NCJ Number
46967
Date Published
1977
Length
20 pages
Annotation
THE ARTICLE DISCUSSES THE CONCEPT OF PUNISHMENT FROM A HISTORICAL PERSPECTIVE AND ARGUES AGAINST THE VIEW THAT ONLY RETRIBUTION MAKES PUNISHMENT MORAL.
Abstract
TEN FUNCTIONS OF PUNISHMENT ARE DISTINGUISHED: (1) DETERRENCE BY ENGENDERING FEAR OF PUNISHMENT; (2) DETERRENCE BY INCULCATING A MORAL SENSE OF THE GRAVITY OF A CRIME; (3) DETERRENCE BY INFORMING PEOPLE OF WHAT IS FORBIDDEN; (4) MINIMIZING OF THE DAMAGE OF A CRIME BY PREVENTING PRIVATE VENGEANCE, AND BY (5) ASSURING THAT THE BREAKING OF A LAW DOES NOT BECOME AN INVITATION TO OTHERS TO EMULATE THE LAWBREAKER, AND BY (6) PROVIDING A SAFETY VALVE FOR THE UNLAWFUL DESIRES OF PEOPLE EXCITED BY THE COMMISSION OF A CRIME; (7) REFORMATION OF THE OFFENDER; (8) RESTITUTION FOR THE VICTIM; (9) EXPIATION OF A MORAL WRONG; AND (10) RETRIBUTION. THE NOTION OF RETRIBUTION IS OPEN TO SEVERAL CRITICISMS: THE NOTION OF DESERT IS QUESTIONABLE; RETRIBUTION IS PAST-ORIENTED, BUT IT CANNOT UNDO ANY DAMAGE THAT HAS BEEN DONE; AND THE INTUITIVE CERTAINTY THAT AN OFFENDER MUST BE PUNISHED CAN BE EXPLAINED PSYCHOLOGICALLY. AN EVALUATION OF THE HISTORY OF THE STUDY OF ETHICS SHOWS THE FALLACIES OF ABSOLUTIST THINKING. WHEN APPLIED TO THE ETHICS OF PUNISHMENT, TWO CRITICISMS EMERGE. THE FIRST IS THAT THOSE WHO DEFEND RETRIBUTION AS THE ETHICAL FUNCTION OF PUNISHMENT ARE GENERALLY ABSOLUTISTS WHO CONSIDER IT INTUITIVELY OBVIOUS THAT CERTAIN CRIMES CALL FOR CERTAIN PUNISHMENTS AND IGNORE HISTORY, WHICH SHOWS THAT MANY OTHER THINKERS HAVE BEEN EQUALLY CERTAIN THAT PARTICULAR CRIMES DESERVED VERY DIFFERENT PUNISHMENTS. THE SECOND IS THAT NOT ALL ABSOLUTISTS HAVE BEEN RETRIBUTIVISTS, AND IN FACT, RETRIBUTION OCCUPIES A MINOR PLACE IN THE HISTORY OF ETHICS. THE HISTORY OF THE CONCEPT OF RETRIBUTION IS TRACED FROM THE CODE OF HAMMURABI THROUGH LIBERAL PROTESTANTISM. IMPORTANT POINTS IN OBJECTION TO RETRIBUTIVE THEORY ARE DISCUSSED: (1) THE DECLINE OF FAITH IN RETRIBUTION CAN BE ATTRIBUTED LARGELY TO THE ECLIPSE OF CHRISTIANITY, THE SPREAD OF HUMANITARIANISM, AND THE EMERGENCE OF DEPTH PSYCHOLOGY (THE BELIEF THAT CRIMINALS ARE NOT PROFOUNDLY DIFFERENT FROM OTHERS); (2) PUNISHMENTS CAN NEVER BE DESERVED, THAT IS, A PUNISHMENT CAN NEVER BE WHOLLY PROPORTIONATE; (3) EVEN IF A PUNISHMENT COULD BE PROPORTIONATE, IT WOULD NOT NECESSARILY FOLLOW THAT IT OUGHT TO BE IMPOSED; AND (4) PUNISHMENT HAS MANY OTHER FUNCTIONS, AND THUS SHOULD NOT BE DISPENSED WITH ENTIRELY. THE AUTHOR CONCLUDES WITH A RECOMMENDATION FOR THE EXPLORATION OF ALTERNATIVES TO OUR PRESENT PENAL SYSTEM. (VDA)