It is clear, through politics and philosophical reasoning, that we have a struggle between ideas of punishment. Much dissension among people is the cause of this struggle. I am strictly concerned with this struggle. Through extensive research in the philosophical work of punishment I will address this struggle and analyze various justifications of punishment.
The gathering of much data, and philosophical ideas give an array of options on how punishment is to be handled, and yet there still remains a dissension amongst people on the issue of punishment. It is fundamental that the issue of punishment is taken seriously and that offenders deserve a form of punishment following from his guilt in a fair due process of the law. It is also fundamental that any form of punishment does not violate humanity and disrespect any individual. It is this papers aim to produce a valid and sound theory of punishment that will not violate humanity. I will begin with the idea of responsibility in accordance to J. Angelo Corlet with the notion that if criminals are to be punished, then they must be responsible agents. #Now this paper is to be looked at as a solution to the underlying problems with various theories of punishment.
The heart of my paper will focus on Capital Punishment, and why in my theory of punishment it can not exist. What makes a person responsible? It is certain that if you are to punish an individual, he must be responsible for what he is being punished. In order for someone to be responsible they must satisfy certain conditions. These conditions are stated by Kant; First, the guilt condition.
Second, the intentionality condition. Thirdly, the Epistemic condition. Fourthly, the voluntariness condition. Finally, the fault condition. # I would make it more clear by stating that the offender must be coherent as to what he did, implying that he knows that it was wrong. I am in much agreement with Corlet on his view of what makes a responsible agent.
# The traditional theories of punishment are I suppose: Retribution - It is morally fitting that a person who does wrong deserves and should suffer in proportion to his wrongdoing. That a criminal should be punished follows from his guilt, and the severity of the appropriate punishment depends on the depravity of his act. # Deterrence - to deter future crime, to give people an incentive not to commit crime, to enable others to learn from the example of a punished wrong-doer. Protection - to take the dangerous person out of circulation. Rehabilitation - to address the underlying needs which make a criminal more likely to commit future crimes. The latter three all hold a utilitarian view, which is not sufficient by themselves to punish.
Thus, to be utilitarianism is not a justifiable means of punishment, and if you are not a pure retrivutibist, then what theory of punishment can you hold. My answer is in the theory of a certain form of Restorative Justice, which I will elaborate on in a moment. Now I will ask you then to hold these five theories of punishment or themes in mind as we look now at some of the main theories of the atonement, for as we might expect there a strong overlap emerges. Keep in mind, Murphy, who holds that a theory of punishment must meet five conditions. First, it must answer what is the nature of the crime and punishment? Secondly, it must answer, what is the moral justification of punishment?
Thirdly, it must answer what is the political justification of punishment? Fourthly, it must answer what are the proper principles of criminal liability? Fifthly, it must answer, what are the appropriate punishments? # My theory, like a retributive theory will adequately answer these five questions. Individual criminal sentences above all must relate to, be proportionate to the offence that has been committed and overwhelmingly they involve some form of deprivation in order to compensate for that offence.
That doesn't mean that other elements are not present too, but they have to be accommodated within an essentially retributive framework. As far as rehabilitation is concerned, both the Prison and Probation Services run programs designed to address offending behavior. But the rehabilitation is largely still secondary, it is something you do whilst you are deprived of your liberty. There is also a protection element, if your actions suggest that you may be a particular risk, you may for that reason get a longer sentence but it must still be related and in some way proportionate to the offence. # And then there is deterrence. The idea of deterrence is an important idea to discuss.
The health of the whole criminal justice system, or confidence in the law, is a key concern of Government and individual cases judges will often say that they want the severity of a sentence to send a message to others. The way we have taken domestic violence and drink driving much more serious is an example of that in practice - but again, each punishment must relate to the seriousness of the actual offence a judge should not actually lock someone up just to make a point. Kant writes, Judicial punishment can never be used merely as a means to promote some other good for the criminal or for civil society; for a human being may never be manipulated as a means to the purposes of someone else... # And finally what about my Theory relating to a form of Restorative Justice? I will refer to it as Restorative Punishment.
In fact it seems to me that if we want a fundamental model on which we can draw it is always likely to be retribution. For only retribution links the punishment clearly to the crime - rehabilitation, deterrence, and protection do not. And justice - a link between what you have done and what happens to you - is a fundamental part of my theory of punishment And here perhaps there is a tension within these punishment theories. For is it not a fundamental idea, embodied by the redemption itself - that we do not get what we deserve, for who could escape punishment if we did!
That must make any reasonable human want to look for some alternative model. It may be that Restorative Punishment provides such a model. And restorative Punishment, like retribution, # could provide a fundamental organizing principle in the way that the other theories probably cannot. Because like retribution it recognizes that a balance has been upset and some act of reparation is required both for the victim and the offender and that the punishment must be linked to the crime. The key difference, as I believe it, is that instead of the punishment being an essentially negative act, a deprivation of liberty, or loss in some cases of life, the focus is on a positive act. But although the punishment is linked to the offence, instead of getting just what we deserve, we get what we and the victim, and society need, justice.
Restorative Punishment is an aim towards a society that forgives, and believes in humanity. The responsible deserve to be punished in justified society. Now I believe that prison time and the cost that we incur could be dealt with in a conducive manner. This I will be concerned with later in the paper. Now I shall lead into the heart of my Restorative Punishment theory, which deals with humanity ad the death penalty. The six principles of proportional punishment are extremely essential in forming a plausible theory.
However, I am mainly concerned with the first principle, because retribution alone can not satisfy this principle. The first principle is that punishment must never be so great that it is inhumane. Punishment by death is only acceptable if all other possibilities have been attempted and will not protect society from an offender. Therefore crimes such as rape, murder, attempted murder deserve life in prison with no option of parole. This is were I am in much agreement with Jeffrey Reiman who states punishments by torture and death are not justified on moral grounds even if they are what a criminal deserves. # Corlet argues that capital punishment, is in principle and proper practice morally justified on the grounds that it is a reasonably proportional response of the state to murderers and certain other harsh criminals who have not acted out of voluntariness-reducing factors or some other mitigating realities.
# I would answer this with the idea that we are all given the opportunity of life and no matter what mistakes we make it is only up to God or Nature to take it away, unless there are no other ways of restoring humanity. Occasionally you will get a murderer, who has no remorse for his evil act and has the ability to convince others to kill by some way or another. In this case the death penalty is justified in that the state has exercised all of its options. This is what a civilized world is entailed of, not of Corlet's idea, that a murderer deserves death is what a civilized state entails.
# Now one might argue that life in prison can be considered inhumane. This view might be acceptable in some forms of criminal institutions, however in an institution that promotes self-sufficiency and an opportunity to repent for the evil act, then not only is it humane, but it is forgiving. I like Corlet's view on revising a criminal institution with a few exceptions. # I am in favor of a system, which works with the prisoners towards a self-sufficient prison.
This gives prisoners an opportunity at a productive life within their own community. Allowing them to farm for their own food and Read for their own educational purposes. There would be no sporting facilities, because this would be a prison that stresses a form of restoration not relaxation. Healthcare cost would decrease forcing prisoners to get along otherwise another death means that a prisoner exhausted all possible forms of restoration and therefore the death penalty would be necessary.
Like a retributive view of justice, what lies at the heart of this view is that there is a fundamental balance or order in the world, a natural state of goodness which has been shattered by individual acts of sin and needs to be restored by some act of punishment. Here is where retributivism and restorative justice differ. For the retributivist it is as if punishment for its own sake, the imposing of suffering, deprivation, perhaps death, is required to balance the wrong that has been perpetrated. The theory of restorative punishment and for one who holds this theory (a restorativist) believes that the balance is restored through punishment that fits each crime without imposing physical harm. The idea is to restore the criminal and the victim for the mere rights of humanity and that this allows for a justifiable fit for punishment. Now many will argue, including Kant, Corlet, # and others that this theory of justice will not work for whilst restorative Punishment might represent an ideal, it is difficult to see how it could be used in all cases - what of those who refuse to be restored, what of those who see no need to be restored!
What of those whose victims want nothing to do with restoration but want retribution? Like I stated earlier, if all possibilities have been exercised and exhausted then the death penalty is acceptable because the criminal still is a threat to humanity and civilization. Thus, the view of restorative Punishment can offer a beacon, something to strive for, something to inform our application of the law. Many feel that a system like this would not work because it allows too much leeway for offenders, so how can we know if it will work? But now we can know. And all this is made possible by major programs of research into the effectiveness of sentences, coupled with much better systems of information recording so that we can literally follow-up individuals after their sentences to see which interventions are the more effective.
# That is, in part, why the Probation Service is being restructured at the moment - to ensure that probation officers no longer just do what they think is right but instead get offenders to take part in programs that are shown to have been effective in reducing re-offending. And increasingly when passing sentences, judges and magistrates will have much more information about the characteristics of the offenders and the program and punishments that are known to work best for such offenders. The day has not yet come, but it is at least possible to imagine, that rather than asking how a long a sentence an individual deserves, a judge may ask herself how long a sentence is needed so that the individual concerned can complete the prison program dealing with that particular type of offence. # In cases were restoration is not possible, then the issue of capital punishment would be arise, only in cases of murder. For those who accept the principle that the state has the right to take the life of a person guilty of an extremely serious crime, and that the state may take appropriate measures to protect itself and its citizens from grave harm, nevertheless, the question for judgment and decision today is whether capital punishment is justifiable under present circumstances. Punishment, since it involves the deliberate infliction of evil on another, is always in need of justification.
This has normally taken the form of indicating some good, which is to be obtained through punishment or an evil which, is to be warded off. The three justifications traditionally advanced for punishment in general are retribution, deterrence, and reform. Alongside with these the concept of accepting the principles that the criminals knowingly, intentionally, and voluntarily violated a law and that the offender in doing so accepts punishment as society's response to the breach of the law and the disregard of the social contract# Reform or rehabilitation of the criminal cannot serve as a justification for capital punishment, which necessarily deprives the criminal of the opportunity to develop a new way of life that conforms to the norms of society and that contributes to the common good. This also disrespects the life of any individual regardless of their crime. This would violate what Kant believed as breaking the duty we have to respect man. # This concept answers Corlet's query of how capital punishment disrespects humanity.
It may be granted that the imminence of capital punishment may induce repentance in the criminal, but we should certainly not think that this threat is somehow necessary for God's grace to touch and to transform human hearts. The deterrence of actual or potential criminals from future deeds of violence by the threat of death is also advanced as a justifying objective of capital punishment. While it is certain that capital punishment prevents the individual from committing further crimes, it is far from certain that it actually prevents others from doing so. Empirical studies in this area have not given conclusive evidence that would justify the imposition of the death penalty on a few individuals as a means of preventing others from committing crimes. There are strong reasons to doubt that many crimes of violence are undertaken in a spirit of rational calculation, which would be influenced by a remote threat of death. The small number of death sentences in relation to the number of murders also makes it seem highly unlikely that the threat will be carried out and so undercuts the effectiveness of the deterrent.
The protection of society and its members from violence, to which the deterrent effect of punishment is supposed to contribute, is a value of central and abiding importance; and we urge the need for prudent firmness in ensuring the safety of innocent citizens. It is important to remember that the preservation of order in times of civil disturbance does not depend on the institution of capital punishment, the imposition of which rightly requires a lengthy and complex process in our legal system. Moreover, both in its nature as legal penalty and in its practical consequences, capital punishment is different from the taking of life in legitimate self-defense or in defense of society. The third justifying purpose for punishment is retribution or the restoration of the order of justice, which has been violated by the action of the criminal. We grant that the need for retribution does indeed justify punishment. For the practice of punishment both presuppose a previous transgression against the law and involve the involuntary deprivation of certain goods.
Corlet would express that proportional punishment, the unnecessary cost of institutionalizing, and the strengthening of a just system would justify the use of capital punishment. # But we maintain that this need does not require nor does it justify taking the life of the criminal, even in cases of murder. It is morally unsatisfactory and socially destructive for criminals to go unpunished, but the forms and limits of punishment must be determined by moral objectives, which go beyond the mere inflicting of injury on the guilty. Thus we would regard it as barbarous and inhumane for a criminal who had tortured or maimed a victim to be tortured or maimed in turn. Reiman states that even if it were just deserts to torture a criminal guilty of torture, it is morally wrong. # Such a punishment might satisfy certain vindictive desires that the victim or we might feel, but the satisfaction of such desires is not and cannot be an objective of a humane approach to punishment.
I believe that the forms of punishment must be determined with a view to the protection of society and its members and to the reformation of the criminal and his reintegration into society (which may not be possible in certain cases, justifying life in prison). This position accords with the general norm for punishment proposed by St. Thomas Aquinas, however penalties are not sought for their own sake, because this is not the era of retribution; rather, they are meant to be corrective by being conducive either to the reform of the sinner or the good of society, which becomes more peaceful through the punishment of sinners. # Restorative Punishment qualifies itself as being a logical and humane theory of punishment. The flaws that it may hold are within society itself and the desire for vengeance. Again, like retribution it recognizes that a balance has been upset and some act of reparation is required both for the victim and the offender and that the punishment must be linked to the crime, as long as it is not inhumane#. Restorative Punishment is a fine model to adhere by and it ought to be the aim of our society to receive proper justice.
In closing I have provided a sound and logical explanation of responsibility, by using the principles of knowing, internationality, voluntariness, fault, and guilt. Following from being a responsible agent is the desert of punishment in one way or another. This is where there is much dissension amongst people. Many argue on how and why someone should be punished by way of the crime, and what the purpose of punishment is. I explained four major theories of punishment and conclude that they were insufficient in deriving a fair and logical way to punish the guilty. With my own theory of Restorative Punishment I proved that not only must it be accepted but that any other form of punishment is either too weak or too strong (in the sense that it violates humanity).
I have provided much information as to why capital punishment is not only wrong but useless in a just society.