This “symbolic way of getting back at the

This essay will discuss whether punishment is a “symbolic
way of getting back at the criminal, of expressing a kind of vindictive
resentment” Feinberg 1994: 76. Delving into the various rationales that have
been used for sentencing and how these have developed over the years to form
the current criminal justice system we have today that is seen as a lot more
reasonable and justifiable than centuries past (not without its criticism of
course). Throughout history wrongdoers have been punished in a number of ways
that, by today’s standards, would be seen as barbaric and gruesome, and in any
other context would demand a great deal of justification.

In regards to the purpose of punishment, Canton (2017)
states punishment does not necessarily have a purpose other than the purposes
people may set for it. Punishment can be an act that purposefully inflicts
harm, pain and suffering upon a person in a response to an act deemed illegal
(Scott and Flynn 2014). It’s with this definition that sees its origins
following the ‘just deserts’ retributive theory of punishment. Desert theorists
suggest punishment is the morally appropriate response to crime and is
therefore justified. Those who have committed an offence deserve censure, which
should be conveyed through harsh treatment which will prompt the offender to
take censure serious, however, the level of hard treatment must be directly
proportional to the degree of the offence, showing respect for the offender as
a moral agent (Hirsch and Ashworth 2005).

Duff (2000) ties consequentialist aims into a retributivist
justification. Arguing punishment should, not only communicate justified
censure, but should also persuade offenders to self-reform, reconcile and
repent. The main premise of desert is that certain individuals are and should
be addressed as moral agents. From a political premise, all individuals are to
be respected as moral agents; an offender deserves to be punished, however this
does not forfeit their rights upon conviction, therefore have the right not to
be punished disproportionately to the crime committed.

Proportionality is the central concept of the desert theory.  Proportionality has two forms in the just
desert theory. Cardinal proportionality refers to the magnitude of the penalty,
requiring that it not be out of proportion to the gravity of conduct e.g. five years’
imprisonment for theft would be a clear breach of that, likewise, would be the
imposing of a minor penalty for a serious offence. Ordinal proportionality is
concerned with the ranking of relative seriousness for various offences: what
degree is rape more serious than robbery? Mostly dependent on the evaluation of
conduct, mainly by sentencer’s, and on social assumptions about traditional
crimes, compared with new type of offences e.g. commercial fraud, pollution.

Conversely to the just desert line of thinking, there is the
Utilitarian/consequentialist approach. No clear overlap exist between the two
however, the utility or goal of punishment is the reduction and prevention of
crime. The main three ways it proposes to do this is by: deterrence (looking to
make crime unfavourable), incapacitation (removing the opportunity for crime) and
rehabilitation (trying to reinstall certain moral values within an offender).

A distinction has been made between the two types of
deterrence: individual and general deterrence (lightly referred to as specific
and general deterrence).  The former,
individual deterrence, aims to ensure those who have committed an offence do
not do so again. First time offenders are believed to require little to no
punishment (highly dependent on the crime) whereas, a repeat offender would be
thought to require a more extensive form of punishment. The gravity of the
offence becomes less important than the prevention of repeat offending. An
example of this can be found back in 1983 when William Whitelaw, then home
secretary in Margaret Thatcher’s first administration, announced the
introduction of a new regime in juvenile detention centres, hoping to provide a
‘short, sharp, shock’ to those on the receiving end, resulting in a more
effective way to prevent future offending. Lamentably for those who placed
their trust in such initiatives, the research evidence does not look good. The
home offices evaluation of the initiative found the regime no more effective
than the ones it had replaced.

The ‘three strike and you’re out’ sentences introduced in
America is another example of individualist deterrence. The rationale behind
these sentences were, the punishment increases as the number of offences do
with a cut off (usually three) which will then trigger an exemplary sentence. A
vast number of offenders have been sentenced to excessively lengthy sentences,
notably in the state of California, with very little evidence to support its
impact on the levels of crime (Zimring et al, 2001).

Questions regarding the efficacy of individualistic
deterrence measures were called into question, and also its acceptability,
whether they are fair or right. Hudson (2003b) notes three key moral
objections: it allows for punishments that are well in excess of the harm done.
In a very infamous case out of California, a twice-convicted felon received a
‘third strike’ life sentence of 25 years to life for stealing a slice of pizza
from a group of children. Furthermore, it also allows for the punishment of
crimes that have not been committed. Also, it allows for the innocent to be
punished; some punishment must be carried out as a reminder to others of its
very existence.

 In reference to
general deterrence, according to Bentham, “The punishment suffered by the
offender presents to everyone an example of what he himself will have to
suffer, if guilty of the same offence” (Hudson, 2003b: 19). General deterrence
has been the dominant justification for punishment. Most rational thinking
people have come to understand that imposing punishment on a person is a clear
way to demonstrate to others that such behaviour is unacceptable. Writers such
as Bentham (1789; Walker 1991) and economic theorist such as Posner (1985)
develop the notion of setting punishments so severe they significantly outweigh
any potential benefit of offending. The behavioural premise of this is that
offenders are rational, calculating people (many criminologist beg to differ).
The political perspective is that the greatest good for the greater number of
people pose the most value to society; and the individual counting for only
one. Therefore justifying the punishment of one person in order to deter others
from committing the same offence, overriding claims for proportionality. However,
this reasoning still requires empirical evidence to demonstrate the impact of
deterrent sentences on an individual’s behaviour, and demonstrational proof
that people are aware of the likelihood of sentencing and they choose not to
offend due to the sentencing level they will face and not for other reasons.
Hirsch et al (1999) found there to be evidence of a link between the certainty
of punishment and the levels of crime. However there is a much weaker link
between the severity of the sentences and the levels of crime.

Historically punishments have been towards the extreme end
of the spectrum – especially pre-industrial times- where severity was the
primary basis for punishment. The most innumerable ways in which societies have
punished its wrongdoers are:  death
penalty, exile, shackling and other forms of restraint, transportation,
confiscation, various forms of torture and lastly imprisonment. Most of which
existed up until the eighteenth century, where reliance on the death penalty
and transportation went on the decline and the focus of the penal system turned
towards the certainty of punishment for offenders. Cesare Beccaria is a key
figure in this regard believing that offenders made decisions on rational
thought and thus, largely uninfluenced by their personal and social conditions.
Arguing punishments should be limited only to what was necessary to prevent
crime and the system for punishment should therefore fit the severity of crime
rather than the individual’s criminal nature. Beccaria (1767/1995) states
‘punishments and the means adopted for inflicting them should, consist with
proportionality, be so selected as to make the most efficacious and lasting
impression on the minds of men with the least torment to the body of the
condemned’.

Rehabilitation is the next rationale that falls in line with
the utilitarian approach. Rehabilitation is concerned with the prevention of
further offending by the individual through counselling, therapy, cognitive-behavioural
programmes and skills training. It is within the nineteenth and twentieth
century that rehabilitation was at its height. Deterrent based punishments
started to decline and the aim of reform and rehabilitation began to gain
precedence; attributed to the social changes that took place during this period
Newburn (2007). Industrialization and urbanisation paved the way for ideas that
suggest political and social circumstances were key to understanding human
behaviour. The advent of industrialisation created a need for labour, which
increased pressure to find ways to ensure offenders were available to work
versus transporting them to colonies to work as forced labour. With
positivistic social sciences developing at this time period, this saw the questioning
of crime as a mere rational choice and turned to the focus of individual
pathology, which aimed to differentiate criminals from non-criminals based on
their physical features Newburn (2007). Zedner (2004) states ‘at its height,
punishment was recast as a means of restoring the offender to good citizenship
through programmes of training, treatment, counselling, psychotherapy, drug and
even shock treatment.’ However treatments in the nineteenth century were not
tailored for any specific type of offender or their perceived needs.

While rehabilitation is still a popular rationale in many
European countries, it reached its apex in the United States in the 1960s,
sharply declined in the 1970s and began to regain ground in the 1990s (von
Hirsch, Ashworth, and Roberts 2009). Perhaps its human nature and a
humanitarian desire to want to help those with behavioural issues that has made
sure rehabilitation methods have continued to develop. The concern regarding
these are their actual effectiveness in reducing the chance of recidivism.
There is a long running debate surrounding the various interventions and their
effectiveness (Lloyd et al 1994). The apparent reality is that certain types of
rehabilitative programmes work for some offenders in very specific circumstances
and may not for others. Sparking new interest in various programmes for
behaviour modification is the ‘What Works?’ movement, which coincides with the
development of ‘accredited’ programmes in prisons and as part of community
sentences (McGuire 2002′).

The main behavioural premise of rehabilitative theory is
that criminal offences are largely determined by psychological difficulties,
social pressures or situational problems of various kinds. The political
perspective is that offenders are seen as unable to manage in a number of
situations and therefore in need of help from experts, resulting in them being
less than fully responsible individuals. Rehabilitation in essence advocates
for sentences to be tailored for each offender, this directly conflicts with
the idea of the right not to be punished disproportionately. Focusing instead
upon the diagnosis, treatment and completion of accredited programmes.

Incapacitation is the next approach to which its main focus
is to identify offenders, and/or groups of offenders, whom are most at risk to
cause harm in the future that special protective measures (typically in the
form of a lengthy sentence) are used. A key example of this in England and
Wales, was initially introduced by the criminal justice act 2003, is the IPP
sentence – Imprisonment for Public Protection – prescribed for specific
offenders classified as dangerous. Incapacitation has no behavioural premise.
Neither is it concerned with the causes of offending or changing the behaviour
of offenders; looking solely at perceived risk and the protection of any
potential victims as a result.

The political premise of incapacitation is often conveyed as
utilitarian, typically concerned with justifying incapacitation through its
supposed greater social benefit, and forfeiting the individual’s right to not
be disproportionately punished for wrongdoing. Monahan (2004) is just one of
many who questions the fallibility of predictive judgements and their
justification for lengthy sentences yet political pressure remains to have a
form of incapacitate sentence readily available to courts are present and have
been felt in a number of countries. Hudson (2003) states ‘if general deterrence
and individual rehabilitation are difficult to achieve, it perhaps seems a plausible
goal to protect potential victims from further crime by known offenders through
physical incapacitation, either by rendering criminals physically harmless, or
by removing them from circulation.’

The phrase ‘community penalty’ is a term widely used but
hard to define. For example, It Is not limited to describing forms of
punishment imposed in the community, or outside of prison for that matter.      If this were the case, most discussions
surrounding community penalties would probably be around fines, for this is the
most broadly used form of non-custodial punishment. In actuality most
discussions surrounding community penalties revolve around probation, a practice
which allows the retention of an offender’s liberty through compliance of a court
order and under the supervision of an authorized official acting on behalf of,
or employed by a probation service. With this in mind, an increasing number of
offences have been given community penalties more so than fines or discharges,
while the absence of any previous conviction seems to have an increasingly diminished
effect on the enacting of these penalties (Newburn 2007). The two main
non-custodial disposals available to courts, and the two generally used, are
fines and absolute/conditional discharge. There are a range of community
punishments readily available which more often than not involve community
supervision by the probation service (for young offenders a Youth Offending
Team). Until being replaced by a generic Community Order, fairly recently, the
primary forms of supervision at hand for aged 16 and over were Community
Rehabilitation Order (CRO), Community Punishment Order (CPO), Community
Punishment and Rehabilitation Order (CPRO) and Drug Treatment and Testing Order
(DTTO).

Moreover, probation was briefly seen as an alternative to
custody. Community service introduced in the Criminal Justice Act 1972, initially
introduced on an experimental basis in select pilot areas. Home Office was
interested in the feasibility of its implementation and whether courts were
using it; and the extent to which it was being used on offenders who would
otherwise be headed to prison (Pease et al. 1977; Pease and McWilliams 1980). Meaning,
the community research agenda was more concerned with the effects on the perceived
system rather than the impact on the individual, signalling a departure from
the ‘treatment’ agenda.

In conclusion, it is evident punishment is a lot deeper than
a “symbolic way of getting back at the criminal, of expressing a kind of
vindictive resentment” Feinberg 1994: 76. Although, a case could be made for
the severe sentences that were practised way before proportionality was brought
into the discussion, which saw various forms of outlandish and barbaric punishment
(by todays standard) plague various societies across the world. It should be
noted however, in some countries across the world some of these practices are
still in effect. It is further apparent, rehabilitation is the modern and widely
seen as the more progressive way to look at offenders and that this should be
the focus going forward. While deterrent based punishments are viewed as not
very effective, evident with the increasing prison population and failing to
result in any meaningful fall in crime rates, likewise, incapacitation may be
viewed as being for the greater good of society however, there is a growing displeasure
among people within society about the strain it causes tax payers to keep
prisoners on life sentences.