ANALYZING RETRIBUTION VS. DETERRENCE AS PUNISHMENT JUSTIFICATIONS

Choosing what to do with those who are found to be responsible for the crime is one of the biggest challenges that criminal law confronts. Particularly, there has been much discussion about the appropriate sort of punishment for those found guilty of committing criminal offenses. The customary reaction to committing a crime is to punish the offender appropriately in line with the law and the seriousness of the offense committed. (Wenzel, and Thielmann, 2006). However, numerous questions have arisen regarding how punishments are carried out, how the type of punishment chosen for any offence relates to justice and how the form of punishment selected helps to achieve the intended goal. In Miller v. Alabama case, Justice Scalia Antonin pointed out that the traditional penology abandons rehabilitation as an option to crime aversion and has instead concentrated on punishment alone (Banks, 2008). As a result, offenders no longer see prisons are reformatory places or correctional facilities but rather as detention and torture centres.

All schools of thought argue in support of punishment as a justification for an offence. As Gerber and Jackson, (2013) point out, the popular argument for imposing punishment for committing an offence is to prevent recommitting a crime or dissuade people with intentions to commit an offence not to do so. Different theories have been developed to explain commensurate punishments to different kinds of offenders. The choice of a preferred punishment is, however, the primary challenge to the justice system. Common among these theoretical approaches are the retributive theory and the deterrence theory. The aim of this research is to compare retribution and deterrence as justifications for criminal punishment. Various studies addressing the effectiveness and downfalls of the two modes of punishment will be reviewed in this study to evaluate the sufficiency of each in contributing to effective criminal punishment, especially in the context of the modern justice system.

Retributive theory

Retribution is the oldest form of punishment which has been used since the Judeo-Christian times and continues to be used to date. It follows the biblical connotation 'an eye for an eye, and a tooth for a tooth.' Accordingly, the retributive theory of punishment to offenders maintains that the offender should be subjected to the same suffering or harm that is proportionate to the harm or suffering they caused on the offended persons (Okimoto, Wenzel, and Feather, 2011). In criminal acts such as theft or murder, the offender often gets certain benefits by inflicting losses on the offended persons. Accordingly, the retributive theory seeks to strike a balance for the offender and the victims so that the benefits that the offender gained as a result of subjecting the victims to certain circumstances is imposed on them as well (Waqas, and Qaiser, 2014). In this way, justice is served by making the offending persons pay commensurable to the crimes committed. The question is, however, whether this criterion serves the right justice to the offended persons who had no role to play in initiating the crimes committed against themselves.

Deterrence theory of punishment

Other than punishment after the commission of an offence, there is a realization that there need to be strategies to prevent the occurrence to offences before they are committed. As Sidanius, Mitchell, and Navarrete (2006) highlights, this approach seeks to prevent subjecting the victims under criminal acts to which they are innocent about. Although this theory also existed since the ancient times, it was less utilized compared to the retributive option. However, the modern approaches to criminal punishment have focused largely on deterring criminal offences. Consequently, the deterrent theory of criminal punishment is concerned about preventing the commission of a crime by imposing a more severe punishment for the offences committed (Sidanius, Mitchell, and Navarrete, 2006).

The aim of this approach is to deter the criminals from re-committing the offences for which they have been punished. Also, the severe punishments to which the offenders are subjected after committing a crime acts as a lesson to the evil-minded persons who would want to commit the same offence. Consequently, the major achievement in this approach is to dissuade the offenders and evil-minded persons from thinking of committing or committing the offence (Wenzel, Okimoto, and Cameron, 2012). The balance, in this case, is also whether or not this approach prevents offences or escalate the offence. Such arguments are subject to further discussions.

Evaluation of the effectiveness of retribution and deterrence as justifications for punishment

The differences between deterrence and retribution are what the punishments provided are intended to achieve in the long run. To demonstrate the effectiveness of deterrence and retribution, we will use real life examples to illustrate how effective and necessary each is compared to the other. Let us consider, for instance, the following deterrence conditions.

In Singapore, public caning is the punishment for littering the streets such as writing graffiti on the streets. Caning involves a martial artist whacking the offender with a bamboo rod on the exposed back until the offender is seriously wounded. The level of wounding depends on the punisher's opinion and the public opinion. The results are that Singapore has one of the cleanest streets in the world. Public caning and the shame associated with it has deterred streets littering and graffiti. In Saudi Arabia, the punishment for theft is cutting one hand of the thief. The second theft results to death. Those who smuggle drugs in Saudi Arabia are beheaded in public. The result of these extreme punishment strategies is very low rates of thefts and smuggling reported in Saudi Arabia. When one commits adultery in Iran, they are buried waist deep and stoned to death. The stoning is often done in public, both to humiliate the offender and to provide a lesson to those intended to commit the offence.

In the above scenario, the offender suffers to educate the others who are intending to commit the same offences. The results have been high reduction rates for the same offences. In these scenarios, the lessons learned from the punishments given to the offender has been the main deterring agent to repeat offences for the same crimes. Consequently, when the offenders are punished in public with the aim to deter the commission of a similar offense, the impacts of such punishment is a clear deterrence to the same crime and other related crimes. Howe (1994) for instance analyzed the impacts of deterrent punishment for theft in Oklahoma. In a case description, Howe (1994) highlighted a case where a judge in Oklahoma sentenced three young men to 15 years in prison for stealing a road sign which resulted in a fatal accident. The punishment not only deterred theft on sign posts in Oklahoma but also in other surrounding states. Under the scenario above, therefore, deterrence helped to reduce the crimes committed, not only in the offenders but also in those intending to commit similar offenses.

Despite the effectiveness of deterrence punishment resulting to the deterrence of the crimes, arguments against its efficacy and the manner in which the deterrent punishment is exercised affects the successes of this strategy in equal measure. In all cases illustrated above, the punishments are given to the people who have been caught red-handed committing the offences. This infers that when one decides to commit similar offences, they would do it out of sight and ensure that they are not unveiled.

Evidence from studies such as Mauer, Chesney-Lind, and Clear (2002) indicate that punishment with an aim to deter a crime usually does not result to the individuals of the society not engaging in the same crime but rather, prompts the offenders to device alternative measures to avoid being caught. Mauer, Chesney-Lind, and Clear (2002) study, for instance, revealed that the rates of recidivism for the offenders who were caught, and punished is the same as in those who were caught, confronted and allowed to go. These findings are supported by King and Mauer (2002) who concluded that punishment to deter shoplifting and drunk driving did not deter the crimes; instead, it was being caught that served as a deterrence to the crimes. This is because the persons feared the responsibilities of being caught but did not fear to commit the same crimes. Mauer, Chesney-Lind, and Clear (2002) dismiss deterrence based on the fact that it administers harsher punishments than the actual crime committed (with the aim to deter subsequent offenders). This approach is unjust to the offender, merciless and has no connection to the punishment to desert.

Considering similar instances from the perspective of the retributive form of punishment, the later (retribution) accord punishment of the same magnitude as the offense committed. For instance, caning for littering the streets in Singapore is a more equitable punishment compared to being stoned to death for committing adultery. According to King and Mauer (2002), under retributive justice, the commission of an offense compels the state or the society in question to punish the offender, not to serve as a lesson to the others but to allow the offenders carry their crosses. In this way, therefore, the retributive punishment does not focus on the society but the offense and the offender. This means that the punishment is administered depending on the crime committed without escalation. As opposed to the retributive approach, when a punishment fails to achieve its societal goals under the deterrence approach, the magnitude of the punishment is increased to evoke further deterrence. This means that the offender often suffers more than the offenses they have committed.

Arguing against the deterrence approach; therefore, King and Mauer (2002) maintains that the deterrence theory does not respect the human person. This is opposed to the Kantian moral theory and Libertarianism which places value on the individual as opposed to the society and supports the retributive options to punishment. The Kantian's moral theory laces respect on the person as the ends in themselves other than as the means. Also, the Libertarianism approach places value on the individual's interests as opposed to the society's interests. By punishing the individual, in equal measure to the crimes they have committed, the retributive theory, in compliance with the Kantian and Libertarianism theories give lessons to the person and does not affect the society as a whole. Based on these grounds, therefore, this study support the effectiveness of retributive theory to punishment as opposed to the deterrence on the grounds of morality and effectiveness.

Conclusion

Retribution and deterrence are two popular justice administration approaches practiced in law. Both approaches have been in existence from antiquity. Deterrence involves administration of punishment with an aim to deter the rest of the people from committing the same offense. In this way, therefore, the deterrent punishment are meant to be more severe than the real magnitude of the offense committed. Failure of one punishment also leads to escalation of the punishment mode to deter the public further. This form of justice has been faulted on the grounds of morality and proportionality. This approach is contrasted to retribution whereby the offender is punished only for the offense they have committed and in equal measure. This mode of punishment focusses on the individual rather than the society. It is fairer, just and humane compared to deterrence approaches. This study, therefore, argues in favour of retribution based on the grounds of morality, and fairness.

References

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