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THE JUSTIFICATION OF PUNISHMENT Introduction of Justifications for Punishment In punishing citizens the law necessarily interferes with their liberty. On many conceptions of what law is, this interference requires justification. This week we look at what punishment is (examining Rawls' and Hart's accounts), how it may be justified and what some of the alternatives to punishment may be. We look at why we need to justify punishment and two major approaches to doing so: utilitarianism and retributivism.
General Reading Primary texts
** Hart Punishment and Responsibility, Ch.1 (see also Chs.2, 4, 6-10): Chapter 1 o Punishment is an unpleasant consequence for an offence against legal rules by the offender, which is administered intentionally by a legal authority. o The theory of retribution answers two separate question: One is an answer to what is the justifying aim of punishment, and secondly who ought to be punished (the answer being only the wrongdoer). The second question is distributive retribution. They are not inconsistent. o The distributive element of retribution can be subdivided into two parts: who ought to be punished and the amount of punishment (who and by how much). o He argues for proportionality in punishment so as to uphold commonly held (or "distributive") morality. If flouted, this will bring the law into the contempt of its subjects. Chapter 2 o In criminal law there are certain "excusing conditions" such as duress, mental illness etc that absolve the defendant of the crime or diminish his punishment. What do these tell us about the justification of punishment, if anything, and how do they relate to it?
o Disagreements about the relevance of certain excusing conditions tend to be based around a difference of view relating to how this factor limits the control of a person over his own behaviour. o There are conditions set to civil law institutions too, such as contracts, wills, gifts etc, where the conditions, such as insanity, do not excuse the action, but invalidate the contract/will etc. o Why do we value a system of social control (law) that takes mental conditions into account?
o What of the argument that punishment/criminal sanction should depend on moral culpability? Bad, since many laws sanction behaviour that is either morally neutral or even moral (possibly mercy killing, for example). Retributivists argue that (1) it is unjustifiable to enforce laws unless the system of law is morally defensible i.e. it would be better to have law than anarchy. Therefore (2) it is only justifiable to punish people where they have moral culpability. Step 2 is additionally supported by the claim that the only reason to examine the inner facts of the law is if we are concerned with the morality of the actions. Otherwise we might as well not bother with mens rea. Hart points out the
obvious non-sequitur: there are two separate questions. The first is whether it is right to have a system of law and to enforce laws to protect such a system. This concerns the moral value of a law/system of law and is a question for the legislature. The second is to ask about the justice of punishing an individual in a particular case. It takes into account the conditions of punishment and is for a judge to decide. Thus, while the general justifying aim of punishment is utilitarian (it is better to have laws and therefore to enforce them), this does not prevent moral culpability from entering into the extent of punishment or the fairness of punishing people in cases where a conditions of punishment/responsibility (sanity, knowledge of what he was doing, not subject to extreme coercion/duress etc) are not met, e.g. duress Bentham's theory is "the economy of threats". It argues that the only reasons for concern with the inner facts or the "conditions of responsibility" (i.e. why we allow certain factors to excuse criminal conduct) is because people without the ability to control their own actions are incapable of following the law's commands. Therefore it would be inefficient to threaten them with sanction (i.e. to try to deter them). This has nothing to do with morality, but is a simple utilitarian calculation. Hart disagrees, saying that if, for example, the defence of duress was removed, it is true that threat itself would have been ineffective. However there may still be utilitarian value in punishing someone not capable of complying with the law e.g. to reform them/keep them away from potential victims. Hart says that the existence of excusing conditions (which includes, for Hart's purposes, lack of mens rea) can be seen as a way of maximising an individual's ability to plan their lives, based on the ability to predict when criminal sanction will apply to them. This clearly differs from a system of purely strict liability, in which the attraction of criminal sanction may be impossible. This improves individual autonomy WITHIN the framework of a coercive structure whose existence is valuable and whose use of punishment is justified by the utilitarian aim of preserving this structure. The excusing conditions maximise autonomy within law, but do not show that moral culpability is the basis of punishment
** Hudson, Justice through Punishment (1987) Ch. 6:
The Justice model (Hudson's term for the theory comprising proportionality of punishment to crime; determinate sentences and no judicial/administrative discretion; no disparity in sentencing; protection of rights through due process), was proposed by liberals who wanted to restore due process and to limit the role of the state (for example in reformation of criminals).
It is unfair as it gives up on reforming the criminal, and ignores contributory factors such as socio-economic or familial background and so dehumanise the offender. Since soio-economic backgrounds are relevant to determining true moral capability and just deserts, the exclusion of these, through the curtailment of judicial discretion in sentencing, the justice theory undermines its raison d'etre.
Rehabilitation is a worthy goal, since policies based on the desire to help are more likely to have positive outcomes than one based on the desire to punish.
There is now such a large prison population that prisons have become problems in their own right, quite separate from the problem of crime that they are trying to solve.
* Traditional "desert-based" justifications of punishment:
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