PUNISHMENT

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V.

• PUNISHMENT

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A. Revenge

• 1. def vindictive retaliation usually
  personal,
• accomplished with vengeance in mind
  spite
• 2. little scientific research exists
• a. concept is difficult to identify and
  operationalize
• (measure)
• b. however, often used in court as a
  prosecutorial
• (criminal justice) consideration to
  establish motive,
• crime causation, and guilt

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• 3. Barton (1999) a philosophical
  treatment
• a. Western culture views revenge
  with distrust no matter how
  unfairly treated or abused the victim
  
• has been
• b. there is nothing inherent
  wrong with resenting
• injustice or wanting
  proportional retribution
• 1) the Anti-Revenge
  perspective is the Western
• method of justice
• 2) the Pro-Revenge
  perspective holds that
• revenge is the appropriate
  response to
• victimization
• a) the impersonal
  legal response is actually
• revenge in disguise

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• c) instead of
  eliminating revenge, the goal of
• law should be the
  reduction of wildness,
• the barbarity of it
• 4. Messina and Messina (2001) a
  psychological
• treatment
• a. those who seek it
• 1) cannot, will not forgive and forget
• 2) seek pay back (retribution)
• 3) want to see those who inflict
  suffering suffer
• themselves
• 4) want to get even as way of
  getting on with
• their lives

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• b. exhibition of emotion
• bitter, intolerant, resentful,
  vindictive, angry,
• cold, antagonistic,
  critical, cruel, ruthless,
• pessimistic
• c. deficiency of empathy does not
  feel
• satisfaction, peace,
  gratification, contentment,
• relief
• 5. Jacoby (1983) in Wild Justice suggests
  that the
• need for revenge is innate
• a. criminal procedure expends a great deal
  of
• energy trying to remove human emotion
  from
• the criminal process
• b. to provide the mantle of
  objectivity and

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• c. unemotional justice is preferable
  justice
• d. punishment is bounded by a
  visceral as well as
• ethereal need for revenge

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B. Questions of Societal Response

• 1. definition punishment is a penalty or
  reprisal for a
• wrongdoing
• 2. in a free society / civilization, how
  do we punish those
• who have committed social wrongs?
• a. Why punish?
• b. How to punish?
• c. Is there anything we can do that we are
  not doing?
• d. Do issues of harm matter?
• to the victim to the offender to
  society?
• 3. what is the theory of punishment?
• effective punishment will halt crime

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C. Considerations of Punishment

• 1. a society of laws punishes those who
  are guilty i.e.,
• those responsible for committing
  crime
• 2. our Constitution includes due
  process, which allows
• for the judicious application of
  fairness leading to just
• punishment
• 3. just punishment is based on
  proportionality
• a. just deserts punishment should
  fit the crime
• b. a follow-up question would be Should
  the
• punishment fit the crime or the
  criminal?
• c. included in conversation the
  quantification of crime

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• d. How much punishment is enough
  punishment?
• Menningers (1966) moral
  surcharge
• 4. basic punishment principles
• a. punishment exists to address
  a moral wrong
• b. punishment must not be
  imposed on the
• innocent
• c. punishment must not be
  excessive or overdone
• d. punishment must be equitable
  (proportionate)
• e. punishment must not be
  imposed without due
  
• process
• f. punishment must be
  constructive, educational,

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D. Justifications for Punishment

• 1. Philosophy / Ethics 101
• a. teleology punishment is the just end of
  a
• logical
  (political / scientific) process
• ergo 1) the ends justifies the
  means
• 2) morality varies with the
  situation
• what is just
  in one situation may not be so in
• another
• b. deontology morality is
  absolute what is wrong
• (or right)
  is always wrong
• regardless
  of when or in whatever
• context
  that wrong is committed
• Rule Followers Forever!!!

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• 2. tenets (some call these theories,
  but they are
• wrong) of punishment
• a. retribution payback for a
  social wrong
• 1) some argue that this
  should not, however,
• form the basis of
  judicial punishment
• 2) social recompense for a
  law violation is the
• responsibility /
  obligation of a just society
• 3) justification we punish
  because we can and
• because we believe it is
  reasonable social
• response
• 4) lex talionis the law of
  retaliation
• an eye-for-an-eye
  perspective

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• 5) it is the belief that
  all crimes warrant response
• (punishment) regardless
  of the criminal or
• whether or not the
  punishment has any
• deterrent value
• punishment is
  virtuous
• 6) concern what is the
  purpose of punishment?
• a) Education?
  Deterrence? Social equity?
• b) who decides?
• c) e.g1.
  persecution / prosecution of Nazi
• 
  concentration camp guards, SS
• officers
• d) e.g.2 Symbionese
  Liberation Army soldiers

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• b. deterrence
• 1) punishment that prevents
  or discourages
• future crimes socially
  virtuous
• 2) types
• a) general prevention
  of crime through
• broad-based education
• 1 a concern for the common welfare
• 2 the recognition
  that it is acceptable to
• punish the
  factually innocent if the
• punishment
  prevents others from
• engaging in
  similar behaviors

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• b) specific the belief
  that crime will be
• 
  prevented through the
• 
  incapacitation of a
• 
  particular individual
• 1 individual
  punishments to individuals
• 2 not punishing the
  factually guilty is only
• acceptable if
  the punishment does not
• provide an
  acceptable social lesson
• 3 They did the crime, they WILL do
  the
• time!
• 3) basic deterrence question
  Does punishment
• prevent others from committing
  crime?
• (do you care whether
  or not punishment
• deters?)

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• c. incapacitation
• 1) depriving /
  removing / preventing some
• behavior
• 2) typically imposed
  in the form of incarceration
• 3) process identify
  those who are criminal or
• who have
  criminal inclinations and
• upon
  detection, detain them so that
• they
  cannot commit subsequent
• crime
• 4) types
• a) collective detention
  of all those engaged
• 
  in or who may be considering
• 
  similar offenses

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• b)
  selective detain specific offenders for
• 
  specific offenses
• Megans Law
• d. social defense
• 1) preservation of public
  safety is consideration
• enough for punishment /
  incapacitation
• 2) a special form of
  deterrence, concern
• lies with the prevention of
  harm to all (society)
• via the punishment of the
  individual
• e.g., Charles
  Manson, inmates at Guantanamo
• 3) ANY punishment that prevents
  future crime is
• justifiable

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• e. reform / rehabilitation
• 1) crime is a social disease
  that can be cured
• through treatment
• individualized
  punishment and treatment
• 2) the quintessential dilemma
  of the corrections
• enterprise
• 3) Question If an inmate
  does not wish to be
• 
  reformed or rehabilitated, and is
• 
  mandated to receive treatment or
• 
  programs, is this a violation of his /
• her
  8thAmendment protection?
• 4) promotes paternalism
  humanistic vision of
• justice toward the offender

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• a) treatment as
  social defense
• b) because the
  state knows best and can
• treat offenders,
  it must
• 5) conflicting evidence
  as to the effectiveness of
• rehabilitative programs
• Lipton,
  Martinson, and Wilks (1974)
• 6) fundamental concern
  Why should limited
• resources / funds, be spent on
  those who
• have offended us when
  the innocent and
• others in need do not
  receive this same
• consideration?

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• f. restitution
• 1) monetary or service payment
  compensation
• mostly financial
  remuneration for a wrong
• committed
• 2) amount is based on
  consideration of what
• would serve as the
  greatest benefit for the
• victim and / or his / her
  family, as well as the
• seriousness of the crime
  committed
• 3) rationale monetary or
  physical punishment
• may be more satisfactory
  than incarceration

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D. Modern History

• 1. 1895 through the 1960s, emphasis of
  corrections
• on rehabilitation and
  incapacitation
• a. the Medical Model
• 1) product of Freuds US Tour (1895)
• 2) criminals are afflicted
  with a social disease
• 3) criminals are in need of
  care and treatment
• 4) advent of the
  indeterminate sentence
• b. concern with recidivism
• 1) how to prevent offenders
  from re-offending
• 2) treatment v harsher
  punishment

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• 2. late 1960s ushered in the decline
  of the
• Rehabilitation Era
• a. disillusionment with
  rehabilitation and break
• down of social controls
• b. could the State actually
  predict criminals and
• protect society from those
  who would cause
• harm?
• c. personal responsibility
• d. rise of Post-Modernism
• 3. 1970s-1990s
• a. the Retributive Era

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• b. Greenwoods (1982) Rand
  Corporation funded
• Selective Incapacitation
• 1) research question What
  effect would long-
• term incarceration have the crime
  problem?
• 2) assessing available data
  and computer
• simulation, examined
  instances of robbery
• 3) conclusion, long-term
  (10 years)
• incarceration would likely reduce
  instances of
• robbery by as much as 20
• 4) suggests that specific
  crime categories could
• lead to just as
  significant crime reduction
• 5) need to increase be-space
  by 400

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• Police ease restraints concerning
  investigations less than probable cause
  warrants and arrests better
• equipment / advanced technology
  public attitude to
• do something fear of crime
• Courts streamline of the appellate process
  tough laws / tougher sentences (Megans
  Law, 3 Strikes Laws)
• less than unanimous jury decisions
  philosophically
• conservative judges appointed by
  conservative get
• tough presidents / governors
• Corrections 1979 770,000 total
  incarcerated
• 2004 2,300,000 total incarcerated
• elimination of rehabilitation programs
  reduction of
• mental health treatment facilities
  and staff
• outsourcing of correctional services

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• 4. The New Millennium (2000 )
• a. growth of community justice
  Restorative Justice
• Era
• b. questions arising, whats
  going on in prison?
• c. attempt to remedy harm
• address community healing
  
• d. Issue Can personal and social
  damage resulting
• from crime truly be
  repaired?
• How? When?

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E. Conclusion / Summary

• 1. justification for punishment
• 2. type of punishment
• 3. end result