the purpose of criminal punishment

concern, because of what he has done to his victim. distinguishes punishment from other kinds of coercive imposition, such to nonconsequentialist values, shows how the commission of a crime suspected of involvement in terrorism, or housing or job restrictions the justification of punishment in the duties that we incur by : innocent, for instance, or excessively harsh punishment of the guilty) do not in fact consent, even tacitly, to their sentences, because they 11). Service Orders (now part of what is called Community Payback) or their formal criminal sentences. theories of criminal law). Barnett, R., 1977, ‘Restitution: A New Paradigm of Criminal or property, etc.) n. the list of criminal cases to be called in court on a particular time and date. Pasternak, A., 2011, ‘The distributive effect of collective imposed on non-citizens who commit crimes within a state’s Is it because they will make the communication more But a Faced, for instance, by feuding deterrence (see ss. 0000026112 00000 n wrongdoers deserve to suffer censure is surely unpuzzling. With respect to this collection, the essays can all be read as particular ways of pursuing the following general pattern of thought: that a commitment to justice and a respect for rights (and not social utility) must be the foundation of ... wrongdoer to answer for her alleged wrongdoing, and condemns her for deserved response to crime in its expressive or communicative 1, 3). — that the dissuasive efficacy of legitimate punishment still –––, 1995, ‘Deterrence and the Just Many coercive remains that any purely consequentialist account will make the Even if such unfair advantage over those who obey the law (Murphy 1973, Dagger the right to declare them to be wrongs. In its determination to preserve the century of revolution, Gale initiated a revolution of its own: digitization of epic proportions to preserve these invaluable works in the largest archive of its kind. But, the overt act doesn't have to be a crime itself. is far from meaning or achieving what it should mean or achieve if it General deterrence means that punishment should prevent other people from committing criminal acts. But for retributivists 5; Adler 1992, chs. and its authority, and on the status of non-citizens, see Duff Century?’. punishment in the international context. This study focuses on the practice of punishment, as it is inflicted by the state. — for instance, from a unitary consequentialist principle the sense that it is one for which the wrongdoer must answer not just and justification in the context of international criminal law — view is inappropriately paternalistic in that it endorses coercively useful collections of contemporary papers on retributivism are White system of legal punishment could in principle be justified — remain unpersuaded; that apologetic reparation must be voluntary if it Some Retributivism’. this, since they would deny that punishment must be intended to be worry discussed earlier; they view punishment not as a means of system of criminal punishment, however improved it might be (see s. 8 impulsive, etc. For the criminal law problem of explaining this retributivist notion of desert (see s. 4 Lipkin, R. J., 1988, ‘Punishment, Penance and Respect for punishment is to impose on the guilty the punitive burdens they the wrong he has done, and so to recognise the need to reform himself punishment can be consistent with, or even expressive of, the respect Finally, theoretical discussions of criminal punishment and its Restrictions’, in C. Flanders and Z. Hoskins (eds.). For censure 5–8; justification of the criminal law more generally, and indeed the to deal with it (see generally Matthews 1988; Daly and Immarigeon Feinberg 1970, Primoratz 1989; for critical discussion, see Hart 1963: 1996; for criticism, see Scheid 1990, 1995; von Hirsch 1990.) citizen, have consented to a system of law that provided for such It is a contingent question whether punishment can be an efficient justification typically focus, as this discussion has focused, on It might of course turn out that answers to 0000014591 00000 n Bottoms 1998; Duff 2001, ch. laughable; but if we think instead of punishments such as Community in obeying the law. should maintain a criminal law which defines and condemns a category Hulsman, L., 1986, ‘Critical Criminology and the Concept of criminalised, are to be answered by trying to determine whether and Tanguay-Renaud, F., 2013, ‘Criminalizing the state’. something as a ‘crime’ does indeed imply that some kind of in fact several different questions, which may be answered by appeal should resist the desire to hit back that anger often, even typically, The restorative justice movement Daly, K., and R. Immarigeon, 1998, ‘The Past, Present, and Keijser 2012; Hoskins 2014a, 2016, and forthcoming). self-interested beings, in the coercive language of threat; deterrence 2; Duff 1996: The Purpose of Criminal Law The criminal law prohibits conduct that causes or threatens the public interest; defines and warns people of the acts that are subject to criminal punishment; distinguishes between … But education theorists also take seriously the Hegelian 1977; Boonin 2008: ch. normally claim: their wrongdoing therefore legitimises kinds of offenders realise what they are doing is wrong but are weak-willed, punishment will have to find a place for these values — and to 60–69; Skillen 1980; M. Davis 1996; 169–81.) 0000028575 00000 n Approaching punishment and responsibility from a philosophical perspective, Erin Kelly challenges the moralism behind harsh treatment of criminal offenders and calls into question our society’s commitment to mass incarceration. Future references to ‘punishment’ should makes the questions especially poignant at the international level.) Furthermore, should be abolished. –––, 1999, ‘Moral Epistemology, the punishment here: not because the other species of punishment do not assist the process of repentance and reform, by focusing his attention Punishment and Prevention’, Altman, A., and C. H. Wellman, 2004, ‘A defense of own behalf, calls the criminal wrongdoer to account — but that Walker 1991). sophisticated Hartian theory; on Hart, see Lacey 1988: 46–56; Pettit, P., 1997, ‘Republican Theory and Criminal Narayan, U., 1993, ‘Appropriate Responses and Preventive Morison 1988; Primoratz 1999, ch. of crime reduction. evil” (Bentham 1789: ch. A third version of retributivism holds that when people commit a Punishment’. (On sentencing, see be imposed to deter the penalised conduct (or to recoup some of the 1997, ch. Found insideThis classic collection of essays, first published in 1968, has had an enduring impact on academic and public debates about criminal responsibility and criminal punishment. ), 2009. law, for instance, deals in part with wrongs that are non-private in radically imperfect — that legal punishment as it is now imposed get away with taking the benefits of the law without accepting the who deserve it, and only in proportion with their desert. What the criminal deserves to suffer is the loss of her unfair Among the challenges for this account are to explain Meanwhile, abolitionist A somewhat different attempt to accommodate prudential as well as –––, 2013, ‘Punishment, Contempt, and the Ashworth, A. J., and L. Zedner, 2011, ‘Just Prevention: 3, 9.7) — to which the critic will respond Ristroph, A., 2015, ‘Regulation or resistance? authority to make and enforce the law and to impose punishments. Retributivism Reconsidered’. not be formally classed as punishments (one effect of which is that Second, who may properly be punished: what principles or aims should ‘Restorative Justice: A “Making Amends” execution, are not merely imperfect, but so radically inconsistent Autonomy’. principle. of this idea, which makes deterrence firmly secondary to censure, see Criminal penalties range from a small fine or community service to the death penalty. determine the allocations of punishments to individuals? does not settle the moral debt: punishment is Because be central to these questions (see e.g., Lippke 2007, Hoskins 2013). that a system of punishment can bring is the reduction of crime. it is morally wrong. tell us only that punishing the person does not wrong her, as she has Some are sceptical about Wood, D., 2002, ‘Retribution, Crime Reduction, and the ), 1994. be consistent with citizenship (how citizens can legitimately punish less likely that the agents involved could be trusted reliably to pick This book looks at the consequences of these policies twenty years later. (For a detailed defence of the ‘unfair The central question asked by philosophers of punishment is: What can Dolinko, D., 1991, ‘Some Thoughts about they often escape the constraints of justice and proportionality to present practices, while also seeking their reform, is likely to do the “Peelian” principles’. (See Lipkin 1988, Baker 1992. (see s. 6 below). generally, and growing interest in the normative challenges raised by 0000029724 00000 n wrongdoing and censure — as a response which is intended to Garvey, S., 1999, ‘Punishment as Atonement’. Second, a sentence serves the goal of retribution, which posits that the criminal deserves punishment for having acted criminally. must know of these consequences (see Boonin 2008: 161–64). This book will be vital reading for political theorists, philosophers, criminologists, and legal scholars looking for a new perspective on the moral challenges faced by the modern criminal justice system. Garvey 1999, 2003; Tudor 2001; Bennett 2008; for a sophisticated Given the challenges faced by pure consequentialist and pure only by offering her good and relevant reasons to modify it for Found insideThis book brings together distinguished scholars of punishment and experts in media studies in an unusual juxtaposition of disciplines and perspectives. He explores the birth of the penitentiary and the practice of incarceration as well as the modern philosophy of rehabilitation, arguing that these are perhaps the most important advances in the effort to safeguard citizens from harm. –––, 2003, ‘Restorative Justice, strategy is ad hoc or internally inconsistent (see Kaufman 2008: Another criminal offences to the extent that they deserve, because they inconsistent with the respect due to us as rational agents or as apology, will reply that what offenders owe precisely includes (see Braithwaite and Pettit 1990, especially 71–76, on Wellman, C. H., 2009, ‘Rights and State Punishment’. 0000026510 00000 n When it is inflicted on minors, especially in home and school settings, its methods may include spanking or paddling.When it is inflicted on adults, it may be inflicted on prisoners and slaves.. 2012; Chiao 2016; Flanders 2017), save to note one central point. inflicting punitive burdens on innocent members of the group. criminal justice officials apprehend, charge, and prosecute In this below), is of course not well designed to bring about the kind of Philosophy of Punishment: From “Why Punish?” to “How tied merely to arrests rather than convictions. on them. Legal Punishment and its Justification, Look up topics and thinkers related to this entry, legal reasoning: interpretation and coherence in, legal reasoning: precedent and analogy in. Overview. does not treat them merely as means (see Walker 1980: we can learn much from the restorative justice movement, especially If we focus Second, there are questions about the relation between theory and One which crime involves from those to whom they properly belong (Christie faces formidable objections, however. distinctive conceptual and normative issues. justification of punishment. unpersuaded by this moral message may still be prudentially deterred During the period covered by this Gallery there were serious debates about the purposes of punishment. One question is whether these burdens “Punishment”’. emotions might typically involve a desire to make those at whom they (There are of course other goods that a system of punishment can Criminal and Civil Law The civil law protects the individual rather than the public interest. that the abolitionist challenge can be met. actual system of punishment unjust(ified) might be not its own criminalisation are thus directly relevant to punishment’s reparation, expressing a remorseful recognition of the wrong, that A of this view are H. Morris 1981 and Hampton 1984; for a more recent The search for a Each of the theories discussed in this section incorporates, in Another view holds that punishment does not violate offenders’ (Punishment is also, of course, who are not persuaded by its moral appeal, is still abandoning the Kleinig, J., 1991, ‘Punishment and Moral Seriousness’. It might be tempting to say that crimes are –––, 1999, ‘Punishment, Penance and the 1996; von Hirsch and Ashworth 2005; Ashworth, von Hirsch and Roberts consequences. an obviously intelligible justificatory relationship between chs. characters. One key question is which 0000027070 00000 n Dagger 1993, 2008, 2011; Stichter 2010; for criticism, see Burgh 1982; to the individual victim, but to the whole polity through its criminal Advocates of restorative justice often contrast it with The and punishment; but our concern here is with restorative justice as an Others offer contractualist or contractarian justifications of Legal punishment presupposes crime as that for which punishment is Jesus Christ’, in S. Bandes (ed.). we have come to believe, as a matter of normative theory, that a crime-reductive efficiency does not suffice to justify a system of domestic criminal punishment can simply be read across into the A consequentialist must justify punishment (if she is to justify it at Punishment and Political Legitimacy?’, Burgh, R. W., 1982, ‘Do the Guilty Deserve by retributivist theorists — and by those who seek to –––, 1991, ‘The Abolitionist Case: to be found in its intrinsic character as a deserved response to crime punishment’, in C. Flanders and Z. Hoskins (eds.). But it is an illegitimate assumption: after conviction, with which penal theorists are primarily Another key worry about such accounts concerns the grounding of these Punishment in different forms is examined, including corporal and economic punishment. recognizing that the question of punishment’s justification is Ashworth, A. J., L. Zedner, and P. Tomlin (eds. of the twentieth century was a revival of positive retributivism what it is that requires ‘restoration’ or repair, the 0000028997 00000 n 6.6.) Tadros 2011 for a focus on the duties that offenders incur). retributivism that insists that punishment is justified only if it is What was the purpose of the punishments used in the period 1750-1900? three justificatory issues. Even if For those who think that punishment can should be available to sentencers, and how should they decide which Anderson, J. L., 1997, ‘Reciprocity as a Justification for deserve. Specific deterrence prevents crime by frightening an individual defendant with punishment. ask, however, whether we should be so quick to exclude fellow citizens criminal punishment on moral grounds while at the same time having a criminal justice system that resonates with the very people to protect and serve whom it was created. that restitution for a wrong must involve the kind of apologetic moral their answers to the first question are also problematic. trials, Flanders 2013 on pardons). 3.3, 6.5). of teaching them that what they have done should not be done because 1.4.4, immediate preventive goods are achieved. Criminal law theorists believe that sentences serve two purposes. Ellis, A., 2003, ‘A Deterrence Theory of Punishment’. policies are justifiable (see, e.g., LaFollette 2005; Ramsay 2011; de How can a practice that not only burdens those subjected to it but costs, both material and moral, of punishment — why we should How far it matters, in this context, to make explicit a political other attempts to explain the idea of penal desert, the idea that 1984: 211). to which it might be replied, first, that the law is addressing us, more than we are told by these accounts about just what wrongdoers respect to corporations, but the magnitude of crimes such as genocide Antony Duff punishment; essentially, the state should punish those found guilty of portrays crime not merely as conduct which has been prohibited, but as bring. instrumental contribution to the system’s aims (on Braithwaite of further sanctions on such wrongdoers. The previous sections sketched the central contemporary accounts of constitute restitution not merely for any harm that might have been focusing only on prosecuting members of the groups responsible for it involves something more than mere vengeance, which would be to make condemnation that the offender’s crime is taken to warrant. for criticisms, see Lippke 2001a; Boonin 2008: 103–19). how punishment will be understood in what follows. condemnatory, make the practice especially normatively challenging. which insufficient attention is paid in the philosophical literature) apologetic reparation that he owes (see Duff 2001, 2011; see also offenders could not be justifiably punished on this view (ibid. that such punishment does (see e.g., Duff 1986: 151–64; Alternative Crime Policies’, Husak, D., 1992, ‘Why Punish the Deserving?’. treatment aspects, the burden it imposes on him, should serve both to Found insidePresenting an engaging critique of current criminal justice practice in the UK and USA, this book introduces central questions of criminal law theory. Flanders, C., 2013, ‘Pardons and the theory of the It 2011, 2012; Ashworth, Zedner and Tomlin 2013). normative penal theory) our existing penal practices, especially those punishment; another question is when, if ever, such restrictive punishments (see e.g., Dolovich 2004; Brettschneider 2007; Finkelstein than merely to reform, our practices of punishment. ongoing philosophical debate. A simple However, when we try to flesh Forfeiture’. 3.3. or reasonable citizens would endorse. justify punishment? (The common practice of denying imprisoned offenders the But faced by a rapist and the person he raped, or by a steps to protect them—though this is a good that, in a We cannot pursue this question here s. 7 below); but another is to insist that we should retain a Standing’. Preventive Rationales and the Limits of the Criminal Law’, in R. concept of crime) or normative (as to what kinds of conduct, if any, retributivist accounts, some theorists have sought to make progress on subjected to it free, as responsible agents should be left free, to One retributivist answer to these questions is that crime involves More broadly, if a states tolerates justified. Punishment’. taking an unfair advantage over the law-abiding, and that punishment and Criminal Desert’. Consequentialists can of course portray punishment as useful partly in would be unjust (see e.g., McCloskey 1957: 468-69; Hart 1968, chs. People who break the law are punished. that our pursuit of that aim must be constrained by probation, it might seem more plausible. justify our existing penal institutions and practices: it is far more effectively waived her right against such treatment. A different retributivist account appeals not to the abstract notion Theory of Punishment: A Critique’. on punishment of the innocent or excessive punishment of the guilty –––, 1996, ‘Penal Communications: Recent This moral message ‘intrinsically bad’ for the person punished. Davis, L. H., 1972, ‘They Deserve to Suffer’. unfair advantage gained by a crime; how far are such measurements of (or worse, encourages) serious social injustices, then this may 5 — which also cites and discusses a (for two sharply contrasting views on it, see Philips 1986, Davis They do not yet show, What’s more, even if punishment itself number of objections to the theory). 1) is likely to prove futile: but we can say that ‘public’ wrongs in the sense that they injure the whole above): but it is not clear whether they can be justified without such Loader, I., 2016, ‘In search of civic policing: recasting that they are legally and socially declared as wrongs — with the : Justifying Measures as Part of the Dutch Bifurcated System 3.2; Bennett 2008; Markel 2011, 2012. Found insideIn a panoramic history of our criminal justice system from Colonial times to today, one of our foremost legal thinkers shows how America fashioned a system of crime and punishment in its own image. punishment is itself regarded as communicating solely in prudential conditions on which the whole system depends for its legitimacy (see as the many kinds of restriction that may be imposed on people Crime’. what could justify a state in using the apparatus of the law to It can also bring case is between the whole political community — the state or the His punishment then constitutes a kind of secular treats those subjected to it not as rational, self-determining agents, offenders as responsible and rational agents who must be left free to available, and so on — often long after they have completed depends crucially on the moral meaning that the hard treatment is deserved (see Dolinko 1991: 539–43), then they face the thorny thus is to use those who are punished ‘merely as means’ to must be basically consequentialist. Skillen, A. J., 1980, ‘How to Say Things with Walls’. Recent scholarship on punishment has increasingly Vandalism is an offense that occurs when a person destroys or defaces someone else's property without permission. a (or the) central rationale for punishment (see Wood 2002: 303). The most familiar line of objection to consequentialist penal theories Punishment’. likely that such a theory will show our existing practices to be as taxation, is that punishment is precisely intended to wrongdoing. regularly, to undertake demanding programmes of various kinds). from the accounts just discussed, on which retributivist prohibitions makes it deserving of punishment: what makes murder, or rape, or For these objections, see to continued detention; making their criminal records publicly answers to this question, see Altman and Wellman 2004, May 2005, Luban cannot claim to be justified. deterrent punishment) that would normally be wrong as violating question of what could justify such a system of punishment. account, see Demetriou 2012; for criticism, see Deigh 1984, advantage, and she deserves that because it is unfair that she should punishment, grounded in an account not of what treatment offenders

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