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SOC346H5 (14)
Chapter 3

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Nicole Myers

Chapter 3 The Justifications For Punishment  Retributivist proponents argue that the justification for punishment flows directly from the offence  The violation justifies the penal response  Consequentialist theories, often described as utilitarian, are premised on the need to produce some effect on the offender or in the community Retributivist Theories  There are two key aspects to any retributivist theory. First, is the notion of desert: the guilty deserve to suffer. Most retributivist approaches start with this basic proposition. It is not, however, a self-evident principle.  The second key aspect of retributivism is the notion that it is the state‟s obligation to impose punishment  This completes the basic retributivists idea: the criminal deserves the punishment and it is the state‟s duty to impose it.  The Biblical statement of retributivism, described as “lex talionis,” is captured by the reference to “an eye for an eye.”  This encompasses the idea that a person who commits a certain prohibited act and causes harm must be punished.  Kant developed a retributivist theory which was premised on the idea that punishment can never be administered merely as a means for promoting another social goal. Thus punishment for deterrent purposes, whether individual or general, is unacceptable because it treats the individual as a means. Instead, people should be treated as ends which involves characterizing them as responsible moral agents whose personal welfare matters.  The offender‟s personal characteristics and circumstances must be taken into account to assist the court “in ensuring an equal balance between the effect of the criminal deed on society and the effect of the punishment on the offender.”  Kant considered that it was a “categorical obligation” for the state to impose the deserved penalty and carried this notion to its extreme ends in his often-quoted tale of the “last murderer.”  He argued that even at the point of the complete break up of a civil society, it was the state‟s duty to inflict death on someone convicted of murder.  Hegel argued that the purpose of imposing punishment in response to crime was “to annul the crime, which otherwise would have been held valid, and to restore the right.”  In other words, the retributive process of punishment ought to consist of the annulment of the wrong and the re-assertion of the right or value in which had been violated. This suggests that “punishment has the consequence of restoring a moral principle” and suggests that denunciation can provide a legitimate justification of punishment.  Hegel argued for an “identity” between the harm caused and the subsequent penalty, this was not a matter of strict equality –rather, “the two injures are equal only in respect of their implicit character, i.e. in respect of their value”  Rehabilitation also appears in the retributive theory described in the Philosophy of Right  Hegel remarks that the imposition of a penalty on the offender is “a right established within the criminal himself.”  According to Kant, a pure retributivist must be prepared to argue that justification for punishment exists regardless of, and even in the absence of, consequences. Retribution and Vengeance  Hegel relied on the distinction between public and private prosecutions to explain the difference between punishment as just retribution and punishment as vengeance  He argued that punishment, as an instrument of justice, had to be freed from subjective interest and the contingency of individual might.  Nozick explained five ways in which punishment as desert differs from revenge 1. Retribution responds to an offence, a wrong; revenge may flow from a triggering eent or circumstance but this need not be a wrong 2. Retribution is limited in its extent by the seriousness of the offence, whereas there are no internal limits on the amount of revenge inflicted 3. Revenge is personal (as Hegel had argued), while the agent of retribution has no personal tie to the victim 4. Revenge carries a self-satisfied tone or pleasure upon inflicting suffering upon another, while retribution need not involve any special emotional tone 5. Retribution derives from a general principle, imposing deserved punishment in response to an offence, which is usually clear and known; there need be no generality to revenge. It occurs when and how the seeker of revenge decides  Nozick offered a complex proposition, which encompassed 9 characteristics of retribution. Only if all are present could one say that a penalty inflicted after a wrong had been committed was intentionally imposed in response to the wrongfulness of the act Just Deserts  At the center of many debates about sentencing reform in various jurisdictions over the past 20 years has been the notion of „just deserts‟ a retributivist approach to sentencing.  Desert is the focus of von Hirsch‟s argument for determining the appropriate punishment  He does not accept that it must be either the determining factor or a limit on the amount of punishment, instead, he argues that the role of desert and proportionality is more complex  Two basic questions 1. How crimes should be punished relative to each other 2. The specific level or severity of punishment for a specific crime  These questions represent the „ordinal and cardinal magnitudes of punishment‟  Desert determines the first question, but it only serves as a limit in answering the second  Von Hirsch has emphasized the role of censure. In terms of the multi-layered effect of the focused expression of disapprobation, which is central to the sentencing function, he considers censure to be more important than prevention in his sentencing theory.  Michael Tonry has offered a number of basic criticisms of “just deserts.”  He argues that the process of categorizing like offenders and offences is bother over- simplified and over-inclusive  The costs to individuals of imprecise objectification are too great since the same imprecision characterizes the quantification of deservedness and thereby determines punishment.  Tonry argues that, by the same token, as fault is usually individualized for responsibility purposes by taking into account excuses, formal mitigation, and derivative responsibility, so for sentencing purposes, the issue of culpability should also be tailored to the individual.  Tonry also argues that a “just deserts” model violates what he calls the principle of parsimony which states that the appropriate penalty should be the least intrusive and restrictive required to fairly respond to the offence. Consequentialist or Utilitarian Justifications  Rehabilitation produces a social benefit, by reforming the offender so that a violator of the community‟s norms becomes a productive participant in the community‟s structures  Deterrence is a more amorphous concept. Specific or individual deterrence refers to the beneficial impact on the offender: that is, punishment delivers a lesson to the offender which deters the person from future criminality  General deterrence assumes that the punishment provides a lesson to others who will consequently be deterred in the future  Utilitarian goals have been subjected to scrutiny  Invoking a notion of curability, Plato argued that those who could be reformed should be improved by the infliction of pain while those who are not reform able should be examples of by subjecting them to the “most terrible and painful and fearful suffering  Bentham offered 12
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