Introduction
Punishment emanates from the idea that people have to be corrected from their wrong actions especially if the crimes are committed against the society. In crime, punishment is used to rehabilitate and correct the behaviors of criminals so that they become moral citizens once they are released back into the society. According to Blackburn, Fowler, and Pollock (2014) punishment relates to that horrible outcome that an offender receives for committing an offense. The punishment is administered by a person in authority and in the case of crime, legal authority. For one to be punished, they have to undergo discomfort. For punishment to be applied to another person, there has to be a rationale or a process that is followed to establish what level of punishment is deserved. There are a number of rationales that are used to justify punishment. These include retribution, incapacitation, and utilitarianism.
Retributive Rationale
In the retributive rationale, the level of punishment is based on the level of wrong that is done. According to Pollock (2011), in the retributive rationale, the criminal or the offender has to be punished for reasons that he or she deserves to be punished. Importantly, in the application of the retributive in justification of punishment, there has to be some defined legal authority to punish the offender (Blackburn, Fowler, and Pollock, 2014). Not everyone can do the punishing as it would me more of a revenge mission than punishment.
Under the retributive rationale, there exist three main types of retribution. These include negative retribution, positive retribution and permissive retribution (Pollock, 2011). In applying negative retribution, there is the idea that the individuals who are not guilty must not be punished for the crime. In the case of positive retribution the guilty have to be punished and in permissive retribution the guilty may be punished (Pollock, 2011).
Punishment will only be applied to the people who commit it, and the level of punishment has to be balanced with the level of wrong or crime committed. According to Pettus (2013), in the retributive rationale sense develops if the balance is achieved between the injury inflicted and the punishment administered has natural equality. As such, based on the retributive rationale, it does not make sense in a situation where nonviolent drug offenders are incarcerated for long periods. The situation of drug trafficking may lack a clear aspect of a victim and injury and application of the retributive rationale becomes difficult.
In the retributive rationale, a crime committed by the offender is sometimes viewed as a debt to the society and to pay the debt, the offender has to undergo punishment to become free of any guilt and stigma. However, the stigma may in most cases be present even after the debt to society has been paid. Furthermore, in cases where the punishment is not equal to the crime committed the retributive rationale may result in more harm to the victims than the offender.
Utilitarianism rationale
Under the utilitarianism rationale, punishment is justified as long as it brings the better results even if it means inflicting pain (Blackburn, Fowler, and Pollock, 2014). The rationale is based on the social contract theory in that offenders are punished for the crimes they commit against the society. According to Blackburn, Fowler, and Pollock (2014), the society is provided the right to punish the offender, not because of the degree of violation but to protect other members of the society. The punishment under the utilitarianism rationale seeks to reduce crime through general deterrence and specific deterrence (Blackburn, Fowler, and Pollock, 2014). In general deterrence, other members of the society are discouraged from committing crime because of the punishment that is given to the offender. In the case of specific deterrence, the individual who commits the crime is discouraged from committing crime owing to the punishment he or she receives. The idea is that criminal punishment is applied to ensure that further crime is not committed in the future (Ackerman, 2011). For the utilitarian rationale to be effective, the punishment must have a level of pain or discomfort that exceeds the pleasure an offender may gain from committing a crime. Additionally, if individuals are to be incarcerated, the prison conditions have to be so poor or bad compared to the worst living conditions as a free man to want to make or influence individuals to abide by the law (Blackburn, Fowler, and Pollock, 2014). In the provision of punishment condition or behavior of an individual’s such as infancy or insanity needs to be considered as the application of punishment, in this case, may not lead to the deterrence of the crime as the offenders have no control of their behavior (Blackburn, Fowler, and Pollock, 2014).
Incapacitation
Incapacitation seeks to prevent a crime being committed in the future through imprisonment, death sentence or any other appropriate method that may ensure that the offender is not likely to commit the crime again (Vito, 2006). According to Blackburn, Fowler, and Pollock (2014), incapacitation may be defined as the process of preventing additional harm being inflicted upon the society by keeping the offender from the society through a form of control. It is important to note that incapacitation may not necessary involve the infliction of pain (Blackburn, Fowler, and Pollock, 2014). As such, incapacitation may involve aspects such as house arrest and use of electronic bracelets (Blackburn, Fowler, and Pollock, 2014). A prison sentence is the most familiar form of incapacitation. In incapacitation, there is what is called selective incapacitation where a prison sentence or term is based on the probability of an individual committing the crime (Blackburn, Fowler, and Pollock, 2014). In this case, the likelihood of recidivism may sometimes be used to determine the length of the sentence in the sense that if an individual has a high rate of recidivism, then a longer period of incapacitation may ensure that such a crime is avoided. However, it is important to note that application of this rule to all crimes that have high recidivism may well even go against retributive rationale and even the utilitarian rationale.
In criminal justice today, the application of a rationale may be dependent on the severity of a crime and the likelihood of it being committed in the future. As such, there may be the development of conflict among the rationales for deciding the punishment. In using the utilitarian rationale, the level of pain inflicted may be to such a level that it may be considered to be injustice under the retributive rationale. The retributive rationale is used today frequently in criminal justice as it seeks to provide the society with a sought of balance once an offender is punished and thus helps to keep social order.
Conclusion
Certain crimes may arise that will require a combination of several rationale. It is important to note that a combination of the rationales may help in saving of resources as prisons currently have a high cost of running them. As such, certain punishment may not seek to achieve the intended purposes and, in the end, contribute to the additional usage of state resources.
References
Ackerman, G. (2011). Law and courts: Current perspectives from InfoTrac. Belmont, CA: Wadsworth.
Blackburn, A. G., Fowler, S. K., & Pollock, J. M. (2014). Prisons: Today and tomorrow. Burlington, Mass: Jones & Bartlett Learning.
Pettus, K. I. (2013). Felony disenfranchisement in America: Historical origins, institutional racism, and modern consequences. Albany: State University of New York Press.
Pollock, J. M. (2011). Ethical dilemmas and decisions in criminal justice. Belmont, CA: Wadsworth Cengage Learning.
Vito, G. F. (2006). Criminology. Sudbury, MA: Jones and Bartlett.
