Approaches to Punishment
The criminal justice system as an institution is partly based on punishment, amending the immoral inflicted upon society. However, when it comes to the scope of justifying punishment, there are two different camps: utilitarian theory and retributive theory. The retributive theory of justification of punishment is rooted in the idea that a person ought to be punished in proportion to the moral culpability of their wrongdoing, consequence based. Utilitarian theorists hold a positive view on punishment, that punishment is “justified in so far as it tends to reduce the occurrence of cries, that is, of seriously undesirable or bad acts” (Lessnoff, 141).
Punishment is a means of reducing crime and wrongdoings. This means can motivate people against wrongdoing through fear or through moral education; utilitarians applauding the latter. Utilitarian theory itself constitutes of a teleological explanation for punishment, one that is end-oriented, or what the punisher is aiming to achieve through a sanction of punishment. They believe that using punishment as a means to produce more good, and not through severe penalties, will be more efficient to society in the end (Lessnoff, 145). The entitling explanation is retributivist and focuses on why the punisher is able to punish others. In this explanation, it is crucial by rule of law that the severity of a punishment inflicted upon an individual reflects the degree of moral culpability and guilt (Lessnoff, 144). It is emotion based, claiming people are deserving of consequences to their actions. To utilitarian theory, punishment is a social institution, retributivists see wrongdoing as deserving of principles of distribution. The United States practices a retributive approach toward crime, however, it might not be the most effective. For example, drug laws and habitual offender laws often lock individuals in jails for years, if not life. High rates of recidivism clearly illustrate that a retributive approach and harsh sentences is ineffective. Utilitarians would emphasis the importance of mental health counseling or drug rehabilitation for those addicted to criminalized drugs and helping individuals find stable jobs and housing instead of jailing with taking no corrective measures.
Barry Lam perfectly illustrates the utilitarian take on punishment in his podcast Hi Phi Nation. In his podcast, Lam identifies emotions as a source of retributivist theory and the inefficiency of this theory in practice as the United States has one of the highest recidivism rates in the world. Lam argues that punishment justification based on the idea of a person ‘deserving punishment’ is a mistaken approach and controversial claims that no one is truly responsible for their actions. Criminogenic factors often lie outside of an individual’s free will; one cannot control who their parents are, their genetic makeup, the education they received. Additionally, these factors can intensify childhood poverty or abuse, criminogenic factors known to contribute to high crime rates. Instead of jailing sentences, utilitarians push for a public health approach to criminal behavior. For example, Barry Lam’s interviewee, Marilyn, returned to jail five times in her life for theft, as she could not get a job due to her criminal record. Once she was finally able to convince a judge to help her retain a job, she had no need for theft and no longer went to jail. In Maryiln’s case, Preventative help was a better deterrent than prison. Utilitarian theory illustrates how increasing rehabilitation, decriminalizing petty crimes, and practicing pre-arrest diversion is more successful than prison based punishment.
Lam, Barry. ‘Justice and Retribution.’ Hi Phi Nation, Slate Podcasts.
Lessnoff, Michael “Two Justifications of Punishment.” The Philosophical Quarterly (1950-), vol. 21, no. 83, 1971, pp. 141–148.
