Theories of Punishment

Retribution

Deterrence

Rehabilitation

Incapacitation

Retribution

Rational retribution

Emotive retribution

Rational Retribution

Most versions are based on Kants theories.

Focus on inherent rights of individuals.

Assumes existence of free will.

o But what if free will is constrained? Or you are a determinist?

Modern variant: Just deserts theories.

Rational Retribution (cont.)

Herbert Morris: social contract theory.

Utilitarianism: mainly supports deterrence theory, but perhaps also retribution.

Emotive Retribution

Mainly based on communitarian theories.

Role of emotion, rather than logic, is more central.

Emotive Retribution (cont.)

Three variants:
o Moralistic view (James Fitzjames Stephen)
o Social cohesion theory (Emile Durkheim)
o Safety valve view

Marxist critique of retribution

Deterrence

Specific deterrence

General deterrence

General Deterrence

Underlying assumptions:
o Punishment is public.
o Public does not see criminal justice as arbitrary or erratic.

Can lead to more severe punishment of notorious crimes.

General Deterrence (cont.)

Utilitarianism.
o Punishment itself is an evil (why?).
o Assumes people are rational actors.
o Act vs. rule utilitarianism.
o Scapegoating.

Moralizing or educational approach.

Kantian view (not merely as a means)

Rehabilitation

Focus is on nature of the actor, not the act.

Pragmatic vs. paternalistic rehabilitation.

Early history of penitentiary displays this conflict.

Pragmatic Rehabilitation

Not concerned with moral reformation, but conditioning people to conform

their behavior to social norms.

Focus is on outward behavior.

Consistent with assumption of free will.

Paternalistic Rehabilitation

Goal is to reform the prisoner morally, to cause penitence (thus: penitentiary).

Good citizenship requires moral citizens.

Society is responsible (in whole or in part) for the criminals conduct.

Decline in the Rehabilitative Ideal

Starting in the 1970s.

Reflects pattern of waxing and waning throughout American history (Sowle

article).

Possible signs of resurgence of interest in rehabilitation.

Incapacitation

Residual theory (if all else fails)

Protection of the community.