revenge is per-
the law. Also, it is difficult to show that offen- sonal whereas the person dispensing retribu-
ders have in any real sense “willed” their own tive punishment may well have no personal tie
punishment (Murphy 1994: 44). Addition- to the victim. As Nozick points out, “revenge
ally, although unfair advantage might consti- involves a particular emotional tone, pleasure
tute an ideal theory for the justification of in the suffering of another” (1981: 367). A
punishment, the question arises about further distinction between the two is that

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retribution in the form of punishment is well as a set of standards that would help in the
inflicted only on the offender, but revenge may process of deciding the sentence.
be carried out on an innocent person, perhaps Among the retributivists, Kant argued that
a relative of the perpetrator. the aim of penalties must be to inflict desert,
and that this was a “categorical imperative.”
(Kant’s categorical imperative is discussed as
Just Deserts
an aspect of deontology in Chapter 8.) By this
Up until about 1970, criminologists gener- he meant that inflicting what was deserved
ally thought of retribution as vengeance. rendered all other considerations irrelevant
During the 1970s, criminologists reconsidered (Walker 1991: 53). Just deserts proponents
the idea of retribution and advanced new for- emphasize the notion that punishment should
mulations. By the 1980s, the new retributionist be proportionate; that is, there should be a
theory of just deserts had become influential scale of punishments with the most serious
(Hudson 1996: 39). Importantly, the new being reserved for the most serious offenses,
thinking indicated that although there should and that penalties should be assessed accord-
continue to be treatment programs, a defen- ing to the seriousness of the offense (Hudson
dant would not ordinarily be incarcerated in 1996: 40). This is often called tariff sentenc-
order to receive treatment (N. Morris 1974). ing. In this method of punishing, the offender’s
Influential writings such as Struggle for Justice potential to commit future offenses does not
(American Friends Service Committee 1971) come into consideration, but his or her previ-
and Doing Justice (von Hirsch 1976), which ous convictions are taken into account because
were written in the aftermath of the riot at most proponents of just deserts support reduc-
Attica Prison in 1971, elaborated on the new tions in sentence for first offenders. Desert the-
retributivism in philosophical and civil libertar- orists contend that punishment should convey
ian terms. This theory gained support as a reac- blame for wrongdoing, and that blame is
tion against the perceived unfairness of systems attached to offenders because they have done
that favored treatment that had developed over wrong. Consequently, the blameworthiness of
the first half of the 20th century, especially the the offender is reflected in the punishment
use of the indeterminate sentence. This form of imposed. Thus, advocates of desert focus on
sentence vested the power of determining the two dimensions only—the harm involved in
date of release to a parole board, and signifies the offense and the offender’s culpability. Von
the practice of individualized sentencing. The Hirsch (1998: 669) enlarges on these two main
latter attempted to sentence according to elements, stating that, in looking at the degree
the treatment needs of the offender, rather than of harm, a broad notion of the quality of life is
the seriousness of the offense (Duff and Garland useful because “invasions of different interests
1994: 12). One of the criticisms of indetermi- can be compared according to the extent to
nate sentencing was the fact that the sentencing which they typically affect a person’s standard
courts had a wide discretion in choosing a sen- of living” (1998: 670). As to culpability, he
tence, and although they tended to adopt tariffs suggests that the substantive criminal law,
for classes of crime, individual judges could which already distinguishes intentional from
depart from them without providing reasons. reckless or negligent conduct, would be useful
Along with the just deserts movement, many in sentencing law.
states and federal sentencing authorities Von Hirsch (1998: 667) argues that a
repealed indeterminate sentencing laws with the focus on the censuring aspect of punishment
aim of reducing judicial discretion in sentencing has coincided with a change in criminological
and promoting consistency and certainty, as thinking. Criminologists had previously

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regarded the blaming aspects of punishment as 1996: 44). The sentencing judge is required to
stigma that might create obstacles to the rein- locate the appropriate cell on the grid for the
tegration of the offender into the community offender being sentenced, where the severity of
and might also cause the offender to reinforce the offense and the number of previous convic-
his or her own deviance, making him or her tions intersect. Each cell stipulates a presump-
more likely to continue offending. Desert the- tive prison term that represents the normal
orists now emphasize that responding to crim- period of incarceration for a standard case of
inal acts with a process of blaming encourages that offense. In addition to the presumptive
the individual to recognize the wrongfulness of sentence, there is a band indicating the range
the action, to feel remorse, and to make efforts that should apply in the actual case. For
to refrain from such conduct in the future. In example, in the case of an aggravated burglary,
contrast, a deterrent punishment requires the where the offender has three previous convic-
individual to simply comply or face the conse- tions, there is a presumptive term of 49 months
quences. The difference between the two and a range of 45 to 53 months. The actual
approaches is that a moral judgment is sentence depends on aggravating and mitigat-
required from the offender under just deserts ing factors. According to Hudson (1996: 45),
that is not required under a purely deterrent sentencing guidelines have had the effect of
punishment. During the 1980s, many states, as reinforcing relatively lenient punishments in
well as the Federal Sentencing Commission, states with that tradition, although states with
introduced desert-based sentencing schemes a history of imposing severe punishments, such
(Hudson 1996: 43). as New Mexico and Indiana, have produced
In considering questions of proportionality severe schedules and guidelines.
and seriousness, the issue arises as to how The fundamental difficulty with deserts
offenses are to be ranked in terms of their seri- theory is that it lacks any principle that deter-
ousness. Who is to determine the degrees of mines a properly commensurate sentence
seriousness? In some jurisdictions, the judge’s (Hudson 1996: 46). Deserts are determined by
views determine the issue; other approaches a scale of punishment that fixes the most
include the use of sentencing commissions and severe penalty. This might be imprisonment or
legislating sentencing schedules. In California, death. It then determines ordinally propor-
the Determinant Sentencing Laws allow politi- tionate penalties for lesser offenses. It follows
cians and others to raise the tariffs for offenses that if imprisonment is the most severe
in response to public or media pressure in penalty, then proportionality will provide
order to give effect to “get tough on crime” shorter terms of imprisonment and noncusto-
policies (Zimring 1976). dial penalties for lesser offenses. If the term of
Some critics argue that just deserts theory imprisonment for severe offenses is moderate,
leads to harsher penalties, but von Hirsch then short sentences and penalties such as pro-
(1998: 672) contends that the theory itself does bation will soon be reached on the scale of
not call for harsher penalties, and that sentenc- seriousness. If the penalty for the most serious
ing schemes relying specifically on just deserts offenses is death, it follows that long terms of
theory tend not to be severe. He draws atten- imprisonment will be proportionate penalties
tion to sentencing guidelines in Minnesota and for less serious offenses. This is the situation
Oregon that provide for modest penalties by that prevails in many states.
U.S. standards. The Minnesota Sentencing Many argue that retribution based on
Guidelines provide a grid with a horizontal just deserts fails to account for the problem
axis showing previous convictions and a of just deserts in an unjust world. Just deserts
vertical axis showing offense type (Hudson theory ignores social factors like poverty,

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disadvantage, and discrimination, and (Bean 1981: 32). The strength of the utilitarian
presumes equal opportunity for all. Tonry argument is that rules can be changed accord-
(1994: 153) notes that most sentencing com- ing to changes in society, but that no such
missions in the United States will not allow change is built into theories of retribution.
judges to bring personal circumstances into Can a retributivist ever be forgiving or mer-
account in their sentencing decisions, despite ciful? During the sentencing process, offenders
the fact that the average offender has a back- often say they are remorseful for their actions,
ground that is likely to be either deeply dis- and in this sense remorse represents regret
advantaged or deprived. Zimring (1994: 165) and self-blame. Those charged with the task
suggests that desert sentencing fails to take of determining the sentence are urged to
account of the fact that there are multiple dis- accept statements of remorse as mitigating
cretions involved in the sentencing power. He factors. The issue, therefore, is whether gen-
points to the legislature that sets the range of uine remorse should lead a sentencer towards
sentences, the prosecutor who has the legal leniency. If the sentencer is a utilitarian, he
authority to select a charge, the judge as the or she will be concerned only about whether
sentencing authority, and the correctional a remorseful offender will be less likely to
authority, which is able to modify sentences reoffend. However, for the retributivist, the
after incarceration, as constituting a multi- question is whether remorse should mitigate
plicity of decisions and discretions that make culpability (Walker 1991: 112). According
the task of achieving just and proportionate to Walker, forgiveness has no degrees but
sentences extremely problematic. Since pros- may take the form of “interested” or “dis-
ecutors and legislators act under political interested” forgiveness, with the victim being
influence and attempt to implement policies interested and the sentencing authority dis-
that reflect public opinion, the sentencing interested. He suggests that whether from a
process is not the monopoly of the trial judge, utilitarian or retributivist viewpoint, the sen-
but is all too often an expression of varying tencing authority must choose the sentence
perspectives based on periodic concerns about that is most appropriate, and that a retribu-
whether current philosophies reflect notions of tivist may take extenuating circumstances
being “tough on crime.” into account. He considers, however, that for-
giveness, being an act of absolution, should
not be considered an extenuating circumstance
Reconciling Utilitarian and
(p. 113). Thus, according to Bean, “forgive-
Retributive Theories
ness is a moral sentiment where ill-will is no
Is it possible to reconcile utilitarian and longer retained. It may occur before or after
retributive theories of punishment? For punishment but does not affect it” (1981: 99).
utilitarians, desert is not seen as necessary to Mercy must be distinguished from forgive-
justify punishment nor as a reason for ness because granting mercy is an act, but for-
punishment because desert does not look to giveness is an attitude of mind (Walker 1991:
the consequences of punishment—it simply 115). Mercy may be prompted by expressions
punishes. For the utilitarian, the only good of remorse or by a statement that the victim
reasons for punishment relate to the conse- has forgiven the offender. Walker argues that
quences of that punishment. The contrast mercy is not equivalent to “reasoned leniency”
between the two theories lies in the fact that and that mercy, in effect, suggests other consid-
for utilitarians, the aim of punishment is erations such as proportionality and any suffer-
to control future action, whereas the ing experienced by the offender, and mitigation
retributivists see the aim in terms of desert generally (p. 116). Fundamentally, therefore,

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mercy is a synonym for various kinds of Bean (1981: 64) outlines the strengths of
leniency and has no force or effect of its own. the rehabilitation position as being its empha-
sis on the personal lives of offenders, its treat-
ment of people as individuals, and its capacity
Rehabilitation
to produce new thinking in an otherwise rigid
Retribution and deterrence involve a penal system. He suggests its weaknesses
process of thinking that proceeds from the include an unwarranted assumption that crime
crime to the punishment. However, rehabilita- is related to disease and that social experts
tion is a more complex notion involving an can diagnose that condition; treatment pro-
examination of the offense and the criminal, grams are open-ended and do not relate to the
and a concern for the criminal’s social back- offense or to other defined criteria; and the
ground and punishment. Further, those in fact that the offender, not being seen as fully
favor of rehabilitation theories acknowledge responsible for his or her actions, is capable of
the possibility of additional problems develop- manipulating the treatment to serve his or
ing during the offender’s sentence or treatment her own interests. In addition, rehabilitation
that may be unconnected with the offense and theory tends to see crime as predetermined by
which may require an offender to spend addi- social circumstances rather than as a matter of
tional periods in treatment or confinement choice by the offender. This, it is said, denies
(Bean 1981: 54). the agency of the offender and arguably treats
Utilitarian theory argues that punishment an offender in a patronizing, infantilizing way
should have reformative or rehabilitative (Hudson 1996: 29).
effects on the offender (Ten 1987: 7–8). The Indeterminate sentences gave effect to the
offender is considered reformed because rehabilitative perspective because terms of
the result of punishment is a change in the imprisonment were not fixed at trial, but
offender’s values so that he or she will refrain rather the release decision was given to insti-
from committing further offenses, now believ- tutions and persons operating within the crim-
ing such conduct to be wrong. This change can inal justice system, including parole boards,
be distinguished from simply abstaining from probation officers, and social workers. The
criminal acts due to the fear of being caught notion of rehabilitation enjoyed considerable
and punished again; this amounts to deter- political and public support in the first half of
rence, not reformation or rehabilitation by the 20th century, but modern rehabilitation-
punishment. Proponents of rehabilitation in ists now argue that fixed rather than determi-
punishment argue that punishment should nant sentences should be the context for
be tailored to fit the offender and his or rehabilitation (Hudson 1996: 64). They argue
her needs, rather than fitting the offense. that with indeterminate sentences, offenders
Underpinning this notion is the view that become preoccupied with their likely release
offenders ought to be rehabilitated or date, and this leads to their pretending to have
reformed so they will not reoffend, and that made more progress in treatment than is really
society ought to provide treatment to an the case.
offender. Rehabilitationist theory regards The demise of rehabilitation as a theory of
crime as the symptom of a social disease and punishment began in the 1970s and was the
sees the aim of rehabilitation as curing that result of a complex set of factors, one of which
disease through treatment (Bean 1981: 54). was a much quoted article by Martinson
In essence, the rehabilitative philosophy denies (1974) who argued that “nothing works”; that
any connection between guilt and punishment is, that no treatment program works very suc-
(p. 58). cessfully in preventing reoffending, and that

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no program works better than any other. offenders act out of choice. However, they
Martinson later attempted to rectify this pes- suggest that the offenders’ choices are often lim-
simistic view of rehabilitation and treatment ited because of circumstances and social condi-
by acknowledging that some programs work, tions like poverty and inequality, which might
sometimes, for some types of offenders.1 lead people into crime. Therefore, Hudson
Nevertheless, from that point on, policy mak- (1996: 66) claims, the state should recognize
ers and legislators abandoned rehabilitation as that it plays a part in causing crime and should
an objective of punishment. On the issue of recognize its role toward crime prevention by
indeterminate sentencing, the publication of providing rehabilitation to assist the offender in
Criminal Sentences: Law without Order by not committing further crime. The offender, on
Marvin Frankel, then a federal judge, which his or her part, has a corresponding obligation
argued that judges exercised “almost wholly to take part in rehabilitation programs offered
unchecked and sweeping authority” in sen- by the state. In this view, rehabilitation may be
tencing (1972: 5), provided substantial sup- seen as an alternative to punishment rather than
port to the proponents of determinate as something to be achieved through the means
sentencing. By the 1980s, the retributionist of punishment. As Carlen (1994: 329) con-
theory of just deserts had become the most tends, a purely punitive approach to sentencing
influential theory of punishment. does little to decrease crime and serves only to
Nowadays, rehabilitationists contend that increase the prison population.
their rationale for punishment is the only one
that combines crime reduction with respect for
Incapacitation
an offender’s rights. According to this view,
although capital punishment and long terms of Penal practice has always tried to estimate
imprisonment may deter and will certainly the risk that individual offenders might commit
incapacitate, rehabilitation can be accom- crimes in the future and has tried to shape penal
plished only if criminals re-enter society; conse- controls to prevent such crimes from happen-
quently extreme punishments should be ruled ing. Through the incapacitative approach,
out. Rotman (1994: 286) for example, argues offenders are placed in custody, usually for long
in favor of a “right’s oriented rehabilitation,” periods of time, to protect the public from the
which accepts the offender’s liability to receive chance of future offending (H. Morris 1994:
punishment but claims a corresponding right 238). In utilitarian theory, incapacitation is seen
on his or her part to “return to society with a as a good consequence of punishment because,
better chance of being a useful citizen and stay- when serving his or her sentence, the offender is
ing out of prison.” This perspective is often removed from society and is therefore unable to
termed “state-obligated rehabilitation,” and commit further offenses. This applies regardless
contends that if the state assumes the right to of whether the offender is deterred, reformed,
punish, it should ensure that no more harm is or rehabilitated through the punishment he or
inflicted than was intended when the sentence she is given. Incapacity may also be present in
was pronounced. That is, the intent of the other forms of punishment such as parole, in
prison sentence is deprivation of liberty and not the sense that although the offender is free from
loss of family ties or employability (Gallo and incarceration, he or she is placed under supervi-
Ruggiero 1991). Rotman (1994), for one, sion, which may restrict his or her opportunity
argues that a failure to provide rehabilitation to commit crime (Ten 1987: 8).
amounts to cruel and unusual punishment. Some criminologists claim that certain
Carlen (1994) and Matthews (1989) argue that offenders commit crimes at very high rates,
states are entitled to punish offenders because and that applying a policy of selective

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incapacitation aimed at these “career criminals” • Is it ethical to base punishment on inaccurate
will assist with the aims of crime prevention. predictions?
There are two basic objections to following • Is it ethical to punish a repeat offender for
a policy of incapacitation based on selecting a past crime he or she committed and has
already been punished for?
offenders for this kind of punishment. The
first is that predicting criminal dangerousness
is problematic and will inevitably mean that The notion of incapacitation is reflected in such
a number of persons will suffer incapacitation punishment policies as three-strikes legislation,
who would not have committed further crimes mandatory minimum sentences, and truth in
if left free, because, given the inaccuracies sentencing. These polices will be discussed as
of prediction, it is necessary to lock up or penal policies in Chapter 7.
incapacitate large numbers of nondangerous
offenders so we can ensure we incapacitate
Restorative Justice
dangerous offenders. Second, there is the
moral objection that it is wrong in principle Braithwaite (1998: 323) argues that restora-
to punish offenders based on a prediction tive justice has been “the dominant model of
of their future conduct; that is, they ought criminal justice throughout most of human
to be punished for what they have done and history for all the world’s peoples,” and that
not for what they might do in the future. it is grounded in traditions from ancient
Morris (1994: 241) argues that sentences Greek, Arab, and Roman civilizations and in
intended to incapacitate an offender ought to Hindu, Buddhist, and Confucian traditions.
be permitted only where there exists reliable Braithwaite emphasizes that restorative justice
information showing a high probability of means restoring victims as well as offenders
future offending. Morris suggests that taking and the community. In addition to restoring
account of dangerousness in the future lost property or personal injury, restoration
should be considered to be statements about means bringing back a sense of security. He
an offender’s present condition and not as a points to the shame and disempowerment
prediction of future conduct. suffered by victims of crime. He observes that
Some of the problems inherent in incapaci- Western legal systems generally fail to incorpo-
tative sentencing include the following: rate victims’ voices because the justice system
often excludes their participation. Restoring
• it works only if we lock up those who would harmony based on an acceptance that justice
have committed further offenses if they had has been done is, in his view, inadequate.
been left free; Essentially, restorative justice proponents
• if those we lock up are not immediately
emphasize the need to support both victims
replaced by new recruits; or
and offenders, and see social relationships as a
• if the crimes committed after release are not
rehabilitative vehicle aimed at providing for-
so frequent or serious so as to negate the
effects of the crimes prevented through mal and informal social support and control
incapacitative sentencing. for offenders (Bazemore and Schiff 2001: 117).
Rather than separating out the offender as a
Ethical questions that arise from the sentenc- subject for rehabilitation, restorative justice sees
ing rationale of incapacitation include (also see social support and social control of offenders
Travis 2002): as the means to rehabilitation.
The origins of restorative justice in the
• Is it ethical to punish persons for crimes not United States lie in part in court orders for
yet committed? reparation taking the form of restitution

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and community service. Since the 1970s, particular form of rehabilitation. However,
restitution and community service have been Bazemore and Dooley concede that there is an
employed as sentencing tools in criminal and absence of theory to explain how the opera-
juvenile courts, and during the 1980s an tion of restorative justice is supposed to bring
expansion occurred in victim–offender media- about a change in the offender. Some restora-
tion programs resulting partly from interest in tive justice proponents argue that repair in
restitution and community service programs relation to offenders involves a focus on
(Bazemore and Schiff 2001: 25). Along with restoring, strengthening, and building relation-
the increased interest in these alternative sanc- ships between offenders, victims, and commu-
tions, attention to the interests of victims nities (p. 111), and therefore intervention
increased during the 1990s, focusing on repair intended to prevent future crime must focus
and healing influenced by the “faith commu- not only on the offender’s obligation to repair
nity” and feminists (p. 26). Today, numerous harm done to victims and the community, but
programs can be brought under the rubric of also on the need to repair broken relationships
restorative justice, but they often remain between the offender and the community, the
small-scale experiments and tend to be associ- victim and the community, and the victim and
ated with community approaches to crime the offender.
control. Critics of restorative justice point to its too-
In considering the nature of a restorative ready assumption that it will be possible to
justice approach to offenders, it is useful to secure agreement between offenders, victims,
note the three core principles suggested by Van and communities. Garland (1990) notes that
Ness and Strong (1997: 8–9). one of the functions of punishment is to relieve
the feelings of victims and communities where
1. Justice requires the healing of victims, crimes are committed, and that restorative jus-
offenders, and communities injured by tice avoids the ceremonies and rituals of crim-
crime. inal law that recognize these emotions (in
2. Victims, offenders, and communities should
Hudson 1996: 150). In addition, it can be
be permitted to actively involve themselves
argued that a greater reliance on restorative
in the justice process in a timely and sub-
stantial manner.
justice and a consequent restriction on the
3. Roles and responsibilities of the govern- operation and expression of criminal law
ment should be rethought and in its promo- might lead to a situation in which those vic-
tion of justice, government should be tims processed through restorative justice
responsible for preserving a just order and might come to believe or feel that the harm
the community should be responsible for they have suffered is of less importance than
establishing peace. “real crime.” Feminists, who have argued for
severe sentencing for domestic violence, have
Restorative justice may be considered unique adopted this argument. Criminalization and
in its emphasis on not just one component of punishment show the limits of tolerance, and
the criminal justice system such as punish- depenalizing through restorative justice
ment, but as incorporating victims, offenders, processes tends to suggest that society has a
and the community in its strategies and different attitude towards certain kinds of
designs. behavior (Hudson 1996: 151). Von Hirsch, in
In relation to offenders, Bazemore and his investigation into the basis for restorative
Dooley (2001: 108) state that there is a nor- justice, contends that no clear principles have
mative focus on harm and repair. Repair, in been formulated for restoring the harm done
the context of restorative justice, implies a by offenders to community standards, and

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unlike victim restitution, which involves a task be justified ethically?” To answer this question,
of mediation between the victim and the one must first look at the purpose of criminal
offender, there are no disputed claims involved punishment and question the various rationales
in crime because, for example, a robber appro- put forward for punishment, such as deter-
priates something that is clearly the property rence, incapacitation, rehabilitation, just
of the victim (1998: 674–675). Volpe (1991) deserts, retribution, and restorative justice.
has warned of the propensity of restorative Sociological perspectives on punishment
justice to widen the net of social control. include the thinking of Durkheim, Weber, the
Marxist tradition, and post-Marxist sociolo-
gies of punishment, particularly that pro-
WHY PUNISH? THE
pounded by Foucault. Sociologists expand
SOCIOLOGICAL APPROACH
the notion of punishment to “penality,” which
In sociological terms, punishment raises ques- they explore in various societies at various
tions such as why particular punishments were times. Hudson defines penality as
used and why they are no longer used; why a
punishment like capital punishment has been . . . the complex of ideas (about proper
abandoned to a great extent in the West; and punishment, about effective punishment),
institutions (laws, policies and practices,
why imprisonment has become the major
agencies and buildings) and relationships
form of punishment for criminal activity.
(who has the power to say who is punished,
In social terms, research has concluded that whose ideas count, what is the relationship
punishments depend less on philosophical of those who punish and are punished to the
arguments and more on the currents and rest of society) involved in the punishment
movements in social thinking and in climates of offenders. (1996: 6)
of tolerance and intolerance. A focus on
history and changes in social conditions has Only a broad outline of the various perspec-
illuminated the relationship between punish- tives on penality will be provided here.
ment and society, which in turn has broadened According to Durkheim, society has an
the investigation of the notion of punishment objective reality apart from the individuals
into questions concerned with how order and who comprise it, and he argues that people
authority are maintained in society. Garland behave according to social rules that, together
(1990: 10) summarizes social theory about with customs and traditions, form a culture
punishment as: “that body of thought which for a particular society (in Hudson 1996:
explores the relations between punishment 81–86). Durkheim took a functionalist
and society, its purpose being to understand approach; that is, he examined aspects of
punishment as a social phenomenon and thus social life in terms of the functions they per-
trace its role in social life.” formed in society. He applied this approach to
Garland (1990) has argued that punishment punishment by looking at the functions that
is the product of social structure and cultural punishment fulfills in maintaining social order.
values. Thus, whom we choose to punish, how Durkheim identified beliefs and sentiments
we punish, and when we punish are deter- held by members of society, which he called
mined by the role we give to punishment in the “conscience collective,” and argued that
society. If we construe criminal punishment as crimes are those acts which violate that con-
a wrong for a wrong, then we must conclude science collective and produce a punitive reac-
that society is, in a sense, wronging the tion (in Garland 1990: 29). He developed
offender. We must therefore ask, “can the two laws of penal evolution. The first is that
infliction of pain or a wrong upon an offender punishment is more intense the less developed

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a society is and the more the central power Weber’s ideas on punishment are implied
within that society is of an absolute nature. rather than made explicit in his notions about
Thus, in industrial societies, collective senti- authority and power in modern society.
ments are embodied in law rather than in Having identified three types of authority,
religion, so crimes are seen as wrongs against the traditional, the charismatic, and the legal,
individuals. He tried to demonstrate that Weber promoted legal authority—the process
penalties changed from ancient societies to his of making rules by those given the right to
time, from aggravated penalties such as death rule—as being the most appropriate form of
with torture and mutilation to reduced forms rule for modern societies. For Weber, legal
of punishment. In his second law, he develops authority carries with it a duty to obey laws.
the notion of punishments having lesser inten- He argued that systems of laws might be
sity, arguing that imprisonment will become rational or irrational; in a rational system of
the main punishment replacing death and criminal law, crimes would be defined and
torture. rules put forward for adjudicating those
Overall, Durkheim sees the function of pun- crimes. He favored formal rationality, which
ishment as promoting social solidarity through he termed “bureaucratic rationality,” and
the affirmation of values, and argues that pun- saw this as an essential feature of a modern
ishment’s importance lies in its expression of state. His notion of bureaucratic rationality
outrage upon the commission of an offense. He appears in certain features of modern
believed punishment to be a “passionate reac- society, such as our processes for making
tion” to crime, and this expressive view of pun- judgments according to rules and the way
ishment can be seen in modern-day notions of in which office holders exercise authority.
censure in retributivism. His focus was not, Developments such as a professional police
therefore, on whether punishment was effective force and a judiciary as well as due process
in controlling crime, but in its function as a can be traced to the bureaucratization of
means of maintaining social solidarity through society.
expressions of outrage and through the affir- Marxist perspectives on punishment evolve
mation of societal values. Among critics of out of Marx’s concern for the place of capi-
Durkheim, Garland (1990) suggests that talism and the relations between production
Durkheim’s analysis of punishment is focused and society. In his view, institutions like law
too strongly on punishment’s expressive func- are shaped to parallel the relations of pro-
tion, causing all other explanations to be duction and the maintenance of the capitalist
discarded. Nevertheless, Garland (1990: 252) system. Marxist penologists have argued that
points out that Durkheim’s insight into the role punishment regulates the supply of labor; this
of punishment—as one of expressing commu- view was put forward in 1939 by Rusche
nity outrage against criminal acts—does single and Kirchheimer in Punishment and Social
out one aspect of punishment that seems to res- Structure (in Howe 1994: 12). In discussing
onate in the context of today’s debates about the history of punishment in Europe from
“getting tough on crime.” In similar fashion, the 13th century until the development of
Mead in The Psychology of Punitive Justice capitalism, the authors perceive the severity of
contends that the indignation that members of punishment as being tied directly to the value
society feel towards the criminal amounts to a of labor. Thus, the severity of punishment,
cultural sublimation of the instincts and hostil- they argue, is relatively lenient when labor is
ities that the individual has tamed in the inter- scarce and its value high, whereas when
est of social cooperation with others (in labor is abundant, punishments become more
Garland 1990: 64). intense.

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Another key aspect of their view is the commonly used today both in that form and
principle of less eligibility (Howe 1994: 12). in the notion of “paying a debt to society”
The argument is that the conditions the (Garland 1990: 113). Marxist analysis of
offender will experience in prison must be society generally has been heavily criticized
worse than anything he or she is likely to by feminists for ignoring gender and for out-
endure outside the prison in order to restrain moded interpretative frameworks (Howe
the “reserve army of labor” from crime; that 1994: 41).
is, to serve as a deterrent to the lowest social In 1977, Michel Foucault published
classes. The idea of less eligibility encompasses Discipline and Punish: The Birth of the Prison,
matters like discipline, diet, accommodation, revolutionizing the study of penality and pun-
and general living conditions in prisons. ishment by presenting the notion of penality
Rusche argued that this principle limited penal and highlighting discipline as the key element
reform because punishments and prison con- in modern forms of punishment. In his com-
ditions could not be improved beyond a point plex exploration of penality, Foucault follows
that would bring the offender into line with an approach that examines the issue from the
the standard of life of the least advantaged ground up through a detailed examination of
nonoffender (in Howe 1994: 20). This analy- penal practices. His central focus is the exer-
sis has been criticized for its economic reduc- cise of power in modern society and its link-
tionism (it only offers an economic argument ages with knowledge to exercise power of and
to explain changes in punishment) (Howe over the body. Describing first the effect and
1994: 20). Nevertheless, it has led to a series of content of the public execution, Foucault
studies that have tested the basic framework shows how the infliction of pain on the body
and found some correlation between punish- gave way to an exercise of power through the
ment and the labor market in the United States new practice of disciplining the individual
over time. The important point is that the through institutions such as the factory and
authors, together with other Marxists, have the modern prison, and how this led to the
provided the insight that all punishment can- development of a class of “delinquents.”
not be understood simply as a response to Foucault claims that disciplinary regulation is
crime. In other words, when changes in the use the fundamental principle of social control in
of imprisonment and other punishments are modern society and is most fully realized in the
examined in historical contexts, other factors form of the prison.
appear to have influenced their development. Foucault (1977) emphasizes the role of
Other Marxist theorists like Melossi and punishment in producing the “right-thinking
Pashuknis have asked why imprisonment per- citizen”; that is, the trained and disciplined
sists, as opposed to other forms of punish- individual (Hudson 1996: 7). Foucault draws
ment. One answer from Pashuknis is that there on both Weber (in his emphasis on bureaucra-
is a correspondence between the development tization) and Durkheim (in his description
of wage labor, which puts a price on time, and of punishment as an expressive force) in his
paying for crime by “doing time.” In this account of penality. However, he adopts a
sense, Marxist theory concerning the relations much broader analytic framework that links
of production is found mirrored in the punish- punishment and penality and connects them
ment of imprisonment, and Marxists therefore directly to changes in society and to the exer-
argue that a crucial principle in society is the cise of power over the individual. Foucault’s
exchange of equivalence. Punishment, there- ideas have inspired many followers including
fore, becomes an exchange transaction in David Garland who, in Punishment and
which the offender pays his debt, an expression Modern Society (1990), argues that a full

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