Theories of Punishment

¶ … Punishment

It is interesting to consider the notion that the retributive justification for punishment is based upon the idea that offenders have a right to punishment, rather than the idea that victims have a right to have their offenders punished. This suggests that society has the obligation to punish wrong-doers, and that doing so helps those wrongdoers. This argument does make some valid points. First, victims have traditionally been the most-overlooked participants in the criminal-justice system, which supports the idea that society does not feel obligated to help those who have been wronged. Even the idea that retributive justice helps the victims relies upon assumptions about retribution and its role in healing that do not seem to be supported by modern research, at least not for all victims. Therefore, it does seem that its possible that retributive justice is meant to assist the offender.

The idea that punishment can be helpful to the offender seems, initially, counterintuitive. However, when one looks at the idea of prison reform, the idea seems less confusing. Older penal codes provided extremely harsh penalties for crimes that are currently considered minor offenses. For example, adultery, theft, and other minor crimes could result in death or banishment. In fact, the very oldest forms of punishment did not have a wide variety of less-severe sentences, therefore those who were considered law-breakers were generally not allowed to continue to participate in society, whether they were banished or killed. However, as society evolved, so did the notion that it was not fair to punish relatively minor offenses with the same severity as other offenses. Therefore, it seems possible to conclude that prisons actually developed to help offenders, in some way, because society would have remained protected by continuing more archaic forms of punishment. This notion of prisoner-protection and assistance is tied up in the Constitutional prohibitions against cruel and unusual punishment. Therefore, while some prison reform advocates may maintain that "prisons are necessary to defend civilization," that allegation is untrue; society would be more completely protected by the continued application of harsher penalties to offenders. (Martinson, p.309).

The idea that prisons exist to help offenders has really blossomed in the last fifty years in the Western world. Prison reformers have pushed for prisons to extend their efforts towards rehabilitating prisoners. Today, prisoners in most institutions have access to a wide variety of resources, which, if used properly, can place them in a more competitive and better position than the one they enjoyed prior to being incarcerated. Almost all prisoners have the opportunity to complete high-school level educations and to obtain college degrees while in prison. Moreover, prisoners have access to 12-step programs, as well as more intensive drug rehabilitation programs. Many prisoners have access to counselors and support groups, to help them address why they offended, in the first place. While rehabilitative efforts are not considered very-effective, the fact is that the current American prison system does make a substantial effort to rehabilitate prisoners suggests that retributive justice is based on an obligation to the offender, rather than to society.

Part Two Question

It is possible that the debate about the justifications for punishment has been seriously confused about the tacit assumption that the justifications for punishment that makes sense in small-scale family environments also make sense in the larger-scale of the impersonal criminal justice system. In the family-setting, a vast majority of the power of punishment comes from the fact that the person being punished feels that they have disappointed people that they love. In fact, children frequently apologize to their parents for wrongdoing, even if the behavior being punished was something that did not directly harm their parents; for example, the hitting of a peer. Furthermore, when children hide their wrongdoing, they oftentimes do so to avoid parental disappointment, rather than to avoid a specific punishment. How many people, as adults, remember specific non-abusive punishments? On the other hand, how many adults recall specific moments when their parents demonstrated profound disappointment with them? These lasting feelings of remorse and shame are somehow inextricably linked to the notions of parental respect.

Therefore, it seems likely that it is the emotion behind the punishment, rather than the punishment, itself, that creates the learning opportunity for the child.