|DETERRENCE, RETRIBUTION, AND REHABILITATION
THE THREE DOMINANT THEORIES OF PUNISHMENT,
WHICH ARE MOST CONVINCING AND WHY?
The actual arena where the three ethical theories
to which the question refers are evaluated
and put into practice is that of our courts.
Initially therefore I will address the functional,
pragmatic, legal and peneological ramifications
of the real world applications of these ethical
theories of punishment. I will then address
and evaluate each of the three conceptual
aspects of social control and improvement
in turn, and lastly in my conclusion provide
my personal opinion as to which I find to
be the most convincing, valid and useful
and give reasons.
|OUR COURTS - THE SHARP END OF APPLIED ETHICS
Any act which the law has defined as being
a crime is pursued and prosecuted by the
state. If the perpetrator of such an offence
is apprehended, he or she is prosecuted in
a court of law. If such a person is found
guilty it is the judge's responsibility to
pass a sentence upon the convicted person.
It is precisely at this stage, when
the magistrate or judge is considering the
nature and suitability of the sentence that
the three dominant theories of deterrence,
retribution, and rehabilitation act as elements
in a balancing act, wherein societal interests
are juxtaposed with sympathy for the victim
on the one hand, the interests of society
on the other not forgetting the best interests
of the criminal.
Although our legal system provides
a sentencing guide for the advice of the
judge, he continues to maintain a pivotal
role in the sentencing process. It is vital
that judicial discretion is maintained in
our country, for English law is based upon
case law, that is contemporary judgements
are always based upon antecedal decisions,
and in the absence of such a system our sentencing
policy would ossify and become outdated.
Because of that it is important to for us
to allow our judges to tailor sentencing
in order to take account of individual circumstances.
It is my opinion that
although judges would readily acknowledge
the three dominant theories of punishment,
when it comes to actually making a decision
as to the punishment considered appropriate
in a given case, the judge's skill then comes
into play as he balances and offsets the
various interests by way of a reconciliation
or a balancing act of the three elements
which are then aggregated and compounded
into one sentencing decision.
It is a consideration
of the moral and ethical factors involved
in these decisions that this essay is all
about, for as members of our community we
should be concerned about the nature of the
punishment handed down in our courts by the
judiciary. After all they are public servants
whom we have authorised to administer our
will and provided them with the power to
carry out this punishment function on law-breakers
on our behalf.
En passant, it is a particularly problematic area for
a hard determinist, who may believe that
all criminals are victims of the concatenational
nexus of the antecedal influences of the
past, but I will not dwell on this, but stick
to the spirit of the question regarding which,
if any, of the prime theories of punishment
is most credible.
During his assessment
of the mutual importance of the three sentencing
factors the judge may well lay a certain
emphasis on one of them in regard to particular
offenders as he thinks fit. For example in
the case of a young first-time offender,
he might decide that from the point of view
of both the offender and the community he
has offended that rehabilitation might be
more suitable in the hope that they will
become law abiding citizens. An order might
be given that he serves his sentence in an
institution best fitted to achieve this end.
In another case, perhaps in
the event of a particular horrific offence
of child murder, the judge might consider
the crime so outrageous, that retribution
is the most important sentencing factor,
both in view of the enormity of the crime
and the public clammer for a stiff sentence.
In private, judges are said to be dismissive
of retribution as a guiding principle of
sentencing, and I will now turn to the theory
of retribution as the first of the elements
of ethics in practice to be considered.
John Rawls in his 'Theory of Justice' 1972 recommended that punishment be based
as far as possible upon the pre-social 'veil of ignorance' situation which existed in the more primitive
era of natural justice, Because an organised
society did not yet exist, people had little
or no idea of their relative positions to
each other. The complications which perplex
the the sentencing of wrongdoers and the
administration or penalties and punishments
in the modern world, such as: relative economic
advantage, social status, intelligence or
stupidity, honesty or dishonesty did not
then exist. A metaphor of Rawl's theory would
be the blindfold that we see on statues of
The Goddess of Justice. where she is blindfolded
- but not blind.
'Because they deserve it, ' is the most often given response to the
question; 'Why should offenders be punished?' followed closely by; 'To deter them from committing further crime.'
The theory that punishment is
justified because it is merited is 'Retributivism.'
Retribution means 'to give in return for', and 'to discipline suitably'
Professor Geraldine Mackenzie of Brisbane
'Retribution is an unnatural approach. It
appears however to be better understood by
the public than the other tenets. The difficulty
is that however severe the retribution, it
would not satisfy those who have been injured.  (Mackenzie 2007)
It is a feature of human
nature to seek revenge and a justly deserved
penalty when injured or harmed by another
or others and the police together with the
law are there in order that we are to be
exempted of our need to strike back against
those who have aggrieved us. Punishment designed
to satisfy the demands of the victim for
revenge and retribution is a raison d'etre of an ancient law, which is reflected in
our modern lex talionis the law of retaliation or retribution; 'An eye for an eye, a tooth for a tooth.' Leviticus - Chapter 24 is subtly embodied
in most legal punishments.
The social contract which
we all have with the state can only be implemented
after a properly legal proceeding has been
enacted with due regard to constitutional
judicial safeguards. The sentencing decision
therefore is a balancing act, which must
be seen to be fair between the proportional
interests of the community, the concerns
of the victim, and the best long term interests
of the offender. The fact of the matter is
that in years past and still today in certain
parts of the world, the law has been
abused as an efficient engine for the purposes
of political and religious prosecution of
minorities by majorities, and even in some
cases, by certain small power groupings in
positions of power upon majorities.
Premeditated crimes are usually carried out
with the offender in a mental state of hope
and fear. Apprehension that their crime will
be discovered and that they will be punished
to deter them from repeating their behaviour,
and hope that their crime will not be detected
and they will get away with it.
Crimes of impulse, emotion
or passion are often enacted without this
threat being considered. On this basis, it
is probably true to say that punishment as
a deterrence is targeted at the sort of offences
which have been planned in advance in carried
out in the full knowledge that what they
are intent upon is wrong, or, if in the case
of murder is carried out in cold blood.
We must bear in mind of course
that the deterrence is not just aimed at
the actual offender who is being sentenced,
but is also meant to act as a signal or warning
to others in the wider community, that this
is the sort of treatment they can expect
if they carry out similar offences. In the
case of persistent offenders there is a case
for incarceration solely motivated by the
desire of making sure that the person no
longer has the opportunity to commit crime
by keeping him/her off the streets.
is a two-bladed sword aimed at the individual
in the dock and others in society who may
well be considering to embark on similar
behaviour. The professional criminal weighs
up the penalty and the statistical chances
of him being caught and acts accordingly.
The court's aim is to deter potential future
culprits by punishing past offenders.
The levying of a fines as a
deterrence acts disproportionately in my
opinion, for monetary penalties mean nothing
for those who have nothing to lose, nor for
those who have an excess of funds, but only
effect the middle stratum of society who
have neither too little nor too much and
are therefore affected by such financial
It is fashionable to castigate so called
libertarians or humanitarians, who, constantly
apologise and excuse the criminal. It seems
the vast majority of criminals are in the
grip of an iron-like grip of a pitiless catenulate
determinism - prisoners of the past before
they even set foot inside the prison gates.
It is said that they can neither
help themselves in respect to the chains
of circumstance which bind them,
or forge new links other than those of the
trammels of confinement.
'What we need to do,' say the reformists, 'is to help these people, not punish them.'
A modern inovation is the concept of 'restorative justice,' where the offender (often a juvenile)
is made to confront his victim, often in
the company of the victim's family and representatives
of the society in which the offence took
|'Restorative justice is a process whereby
all the parties with a stake in a particular
offence come togetherto resolve collectively
how to deal with the aftermath of the offence
and its implications for the future'  (Braithwaite 1999.5.)
The important strand
commom to these forms of rehabilitation -
that of confronting the consequences of one's
crime is the emphasis non the process of
confrontation - the equal emhasis on victims,
offenders and the community and their relationship
and the forward-looking consequentalism of
the approach.  (Hudson. 2003. p.77)
Most judges are in favour of being vested
with a large amount of discretion, though
there is popular and political pressure on
limiting, structuring or removing discretion
through the use of mandatory or minimum sentences,
sentencing grids and guidelines. Judges are
aware of the lack of public confidence in
the judiciary but are also aware that merely
imposing longer sentences, or in some cases,
indefinite sentences, will not cure the perceived
problems of ‘law and order’. They are generally
in favour of rehabilitation, particular in
relation to young people and offenders with
drug and alcohol problems. They know that
prisons are poor places for rehabilitation.
 (Freiberg. 2005)'
There, are complaints from certain areas
of the community that the prisoner nowadays
enjoys facilities not generally available
to many law-abiding citizens.
The Prison Service has admitted high population
pressures disrupt rehabilitative provision.
The current Chief Inspector of Prisons, Anne
Owers, said: "At every level of the
prison system, overcrowding is having an
effect on the ability of prisons to deliver
rehabilitative programmes. In spite of additional
resources, the movement of prisoners and
the gap between the number of prisoners and
the spaces available are making it very difficult
to provide sufficient positive activity for
 (Rehabilitation of Prisoners, first report
of the Home Affairs Select Committee, 2004-05,
For me the only way in which
we can make a true assessment of the efficacy
of rehabilitation as a peneological policy
is by studying the statistics to see the
percentage of re-offenders in relation to
the success rates of those who do not relapse
The actual figures of those offenders
who habitually relapse into crime are not
encouraging for the supporters of rehabilitation.
The latest Home Office figures (December
2005) reveal recidivism rates of
||Criminal damage 61%
||Theft from vehicles 85%
||Public Order/riot 48%
|House Burglary 76%
||Bail Offences/Absconding 80%
We must now ask ourselves the following
|'Would the residual 22% committed for theft,
the 15% of car-thieves, or the 20% of bail
abscondees etc., who did not re-offend have
STILL not re-offended again if they had NOT
enjoyed rehabilitation services?
If the answer is 'Yes,' the it puts into jeopardy the whole theory
of rehabilitation as a feature of British
For me the conclusion as to which of the
three dominant theories of punishment, I
find the most convincing is an easy decision
to reach - it is retribution, and my reason
for saying so is a very clear one. The recidivism
rates make it patently clear that neither
deterrence nor re-habituation are having
only marginal effect if indeed any success
There is no evidence from the
Home Office which reveals whether the non-reoffenders
were either deterred by their prison experience,
or chose to stay on the straight and narrow
as a direct result of expensive courses of
re-habilitation in which they had participated.
Even if the deterrence and
rehabilitation factors were found to be marginally
contributory factors in some prisoners' decision
not to reoffend, I feel sure that any accountant
would soon come up with financial figures
to prove that pro rata, by curtailing the
waste of money spent on rehabilitatory prison
courses, the societal benefits notched up
algorithmically on the felicific calculus
would make for an increase in the general
improvement of British society.
What I mean by that is,
if the money were spent on improvements to
aspects and areas of society which have been
identified by sociologists as being the prime
influences for engendering criminality in
the first place, then the utilitarian happiness
and good-quotient of the many register would
register an overall improvement.
I refer to poor housing,
improved education in inner-city areas, greater
financial assistance for poorer families
and single-mothers etc.
My firm opinion remains that reductions in
recidivism rates can only ultimately be achieved
by addressing the economic, educational and
social reasons which foster criminality,
for the figures patently show that by the
time an offender ends up in court it is already
| Mackenzie. Geraldine 'The Law - Juggling on a tightrope.
How Judges Sentence.' Reviewed by Arie Freiberg http://www.apo.org.au/webboard/results.chtml?
filename_num=16097Federation Press, May 2005, 203 pp
| Braithwaite. J. 'Restorative Justice -Assessing Optimistic
and Pessemistic Accounts.' 1999. In M. Tondry. ed.'Crime
and Justice a Review of Research,' Vol. 25.
University of Chicago Press.
 Hudson. Barbara. 'Understanding Justice.' Open University Press 2004.
McGraw-Hill House, Shophangers Road, Maidenhead,
Berks. SL6 2QL. UK.
| (Rehabilitation of Prisoners, first report
of the Home Affairs Select Committee, 2004-05,
November 2004). http://www.reform.co.uk/website/crime/criminaljusticesystemperformance/prisons.aspx