NCJ Number
46966
Date Published
1977
Length
29 pages
Annotation
A DISCUSSION OF THE MERITS OF THE RETRIBUTIVE THEORY OF PUNISHMENT IS PRESENTED, CONSIDERING LEGAL PUNISHMENT ONLY FOR 'GENUINE,' NOT VICTIMLESS, CRIMES.
Abstract
THE FORM OF THE RETRIBUTIVE THEORY WHICH THE AUTHOR DISCUSSES IS THAT OF PUNISHMENT IN ACCORDANCE WITH THE CRIMINAL'S DESERT. IT DOES NOT TAKE THE FORM OF INFLICTION OF A PUNISHMENT IDENTICAL WITH THE CRIME, ALTHOUGH IN CERTAIN CASES DESERT MIGHT TAKE THAT FORM. A MAJOR DIFFICULTY WITH THIS THEORY IS THAT OF DETERMINING WHAT PUNISHMENT A CRIMINAL DESERVES FOR WHICH CRIMES. THERE ARE SO MANY VARIABLES INVOLVED THAT IT IS IMPOSSIBLE TO ARRIVE AT A MATHEMATICALLY PRECISE OUTCOME THAT ONE COULD CALL JUST. HOWEVER, THE IDEAS OF JUSTICE AND DESERT SHOULD NOT BE ABANDONED BECAUSE OF THIS DIFFICULTY. AN INVESTIGATION OF POSSIBLE GUIDELINES WHICH COULD BE ADOPTED IN AN ATTEMPT TO PUNISH CRIMINALS ACCORDING TO THEIR DESERT CONSIDERS SUCH PROPOSALS AS LISTING ALL CRIMES IN THE ORDER OF THEIR DESERT CONSIDERS SUCH PROPOSALS AS LISTING ALL CRIMES IN THE ORDER OF THEIR SEVERITY AND LISTING ALL PUNISHMENTS IN THE SAME WAY, THEN MATCHING CRIMES AND PUNISHMENTS. IT IS CONCLUDED THAT EVEN THOUGH INDIVIDUALS WILL NOT AGREE ON THE JUSTICE OF PARTICULAR PUNISHMENTS, THEY WILL AGREE THAT SOME PUNISHMENT MUST BE INFLICTED, AND THAT SOMEONE MUST DECIDE WHAT THAT PUNISHMENT MUST BE. THIS NECESSITY IS A PROBLEM IN ANY THEORY OF PUNISHMENT. A FURTHER CONSIDERATION IS THE QUESTION OF GUILT -- IT IS A NECESSARY CONDITION FOR PUNISHMENT, BUT NOT A SUFFICIENT CONDITION. THAT IS, IF A PERSON IS NOT GUILTY HE SHOULD NOT BE PUNISHED, BUT IF HE IS GUILTY, HE SHOULD NOT NECESSARILY BE PUNISHED. CONDITIONS WHICH NEGATE ANY CLAIM TO DESERT INCLUDE COERCION TO PERFORM THE ACT AND INSANITY. OTHER CONDITIONS DO NOT NEGATE DESERT, BUT ONLY THE OBLIGATION TO PUNISH; FOR EXAMPLE, AN OLD PERSON DYING OF CANCER MAY BE GIVEN A SUSPENDED SENTENCE INSTEAD OF IMPRISONMENT, AND A PERSON WHO DID NOT RECEIVE A FAIR TRIAL SHOULD NOT BE PUNISHED. THE AUTHOR'S PRIMARY REASON FOR DEFENDING THE RETRIBUTION THEORY, DESPITE ALL ITS DIFFICULTIES, IS THE INSURMOUNTABLE PROBLEMS WITH ANY ALTERNATIVES TO IT. THE UTILITARIAN THEORY IS INADEQUATE AS IT CONSIDERS ONLY DETERRENCE, INCAPACITATION, AND REHABILITATION -- ALL OF WHICH FAIL IN MANY CASES AND DO NOT, THEREFORE, CONSTITUTE A SUFFICIENT JUSTIFICATION FOR PUNISHMENT. IN ADDITION, THERE IS NO CORRELATION BETWEEN THE GRAVITY OF AN OFFENSE AND THE UTILITARIAN CONSEQUENCES OF PUNISHING IT. THE RESTITUTION THEORY IS FAULTY BECAUSE IT HAS NO CONCERN FOR THE DESERTS OF THE OFFENDER, WHETHER THE HARMFUL ACT WAS INTENTIONAL OR ACCIDENTAL, OR WHETHER THE OFFENDER TRIED TO COMMIT A CRIME BUT WAS UNSUCCESSFUL. (VDA)