Introduction
Punishment is the system used by society to enforce the desired standards of conduct, and to deal with the offender after a crime has been committed . Two common theories of punishment include the retribution theory and the incapacitation theory. The retribution theory seeks to punish an offender who has committed a criminal act. The incapacitation theory seeks to deter or prevent future crime. Both theories seek to convey justice.
Retribution theory
The retribution theory of punishment is the oldest theory of punishment. The retribution theory of punishment rests on the idea that those who violate the law should be punished for the violation. Criminal behavior deserves punishment as it is a violation of the natural order of things as well as the moral order of society. Offending the natural and moral order deserves punishment. Criminal behavior causes a disturbance and in order to provide a balance in society, punishment must occur. Thus, punishment serves the purpose of benefiting society. Revenge is not for the individual victim but for society. The crime is the focus of the reason for punishment .
The theory proposes that the severity of the punishment should be commensurate with the seriousness of the crime. Proportionality is important as the offender should only be punished to the extent necessary to restore moral order that was disturbed by his actions . Those who are capable of making the choice to participate in criminal behavior should be held responsible for the choice.
One social argument in support of the retribution theory is that retribution against one who participates in criminal behavior is justified as it protects both society and the offender. Society is respected through the punishment and the offender is respected is paying for his or her debt to society. Human dignity is preserved through the punishment of the offender. Another social argument supporting the retribution theory of punishment is the just desserts principle. The just desserts principle proposes that the offender is treated as a dignified human being, and response to his criminal conduct should respect the choice of the criminal to engage in the criminal act .
One philosophical issue supporting the retribution theory of punishment was proposed by Immanuel Kant. Kant alleges that punishment takes into account the motive of the offender. Thus, intentional crimes and unintentional crimes would be punished differently, with unintentional crimes receiving less severe punishment. Punishment gives offenders back what they believe, by showing through their actions, what ought to be done to themselves. What one intentionally does to others ought to be intentionally done to them. Another issue supporting the retribution theory is that those who commit criminal acts should suffer as much as their victims. This thought is derived from both the Code of Hammurabi as well as the Old testament – “an eye for an eye, a tooth for a tooth, a life for a life” also the code of Hammurabi.
A social and philosophical issue supporting the retribution theory of punishment is that an individual who commits a crime has violated the rights of another, and should therefore be punished. The moral order disturbed by the crime committed is put back in order by punishment. Another social rationale is that society should render harm to the criminal who rendered harm to another. The severity of the punishment should be equal to that of the crime. A disturbance of the moral order of society by a criminal act should be justly punished. Recognizing the harm done in asserting punishment deserved is a way of recognizing both the dignity of society as well as the dignity of the offender and victim.
Incapacitation theory
The incapacitation theory of punishment is a utilitarian theory. Utilitarians believe that punishment should be based on what is best for society. Deterrence is one focus of this type of theory. The goal is to prevent crime from happening again. If punishment can outweigh the benefit an offender received from committing the crime, the offender will be deterred from committing future crime . The incapacitation theory asserts that those who have engaged in criminal behavior should be prevented from engaging in further criminal behavior. This prevention should occur by removing the offender from society through incarceration. The goal is to prevent reoffending. The focus is on the potential future victim.
Under the incapacitation theory, the form of punishment would include being banned, imprisoned or put to death. Dismemberment is a severe form, and a restriction is the least severe. Some countries still impose castration on sex offenders. License restrictions and curfews are imposed in many countries as well. Imprisonment restricts the offender from committing additional crimes .
A social implication of the incapacitation theory is that incapacitation is a way to control crime by preventing offenders from reoffending. Utilitarian theory that it is reasonable to incarcerate or incapacitate an individual because the consequences benefit a large number of individuals. Incapacitation is justified so long as it prevents further harm in the future.
Similarities and Differences in Theories
Both theories support the rationale that punishment is a form of denunciation. Being publicly denounces acts as a deterrent. And, denunciation is a form of punishment. This is the only similarity between the two theories. The differences are many. Within the retribution theory, punishment is concerned with the nature of the crime already committed, while in the incapacitation theory punishment is concerned with the future risk to society. The incapacitation theory is a utilitarian theory that is looks to the future while the retribution theory looks back to the crime committed. Incapacitation theory seeks to punish for a deterrence effect while retributions seeks to punish for revenge or because the individual deserves it
Conclusion
The retribution theory of punishment and the incapacitation theory of punishment serve two separate purposes and have two different aims. The two theories have nearly nothing in common except the seeking of justice. The way in which each proposed to serve justice are completely different. The retribution theory focuses on punishment for a crime already committed. This theory has a goal of getting back at the offender for the crime committed. The incapacitation theory focuses on deterrence of future crime. The goal is to remove an offender from society so that he or she cannot reoffend.
References
Barton, A. (n.d.). Incapacitation Theory. Retrieved from https://marisluste.files.wordpress.com/2010/11/incapacitation-theory.pdf
Cohen, J. (1983). Incapacitation as a Strategy for Crime Control: Possibilities and Pitfalls. Crime and Justice, 5, 1-84. Retrieved from http://www.jstor.org/stable/1147469
Greenawalt, K. (1983). Punishment. Journal of Criminal Law and Criminology, 74(2). Retrieved from http://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=6366&context=jclc&sei-redir=1&referer=http%3A%2F%2Fscholar.google.com%2Fscholar%3Fstart%3D50%26q%3Dtheories%2Bof%2Bpunishment%26hl%3Den%26as_sdt%3D0%2C28#search=%22theories%20punishm
Meyer, J. (1968, December). Reflections on Some Theories of Punishment. The Journal of Criminal Law, Criminology and Police Science, 59(4), 595-599. Retrieved from http://www.jstor.org/stable/1141839
Starkweather, D. A. (1992). The Retributive Theory of "Just Desserts" and Victim Participation in Plea Bargaining. Indiana Law Journal, 67(3). Retrieved from http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1445&context=ilj
