Posted by: Elmer Brabante | April 6, 2016

A Brief Review on the Theories of Punishment


THEORIES OF PUNISHMENT

Throughout the long history and development of societies and the institutionalization of states, and as states enact laws to ensure justice and equality in their respective territories, the question arises as to whether the social institution of punishment is justifiable. Why do states enact laws that define specified conduct as criminal or immoral and impose punishment for violation of those laws? Whom or what do these punishments protect? What are the parameters that would make punishments effective? What are the competing philosophies of punishment that have been advanced in response to crimes? Are recidivists, habitual delinquents, terrorists, and drug traffickers capable of reformation? Since punishment involves pain or deprivation that people wish to avoid, when is the intentional imposition by the state of extreme punishments such as the death penalty justified?  Is a just society without punishments possible? These are some of the central questions that this paper aims to address.

Before going directly to the responses to these questions, one essential question need be raised first: What is the definition of Punishment, and can a definition be proposed that meets the test of neutrality?

Punishment may be defined as the authorized imposition of deprivations of freedoms or other goods to which the person has a right or the imposition of special burdens because the person has been found guilty of criminal violation, typically involving harm to the innocent.[1]

A definition of Punishment cannot be neutral, considering that it has the following elements or properties: (1) It is an act by a political authority having jurisdiction over the community, not an incidental accidental harm; (2) it is an objectively judged loss or burden; (3) it is a social institution, not a natural event outside human purposes, intentions and acts; and (4) it is an imposition following a determination of guilt.

Is the social institution of punishment warranted? Why do states enact laws that define specified conduct as criminal or immoral and impose punishment for violation of those laws? Whom or what do punishments protect? What are the parameters that would make punishments effective? What are the competing philosophies of punishment that have been advanced in response to crimes?

All principles of justice focus on sustaining a society where people shall be encouraged to do cooperative and useful actions and dissuaded from harming social institutions, where all things are ordered fairly and where relationships are supported by social sanctions, both positive and negative (rewards and punishments). According to Rawls,[2] even in a well-ordered society, the coercive powers of government are to some degree necessary for the stability of social cooperation. The role of authorized collective sanctions, of the social institution of punishment, is warranted precisely to overcome instability; the existence of effective penal machinery serves as men’s security to one another. The principles justifying these sanctions can be derived from the principles of liberty and responsibility.

All societies and social groups develop ways to control behavior that violates norms. Social control is also achieved directly through external sources that compel individuals to conform through the threat of social reaction. Regardless of whether conformity results from personal desires or external compulsion, conformity is ultimately achieved through the use and threat of punishments.[3]

In a just society, undeserved victimization is understood to violate individual rights and social institutions and is therefore prohibited and punishable by law. The justification of punishment will depend upon more general political and moral theory, consistent with the responsibilities for legal protection afforded by a just society. The central instrument for the protection of individual rights and social institutions is the penal sanction attached to the law that defines certain harmful acts as crimes, following the maxim, nullum crimen nulla poena sine lege (There is no crime nor punishment except in accordance with law). 

Even in a just society, not every person will comply with the law, and not everyone who does comply will do so out of respect for the rights of others. Hence, the fundamental rights-protecting principle on which the system of punishment is built: It is better to increase law compliance by liability to sanctions of those who would otherwise violate the law than it is to permit them to act on their perverse autonomy without any socially imposed cost to themselves, since that would require us to tolerate the victimization of the innocent. For that reason, rational self-interested persons acting behind the veil of ignorance would choose to impose on themselves and on others a liability to criminal sanctions for certain law violations. Thus, the establishment of punishments as social institution is warranted.

If the punitive sanction is to function effectively as a preventive of noncompliance, then it must be perceived not only as a legitimate threat but also as a credible threat. Its legitimacy is established by its protection of individual and collective rights, its authorization by constitutional procedures, and its administration through due process and equal protection of the law. Its credibility is established by its being generally perceived to be both reasonably severe and effectively enforced.

Generally, the theories of justification of punishment may be broadly classified as utilitarian and non-utilitarian. What distinguishes these theories is their focus and goals: utilitarian theories are forward-looking concerned with the future consequence of punishment; non-utilitarian theories are backward-looking, interested in the past acts and mental states; and mixed theories are both forward- and backward-looking.

  1. Non-Utilitarian Theory of Punishment

 Retributive theory of punishment. One of the oldest and most basic justification for punishment involves the principles of revenge and retribution. Neither constrained by questions of offender culpability nor directed at preventing future wrongdoing, offenders under a retributive philosophy simply get what they deserve. Punishment is justified on its own grounds. Concepts of desert and justice occupy a central place in most retributive theories: in accordance with the demands of justice, wrongdoers are thought to deserve to suffer, so punishment is justified on the grounds that it gives to wrongdoers what they deserve. Applying Kant’s “principle of equality,”[4] if a wrongful act is committed, then the person who has committed it has upset the balance of the scale of justice; he has inflicted suffering on another and therefore rendered himself deserving of suffering. So in order to balance the scale of justice, it is necessary to inflict the deserved suffering on him.” For Kant, the justification of retributive punishment is derived from the principle of retaliation (lex talionis), which is grounded in the principle of equality.

Consistent with retributive philosophy, punishment focuses mainly on the gravity and characteristics of the criminal act rather than the offender. Retributivists argue that more serious offenses should be punished more severely because offenders who commit more serious crimes deserve harsher punishment than those who commit less serious crimes. Many contemporary retributivists hold that the “principle of proportionality” should be used in order to determine the amount of punishment, in that, “the amount of punishment should be proportionate to the moral seriousness or moral gravity of offenses. Hence, the centerpiece of most argument in favor of capital punishment is retributive: Murderers, those who deliberately cause an innocent person’s death, have rendered themselves deserving of death.

The retributivists rely on the assumption that the criminal laws whose violation makes one eligible for punishment protect genuine individual rights. Were this not so, the retributivists could not claim that justice requires punishment for the violation of the law. Retribution is not cruel because it treats a criminal with dignity. Kant categorically rejected punishment as means to end because it amounts to use of man for others, which is against the principle of human dignity. The doctrine of desert, fairness, and proportionality rejects cruel, barbaric, and uncivilized punishment of vengeance theory (lex talionis).

The primary merit of the retributive justification of punishment is that it aims to punish only voluntary acts and excludes involuntary acts, unlike the utilitarian punishment which applies to all acts, intended or unintended, voluntary or involuntary. However, while retributive punishments like the death penalty is proper for heinous crimes (especially those committed against persons such as murder, homicide, or rape), is the imposition of death penalty or even of reclusion perpetua (imprisonment for 20 years and one day to 40 years) justified for commission of crimes against national security (treason[5]), against public order (rebellion, insurrection, coup d’etat[6]), or those committed by public officers (qualified bribery[7])?

2. Utilitarian Theories of Punishment

 Utilitarianism is the moral theory that holds that the rightness or wrongness of an action is determined by the balance between good and evil that is produced by that action. When attempting to determine whether a punishment is justifiable, utilitarians will attempt to anticipate the likely consequences of carrying out the punishment. if punishing the offender would most likely produce the greatest balance of happiness over unhappiness compared with other available options, then the punishment is justified.

Utilitarianism is concerned mainly with the balance of happiness over unhappiness produced by an action. When attempting to determine the amount of punishment that ought to be permitted for a given offense, it is necessary to weigh the unhappiness that would be caused by the offense against the unhappiness caused by various punishments. The greater the unhappiness caused by a given offense, the greater the amount of punishment that may be inflicted for that offense in order to reduce its occurrence before the unhappiness caused by the punishment outweighs the unhappiness caused by the offense.

Bentham’s utilitarian theory holds that punishment is a means to an end and seeks to punish the offenders to discourage or deter future wrongful acts.  Utilitarian theories can be categorized as Reformative, Restorative, and Compensatory.

Rehabilitative and restorative theories of punishment look at sanctions as instrument of rehabilitation and attempts to mold the behavior of the criminal on the premise that human acts are affected by social environment and psychological factors; therefore, it is the duty of society to reform him by adopting certain mechanisms of reintegration. Less frequent use of imprisonment, abandonment of short incapacitation, the use of prisons for training, and greater employment of probation, parole and suspended sentences are evidence of reformative trends of punishments. These trends reject the deterrent and retributive justifications of punishment.

Although it may seem contradictory or at least odd to assert that we punish for the treatment and reform of offenders, this basic principle underlies the rehabilitation purpose of punishment. The ultimate goal of rehabilitation is to restore the convicted offender to a constructive place in society through some combination of treatment, education, and training. In contrast to retribution that emphasizes uniform punishments based on the gravity of misconduct, rehabilitation focuses on the particular characteristics of individual offenders that require treatment and intervention.

Restorative justice literally involves the process of returning to their previous condition all parties involved in or affected by the original misconduct, including victims, offenders, the community, and even possibly the government. Under this punishment philosophy, the offender takes full responsibility for the wrongdoing and initiates restitution to the victim. Community mediation groups, neighborhood councils, local support groups, and victim-offender conferences are the primary means of achieving these restorative efforts.

The aims of the rehabilitative punishment may be noble, but the success of its aims depends on the capacity and willingness of the government to provide adequate infrastructure and prison facilities. Is society willing to invest on the convicted criminals? Is reformation possible to prisoners who committed most heinous crimes such as murder, rape, drug and human trafficking, terrorism…?  Reformative theories of rehabilitation and restoration may apply and can be effective only on certain non-severe crimes but not to all crimes.

Compensatory theory of punishment rests primarily on the ground that an offender  who inflicted injury against persons or property must compensate for the loss of the victim. Under the Civil Code of the Philippines, actual or compensatory damages are awarded to the one entitled to compensation only for such pecuniary loss suffered by him and he has duly proved. Indemnification for damages shall comprehend not only the value of the loss suffered, but also that of the profits which the obligee failed to obtain.[8]

Other forms of damages such as moral, exemplary, nominal, temperate, actual, and liquidated forms of damages are applications of the compensatory theory of punishment. Under the Civil Code, an award of moral damages is premised on the physical suffering, mental anguish, fright, serious anxiety, besmirched reputation, wounded feelings, moral shock, social humiliation, and similar injury suffered by the victim.[9]

Exemplary or corrective damages[10] are imposed, by way of example or correction for the public good, in addition to moral, temperate, liquidated or compensatory damages. In criminal offenses, exemplary damages as a part of the civil liability may be imposed when the crime was committed with one or more aggravating circumstances. In quasi-delicts (those committed without criminal intent), exemplary damages may be granted if the defendant acted with gross negligence. In contracts and quasi-contracts, the court may award exemplary damages if the defendant acted with wanton, fraudulent, reckless, oppressive, or malevolent manner.

Nominal damages are adjudicated in order that a right of the plaintiff, which has been violated or invaded by the defendant, may be vindicated or recognized, and not for the purpose of indemnifying the plaintiff for any loss suffered by him.[11]

 3. Mixed or Compromise Theories of Punishment

 Many theorists have attempted to take features of utilitarianism and retributivism and combine them into a theory that retains the strengths of both while overcoming their weaknesses. This theory holds the idea that punishment should promote good consequences, such as reduction of crime, and that justice and the desert of the offender should play a central role in a justification of punishment even when nobody’s welfare would be promoted.

In response to the challenge of whether combination of retributivist and utilitarianist punishment is possible, Hart states that the question of “What justifies the general practice of punishment is a question of “General Justifying Aim” and ought to be answered by citing utilitarian concerns. The second question “To whom may punishment be applied” is a question of “Distribution” and ought to be answered by citing retributive concerns. Hart holds that we may not apply punishment indiscriminately, but only punish an offender for an offense.

Deterrent theory of punishment, according to most scholars of criminal law and legal philosophy, should be categorized under the utilitarian theory of punishment. However, a thorough scrutiny of its nature and functions will suggest that it should be treated as a mixture of the retributive and utilitarian theories or justification of punishment, especially when the subject is death penalty as the ultimate deterrent punishment and as a just punishment for a gravest offense.  The theory holds that temporary to permanent relief is afforded to the victims and the society for as long as the criminal is incapacitated in prison or terminally removed from the circles of society.

A combination of utilitarian and retributive considerations are usually invoked in an effort to justify the execution of murderers. The centerpiece of most arguments in favor of capital punishment is retributive: Murderers deserve to be put to death, an argument along Kantian lines. Utilitarians generally argue that capital punishment can deter potential murderers – Since many human beings’ greatest fear is death, the intuitive plausibility of this claim is clear.

Is a just society without punishments possible?

The question begs itself insofar as the subject of society is first of all qualified to be just. If that society has attained the quality of being just, insofar as all its members have attained goodness and happiness without evil and unhappiness, then the institution of punishments is no longer warranted. All theories adhere to its possibility; they differ only in the proximity of that possibility.

  • – – – – –

[1] Stanford Encyclopedia of Philosophy.

[2] John Rawls, A Theory of Justice. 1991, 211-212.

[3] Miethe, Terence and Hong Lu, Punishment A Comparative Historical Perspective.  Cambridge University Press, 2005.

[4] Immanuel Kant, Metaphysics of Morals: Even if a civil society were to dissolve itself by common agreement of all its members, the last murder remaining in the prison must be executed, so that everyone will duly receive what his actions are worth and so that the bloodguilt thereof will not be fixed on the people because they failed to insist on carrying out the punishment; for if they fail to do so, they may be regarded as accomplices in this public violation of justice.

[5] Art. 114, RPC. Any Filipino citizen who levies war against the Philippines or adheres to her enemies, giving them aid or comfort within the Philippines or elsewhere, shall be punished by reclusion perpetua to death and shall pay a fine not exceeding 100,000 pesos.

[6] Arts. 134, 134-A, and 135, RPC. The crime of rebellion or insurrection is committed by rising publicly and taking arms against the Government for the purpose of removing from the allegiance to said Government or its laws, the territory of the Republic of the Philippines or any part thereof, of any body of land, naval, or other armed forces or depriving the Chief Executive or the Legislature, wholly or partially, of any of their powers or prerogatives.

The crime of coup d’etat is a swift attack accompanied by violence, intimidation, threat, strategy or stealth, directed against duly constituted authorities of the Republic of the Philippines, or any military camp or installation, communication networks, public utilities or other facilities needed for the exercise and continued possession of power, singly or simultaneously carried out anywhere in the Philippines by any person or persons, belonging to the military or police or holding any public office or employment with or without civilian support or participation for the purpose of seizing or diminishing state power.

Any person who promotes, maintains, or heads a rebellion or insurrection, shall suffer the penalty of reclusion perpetua…. Any person who leads or in any manner directs or commands others to undertake a coup d’etat shall suffer the penalty of reclusion perpetua.

[7] Art. 211-A, RPC. If any public officer is entrusted with law enforcement and he refrains from arresting or prosecuting an offender who has committed a crime punishable by reclusion perpetua and/or death in consideration of any offer, promise, gift or present, he shall suffer the penalty for the offense which was not prosecuted.  If it is the public officer who asks or demands such gift or present, he shall suffer the penalty of death.

[8] Art. 2199, Civil Code of the Philippines, which is a faithful translation from the Codigo Civil of Spain that adopted the Judeo-Christian tradition of punishment.

[9] Art. 2217, ibid.

[10] Arts. 2229, 2230, 2231, and 2232, ibid.

[11] Art. 2221, ibid.

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