8.2: Ideologies of Punishment

Two news stories pop up on your feed. In the first story, a man living in your city is described as a convicted sex offender. His neighbors are picketing in front of his house, voicing their displeasure that he is allowed to live there. The video shows how angry the neighborhood is, and you can see the frustration and anger on the people’s faces.

The second story is about a woman who was detained for stealing food from a local grocery store, apparently to feed her children. She is shown in the back of a police car. The store manager is interviewed and says he is offering to donate the food to her so that she does not have to spend time in jail or get into any more trouble.

How do these two stories make you feel? Is it the same feeling for each story? Does one of these stories make you feel more afraid of crime? More angry or upset? Which one? Who deserves to get punished more? How much punishment should they get? The answers to questions like these floods our thoughts as we see stories like this and when we hear about crime in general. These questions and feelings are normal. It is this process that generates our own personal punishment ideology.

Now, which one of these two individuals has actually committed a crime? Technically, the woman has broken the law. Our perceptions of punishment can be influenced by the narrative we hear online or from others.

There are two ideologies when it comes to punishment – forward-looking or backward-looking. Forward-looking ideologies are designed to provide punishment but also to reduce the level of recidivism through some type of change. Recidivism is when someone who has been in trouble with the law and before they get in trouble again. It is a repeat offense or when a person does something illegal more than once. The backward-looking approach is solely for the punishment of past actions and aims to have no effect on recidivism. The change in ideologies and in how society views punishment is a shift that occurs over time and is impacted by the dominant culture, politics, and even religion.

Retribution

Retribution is one of the oldest of the ideologies of punishment. This type of punishment imposed on a person as revenge or vengeance for a criminal act and is the only backward-looking philosophy of punishment. The primary goal of retribution is to ensure that punishments are proportionate, or equal, to the seriousness of the crimes committed regardless of the individual differences between the offenders and their circumstances, other than mens rea and an understanding of moral culpability. Retribution focuses on the past offense rather than the individual who offended. People committing the same crime should receive a punishment of the same type and duration that balances out the crime that was committed.

It is argued as the oldest of the main punishment ideologies because it comes from a basic concept of revenge. This concept of vengeance means that if someone perceives harm, they are within their right to retaliate at a proportional level. This idea that retaliation against a wrong is allowable has ancient roots in the concept of lex talionis, which is the law of retaliation. A person who injures someone should be punished with a similar amount of harm. This concept was developed in early Babylonian law, and around 1780 B.C.E., the Babylonian Code, or the Code of Hammurabi.

The retributivist philosophy also calls for any suffering beyond what was originally intended during sentencing to be removed. This is because the dosage of punishment is the core principle of retribution: individuals who commit the same crime must receive the same punishment. The concept of retribution was violent, and it laid the foundation for physical punishments to resolve the actions of another. We see this concept still applied today in the imposition of capital punishment or the death penalty. This is one form of retribution that many U.S. States and the federal government still use today to impose punishment on those who have murdered other individuals.

Retribution, however, represents only one way of answering the question of why we punish. Because it looks backward to the offense itself, retribution is indifferent to whether punishment produces any further benefit; the wrong has been done, and the penalty is deserved regardless of what follows. Yet for many policymakers, practitioners, and members of the public, the justification for punishment lies not in the past but in the future. From this perspective, punishment is warranted only if it accomplishes some practical good—chiefly, the prevention of future crime. The philosophies examined in the sections that follow share this forward-looking orientation. Rather than asking what an offender deserves for what they have already done, they ask what punishment can achieve going forward: discouraging future wrongdoing, restraining those who would offend, or reforming offenders, so they no longer pose a risk. The first of these forward-looking philosophies, and historically among the most influential, is deterrence.

Deterrence

From Hammurabi, deterrence is the next major punishment ideology. Deterrence is designed to punish current behaviors and change future behaviors through sanctions or threats of sanctions. Deterrence can be focused on a group or on one individual. The basic concept of deterrence is to discourage individuals from offending by imposing punishment sanctions or threatening such sanctions.

Deterrence can be split into two distinct categories: general and specific. General deterrence is the idea that when someone commits an offense, they will be punished. It aims to deter the population from committing crimes.

In this way, the group imposing the punishment determines the community’s ideals and declares that future criminal acts will be punished. Specific deterrence aims at ensuring the punishment is severe enough to prevent the individual from committing the crime again. By punishing or threatening to punish the individual, it is assumed that they will not commit a crime again. This is what makes deterrence a forward-looking theory of punishment.

General Deterrence

General deterrence focuses on deterring others from committing similar offenses. If the college implements strict anti-cheating measures and publicizes the consequences of academic dishonesty, it sends a message to all students that cheating will not be tolerated. The fear of facing the same consequences as other students, such as academic probation or expulsion, may deter other students from cheating.

Specific Deterrence

Specific deterrence aims to deter the individual offender from committing the same crime again. If a student faces consequences such as failing the course, receiving academic probation, and being required to attend an ethics seminar, they may be deterred from cheating again. The hope is that the negative consequences will discourage them from engaging in academic dishonesty in the future. In summary, general deterrence sends a message to others, while specific deterrence targets the individual’s behavior.

Marginal deterrence works on the principle that the action itself is only reduced in amount by the individual committing the offense, not removed completely. For example, if a person sees a police car sitting on the side of the freeway and they are driving 70 mph, they might slow down to 58 mph. Technically, they may still be breaking the law, yet their level of criminal behavior has been reduced.

Absolute deterrence believes that by creating a police force, all crime will be removed. Today, we know this is false. There is little to no evidence to support that all crime can be deterred within a specific area or even in general.

Displacement deterrence argues that crime is not deterred but is shifted by time, location, or the type of crime committed. For example, instead of someone stealing cars on the weekend, they may sell drugs during the day. Although the weekend crime carjacking rate would decrease in this scenario, the daily drug trade would increase.

For all these principles of deterrence to work, society must have an idea of the level of punishment they will receive. For this theory to be effective, individuals must have three key elements: free will, rationality, and felicity. Free will means that everyone has the ability to make choices about their future actions, such as deciding when to offend and when not to. They must also have some ability to think rationally and to see what the outcomes of their choices will be. Felicity is the idea that they must desire more pleasurable things than harmful ones. Thus, it is more probable that crime will be deterred if all three of these elements are in place within a society. This is both a strength and a weakness of the deterrence theory.

Today, we have a better understanding of the effectiveness of deterrence. It does appear to work for low-level offenses and for individuals who are generally rational. However, the overall effect of deterrence is limited.