Lecture: punishment

Punishment:

What is punishment and types of punishment?

punishment, the infliction of some kind of pain or loss upon a person for a misdeed (i.e., the
transgression of a law or command). Punishment may take forms ranging from capital punishment,
flogging, forced labor, and mutilation of the body to imprisonment and fines.

Positive punishment involves adding an aversive consequence after an undesired behavior is emitted to
decrease future responses.

Negative punishment includes taking away a certain reinforcing item after the undesired behavior
happens in order to decrease future responses.

What does formal punishment mean?

Formal sanctions are the penalties laid down by law that can be imposed on those convicted of a
crime. These sanctions vary according to the severity of the crime. Sanctions can be imposed by courts
or the police, depending on the offence. Court sanctions. Custodial sentences.

Rehabilitation:

Rehabilitation prevents future crime by altering a defendant’s behavior. Examples of rehabilitation

include educational and vocational programs, treatment center placement, and counseling. The court
can combine rehabilitation with incarceration or with probation or parole. In some states, for example,
nonviolent drug offenders must participate in rehabilitation in combination with probation, rather than
submitting to incarceration (Ariz. Rev. Stat., 2010). This lightens the load of jails and prisons while
lowering recidivism, which means reoffending.

Retribution:

Retribution prevents future crime by removing the desire for personal avengement (in the form of
assault, battery, and criminal homicide, for example) against the defendant. When victims or society
discover that the defendant has been adequately punished for a crime, they achieve a certain
satisfaction that our criminal procedure is working effectively, which enhances faith in law enforcement
and our government.

Restitution:

Restitution prevents future crime by punishing the defendant financially. Restitution is when the court
orders the criminal defendant to pay the victim for any harm and resembles a civil litigation damages
award. Restitution can be for physical injuries, loss of property or money, and rarely, emotional distress.
It can also be a fine that covers some of the costs of the criminal prosecution and punishment.
Key Takeaways

 Specific deterrence prevents crime by frightening an individual defendant with punishment.

General deterrence prevents crime by frightening the public with the punishment of an
individual defendant.

 Incapacitation prevents crime by removing a defendant from society.

 Rehabilitation prevents crime by altering a defendant’s behavior.

 Retribution prevents crime by giving victims or society a feeling of avengement.

 Restitution prevents crime by punishing the defendant financially.

Different Punishments and Their Purpose:

Theories and objectives of punishment:

Punishment has been a subject of debate among philosophers, political leaders, and lawyers for
centuries. Various theories of punishment have been developed, each of which attempts to justify the
practice in some form and to state its proper objectives.

Modern punishment theories date from the 18th century, when the humanitarian movement in Europe
emphasized the dignity of the individual, as well as his rationality and responsibility. The quantity and
severity of punishments were reduced, the prison system was improved, and the first attempts were
made to study the psychology of crime and to distinguish between classes of criminals. During most of
the 19th and 20th centuries, individuals who broke the law were viewed as the product of social
conditions, and accordingly punishment was considered justified only insofar as

(1) it protected society by acting as a deterrent or by temporarily or permanently removing one who has
injured it or

(2) it aimed at the moral or social regeneration of the criminal. By the latter half of the 20th century,
however, many people in Western countries objected to this view of punishment, believing that it
placed too little responsibility on offenders for their actions, undervalued the additional deterrent effect
derivable from severe, as compared with moderate, punishment, and ignored society’s ostensible right
to retribution.

Utilitarian theories:
According to utilitarian theories, punishment is justified by its deterrence of criminal behavior and by its
other beneficial consequences for individuals as well as for society. Among several utilitarian theories
recognized by criminologists, some stress general deterrence and some individual deterrence.

General deterrence:

The approach based on general deterrence aims to dissuade others from following the offender’s
example. Less concerned with the future behavior of the offender himself, general deterrence theories
assume that, because most individuals are rational, potential offenders will calculate the risk of being
similarly caught, prosecuted, and sentenced for the commission of a crime. Deterrence theory has
proven difficult to validate, however, largely because the presence of many intervening factors makes it
difficult to prove unequivocally that a certain penalty has prevented someone from committing a given
crime. Nevertheless, there have been occasional examples showing that some sentences can have a
strong deterrent effect. Laws designed to prevent driving under the influence of alcohol (e.g., by setting
a maximum legal level of blood alcohol content) can have a temporary deterrent effect on a wide
population, especially when coupled with mandatory penalties and a high probability of conviction.

Individual deterrence:

Individual deterrence is directed at the person being punished: it aims to teach him not to repeat the
behavior. It is also the rationale of much informal punishment, such as parental punishment of children.
Theoretically, the effectiveness of individual deterrence can be measured by examining the subsequent
conduct of the offender. Such studies often have been misleading, however, because in most cases the
only basis for proving that the offender repeated his crime is a further conviction. Because a high
proportion of crimes do not result in convictions, many offenders who are not reconvicted after being
punished may have committed additional crimes. Furthermore, the general pattern of “aging out” of
crime (i.e., the fact that criminal behavior peaks in the late teens and early 20s and declines rapidly
thereafter) contributes to the difficulty of measuring the effectiveness of particular deterrence
strategies.

Theories in conflict:

In the practical operation of a sentencing or penal system, theories of punishment often come into
conflict. A lenient sentence (such as probation) designed to rehabilitate an offender may fail to express
society’s rejection of the behavior or to provide an effective deterrent to others; a sentence that
requires the offender to submit to a compulsory program of treatment or training for a long period may
conflict with the idea of retribution as a limiting principle (a constraint on excessive or unfair
punishment); a sentence of unusual severity, designed to make an example of the offender as a warning
to others, conflicts with the principles of rehabilitation and proportionality; and a sentence whose object
is incapacitation may fail to satisfy those who favor rehabilitation and proportionality. The operation of
any sentencing system requires officials to choose between different theories in different cases; no
single theory provides a system suitable for all cases.

Punishment in Islamic law:

Starting in the 19th century, most Muslim countries adopted Western criminal codes patterned after
French, Swiss, or English systems of justice. Traditional Islamic law (Sharia) divides crimes into two
general categories. Several serious offenses, known as ḥadd crimes, are specifically mentioned, along
with their appropriate penalties, in the Qurʾān; the ḥadd punishment for theft, for example, was
amputation of a hand. In practice, however, many such punishments are mitigated by social and political
constraints. Thus, a person who is caught stealing might negotiate a lenient punishment by offering to
pay for the item in question, often at a much higher price.

Most other offenses in Islamic law are called taʿzīr crimes (discretionary crimes), and their punishment is
left to the discretion of the qāḍī (judge), whose options are often limited to traditional forms
(imprisonment or corporal punishment) but who may also feel obliged to enforce punishments dictated
by local customs and mores. The imposition of fines is a traditional punishment that has grown more
common in some areas. Murder within Islamic societies has traditionally been treated not as a crime
against the people but as a dispute between family or tribal groups. The murdered man’s kin might
demand the death of the malefactor (they might even carry out the execution themselves), but they
may also settle for diyah (wergild; literally, “man payment”) at a rate determined by social convention.
Such arrangements reflect the general belief in Islamic societies that the life of the individual belongs to
the group rather than to the individual himself or to society as a whole.

Within many Islamic countries the extra-judicial killing of persons by members of their own families for
real or perceived moral infractions has been relatively common. Such “honor killings” are in fact
violations of both civil and Islamic law, but perpetrators frequently use religious reasons to defend their
actions, thereby giving the crime a veneer of justification. Murders of this type are seldom punished,
particularly when they involve the alleged sexual transgressions of a female, but when punishment is
mandated, the sentences are generally light.

Asia:

After the communists took power in China in 1949, the chief goal of criminal punishment in the country
became reform. This policy was founded, according to authoritative Chinese criminal-law textbooks, on
the historical mission of the proletariat to reform society and humanity. The notion that an offender
incurs a debt to society that can be paid merely by serving a prison term was alien to Chinese penology.
Because the state was keenly interested in changing the offender’s thinking, imprisonment was
generally accompanied by labor and political study.

The primacy of reform over deterrence changed in the 1970s, when China began to decentralize sectors
of its economy. The resulting economic liberalization was accompanied by substantial increases in crime,
to which the government responded with a series of deterrence campaigns based on swift, certain, and
public punishments. Notwithstanding these efforts, which had limited success, China’s imprisonment
rate remained moderate. The country applied the death penalty widely, executing thousands of people
every year—far more than the combined annual sum of executions occurring in other countries.
Other Asian countries exhibited very different patterns. Japan maintained a very low crime rate and one
of the lowest imprisonment rates in the world, though some moderate increases in the severity of
punishments, including incarceration, created conditions of overcrowding in its prisons starting in the
1990s. Singapore maintained a severe criminal code and a very high imprisonment rate despite having a
very low crime rate. Indonesia, the most populous country in Southeast Asia, also imposed harsh
penalties for many crimes, including the death penalty for drug trafficking. South Korea had a low crime
rate and a moderate imprisonment rate, and it placed some emphasis on thought reform in its prisons.
In the early 21st century Hong Kong was unique in housing the largest proportion of female prisoners
worldwide: more than 20 percent of the total prison population was female, compared with a global
average of about 5 percent.

Effectiveness of punishment:

There is considerable controversy over the effectiveness of punishment in reducing crime. For example,
most researchers have failed to find any systematic relationship between crime rates and imprisonment
rates: it is equally probable for regions with high imprisonment rates to have high or low crime rates,
while increases or decreases in rates of imprisonment are equally likely to be followed by increases or
decreases in crime, and so on. Thus, the “three strikes” legislation passed in many U.S. states in the
1990s, which imposed mandatory prison sentences after three convictions, was found to have no effect
on crime rates. Even the death penalty, as noted above, appears to do little to reduce murder rates,
since most jurisdictions that use it (including several U.S. states and various other countries) have
substantially higher murder rates than jurisdictions that do not. Among Western industrialized
countries, the United States has the highest murder rate and is virtually alone in using the death penalty.
The state of Texas accounts for a very high proportion of all executions within the country (roughly half
in the early years of the 21st century), yet it has continued to experience relatively high rates of murder
and violent crime. In general, criminologists believe that severe punishments are not particularly
effective in reducing high crime rates.

Equality:

equality, Generally, an ideal of uniformity in treatment or status by those in a position to affect either.
Acknowledgment of the right to equality often must be coerced from the advantaged by the
disadvantaged. Equality of opportunity was the founding creed of U.S. society, but equality among all
peoples and between the sexes has proved easier to legislate than to achieve in practice. Social or
religious inequality is deeply ingrained in some cultures and thus difficult to overcome (see caste).
Government efforts to achieve economic equality include enhancing opportunities through tax policy,
subsidized training, and education, redistributing wealth or resources, and preferential treatment of
those historically treated unequally (see affirmative action). See also civil rights movement; feminism;
gay rights movement; human rights; Universal Declaration of Human Rights.

Social contract:
social contract, in political philosophy, an actual or hypothetical compact, or agreement, between the
ruled or between the ruled and their rulers, defining the rights and duties of each. In primeval times,
according to the theory, individuals were born into an anarchic state of nature, which was happy or
unhappy according to the particular version of the theory. They then, by exercising natural reason,
formed a society (and a government) by means of a social contract. Although similar ideas can be traced
to the Greek Sophists, social-contract theories had their greatest currency in the 17th and 18th centuries
and are associated with the English philosophers Thomas Hobbes and John Locke and the French
philosopher Jean-Jacques Rousseau. What distinguished these theories of political obligation from other
doctrines of the period was their attempt to justify and delimit political authority on the grounds of
individual self-interest and rational consent.

By comparing the advantages of organized government with the disadvantages of the state of nature,
they showed why and under what conditions government is useful and ought therefore to be accepted
by all reasonable people as a voluntary obligation. These conclusions were then reduced to the form of a
social contract, from which it was supposed that all the essential rights and duties of citizens could be
logically deduced. Theories of the social contract differed according to their purpose: some were
designed to justify the power of the sovereign, while others were intended to safeguard the individual
from oppression by a sovereign who was all too powerful.

Islamic concept of punishment:

Islamic law divides crime into three categories: (1) Hudud, which are acts prohibited by God and
punished by defined mandatory penalties; (2) Quesas crimes, which have a specified punishment in the
Qu'ran and Sunna, with the decision to inflict it resting with the victim's closest kin as the avenger of the
physical harm done to the victim; and (3) Ta'azir crimes, which include all crimes for which there are no
specified penalties in the Qu'ran or Sunna, such that the judge is given discretion in sentencing.
Punishment of whatever category must be individualized, meaning that responsibility for the crime must
be borne by the offender alone without respect to his/her social, economic, or political status.
Discretionary punishment under Ta'azir may consider such factors as the offender's character and the
circumstances of the offense. Although there is an increased emphasis on the rehabilitation of the
offender in Islamic law, sentencing is intended to carry a punitive element that will deter recidivism and
potential offenders. Under Quesas penalties, the state supervises all punishment, even though it may be
applied by the victim's kin, so as to ensure that it is not harsher than intended. Pain is kept at a
minimum and torture is prohibited. The law provides for compensation to an offender for every unjust
injury caused from error in the execution of punishment. When an offender is convicted of several
crimes, the punishments are applied concurrently or as one penalty, and imprisonment is intended to be
restrictive without being inhumane.