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.