Punishment, Retribution and Communication (From Punishment, Places and Perpetrators: Developments in Criminology and Criminal Justice Research, P 78-96, 2004, Gerben Bruinsma, Henk Elffers, et al., eds. -- See NCJ-206450)

• NCJ Number: 206455
• Author(s): R. Antony Duff
• Date Published: 2004
• Length: 19 pages
• Sale Source: Willan Publishing
• Publication Format: Book (Hardbound)
• Publication Type: Legislation/Policy Analysis
• Language: English
• Country: United States of America

Annotation

This chapter presents an overview of some contemporary developments in normative penal theory related to the continuing debate about the justification for criminal punishment, and if justified, the objectives it should have.

Abstract

The first section of the chapter identifies and explains some of the central themes in normative penal theory during the last four decades. For a period of time about the middle of the 20th century, "consequentialist" approaches to the justification for criminal punishment dominated their traditional retributivist opponents. Under this approach, criminal punishment was measured by its cost-effectiveness. Through incapacitation, deterrence, or rehabilitation, the structure and substance of punishment was expected to reduce crime in order to justify its cost. Retributivist concepts that sought to justify punishment as a deserved response to a past crime were dismissed as primitive, confused, or vindictive. When the consequentialist approach was challenged under the charge that penal practices being used did not reduce crime or change criminal behavior, the retributive approach was waiting in the wings to argue that regardless of the effects of criminal punishment, the guilty deserve to suffer in accordance with the severity of their crimes. This approach then occasioned the debate about the most appropriate means of conveying society's displeasure with various types of crime. This in turn opened up debates about how best to communicate to offenders society's revulsion and disapproval of their criminal behavior. This chapter provides a detailed discussion of a communicative theory of punishment, since the author believes that this theory offers the best prospect of understanding how a system of criminal punishment can be justified. The topics discussed in relation to this theory are proportionality, various modes of punishment, and negotiated sentences. This is followed by a discussion of the implications of communicative theory for sentencing theory and practice as well as the preconditions of just punishment. The preconditions of just punishment are that the offender be morally bound by the laws he/she is accused of breaking; that the criminal courts and those in whose name they act have the moral standing to call offenders to account for their crimes; and that punishment involve reparation for a debt to the community incurred by the values flouted. 20 notes and 47 references