Criminal Law: Theories of Punishment

One of the major debates within the American Criminal Law system is what for of punishment will do the most to deter crime and rehabilitate criminal defendants. This issue has been at the forefront of policymakers and legal scholars alike and has changed throughout the decades. During the heyday of liberalism between the 1930s and mid-1960s, the judicial and executive branches wielded power in sentencing. Legislators designed sentencing laws with rehabilitation in mind. More recently, during the increase in support for conservative policies the late 1960s legislators seized power over sentencing, and a combination of theories, deterrence, retribution, and incapacitation, have influenced sentencing laws. Here is a list of all the main theories of punishment in criminal law

1. Incarceration

An argument in favor of mass incarceration is that it gets criminals off the streets and protects the public. The idea is to remove an offender from society, making it physically impossible (or at least very difficult) for him or her to commit further crimes against the public while serving a sentence. Incapacitation works as long as the offenders remain locked up. There is no question that incapacitation reduces crime rates by some unknown degree. The problem is that it is costly. Incapacitation carries high costs not only in terms of building and operating prisons but also in terms of disrupting families when family members are locked up.

Incarceration is the typical form of punishment meted out today in the US for serious crimes. According to the International Centre for Prison Studies, the US has the second highest rate of incarceration, behind the small country of Seychelles. Even authoritarian regimes such as Saudi Arabia, Israel, and China have lower incarceration rates than the US. The rapid increase in the rate of imprisonment after 1970 has produced an era of “mass incarceration” in the US. Although the incarceration rate has declined from a high of 506 per 100,000 in 2007 to 480 per 100,000 in 2012, state and federal prisons still house over 1.5 million people.

The causes of mass incarceration in the US are numerous, ranging from the rise of the Prison Industrial Complex since the 1980s, draconian anti-crime laws that were passed in 1984 and 1994, and the federal War on Drugs, which was first implemented by President Woodrow Wilson in 1914 with the Harrison Narcotics Tax Act and expanded by President Franklin Roosevelt in 1937, President Richard Nixon in 1971, President Ronald Reagan in 1982, President Bill Clinton in 1994, and President Donald Trump in 2017. Additionally, a vast majority of Americans support mass incarceration in spite of its costs and have called upon their elected officials to expand incarceration rates despite the fact that crime in the US is at its lowest level since the late 1950s.

2.  Utilitarian Theory

The utilitarian theory of punishment seeks to punish offenders to discourage, or “deter,” future wrongdoing. The retributive theory seeks to punish offenders because they deserve to be punished. Under the utilitarian philosophy, laws should be used to maximize the happiness of society. Because crime and punishment are inconsistent with societal happiness, they should be kept to a minimum. Utilitarians understand that a crime-free society does not exist, but they endeavor to inflict only as much punishment as is required to prevent future crimes.

The utilitarian theory is “consequentialist” in nature. It recognizes that punishment has consequences for both the offender and society and holds that the total welfare produced by the punishment should exceed the total evil. In other words, the punishment should not be unlimited. One illustration of consequentialism in punishment is the release of a prison inmate suffering from a debilitating illness. If the prisoner’s death is imminent, society is not served by his continued confinement because he is no longer capable of committing crimes.

Under the utilitarian philosophy, laws that specify punishment for criminal conduct should be designed to deter future criminal conduct. Deterrence operates on a specific and a general level. General deterrence means that punishment should prevent other people from committing criminal acts. The punishment serves as an example to the rest of society, and it puts others on notice that criminal behavior will be punished.

3. Retribution Theory

“Let the punishment fit the crime” captures the essence of the retributivist theory of punishment. Proponents of this theory advocate just deserts, which defines justice in terms of fairness and proportionality. Retributivists aim to dispense punishment according to an offender’s moral blameworthiness (as measured by the severity of crimes of which the offender was convicted). Ideally, the harshness of punishments should be proportionate to the seriousness of crimes. In reality, it is difficult to match punishments and crimes, since there is no way to objectively calibrate the moral depravity of particular crimes and the painfulness of specific punishments. Retribution is a backward‐looking theory of punishment. It looks to the past to determine what to do in the present. The retributionist theory is constrained in part by the Eighth Amendment to the US Constitution, which forbids “cruel and unusual punishments.”

4. Deterrence Theory (Can Fear Prevent Crime?)

Crime deterrence is simply the action of discouraging an activity through instilling doubt or fear of its consequences in the minds of the perpetrator. There has been much debate over whether deterrence works. Proponents assert that punishment deters if it is administered with swiftness, certainty, and severity. There are two different forms of deterrence, general deterrence, and specific deterrence. General deterrence uses the person sentenced for a crime as an example to induce the public to refrain from criminal conduct, while specific deterrence punishes an offender to dissuade that offender from committing crimes in the future.

Critics point to the high recidivism rates of persons sentenced to prison as evidence of the lack of effectiveness of specific deterrence. Critics also note that there are limits to the impact of general deterrence. Some crimes, such as crimes of passion and crimes committed while under the influence of drugs, cannot be deterred because their perpetrators don’t rationally weigh the benefits versus the costs (which include punishment) before breaking the law. Research evidence suggests that the deterrent effect of punishment is much weaker than its proponents suggest.

5. Reintegrative Shaming

The reintegrative shaming theory emphasizes the importance of shame in criminal punishment. The theory holds that punishments should focus on the offender’s behavior rather than the characteristics of the offender or the actual crime committed. Australian criminologist John Braithwaite developed this theory at Australian National University in 1989. An example of reintegrative shaming is in the 2004 case United States v. Gementera, wherein a 24-year-old mail thief was sentenced to wear a sandwich board sign stating, “I stole mail; this is my punishment” while standing outside of a San Francisco postal facility. The main strength of this theory is that it consists of a humane way to punish someone who committed a crime and places the onus of responsibility on themselves. On the other hand, opponents of the reintegrative shaming theory argue that it does not strongly punish a criminal defendant and may result in them committing more crimes in the future.