PUNISHMENT

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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. i.e., there is no theory of
  revenge
• b. concept has not been successfully
  identified and
• operationalized (measured)
• c. 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
  suspicion 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
• b) it is the moral right
  of the victim to impose either
• punishment or mercy

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• c) instead of eliminating
  revenge, the goal of law
• should be the reduction of
  the 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. the exhibition of emotion
• gt bitter, intolerant, resentful,
  vindictive, angry, cold, critical,
• antagonistic, cruel,
  ruthless, pessimistic
• c. deficiency of empathy does not feel
• gt 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
• remove human emotion from criminal process
• b. so as to provide the mantle of
  objectivity and rationality
• c. unemotional justice is preferable
  justice

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B. Questions of Societal Response

• 1. def 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?
• gt to the victim to the offender to
  society?
• 3. what is the theory of punishment?
• gt 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. US Constitution requires due process,
  which allows for the
• judicious application and structure 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?
• gt 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, and
• symbolic

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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
• gt 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
• gt 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 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
• it is a reasonable social
  response
• 4) lex talionis the law of
  retaliation
• gt 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
• gt punishment is
  virtuous
• 6) concern what is the
  purpose of punishment?
• a) Education?
  Deterrence? Social equity?
• b) who decides?
• c) e.g.1. persecution
  / prosecution of Nazi
• 
  concentration camp guards, SS officers
• d) e.g.2 Symbionese
  Liberation Army soldiers
• e) punishment is valid
  whenever it can be administered

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• b. Deterrence
• 1) punishment that prevents or
  discourages future
• crimes socially virtuous
• 2) types
• a) general reduction 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 crime
  prevention 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?
• gt (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
• gt
  e.g., juveniles wearing gang colors

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• b) selective detain
  specific offenders for specific
• 
  offenses
• gt 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
• gt 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
• gt 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 8th Amendment
• 
  protections?
• 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
• gt 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?
• gt rehabilitation
  supporters ALL those in need
• should receive the
  same benefit

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• f. restitution
• 1) monetary or service payment
  compensation
• gt 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
• 2006 2,310,000 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
• gt address community healing
• d. Issue Can personal and social
  damage resulting from
• crime truly be repaired?
• gt How? When?

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E. Conclusion / Summary

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