Punishment is considered a central component of the criminal justice department. The philosophical theories assert that motives of punishment are to deter wronging on the part of the offender and those who observe. According to (Cushman, 2015) punishment has evolved into a mechanism that is used to teach social partners into how to behave in their future interactions. However, as outlined in Zedner (2015) criminologists have long agreed that punishment is a contested concept which is called upon to perform descriptive, analytical and normative work in the criminal justice system. Despite these agreements about its meaning, Zedner asserts the need to identify what constitutes the core of punishment. The author points that punishment consists of two fundamental elements; the censure and sanctions (pp. 4). The justified definition of punishments including the two core elements is the censure of the offender with the intentional application of hard treatment that is proportional to the offense committed by the offender.
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Rationales of Punishment
The process of sentencing is critical in the criminal persecution. According to (Dubber & Hörnle, 2014) the sentencing process is important as it determines where, how, and why the offender should be punished in what could be much or all of the remainder of their life. The sentencing process outlines the type of punishment that the offender must be subjected to. These punishments vary and the philosophers have asserted that they are justified. According to (Pojman, 2000) punishment can be justified in three distinct ways namely retribution, fairness, and deterrence. The author asserts that the other two ways in which punishment can be justified are incapacitation and moral education.
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The main concept of retribution form of punishment is that the punishment given to the offender should be proportional to the offense committed by the offender (Tan & Xiao, 2018). Retribution holds that punishment as a justly deserved payback to the offender for the harm caused through their participating in an offense. It is the desire to see those who have violated the law get punished for their actions. According to (Mandery, 2012) retribution is derived from the notion that a punitive action is imposed because it is deserved. The author notes that based on the rationale, murderers should be given capital punishment because they earned it from their offense. The philosopher Emanuel Kant asserted that the notion of retribution is grounded in the respect of autonomy, and that if an offender is punished in order to deter others from committing an offense, then they are being treated as a means to an end.
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Although many scholars and policy makers in the criminal justice system have expressed opposition towards retribution, some feel it is justified. According to (Kimberly & Larry, 2017) retribution is a way of providing the most appropriate form of punishment of executing the elements of social debt and equity. Moreover, (Deigh, 2014) points that since social group order is more than relations among members, but includes rules that govern such relations. The author reiterates that punishment governed by such rules serves to preserve order when powerful members retaliate against those who break the law.
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The utilitarian form of punishment seeks to punish the offenders in order to discourage or to deter them from any engagement in such offenses in the future. The utilitarian philosophy of punishment asserts the need for the use of the laws in order to maximize the happiness of its citizens. The philosophy is underpinned in the inconsistency between crime and happiness and the need to keep them at a minimum through the use of punishment as a mode of discouraging future involvement in criminal activities (Dubber & Hörnle, 2014). In addition, it is consequentialist in nature and is directed towards the maximization of the good for the society. As a result, the goal of the punishment is to reduce the evil associated with crime, while maximizing the good produced by the punishment.
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The utilitarian punishment philosophy can be classified into two specific rationales, the deterrence and rehabilitation. According to (Dubber & Hörnle, 2014) deterrence can be classified as either general or specific. The author points that specific deterrence is designed so as to disincline the offenders from committing the same offences in the future. This can occur in form of criminal prosecutions and public shaming by being a denominated felon as well as through other penalties. In contrast, general deterrence occurs in a form of a general public discouragement from engaging in a certain offence or offences, for example making public certain criminal proceeding involving notorious offences.
The other form of utilitarian punishment is rehabilitation, which involves providing the offenders an opportunity to reform within the confines of the law. According to (Dubber & Hörnle, 2014) rehabilitation has been designed in order to instill the right values and attitude by encouraging respect for the institutions and self through a means that the offenders can lead a productive life. The methods employed include treatment for disorders such as substance addiction, counseling, and other educational initiatives such as provision of training, knowledge, and skills that are designed to make the offenders productive and ready for the job market once they exit the rehabilitation program.
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Incapacitation as the name suggests seeks to render the offenders incapable of committing crimes. According to (Welsh & Harris, 2010) incapacitation serves the simple purpose of restraining the offender from committing further crimes. It is based on the logic that during the time that an offender is under incapacitation, they are not able to commit crime in the society. The examples of the criminal justice department sentencing policies that have taken the form of incapacitation includes selective incapacitation and the notion of “three strikes and you are out” penalty, which are both forms of long incarcerations. The major feature of the approach is the concern to identify the offenders that are more likely to commit crimes in the future based on the risk and the likelihood of offending.
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The Rationale that is Mostly Employed in the Criminal Justice System
The conception of the United States of punishment follows a combination of the three rationales of punishment. Retribution remains the widely accepted form of punishment in the country. When an offender is convicted of an offence, the sentence often involves in part at least a form of retribution. However, the country’s legal system widely uses the utilitarian form of punishments in the creation of parole, probation and other pretrial diversion programs. These forms of punishments have been designed to limit the punishments to the extent that is deemed necessary and proportional with the crime in order to protect the society. This is evident in the different forms of sentencing that are employed for different crimes, for example, short term jail for minor assaults and batter.
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