Criminal Justice: Different Philosophies Of Punishment

Deciding how to most effectively punish someone for committing a crime can raise all kinds of ethical and moral questions. Is it better to create punishments that may scare people away from committing crimes or punishments that seek to repair the harm associated with a particular criminal act? Can punishment be an unpleasant experience for a convicted person and teach them to be more law-abiding and/or humane in the future?

If you are wondering about the role of punishment in the criminal justice system, it may help to have a basic understanding of fundamental philosophies of punishment. Ahead, we’ll elaborate on the different punishments and their rationales, along with suggestions for processing the consequences of your actions or those of a loved one.

Punishment philosophies

Because of the complexity of society and human interaction, it is unlikely that one theory of punishment will ever be sufficient to apply to every criminal situation. Knowing more about different punishment philosophies' motivations, benefits, and drawbacks may help inform decision-making.

Deterrence

The deterrence theory prioritizes the prevention of future crime and views that aim, not the achievement of justice, as the primary motivator for punishment. The philosophy of deterrence is broken down into two subcategories: specific versus general deterrence. 

With specific deterrence, the punishment is tailored to the individual who has committed the crime, with the goal of creating a negative experience so that they are discouraged from committing crimes ever again. With general deterrence, the goal is to inspire other members of society to avoid crime because they do not want to be punished the way convicted persons are punished.

Specific and general deterrence measures can look similar and typically involve harsh punishments such as heavy fines or jail time.

Incapacitation

Like deterrence, the philosophy of incapacitation is geared towards preventing future crime but through a slightly different lens. Deterrence hopes that by creating and publicizing unpleasant punishments for crimes, people who have committed crimes will never do so again. 

Incapacitation devises methods, physical or otherwise, to literally prevent someone convicted of a crime from repeating their criminal act, based on the idea that it is a moral obligation of the criminal justice system to restrict criminal behavior from past offenders. 

In practice, the punishment methods inspired by deterrence and incapacitation theory may look similar, but incapacitation is geared towards restricting a person’s movements or abilities related to their crime. 

Examples of incapacitation include incarceration, the death penalty, electronic monitoring to prevent convicted persons from accessing specific locations, house arrest, and curfews. It can also include punishments related to specific criminal acts, such as chemical castration for a person convicted of sexual assault.

Although incapacitation has its critics, it remains a popular motivator for developing criminal punishments. Critiques of incapacitation point to its role in exacerbating the rates of mass incarceration in the United States and its restrictions on personal freedom based not on what a person has done but on assumptions about what a person may do in the future. 

Retribution

While deterrence and incapacitation are intended to reduce overall crime rates, the philosophy of retribution aims to promote justice for crimes already committed. Retributive theory argues that breaking the law is a conscious choice people make and that negative choices justify negative consequences proportional to the crime's impacts. 

The Oxford Handbook of Philosophy of Criminal Law, published for personal use by the Oxford University Press, states: “Retributive theorists regard punishment as an intrinsically good response to criminal behavior because it ‘annuls’ the crime or gives the convicted person what he or she deserves.”

Retribution argues that whatever pain a person has caused, they too should undergo – i.e., if they have killed someone, they deserve the death penalty. The philosophy of retribution is associated with several ethical questions:

• Is it possible to determine what punishment is just for a crime? Who is empowered to make that determination?
• How can crimes and punishments be ranked in terms of severity? Is there any sort of universal standard, or do cultural and societal nuances need to be taken into account?
• Is crime only a result of individual choices, or can societal factors that are out of a person’s control also influence criminal behavior?
• Is retribution an effective method of crime prevention? Does it need to be?
• Does retribution satisfy the survivors of crimes? Research suggests that, by and large, it does not.

Rehabilitation

Rehabilitative philosophy could be seen as the exact opposite of retributive philosophy. Instead of believing that criminal behavior can only be ascribed to individual choices, the rehabilitative theory argues that external forces may motivate a person to commit crimes. 

Crime is viewed as the result of systemic inequities and societal failures that lead certain people, typically those already disadvantaged within a community, to see crime as a viable choice. With rehabilitation, punishment purely for inflicting agony upon a person who committed a crime is seen as ineffective; instead, punishment should seek to change a person’s behavior.

Rehabilitative punishments can include skills training, educational and vocational programs, and mental health counseling and support services for those whose criminal behavior may have been influenced by substance use or other behavioral conditions. Critics of such programs argue that rehabilitation theory over-corrects by assuming crime is largely the fault of society, not individuals. 

Restorative justice/reparations

Like retribution, restorative justice supports the pursuit of justice, but this philosophy views justice a little differently. Retributive philosophy believes that since crime causes pain for the survivor or impacted person, justice should involve making amends to affected individuals with similar experiences of pain for the perpetrator. 

Restorative justice philosophy argues that justice shouldn’t be about equal levels of agony for both the survivor and the perpetrator but about the perpetrator alleviating the hurt and/or loss they caused the survivor to experience. Restorative justice theory supports the use of reparations for a crime committed. These reparations can include:

• The repair of damaged property or the return of stolen property
• Mediation between the impacted person(s) and perpetrators
• Compensation
• Community panels
• Restorative prisons
• Services provided to the survivor or the community impacted, if there is no individual survivor or affected person

Some legal scholars have concerns about restorative justice practices occurring outside of the traditional legal system, which may increase the possibility of impinging on due process for a person accused or convicted of a crime. Critiques also include the argument that public methods of making reparations, such as healing circles, can put too much pressure on survivors to forgive perpetrators when they may not wish to do so. 

Finding support for experiences related to crime and punishment

If you or a loved one has survived a crime, been impacted by a crime, or been accused of committing a crime, you may have a lot of complicated feelings around the criminal justice system and the use of criminal punishment. Talking some of these feelings through with a therapist may be helpful. 

Available through platforms like BetterHelp, online therapy offers a discreet setting for discussing information that causes you to feel distress, shame, or guilt. Your online counselor will meet with you through videoconference, talk with you on the phone, or converse through text messaging – you can decide the format that feels safest and most empowering.

Research indicates that online therapy may be just as effective as in-person therapy, including in situations related to crime and punishment. One study found that attending an online therapy program expanded access to care and reduced the financial burden of therapy for inmates living in a correctional facility. If you hope to find support with processing emotions around punishment philosophies, online therapy may be a helpful option.