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Thinking of Punishment - Why Punish ? - Coggle Diagram
Thinking of Punishment - Why Punish ?
Andrew Flew proposed 5 elements
be directed at the offender
be the intentional creation of personal agency in response to the offence; and
occur as a direct result of the perpetration of an offence;
be inflicted by an authorized body representing the embodiment of the laws of the society
create a sense of suffering in the offender;
Moral thinking and our approach to punishment
It is our ideas about deterrence, retribution and justice that shape our justifications of state punishment.
Philosophical thinking
In order to properly consider the three models, we need some understanding of the moral philosophy of punishment and how this thinking relates to actual penal systems.
Consequentialist
or forward-thinking, theory about punishment encompasses ideas about deterrence, reform and incapacitation. The principles of reform and rehabilitation are underpinned by normative ideas of normalization and the state’s right to engage in such practices.
Retributivism
or backward-thinking theory, is concerned with ideas about 'just desserts' (see Duff & Garland 1994, 12-16). Punishment is to be applied in just measure to the offender who has committed the crime, that is, the punishment is to be proportional. Such measures not only deliver just ‘rewards’ to wrong-doing, but they serve a normative purpose of creating a public statement about what is wrongdoing.
Models of Punishment
Positivist Model
Ideas about rehabilitation also play a role in shaping our thinking about state punishment and this sort of thinking gives rise to the positivist model. Social work, psychology and psychiatry and their inherent scientific understanding of both criminality and human behaviour in general. In this model, punishment is understood as a form of therapy aiming to correct human behaviour
The Justice Model
Emerged as a response to the treatment model. Where the treatment model saw the fault as lying in the pathology of the prisoner as an individual, the justice model looks to the structural causes of crime. The justice model recognizes that offenders are largely disadvantaged individuals who continue to receive such disadvantage at the hands of the criminal justice system and so argues for both due process in procedure and properly proportional punishment—only thus can just desserts be said to be delivered
The Classical Model
is consequentialist in its perspective on punishment, with this tempered by a focus on justice. This model is grounded in utilitarian principles and so understands human beings to be rational self-interested members of society whose ultimate aims are the maximization of pleasure and the minimization of pain. (Therefore criminal behaviour arises from free will)
Incapacitation - which is achieved by preventing the offender from committing further criminal acts by isolating them
Deterrence - which aims to dissuade the offender from committing further crimes because of the perceived probability of punishment.
Rehabilitation - seeks to address the underlying causes of criminal behaviour and reduce risk of re offending
Retribution- notion that the guilty ought to be accountable for their actions and suffer the punishment they deserve as payback for the offence
The power to punish derives from the legal authority (prima facie morally wrong"
Durkheim - Punishment is necessary as we need to respond to those who commit crime, otherwise law loses its authority
18th century punishment - arbitrary and harshly retributive, eg. arms chopped off, the pillary, hung, flogged etc
Classical Model
Jeremy Bentham 1791
1748 to 1832 - Focus on deterrence and reform, no retributivism, due process, proportionate tariffs of punishment.
Cesare Beccaria 1764
1738 to 1794 - Clarity in Law, Due Process in criminal procedure, certainty and regularity of punishment, prison holding area until punishment set by the court, No room for pardons, reductions in sentences or early release from punishment
Points of Difference: Panopticon (someone may be watching you at all times, limited rationality, mitigating circumstances "mill for grinding rogues honest"
Rationality, Due Process, Punishment, Pleasure/Pain Principle (everytime tries to avoid pain and goes towards pleasure, social contract)
Justice Model - Due process, limitation of official discretion, just deserts, sceptical of deterrence
Positivist model
Habitual/Born criminal - criminal asylum/prison/agricultural colony
Insane criminal - mental institution
Passionate criminal - fine/exile
Occasional Criminal - damages/fines
Determinism - "The belief that human beings, including criminals, do not act from their own free will but act by forces beyond their control
Founder of positivist school was Cesare Lombroso - crime is caused by factors that can be identified through scientific investigation - He believers criminals are born (4 CLASSES, Born, Passionate, Insane and Occassional)
Punishment cannot be based on retributivism or deterrence.
Criminal Justice Act 1991 - This piece of legislation emphasised the principle of "just deserts"