CHAPTER ONE

INTRODUCTION

BACKGROUND TO THE STUDY

1.1.2 SCOPE OF PUNISHMENT

Almost everyone would agree that hurting someone or subjecting them to pain is wrong. However, punishment, by definition, involves the infliction of pain. Does this make punishment wrong? Philosophers are divided on this issue. One group believes that inflicting pain as punishment is fundamentally different from inflicting pain on innocents, and therefore is not inherently wrong. Another group believes that punishment is a wrong that can be justified only if it results in a “greater good” (Murphy 1995).

The different approach to punishment can be explained thus;

The first philosophical approach (or rationale) is that punishment, strictly defined, is not evil. Retribution is a term that means balancing a wrong through punishment. While revenge is personal and not necessarily proportional to the victim’s injury, retribution is impersonal and balanced. Newman, although recognizing the difficulty of defining punishment, defines it in this way: “Punishment is a pain or other unpleasant consequence that results from an offense against a

rule and that is administered by others, who represent legal authority, to the offender who broke the rule” (Newman 1978, 6–7).

In conclusion, the retributive rationale for punishment holds that because of natural law and the social contract, society has the right to punish, and the criminal has the right to be punished. It is not an evil to be justified, but rather, represents the natural order of things. According to Newman (1978, 287), “There is little grace in punishment. Only justice.”

The utilitarian rationale defines punishment as essentially evil, and seeks to justify it by the greater benefits that result. Under a utilitarian philosophical system, or utilitarianism, what is good is that which benefits “the many.” Thus, even if it were painful to the individual, if the majority benefit from a certain act, then utilitarianism would define that act as good. In our discussion, if punishment did deter or incapacitate or facilitate rehabilitation, then “the many” (all of society) would benefit, and punishment, by definition, would be good. This rationale for punishment is ancient. Plato argued that punishment is a benefit to the person because it improves their souls or characters (cited in Murphy (1995, 17). Under the utilitarian rationale, punishment is evil, but it is justified when punishment accomplishes more good than the evil it represents.

Incapacitation and rehabilitation are not really related to punishment at all. Incapacitation prevents an individual from inflicting further harm for at least as long as the individual is under control. Strictly speaking, it is not punishment because it does not necessarily imply pain. To put all criminals under a drug that induced sleep would be to incapacitate them, not necessarily to punish them. If one takes away the ability of the criminal to commit crime, this also would be incapacitation; for instance, chemical castration has been discussed and, in some cases, inflicted on sexual offenders. Note that there is no physical pain involved, only the incapacitating nature of the chemical. This is obviously a punishment, but it could also be termed incapacitation because it takes away the ability to commit the particular crime. House arrest, electronic bracelets, or other means of monitoring the movements of criminals have all been suggested as less expensive alternatives to incapacitating criminals in prisons. Prison, of course, has become synonymous with incapacitation because as long as the person is incarcerated, they cannot commit crimes against the rest of us. Of course, prisoners continue to commit crimes in prison against other inmates, and there is at least some limited ability to continue to commit some crimes, for instance, credit-card abuse over prison phones or computer fraud using computers provided in vocational programs. One issue of incapacitation is how long to hold the individual.

Rehabilitation is not punishment either, although punishment may be used as a tool of reform. Rehabilitation is defined as internal change that results in a cessation of the targeted negative behavior. It may be achieved by inflicting pain as a learning tool (behavior modification) or by other interventions that are not painful at all (for example, self-esteem groups, education, or religion). Under the retributive philosophy described earlier, rehabilitation and treatment are considered more intrusive and less respectful of the individuality of each person than pure punishment because they attack the internal psyche of the individual. They seek to change offenders, perhaps against their will. This is probably more sophistry than reality, as anyone who has worked with offenders can attest. Very few people enjoy the experience of being a drug addict or sex offender, and most prison programs have limited capacity to change individuals against their will anyway. In a later chapter, we will explore the concept of rehabilitation and the various modes of individual change. To conclude, the utilitarian rationale for punishment must determine that the good coming from punishment outweighs the inherent evil of the punishment itself.

The beneficial aspects of punishment include deterrence, incapacitation, and rehabilitation or reform.