By: Dr. Betsy Matthews, coordinator of the EKU Online Corrections and Juvenile Justice Program
What Constitutes Fair Punishment? Is Incarceration the Answer?
In the first part of this series on the ethics of punishment and rehabilitation, the four major rationales for punishment in the United States were explored, which included:
- Retribution — the idea that those who cause harm deserve harm in return
- Deterrence — establishing a cost for criminal behavior so that criminals and others watching are less likely to engage
- Rehabilitation — addressing the psychological, social, or economic factors that contribute to criminal behavior to prevent it from happening again
- Incapacitation — separating criminals from society so that they can do no more harm
According to the retributive ideology, justice is served when offenders are made to suffer pain that is proportional to the harm the victim suffered as the result of the crime. In this theory of retribution, justice is about achieving balance; when a judge is applying the retributive ideology, he decides what type of sentence equates to the pain caused by the crime. Is one year sufficient for a repeat DUI offender who caused no direct harm to anyone? Or does his endangerment of citizens’ lives require that more pain be inflicted through a longer term of imprisonment? What about the offender who caused someone’s death? Surely this greater harm would be matched with a more severe sentence.
But what about the offenders’ backgrounds and their likelihood of subsequent crime? Shouldn’t that be factored into the equation? Not according to retributive justice, which says the aims of punishment are to right the wrong rather than to control or prevent crime. Because the purpose of punishment does not extend beyond addressing the particular harm caused by a particular crime, decisions are present- and offense-focused. That is, what’s been done in the past, or is likely in the future is not considered. The nature of the offense is the determining factor in the administration of punishment.
The retributive ideology hinges on the belief that crimes can be easily ranked according to their severity. Our penal codes, in fact, categorize and rank crimes according to severity, and then set forth a range of punishments appropriate for each ranking. The more severe the crime the more harsh the allotted punishment. But is there agreement on how we rank crimes? For example, which is more serious, embezzlement of $15,000 or robbery of $15,000? And who gets to decide?
Another problem with determining fair punishment has to do with how we quantify harm. Loss of life and monetary losses are easily measured, but what about emotional harm, or perceived loss of safety? Then, who decides how much pain, or punishment, a particular crime is worth? Does a theft of $2,500 equal five years in prison? As you can see, under the retributive ideology, fair punishment may be an impossible goal.
Now let’s take a look at the utilitarian strategies, which include deterrence, rehabilitation, and incapacitation. According to the utilitarian ideology, justice is served when the punishment prevents or reduces crime. Deterrence-based strategies use punishment to make people themselves, and others watching, realize the costs attached to criminal behavior and decide not to engage in crime again. Rehabilitative strategies involve programming to address psychological, social, or economic factors that contributed to their criminal behavior and reduce their likelihood of engaging in future crime. Incapacitative strategies physically restrict people’s movements and freedom, by separating them from society so that they can do no more harm.
The retribution approach to justice doesn’t consider the past behavior or the future likelihood of crime, but utilitarian justice does. If past behavior and other factors increase the likelihood of the offender engaging in crime, harsher punishments are justified to maximize the pain and keep an offender in prison. One complication of utilitarian justice is uncertainty regarding the amount of punishment that it takes to deter or rehabilitate people. At what point does punishment become disproportionate or unfair? And does the need to match the sentence to the individual offender undermine our ability to deliver blind justice? The disproportionate incarceration of poor minorities would suggest this approach needs a closer look.
Our current system of punishment is rooted in the concept of deterrence. More and longer sentences have contributed to mass incarceration in the United States that is believed to have contributed to only a slight reduction in crime. Is the cost of incarceration worth it? And more importantly, is justice being served? For most corrections and juvenile justice professionals, this is where the rubber meets the road. Ethical decision-making requires us to think about our definition of justice, and the type of punishment that will get us there.
This piece is part of a series on the ethics of punishment and rehabilitation. In the next article, we will take a closer look at rehabilitation.