Research Proposal on "Is Retribution a Useful Form of Punishment in Deterring Criminals?"

Research Proposal 6 pages (2005 words) Sources: 6

[EXCERPT] . . . .

Retribution for Criminal Punishment

Every wrongful action is paired with a measure of consequence, and every crime is associated with a form of punishment. This concept is not only historically relevant, but has been ingrained into nearly all corners of human culture. The basic principle of punishment is the intentional infliction of harm in response to what is deemed an act of wrongdoing (Golash, 2005). The fundamental practice of punishment appears to have been in place as a means for justice since the existence of civilization itself. The oldest form of punishment is retribution, which encompasses "an eye for an eye" logic. Retributive punishment is characterized by punishing the perpetrator for their crime at a level that is proportionate to the seriousness and moral severity of their wrongdoing (Markel, 2004).

There are three major justice vehicles used in determining punishment: retribution, deterrence, and incapacitation. The most controversial approach held by some in the criminal justice field is retributive punishment. Acts of deterrence and incapacitation are considered less invasive punishments, while retribution plays a more active role in punishment and is founded in moral proportionality, aiming to deliver a punishment that mirrors the degree of wrongdoing that the perpetrator committed (Carlsmith, 2006). Although the most controversial, the harsh form of retributive punishment is a critical mode of punishment to dissuade individuals from conducting criminal acts. Capital punishment is the extreme example of retributive punishment, as the death penalty is imposed to match the severity of the crime committed by the perpetrator. Those opposing retribution deem retributive punishment to be simply an act of revenge and should not be employed on perpetrators. The current misappropriation of punishment for criminal behavior, however, has contributed to the high crime rate and rate of repeat offense. The limited degree of punishment is not enough to discourage criminal behavior, and the threat of retribution and imposing retribution as punishment will ultimately lower criminal activity.

The practice of retribution for criminal punishment extends to early civilizations, and its evidence is found in the Bible and supported by other religious texts. The use of "an eye for an eye" logic and knowledge of the Golden Rule ("do unto others as you would have done unto you"), were in place to deter wrongful behavior. In a society utilizing "an eye for an eye" practice for criminal punishment, citizens are able to anticipate the equal match between wrongdoings and subsequent punishment. In American government, capital punishment is the sole example of retribution for criminal action. Gallup Polls performed on the American public show that Americans generally agree that in some circumstances, the death penalty is a justifiable punishment for murder (Radelet & Akers, 1996). The death penalty supports a concept of justice in which murderers should be executed, and not be sentenced to life imprisonment, as imprisonment does not justify taking a human life. The public continues to support the death penalty because of its inherent value as a general deterrent for homicide (Radelet & Akers, 1996). Biblical and historical understandings of "eye for an eye," and modern approval of capital punishment are in support of retribution as a deterrent for criminal behavior.

Retribution for criminal punishment currently represents a very small portion of the criminal justice system. In addition to retribution, the deterrence theory and the incapacitation theory are the two additional windows in which to view criminal punishment. The deterrence theory of punishment assumes the potential perpetrator operates under rational thought, and regards the threat of punishment as the most significant deterrent for criminal wrongdoing (Carlsmith, 2006). If an individual acts under rational thought, knowing their actions harbor an unwanted consequence will deter them from all criminal behavior. The deterrence theory is currently in practice with such punishments as fines, community service, corporal punishment (domestic, school, or judicial), and probation (Carlsmith, 2006).

The threat of paying fines or living under the restrictions of probation is supposed to be enough of a moral motivator to deter individuals from committing future harm. The crux of the deterrence theory is the evaluation of the benefit-cost ratio for the perpetrator and corresponding punishment. If one's crime has a high pay-off, and low punishment cost, the offender is likely to repeat the crime (Carlsmith, 2006). The deterrence theory evaluates the following: frequency of wrongdoing, as high rates of the same crime show the cost does not outweigh the benefits; detection rates, as crimes committed with low prosecution rates should correspond to severe punishment as a deterrent; and punishment publicity, as punishments with high publicity correspond with severe crimes vs. less publicized crimes (Carlsmith, 2006). These three distinguishing factors of the deterrence theory are designed to maintain the benefit-cost ratio of criminal behavior. Assuming the cost of punishment is high, the individual will be deterred from wrongdoing.

The third theory of punishment, the incapacitation theory, focuses on the will and character of the perpetrator. The incapacitation theory reports the cause for wrongdoing is a characteristic of the perpetrator, and past criminal behavior "is the best predictor of future wrongdoing" (Carlsmith, 2006, p. 438). This theory suggests a "once a criminal, always a criminal" reasoning for punishment, and argues criminals must be incapacitated and removed from opportunities to commit crimes. In a legal system, the perpetrators must be incarcerated or exiled (Carlsmith, 2006). The incapacitation theory factors a perpetrator's prior criminal record, employment history, residential stability, credit history, and the impulsivity of the individual (Carlsmith, 2006). A perpetrator's future is based on past actions, and criminal behavior should be extinguished by removing the individual from society to prevent future crimes.

The deterrence theory and incapacitation theory, however, do not equal the results that a retribution system of punishment would achieve. A retributive system of punishment would enact punishments that are held equally with the crime committed. Retribution erases ambiguity from punishment and enforces an unavoidable structure to justice. The benefit-cost ratio of the deterrence theory blurs the use of punishment for various wrongful acts. The costs of the crime are measured from the perspective of the perpetrator, and therefore, the costs are subjective to each individual. To one person, paying a fine associated with domestic violence is not a high cost, and will not inhibit them from becoming a repeat offender. What is considered adequate punishment for one is hardly a second thought for another. The incapacitation theory has limited its focus on the prevention of future crimes, not criminality as a whole. This theory does not account for the rehabilitating effects of punishment, and considers every perpetrator to be a repeat offender. The incapacitation theory uses the threat of incarceration as the only deterrent for criminal behavior, which serves as an inadequate threat to stop crimes from being committed in the first place. In addition, incapacitation by means of incarceration does not always match a crime with its equal punishment. Individuals with lesser offenses and juvenile offenders may be placed in prison with criminals who committed crimes with a greater severity of wrongdoing. In these instances, incarceration can be a place of criminal education instead of correction (Motilal, 2010).

Retribution is founded in punishing the perpetrator to the same degree of moral offense in which was committed during the wrongdoing. The three factors used to gauge the degree of moral offense are: the magnitude of harm, the perpetrator's intentions, and other factors that may lessen or intensify the immorality of the wrongful act (Carlsmith, 2006). For example, if an individual murdered someone who was a child molester, that individual could potentially receive a lesser extent of retributive punishment. A retributive justice system would prevent all crimes from being punished with ambiguity, and will prevent the over-sentencing and incarceration of criminals who commit lesser crimes. In the mid-1970s, Isaac Ehrlich estimated that each case in which the death penalty was carried out between 1933 and 1969 had prevented eight homicides (Radelet & Akers, 1996). Stephen Layson, a student of Ehrlich, later estimated each execution actually prevented 18 homicides (Radelet & Akers, 1996). Both were widely criticized for their claims; however, their studies were used to defend the death penalty in 1972, when the Supreme Court was contemplating to make a ban on capital punishment (Radelet & Akers, 1996).

Although a limited number of studies have been performed to address the implementation of a retributive justice system, the retributive theory of punishment remains a justificatory ideal by equating the severity of punishment with the moral severity of the crime (Cahill, 2007). The U.S. Department of Justice reports over 1.2 million violent crimes and over 9 million property crimes were committed in the U.S. In 2010 (U.S. Dept of Justice, 2011). The current legal system, which is comprised of aspects of the deterrence, incapacitation, and retribution theories, is not significant enough to reduce criminality. The concept of retribution validates the ideal of individual moral responsibility in socio-legal practice (Markel, 2004). For example, if an individual physically attacks their neighbor and the legal system, in its current state, did nothing to address the crime, two social facts are… READ MORE

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