DETERRENCE, RETRIBUTION, AND REHABILITATION ARE THE THREE DOMINANT THEORIES  OF  PUNISHMENT, WHICH ARE MOST CONVINCING AND WHY?

JUD EVANS

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.

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based upon antecedal decisions, and in the absence of such a system our sentencing policy would ossify and become outdated.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 University writes:

     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.

     Therefore deterrence 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 penalties.

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 place.

     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.  [3] (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. [4] (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.

    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

                          We must now ask ourselves the following question:

If the answer is 'Yes,' the it puts into jeopardy the whole theory of rehabilitation as a feature of British peneological policy.

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 at all.

    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 too late.