purpose of punishment essay

Want to create or adapt books like this? Learn more about how Pressbooks supports open publishing practices.

1.5 The Purposes of Punishment

Learning objective.

• Ascertain the effects of specific and general deterrence, incapacitation, rehabilitation, retribution, and restitution.

Punishment has five recognized purposes: deterrence , incapacitation , rehabilitation , retribution , and restitution .

Specific and General Deterrence

Deterrence prevents future crime by frightening the defendant or the public . The two types of deterrence are specific and general deterrence . Specific deterrence applies to an individual defendant . When the government punishes an individual defendant, he or she is theoretically less likely to commit another crime because of fear of another similar or worse punishment. General deterrence applies to the public at large. When the public learns of an individual defendant’s punishment, the public is theoretically less likely to commit a crime because of fear of the punishment the defendant experienced. When the public learns, for example, that an individual defendant was severely punished by a sentence of life in prison or the death penalty, this knowledge can inspire a deep fear of criminal prosecution.

Incapacitation

Incapacitation prevents future crime by removing the defendant from society. Examples of incapacitation are incarceration, house arrest, or execution pursuant to the death penalty.

Rehabilitation

Rehabilitation prevents future crime by altering a defendant’s behavior. Examples of rehabilitation include educational and vocational programs, treatment center placement, and counseling. The court can combine rehabilitation with incarceration or with probation or parole. In some states, for example, nonviolent drug offenders must participate in rehabilitation in combination with probation, rather than submitting to incarceration (Ariz. Rev. Stat., 2010). This lightens the load of jails and prisons while lowering recidivism , which means reoffending.

Retribution

Retribution prevents future crime by removing the desire for personal avengement (in the form of assault, battery, and criminal homicide, for example) against the defendant. When victims or society discover that the defendant has been adequately punished for a crime, they achieve a certain satisfaction that our criminal procedure is working effectively, which enhances faith in law enforcement and our government.

Restitution

Restitution prevents future crime by punishing the defendant financially . Restitution is when the court orders the criminal defendant to pay the victim for any harm and resembles a civil litigation damages award. Restitution can be for physical injuries, loss of property or money, and rarely, emotional distress. It can also be a fine that covers some of the costs of the criminal prosecution and punishment.

Figure 1.4 Different Punishments and Their Purpose

Key Takeaways

• Specific deterrence prevents crime by frightening an individual defendant with punishment. General deterrence prevents crime by frightening the public with the punishment of an individual defendant.
• Incapacitation prevents crime by removing a defendant from society.
• Rehabilitation prevents crime by altering a defendant’s behavior.
• Retribution prevents crime by giving victims or society a feeling of avengement.
• Restitution prevents crime by punishing the defendant financially.

Answer the following questions. Check your answers using the answer key at the end of the chapter.

• What is one difference between criminal victims’ restitution and civil damages?
• Read Campbell v. State , 5 S.W.3d 693 (1999). Why did the defendant in this case claim that the restitution award was too high? Did the Texas Court of Criminal Appeals agree with the defendant’s claim? The case is available at this link: http://scholar.google.com/scholar_case?case=11316909200521760089&hl=en&as_sdt=2&as_vis=1&oi=scholarr .

Ariz. Rev. Stat. §13-901.01, accessed February 15, 2010, http://law.justia.com/arizona/codes/title13/00901-01.html .

Criminal Law Copyright © 2015 by University of Minnesota is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International License , except where otherwise noted.

• Table of Contents
• Random Entry
• Chronological
• Editorial Information
• About the SEP
• Editorial Board
• How to Cite the SEP
• Special Characters
• Advanced Tools
• Support the SEP
• PDFs for SEP Friends
• Make a Donation
• SEPIA for Libraries
• Entry Contents

Bibliography

Academic tools.

• Friends PDF Preview
• Author and Citation Info
• Back to Top

Legal Punishment

The question of whether, and how, legal punishment can be justified has long been a central concern of legal, moral, and political philosophy: what could justify a state in using the apparatus of the law to inflict intentionally burdensome treatment on its citizens? Radically different answers to this question are offered by consequentialist and by retributivist theorists — and by those who seek to incorporate consequentialist and retributivist considerations in ‘mixed’ theories of punishment. Meanwhile, abolitionist theorists argue that we should aim to replace legal punishment rather than to justify it. Among the significant developments in recent work on punishment theory are the characterisation of punishment as a communicative enterprise, greater recognition that punishment’s justification depends on the justification of the criminal law more generally, growing interest in the normative challenges raised by punishment in the international context, and increased concern for the relationship of punishment to the so-called ‘collateral’ consequences of a conviction.

1. Legal Punishment and Its Justification

2. punishment, crime, and the state, 3. consequentialist accounts, 4. retributivist accounts, 5. punishment as communication, 6. mixed accounts, 7. abolition and alternatives, 8. international criminal law and punishment, 9. collateral consequences, 10. further issues, other internet resources, related entries.

The central question asked by philosophers of punishment is: What can justify punishment? More precisely, since they do not usually talk much about punishment in such contexts as the family or the workplace (but see Zaibert 2006; Bennett 2008: Part II), their question is this: What can justify formal, legal punishment imposed by the state on those convicted of committing criminal offences? We will also focus on legal punishment here: not because the other species of punishment do not raise important normative questions (they do), nor because such questions can be answered in terms of an initial justification of legal punishment as being the paradigm case (since it’s not clear that they can be), but because legal punishment, apart from being more dramatically coercive and burdensome than other species of punishment usually are, raises distinctive issues about the role of the state and its relationship to its citizens, and about the role of the criminal law. Future references to ‘punishment’ should therefore be read, unless otherwise specified, as references to legal or criminal punishment.

What then are we to justify in justifying punishment? The search for a precise definition of punishment that exercised some philosophers (for discussion and references, see Scheid 1980; Boonin 2008: 3–28; Zimmerman 2011: ch. 1) is likely to prove futile; but we can say that legal punishment involves the imposition of something that is intended to be both burdensome and reprobative, on a supposed offender for a supposed crime, by a person or body who claims the authority to do so. Two points are worth particular notice here.

First, punishment involves material impositions or exactions that are in themselves typically unwelcome: they deprive people of things that they value (liberty, money, time); they require people to do things that they would not normally want to do or do voluntarily (to spend time on unpaid community labour, to report to a probation officer regularly, to undertake demanding programmes of various kinds). What distinguishes punishment from other kinds of coercive imposition, such as taxation, is that punishment is precisely intended to …: but to what? Some would say that punishment is intended to inflict pain or suffering: but that suggests that what matters is pain or suffering as such (and invites the familiar criticism that we and the state should not be in the business of trying to inflict pain or suffering on people; see Christie 1981 on ‘pain-delivery’), which some penal theorists would reject as a distortion. Others would say that punishment is intended to cause harm to the offender — adding, if they are careful (see Hanna 2014: s. 2) that what is intended is ‘prima facie harm’ rather than ‘all-things-considered harm’, to allow for the possibility that punishment might be, or might be intended to be, on balance beneficial to the offender. But some theorists would deny even this, since they would deny that punishment must be intended to be ‘intrinsically bad’ for the person punished. It is safer to say that punishment must be intended to be burdensome, and that is how punishment will be understood in what follows. (For running debate about this intentionality feature, see Wringe 2013, Hanna 2017, Wringe 2019, Hanna 2020.)

Second, it is widely accepted that what distinguishes punishment from mere ‘penalties’ (see Feinberg 1970) is their reprobative or condemnatory character. Penalties, such as parking tickets, might be imposed to deter the penalised conduct (or to recoup some of the costs that it causes) without being intended to express societal condemnation. But even if a primary purpose of punishment is deterrence (see ss. 3–4 below), its imposition (the conviction and formal sentence that the offender receives in court, the administration of the punishment itself) also expresses the censure or condemnation that the offender’s crime is taken to warrant.

These two features, that punishment is intentionally burdensome and condemnatory, make the practice especially normatively challenging. How can a practice that not only burdens those subjected to it but aims to burden them, and which conveys society’s condemnation, be justified?

We should not assume, however, that there is only one question of justification, which can receive just one answer. As Hart famously pointed out (Hart 1968: 1–27), we must distinguish at least three justificatory issues. First, what compelling reason is there to create and maintain a system of punishment: what good can it achieve, what duty can it fulfil, what moral demand can it satisfy? (Hart termed this the question of punishment’s ‘general justifying aim’, although the term may be misleading in that talk of ‘aims’ may seem to privilege a consequentialist answer to the question, whereas the compelling reason could be a nonconsequentialist one.) Second, who may properly be punished: what principles or aims should determine the allocations of punishments to individuals? Third, how should the appropriate amount of punishment be determined: how should sentencers go about deciding what sentence to impose? (One dimension of this third question concerns the amount or severity of punishment; another, which is insufficiently discussed by philosophers, concerns the concrete modes of punishment that should be available, in general or for particular crimes.) It might of course turn out that answers to all these questions will flow from a single theoretical foundation — for instance, from a unitary consequentialist principle specifying the good that punishment should achieve, or from some version of the retributivist principle that the sole proper aim of punishment is to impose on the guilty the punitive burdens they deserve. But matters might not be as simple as that: we might find that quite different and conflicting values are relevant to different issues about punishment, and that any complete normative account of punishment will have to find a place for these values and offer guidance in how to resolve tensions among them when they conflict (see s. 6).

Even this way of putting the matter oversimplifies it, by implying that we can hope to find a ‘complete normative account of punishment’: an account, that is, of how punishment can be justified. It is certainly an implicit assumption of much philosophical and legal discussion that punishment can, of course, be justified, and that the theorists’ task is to establish and explicate that justification. But it is an illegitimate assumption: normative theorists must be open to the possibility, startling and disturbing as it might be, that this pervasive human practice cannot be justified. Nor is this merely the kind of fantastical scepticism that moral philosophers are sometimes prone to imagine (‘suppose someone denied that killing for pleasure was wrong’): there is a significant strand of ‘abolitionist’ penal theorising (the subject of increasing philosophical attention in recent years) that argues precisely that legal punishment cannot be justified and should be abolished.

We will attend to some abolitionist arguments in section 7. Even if those arguments can be met, even if legal punishment can be justified, at least in principle, the abolitionist challenge is one that must be met, rather than ignored; and it will help to remind us of the ways in which any practice of legal punishment is bound to be morally problematic.

Legal punishment presupposes crime as that for which punishment is imposed, and a criminal law as that which defines crimes as crimes; a system of criminal law presupposes a state, which has the political authority to make and enforce the law and to impose punishments. A normative account of legal punishment and its justification must thus at least presuppose, and should perhaps make explicit, a normative account of the criminal law (why should we have a criminal law at all?) and of the proper powers and functions of the state (by what authority or right does the state make and declare law, and impose punishments on those who break it?). (See generally Duff 2018: ch. 1.)

Recent scholarship has thus seen a growing interest in grounding analysis of the justification of punishment in a political theory of the state. Many of these accounts are based on Rawls’s political theory or on other versions of constructivism (see Matravers 2000 and 2011b; Dolovich 2004; Brettschneider 2007; Flanders 2017; for critiques of such accounts, see Garvey 2004, Dagger 2011b). Several others are based on versions of republicanism (see Pettit 1997; Duff 2001; Dagger 2007 and 2011a; Yankah 2015; for other recent contributions showing the importance of political theory, see Brudner 2009; Brooks 2011; Sigler 2011; Markel 2012; Chiao 2016 and 2018). How far it matters, in this context, to make explicit a political theory of the state depends on how far different plausible political theories will generate different accounts of how punishment can be justified and should be used. We cannot pursue this question here (for two sharply contrasting views on it, see Philips 1986; M. Davis 1989), save to note one central point. For any political theory that takes seriously the idea of citizenship as full membership of the polity, the problem of punishment takes a particularly acute form, since we have now to ask how punishment can be consistent with citizenship (how citizens can legitimately punish each other): if we are not to say that those who commit crimes thereby forfeit their status as citizens (see s. 6 below), we must — if we are to justify punishment at all — show how the imposition of punishment can be consistent with, or even expressive of, the respect that citizens owe to each other. (Punishment is also, of course, imposed on non-citizens who commit crimes within a state’s territory: on the primacy of citizenship in understanding criminal law and its authority, and on the status of non-citizens, see Duff 2013 and 2018: ch. 3; Wringe 2021.)

Before we tackle such theories of punishment, however, we should look briefly at the concept of crime, since that is one focus of the abolitionist critique of punishment.

On a simple positivist view of law, crimes are kinds of conduct that are prohibited, on pain of threatened sanctions, by the law; and for positivists such as Bentham, who combine positivism with a normative consequentialism, the questions of whether we should maintain a criminal law at all, and of what kinds of conduct should be criminalised, are to be answered by trying to determine whether and when this method of controlling human conduct is likely to produce a net increase in good. Such a perspective seems inadequate, however: inadequate both to the claims of the criminal law, which presents its demands as something other or more than those of a gunman writ large — as something other or more than ‘Behave thus, or else!’ — and to the normative issues at stake when we ask what kinds of conduct should be criminalised. For the criminal law portrays crime not merely as conduct which has been prohibited, but as a species of wrongdoing: whether our inquiry is analytical (into the concept of crime) or normative (as to what kinds of conduct, if any, should be criminal), we must therefore focus on that notion of wrongdoing.

Crimes are, at least, socially proscribed wrongs — kinds of conduct that are condemned as wrong by some purportedly authoritative social norm. That is to say that they are wrongs which are not merely ‘private’ affairs, which properly concern only those directly involved in them: the community as a whole — in this case, the political community speaking through the law — claims the right to declare them to be wrongs. But crimes are ‘public’ wrongs in a sense that goes beyond this. Tort law, for instance, deals in part with wrongs that are non-private in that they are legally and socially declared as wrongs — with the wrong constituted by libel, for instance. But they are still treated as ‘private’ wrongs in the sense that it is up to the person who was wronged to seek legal redress. She must decide to bring, or not to bring, a civil case against the person who wronged her; and although she can appeal to the law to protect her rights, the case is still between her and the defendant. By contrast, a criminal case is between the whole political community — the state or the people — and the defendant: the wrong is ‘public’ in the sense that it is one for which the wrongdoer must answer not just to the individual victim, but to the whole polity through its criminal courts.

It is notoriously difficult to give a clear and plausible account of the distinction between civil and criminal law, between ‘private’ and ‘public’ legal wrongs, whether our interest is in the analytical question of what the distinction amounts to, or in the normative question of which kinds of wrong should fall into which category (see Murphy and Coleman 1984: ch. 3; a symposium in Boston University Law Review vol. 76 (1996): 1–373; Lamond 2007). It might be tempting to say that crimes are ‘public’ wrongs in the sense that they injure the whole community: they threaten social order, for instance, or cause ‘social volatility’ (Becker 1974); or they involve taking unfair advantage over those who obey the law (H. Morris 1968: 477–80; Murphy 1973; Dagger 1993 and 2008); or they undermine the trust on which social life depends (Dimock 1997). But such accounts distract our attention from the wrongs done to the individual victims that most crimes have, when it is those wrongs that should be our central concern: we should condemn the rapist or murderer, we should see the wrong he has done as our concern, because of what he has done to his victim. Another suggestion is that ‘public’ wrongs are those that flout the community’s essential or most basic values, in which all members of the community should see themselves as sharing: the wrong is done to ‘us’, not merely to its individual victim, in the sense that we identify ourselves with the victim as a fellow citizen (see Marshall and Duff 1998; Duff 2007: ch. 6; and see further section 6 of the entry on theories of criminal law ).

Some abolitionists, however, argue that we should seek to eliminate the concept of crime from our social vocabulary: we should talk and think not of ‘crimes’, but of ‘conflicts’ or ‘troubles’ (Christie 1977; Hulsman 1986). One motivation for this might be the thought that ‘crime’ entails punishment as the appropriate response: but that is not so, since we could imagine a system of criminal law without punishment. To define something as a ‘crime’ does indeed imply that some kind of public response is appropriate, since it is to define it as a kind of wrong that properly concerns the whole community; and it implies that that response should be a condemnatory one, since to identify wrongs as wrongs is to mark them out as apt for condemnation: but that public, condemnatory response could consist in nothing more than, for instance, some version of a criminal trial which calls the alleged wrongdoer to answer for her alleged wrongdoing, and condemns her for it, through a criminal conviction, if she is proved guilty. One can of course count a criminal conviction as a kind of punishment: but it does not entail the kind of materially burdensome punishment, imposed after conviction, with which penal theorists are primarily concerned.

Another possible motivation for the abolitionist objection to the concept of crime is a kind of moral relativism that objects to the ‘imposition’ of values on those who might not share them (Bianchi 1994: 71–97): but since abolitionists are very ready to tell us, insistently, how we ought to respond to conflicts or troubles, and how a state ought or ought not to treat its citizens, such an appeal to relativism reflects serious confusion (see Williams 1976: 34–39). More plausibly, the abolitionist claim could be that rather than take wrongdoing as our focus, we should focus on the harm that has been done, and on how it can be repaired; we will return to this suggestion in section 7 below.

Another abolitionist concern is that by defining and treating conduct as ‘criminal’, the law ‘steals’ the conflicts which crime involves from those to whom they properly belong (Christie 1977): instead of allowing, and helping, those who find themselves in conflict to resolve their trouble, the law takes the matter over and translates it into the professionalised context of the criminal justice system, in which neither ‘victim’ nor ‘offender’ is allowed any appropriate or productive role. Now it is a familiar and disturbing truth that our existing criminal processes — both in their structure and in their actual operations — tend to preclude any effective participation by either victims or offenders, although an adequate response to the criminal wrong that was done should surely involve them both. One response is to argue, as some abolitionists do, that our response to crime should consist not in punishment, but in a process of mediation or ‘restoration’ between victim and offender (see s. 7 below); but another is to insist that we should retain a distinctive criminal process of trials, and punishment, in which the polity as a whole, acting on behalf of the victim as well as on its own behalf, calls the criminal wrongdoer to account — but that victims and offenders should be given a more active role in that process (see further Duff et al 2007, esp. chs. 3–5, 7). Such an insistence on the need for a public criminal process reflects two aspects of the concept of crime: first, it is sometimes important to recognise that a situation involves not just people in ‘conflict’, but a victim who has been wronged and an offender who has done the wrong; second, some such wrongs are ‘public’ wrongs in the sense sketched above — wrongs that properly concern not just those directly affected, but all members of the political community. Faced, for instance, by feuding neighbours who persistently accuse each other of more or less trivial wrongs, it might indeed be appropriate to suggest that they should forget about condemning each other and look for a way of resolving their conflict. But faced by a rapist and the person he raped, or by a violent husband and the wife he has been beating up, it would a betrayal both of the victim and of the values to which we are supposedly committed to portray the situation merely as a ‘conflict’ which the parties should seek to resolve: whatever else or more we can do, we must recognise and declare that here is a victim who has been seriously wronged; and we must be collectively ready to censure the offender’s action as a wrong (for a useful discussion of the significance of criminal law in the context of domestic violence, see Dempsey 2009).

However, to argue that we should retain the concept of crime, that we should maintain a criminal law which defines and condemns a category of ‘public’ wrongs, is not yet to say that we should maintain a penal system that punishes those who commit such wrongs; while a system of criminal law might require something like a system of criminal trials that will authoritatively identify and condemn criminal wrongdoers, it does not of its nature require the imposition of further sanctions on such wrongdoers. So, we must turn now to the question of what could justify such a system of punishment.

Many people, including those who do not take a consequentialist view of other matters, think that any adequate justification of punishment must be basically consequentialist. For we have here a practice that inflicts, indeed seeks to inflict, significant hardship or burdens: how else could we hope to justify it than by showing that it brings consequential benefits sufficiently large to outweigh, and thus to justify, those burdens? We need not be Benthamite utilitarians to be moved by Bentham’s famous remark that “all punishment in itself is evil. ... [I]f it ought at all to be admitted, it ought only to be admitted in as far as it promises to exclude some greater evil” (Bentham 1789: ch. XIII.2). However, when we try to flesh out this simple consequentialist thought into something closer to a full normative account of punishment, problems begin to appear.

A consequentialist must justify punishment (if she is to justify it at all) as a cost-effective means to certain independently identifiable goods (for two simple examples of such theories, see Wilson 1983; Walker 1991). Whatever account she gives of the final good or goods at which all action ultimately aims, the most plausible immediate good that a system of punishment can bring is the reduction of crime. A rational consequentialist system of law will define as criminal only conduct that is in some way harmful; in reducing crime we will thus be reducing the harms that crime causes. It is commonly suggested that punishment can help to reduce crime by deterring, incapacitating, or reforming potential offenders (though for an argument that incapacitation is not a genuinely punitive aim, see Hoskins 2016: 260). (There are of course other goods that a system of punishment can bring. It can reassure those who fear crime that the state is taking steps to protect them—though this is a good that, in a well-informed society, will be achieved only insofar as the more immediate preventive goods are achieved. It can also bring satisfaction to those who want to see wrongdoers suffer — though to show that to be a genuine good, rather than merely a means of averting vigilantism and private revenge, we would need to show that it involves something more than mere vengeance, which would be to make sense of some version of retributivism.)

In consequentialist terms, punishment will be justified if it is an effective means of achieiving its aim, if its benefits outweigh its costs, and if there is no less burdensome means of achieving the same aim. It is a contingent question whether punishment can satisfy these conditions, and some objections to punishment rest on the empirical claim that it cannot — that there are more effective and less burdensome methods of crime reduction (see Wootton 1963; Menninger 1968; Golash 2005: chs. 2 and 8; Boonin 2008: 53, 264–67). Our focus here, however, will be on the moral objections to consequentialist accounts of punishment — objections, basically, that crime-reductive efficiency does not suffice to justify a system of punishment.

The most familiar line of objection to consequentialist penal theories contends that consequentialists would be committed to regarding manifestly unjust punishments (the punishment of those known to be innocent, for instance, or excessively harsh punishment of the guilty) to be in principle justified if they would efficiently serve the aim of crime reduction: but such punishments would be wrong, because they would be unjust (see e.g., McCloskey 1957: 468–69; Hart 1968, chs. 1–2; Ten 1987; Primoratz 1999, chs. 2–3; Boonin 2008: ch. 2).

There are some equally familiar consequentialist responses to this objection. One is to argue that such ‘unjust’punishments would be justified if they would really produce the best consequences (see e.g., Smart 1973: 69–72; Bagaric and Amarasekara 2000) — to which the critic will reply that we cannot thus put aside the moral significance of injustice. Another is to argue that in the real world it is extremely unlikely that such punishments would ever be for the best, and even less likely that the agents involved could be trusted reliably to pick out those rare cases in which they would be: thus we, and especially our penal officials, will do best if we think and act as if such punishments are intrinsically wrong and unjustifiable (see e.g., Rawls 1955; Hare 1981, chs. 3, 9.7) — to which the critic will respond that this still makes the wrongness of punishing a known innocent contingent on its effects, and fails to recognise the intrinsic wrong that such punishment does (see e.g., Duff 1986: 151–64; Primoratz 1999, chs. 3.3, 6.5). Another response is to argue that a richer or subtler account of the ends that the criminal law should serve will generate suitable protection against unjust punishments (see Braithwaite and Pettit 1990, especially 71–76, on ‘dominion’ as the end of criminal law); but the objection remains that any purely consequentialist account will make the protection of the innocent against injustice contingent on its instrumental contribution to the system’s aims (on Braithwaite and Pettit, see von Hirsch and Ashworth 1992; Duff 1996: 20–25; Pettit 1997).

Another objection to consequentialist accounts focuses not on potential wrongs done to the innocent but rather on the wrong allegedly done to the guilty. Consequentialist punishment, on this objection, fails to respect the person punished as an autonomous moral agent. In Kantian terms, such punishment treats those punished as mere means to achieving some social good, rather than respecting them as ends in themselves (Kant 1797: 473; Murphy 1973). The Kantian prohibition on treating each other ‘merely as means’ is admittedly unclear in its implications (for a useful discussion of how we should understand ‘the means principle’, see Tadros 2011: ch. 6). One might argue that if punishment is reserved for those who voluntarily break the law, it does not treat them merely as means. Indeed, Kant himself suggested that as long as we reserve punishment only for those found guilty of crimes, then it is permissible to punish with an eye toward potential benefits (Kant 1797: 473). As we have seen, though, insofar as such an approach relies on endorsing prohibitions on punishment of the innocent or disproportionate punishment of the guilty, the challenge remains that such constraints appear to be merely contingent if grounded in consequentialist considerations. Conversely, if the constraints are more than merely contingent, it appears that they will be based on some deontological considerations, in which case the overall theory will no longer be purely consequentialist, but rather a mixed theory (see s. 6).

A more recent objection (Duff 2011: 75–79) charges that consequentialist systems of punishment are inappropriately exclusionary insofar as they treat offenders as dangerous ‘outsiders’ who must be threatened, incapacitated, or reformed to ensure the safety of the law-abiding members of society. The criminal law, and the institution of punishment, in a liberal society should treat offenders as (still) members of the polity who despite having violated its values could, and should, nonetheless (re)commit to these values. A possible response is that a penal system aimed at crime reduction through deterrence need not be exclusionary, as it treats all community members equally, namely as potential offenders (Hoskins 2011a: 379–81). Also, insofar as such a system ‘promotes social cooperation under stable public institutions’, it thus helps to protect the freedom of everyone (Chiao 2018: 36).

Whereas consequentialist accounts regard punishment as justified instrumentally, as a means to achieving some valuable goal (typically crime reduction), retributivist accounts contend that punishment is justified as an intrinsically appropriate, because deserved, response to wrongdoing (but see Berman 2011 for an argument that some recent versions of retributivism actually turn it into a consequentialist theory).

Theorists have distinguished ‘positive’ and ‘negative’ forms of retributivism. Positive retributivism holds that an offender’s desert provides a reason in favour of punishment; essentially, the state should punish those found guilty of criminal offences to the extent that they deserve, because they deserve it. Penal desert constitutes not just a necessary, but an in-principle sufficient reason for punishment (only in principle, however, since there are good reasons — to do with the costs, both material and moral, of punishment — why we should not even try to punish all the guilty). Negative retributivism, by contrast, provides not a positive reason to punish, but rather a constraint on punishment: punishment should be imposed only on those who deserve it, and only in proportion with their desert. Because negative retributivism represents only a constraining principle, not a positive reason to punish, it has been employed in various mixed accounts of punishment, which endorse punishment for consequentialist reasons but only insofar as the punishment is no more than is deserved (see s. 6 below).

A striking feature of penal theorising during the last three decades of the twentieth century was a revival of positive retributivism — of the idea that the positive justification of punishment is to be found in its intrinsic character as a deserved response to crime (see H. Morris 1968; N. Morris 1974; Murphy 1973; von Hirsch 1976; two useful collections of contemporary papers on retributivism are White 2011 and Tonry 2012).

Positive retributivism comes in very different forms (Cottingham 1979). All can be understood, however, as attempting to answer the two central questions faced by any retributivist theory of punishment. First, what is the justificatory relationship between crime and punishment that the idea of desert is supposed to capture: why do the guilty ‘deserve to suffer’ (see L. Davis 1972) — and what do they deserve to suffer (see Ardal 1984; Honderich 2005, ch. 2)? Second, even if they deserve to suffer, or to be burdened in some distinctive way, why should it be for the state to inflict that suffering or that burden on them through a system of criminal punishment (Murphy 1985; Husak 1992 and 2015; Shafer-Landau 1996; Wellman 2009)?

One retributivist answer to these questions is that crime involves taking an unfair advantage over the law-abiding, and that punishment removes that unfair advantage. The criminal law benefits all citizens by protecting them from certain kinds of harm: but this benefit depends upon citizens accepting the burden of self-restraint involved in obeying the law. The criminal takes the benefit of the self-restraint of others but refuses to accept that burden herself: she has gained an unfair advantage, which punishment removes by imposing some additional burden on her (see H. Morris 1968; Murphy 1973; Sadurski 1985; Sher 1987, ch. 5; Adler 1992, chs. 5–8; Dagger 1993, 2008, 2011; Stichter 2010; Duus-Otterström 2017; for criticism, see Burgh 1982; Duff 1986, ch. 8; Falls 1987; Dolinko 1991; Anderson 1997; Boonin 2008: 119–143; Hoskins 2011b).

This kind of account does indeed answer the two questions noted above. What the criminal deserves to suffer is the loss of her unfair advantage, and she deserves that because it is unfair that she should get away with taking the benefits of the law without accepting the burdens on which those benefits depend; it is the state’s job to inflict this suffering on her, because it is the author or guarantor of the criminal law. However, such accounts have internal difficulties: for instance, how are we to determine how great was the unfair advantage gained by a crime; how far are such measurements of unfair advantage likely to correlate with our judgements of the seriousness of crimes? (For a detailed defence of the ‘unfair advantage’ theory as a theory of sentencing, see M. Davis 1992, 1996; for criticism, see Scheid 1990, 1995; von Hirsch 1990.) Furthermore, they seem to misrepresent what it is about crime that makes it deserving of punishment: what makes murder, or rape, or theft, or assault a criminal wrong, deserving of punishment, is surely the wrongful harm that it does to the individual victim — not (as on this kind of account) the supposed unfair advantage that the criminal takes over all those who obey the law (for recent attempts to defend fair play retributivism against these objections, see Stichter 2010 and Duus-Otterström 2017).

A different retributivist account appeals not to the abstract notion of unfair advantage, but to our (normal, appropriate) emotional responses to crime: for instance, to the resentment or ‘retributive hatred’, involving a desire to make the wrongdoer suffer, that crime may arouse (see Murphy and Hampton 1988, chs. 1, 3); or to the guilt, involving the judgement that I ought to be punished, that my own wrongdoing would arouse in me (see Moore 1997, ch. 4). Such accounts try to answer the first of the two questions noted above: crime deserves punishment in the sense that it makes appropriate certain emotions (resentment, guilt) which are satisfied by or expressed in punishment. They do not yet show, however, why it should be the state’s task to satisfy or provide formal expression for such emotions (but see Stephen 1873: 152); and their answers to the first question are also problematic. Criminal wrongdoing should, we can agree, provoke certain kinds of emotion, such as self-directed guilt and other-directed indignation; and such emotions might typically involve a desire to make those at whom they are directed suffer. But just as we can agree that anger is an appropriate response to wrongs done to me, while also arguing that we should resist the desire to hit back that anger often, even typically, involves (see Horder 1992:194–7), so we could argue that although guilt, resentment and indignation are appropriate responses to our own and others’ wrongdoing, we should resist the desire for suffering that they so often involve. At the least we need to know more than we are told by these accounts about just what wrongdoers deserve to suffer, and why the infliction of suffering should be an appropriate way to express such proper emotions. (For critical discussions of Murphy, see Murphy and Hampton 1988, ch. 2; Duff 1996: 29–31; Murphy 1999. On Moore, see Dolinko 1991: 555–9; Knowles 1993; Murphy 1999. See also Murphy 2003, 2012.)

More recently, critics of emotion-based retributivist accounts have contended that the emotions on which retributive (and other deontological) intuitions are based have evolved as mechanisms to stabilise cooperation; given that we have retributive emotions only because of their evolutionary fitness, it would be merely a coincidence if intuitions based on these emotions happened to track moral truths about, e.g., desert (see especially Greene 2008; also Singer 2005). A problem with such accounts is that they appear to prove too much: consequentialist accounts also rely on certain evaluation intuitions (about what has value, or about the proper way to respond to that which we value); insofar as such intuitions are naturally selected, then it would be no less coincidental if they tracked moral truths than if retributive intuitions did so. Thus the consequentialist accounts that derive from these intuitions would be similarly undermined by this evolutionary argument (see Kahane 2011; Mason 2011; but see Wiegman 2017).

A third version of retributivism holds that when people commit a crime, they thereby incur a moral debt to their victims, and punishment is deserved as a way to pay this debt (McDermott 2001). This moral debt differs from the material debt that an offender may incur, and thus payment of the material debt (returning stolen money or property, etc.) does not settle the moral debt: punishment is needed to pay the moral debt, by denying the ill-gotten moral good to the perpetrator. Among the challenges for this account are to explain the nature of the moral good, how the offender takes this moral good from the victim, how punishment denies this good to the offender, and how doing so thereby pays the offender’s debt to the victim.

Perhaps the most influential version of retributivism in recent decades seeks the meaning and justification of punishment as a deserved response to crime in its expressive or communicative character. (On the expressive dimension of punishment, see generally Feinberg 1970; Primoratz 1989; for critical discussion, see Hart 1963: 60–69; Skillen 1980; M. Davis 1996: 169–81; A. Lee 2019.) Consequentialists can of course portray punishment as useful partly in virtue of its expressive character (see Ewing 1927; Lacey 1988; Braithwaite and Pettit 1990); but a portrayal of punishment as a mode of deserved moral communication has been central to many recent versions of retributivism.

The central meaning and purpose of punishment, on such accounts, is to convey the censure or condemnation that offenders deserve for their crimes. On some versions of this type of theory, punishment serves to express to the community generally (including the offender and victim) the society’s denunciation of or dissociation from the crime (see Bennett 2008; Wringe 2016). On other such accounts, the primary intended audience of the condemnatory message is the offender himself, although the broader society may be a secondary audience (see Duff 2001: secs. 1.4.4, 3.2; Markel 2011).

Once we recognise that punishment can serve this communicative purpose, we can see how such accounts begin to answer the two questions that retributivists face. First, there is an obviously intelligible justificatory relationship between wrongdoing and condemnation: whatever puzzles there might be about other attempts to explain the idea of penal desert, the idea that it is appropriate to condemn wrongdoing is surely unpuzzling. Second, it is appropriate for the state to ensure that such censure is formally administered through the criminal justice system: if crimes are public wrongs, breaches of the political community’s authoritative code, then they merit public censure by the community. (For other examples of communicative accounts, see especially von Hirsch 1993: ch.2; Markel 2012. For critical discussion, see M. Davis 1991; Boonin 2008: 171–80; Hanna 2008; Matravers 2011a.)

Two crucial lines of objection face any such justification of punishment as a communicative enterprise. The first line of critique holds that, whether the primary intended audience is the offender or the community generally, condemnation of a crime can be communicated through a formal conviction in a criminal court; or it could be communicated by some further formal denunciation issued by a judge or some other representative of the legal community, or by a system of purely symbolic punishments which were burdensome only in virtue of their censorial meaning. It can, of course, also be communicated by ‘hard treatment’ punishments of the kinds imposed by our courts — by imprisonment, by compulsory community service, by fines and the like, which are burdensome independently of their censorial meaning (on ‘hard treatment’, see Feinberg 1970): but why should we choose such methods of communication, rather than methods that do not involve hard treatment (see Christie 1981: 98–105; Boonin 2008: 176–79; Hanna 2008; Königs 2013; Tadros 2011: 103)? Is it because they will make the communication more effective (see Falls 1987; Primoratz 1989; Kleinig 1991)? But one might think that an account that relies on punishment’s contingent effectiveness in communicating the desired message begins to look more like the sort of consequentialist account of which retributivists are critical (but see Glasgow 2015: 611–20). And anyway, one might worry that the hard treatment will conceal, rather than highlight, the moral censure it should communicate (see Mathiesen 1990: 58–73).

One sort of answer to this first line of critique explains penal hard treatment as an essential aspect of the enterprise of moral communication itself. Punishment, on this view, should aim not merely to communicate censure to the offender, but to persuade the offender to recognise and repent the wrong he has done, and so to recognise the need to reform himself and his future conduct, and to make apologetic reparation to those whom he wronged. His punishment then constitutes a kind of secular penance that he is required to undergo for his crime: its hard treatment aspects, the burden it imposes on him, should serve both to assist the process of repentance and reform, by focusing his attention on his crime and its implications, and as a way of making the apologetic reparation that he owes (see Duff 2001, 2011b; see also Garvey 1999, 2003; Tudor 2001; Brownless 2007; Hus 2015; for a sophisticated discussion see Tasioulas 2006). This type of account faces serious objections (see Bickenbach 1988; Ten 1990; von Hirsch 1999; Bagaric and Amarasekara 2000; Ciocchetti 2004; von Hirsch and Ashworth 2005: ch. 7; Bennett 2006, 2015): in particular that it cannot show penal hard treatment to be a necessary aspect of a communicative enterprise which is still to respect offenders as responsible and rational agents who must be left free to remain unpersuaded; that apologetic reparation must be voluntary if it is to be of any real value; and that a liberal state should not take this kind of intrusive interest in its citizens’ moral characters.

The second line of objection to communicative versions of retributivism — and indeed against retributivism generally — charges that the notions of desert and blame at the heart of retributivist accounts are misplaced and pernicious. One version of this objection is grounded in scepticism about free will. Free will scepticism holds that people’s behaviour is the product of determinism, luck, or chance, and thus that we are not morally responsible for our behaviour in the respects that would justify the ideas that those who commit crimes are blameworthy and deserve punishment (see Pereboom 2013; Caruso 2018). In response, retributivists may point out that only if punishment is grounded in desert can we provide more than contingent assurances against punishment of the innocent or disproportionate punishment of the guilty, or assurances against treating those punished as mere means to whatever desirable social ends (see s. 3 above; but see Vilhauer 2013).

Another version of the objection is not grounded in free will scepticism: it allows that people may sometimes merit a judgement of blameworthiness. But it contends that the ‘affective’ aspect of blame — its realisation in negative reactive attitudes such as anger, hatred, and contempt — has pernicious effects when manifested in the criminal law: such emotion-laden blame fosters all-encompassing condemnations of offenders, rather than condemnation merely of their crimes; and it has contributed to overcriminalisation, overly harsh sentencing, and mass incarceration. On this line of objection, the state’s response to crimes should focus not on retribution but on rehabilitation, treating offenders as morally responsible agents but not blaming them (see Lacey and Pickard 2013, 2015, 2018, 2021; for similar accounts, see Kelly 2018; Nussbaum 2016: ch. 6).

To this second version of the objection to retributivist blame, retributivists may respond that although emotions associated with retributive blame have no doubt contributed to various excesses in penal policy, this is not to say that the notion of deserved censure can have no appropriate place in a suitably reformed penal system. After all, when properly focused and proportionate, reactive attitudes such as anger may play an important role by focusing our attention on wrongdoing and motivating us to stand up to it; anger-tinged blame may also serve to convey how seriously we take the wrongdoing, and thus to demonstrate respect for its victims as well as its perpetrators (see Cogley 2014; Hoskins 2020). What’s more, on the sort of communicative retributivist account sketched above, treating offenders as responsible agents involves pointing out when they have done wrong and expecting them to take responsibility for their wrongful actions. If taking responsibility for one’s wrongdoing requires that one acknowledge it as wrongdoing, commit to reforming one’s behaviour, and begin to reconcile with one’s community by making reparation for the wrongdoing, then one might argue that emotions associated with self-blame (guilt, remorse) and others’ blame (anger, resentment) play a central role in such a process.

Given the challenges faced by pure consequentialist and pure retributivist accounts, some theorists have sought to make progress on the question of punishment’s justification by incorporating consequentialist and nonconsequentialist elements into their accounts.

Perhaps the most influential example of a mixed account begins by recognizing that the question of punishment’s justification is in fact several different questions, which may be answered by appeal to different considerations. In particular, Hart (1968: 9–10) pointed out that we may ask about punishment, as about any social institution, what compelling rationale there is to maintain the institution (that is, what values or aims it fosters) and also what considerations should govern the institution. The compelling rationale will itself entail certain constraints: e.g., the rationale of deterrence would rule out punishments that had no deterrent effect or, worse, tended to exacerbate crime levels. What distinguishes hybrid theories such as Hart’s, however, is the claim that there may be constraining considerations that do not flow from punishment’s rationale. On Hart’s account, the compelling rationale for punishment (what he termed its ‘general justifying aim’) lies in its beneficial effects, but our pursuit of that aim must be constrained by nonconsequentialist principles that preclude the kinds of injustice alleged to flow from a purely consequentialist account: principles that forbid, for instance, the deliberate punishment of the innocent, or the excessively harsh punishment of the guilty. (See most famously Hart 1968, and Scheid 1997 for a sophisticated Hartian theory; on Hart, see Lacey 1988: 46–56; Morison 1988; Primoratz 1999: ch. 6.6.)

Although analysis of ‘the hybrid theory’ of punishment has tended to focus on Hart’s version of it, one might endorse hybrid views that vary significantly from Hart’s. For example, whereas Hart endorsed a consequentialist rationale for punishment and nonconsequentialist side-constraints, one might instead endorse a retributivist rationale constrained by consequentialist considerations (punishment should not tend to exacerbate crime, or undermine offender reform, etc.), or constrained by nonconsequentialist (but not retributivist) considerations such as human rights or respect for persons. Alternatively, one might endorse an account on which both consequentialist and retributivist considerations features as rationales but for different branches of the law: on such an account, the legislature determines crimes and establishes sentencing ranges with the aim of crime reduction, but the judiciary makes sentencing decisions based on retributivist considerations of desert (M. C. Altman 2021; Rawls’s account (1955) has also been characterised as a hybrid view of this sort, but in fact it is a version of rule utilitarianism; on the variety of hybrid views, see Hoskins 2021).

Critics have charged that hybrid accounts are ad hoc or internally inconsistent (see Kaufman 2008: 45–49). In addition, retributivists argue that hybrid views that integrate consequentialist rationales with retributivist side-constraints thereby relegate retributivism to a merely subsidiary role, when in fact giving offenders their just deserts is a (or the) central rationale for punishment (see Wood 2002: 303).

Also, because hybrid accounts incorporate consequentialist and retributivist elements, they may be subject to some of the same objections raised against pure versions of consequentialism or retributivism. For example, insofar as they endorse retributivist constraints on punishment, they face the thorny problem of explaining the retributivist notion of desert (see s. 4 above): but it is not clear whether they can be justified without such an appeal to retributivist desert (see Hart 1968: 44–48; Feinberg 1988: 144–55; Walker 1991, ch. 11). Even if such side-constraints can be securely grounded, however, consequentialist theories of punishment face the broadly Kantian line of objection discussed earlier (s. 3), that punishing with the aim of serving some desirable social ends treats those punished merely as means to those further ends, which denies them the respect, the moral standing, that is their due as responsible agents.

Some have contended that punishment with a consequentialist rationale does not treat those punished merely as means as long as it is constrained by the retributivist prohibitions on punishment of the innocent and disproportionate punishment of the guilty (see Walker 1980: 80–85; Hoskins 2011a). Still, a critic may argue that if we are to treat another with the respect due to her as a rational and responsible agent, we must seek to modify her conduct only by offering her good and relevant reasons to modify it for herself. Punishment aimed at deterrence, incapacitation, or offender reform, however, does not satisfy that demand. A reformative system treats those subjected to it not as rational, self-determining agents, but as objects to be re-formed by whatever efficient (and humane) techniques we can find. An incapacitative system does not leave those subjected to it free, as responsible agents should be left free, to determine their own future conduct, but seeks to preempt their future choices by incapacitating them. And although a deterrent system does, unlike the others, offer potential offenders reason to obey the law, it offers them the wrong kind of reason: instead of addressing them as responsible moral agents, in terms of the moral reasons which justify the law’s demands on them, it addresses them as merely self-interested beings, in the coercive language of threat; deterrence treats ‘a man like a dog instead of with the freedom and respect due to him as a man’ (Hegel 1821: 246. For these objections, see Lewis 1953; H Morris 1968; Duff 1986: 178–86; von Hirsch 1993: 9–14; von Hirsch and Ashworth 1998, chs. 1, 3).

One strategy for dealing with them is to posit a two-step justification of punishment. The first step, which typically appeals to nonconsequentialist values, shows how the commission of a crime renders the offender eligible for, or liable to, the kinds of coercive treatment that punishment involves: such treatment, which is normally inconsistent with the respect due to us as rational agents or as citizens, and inconsistent with the Kantian means principle, is rendered permissible by the commission of the offence. The second step is then to offer positive consequentialist reasons for imposing punishment on those who are eligible for it or liable to it: we should punish if and because this can be expected to produce sufficient consequential benefits to outweigh its undoubted costs. (Further nonconsequentialist constraints might also be placed on the severity and modes of punishment that can be permitted: constraints either flowing from an account of just what offenders render themselves liable to, or from other values external to the system of punishment.)

Thus, for instance, some argue that those who voluntarily break the law thereby forfeit at least some of the rights that citizens can normally claim: their wrongdoing therefore legitimises kinds of treatment (reformative or incapacitative treatment, for instance, or deterrent punishment) that would normally be wrong as violating citizens’ rights (see Goldman 1982; C Morris 1991; Wellman 2012; for criticisms, see Lippke 2001a; Boonin 2008: 103–19). We must ask, however, whether we should be so quick to exclude fellow citizens from the rights and status of citizenship, or whether we should not look for an account of punishment (if it is to be justified at all) on which punishment can still be claimed to treat those punished as full citizens. (The common practice of denying imprisoned offenders the right to vote while they are in prison, and perhaps even after they leave prison, is symbolically significant in this context: those who would argue that punishment should be consistent with recognised citizenship should also oppose such practices; see Lippke 2001b; Journal of Applied Philosophy 2005; see also generally s. 9.)

Another view holds that punishment does not violate offenders’ rights insofar as they consent to their punishment (see Nino 1983). The consent view holds that when a person voluntarily commits a crime while knowing the consequences of doing so, she thereby consents to these consequences. This is not to say that she explicitly consents to being punished, but rather than by her voluntary action she tacitly consents to be subject to what she knows are the consequences. Notice that, like the forfeiture view, the consent view is agnostic regarding the positive aim of punishment: it purports to tell us only that punishing the person does not wrong her, as she has effectively waived her right against such treatment. The consent view faces formidable objections, however. First, it appears unable to ground prohibitions on excessively harsh sentences: if such sentences are implemented, then anyone who subsequently violates the corresponding laws will have apparently tacitly consented to the punishment (Alexander 1986). A second objection is that most offenders do not in fact consent, even tacitly, to their sentences, because they are unaware either that their acts are subject to punishment or of the severity of the punishment to which they may be liable. For someone to have consented to be subject to certain consequences of an act, she must know of these consequences (see Boonin 2008: 161–64). A third objection is that, because tacit consent can be overridden by explicit denial of consent, it appears that explicitly nonconsenting offenders could not be justifiably punished on this view (ibid.: 164–165; but see Imbrisevic 2010).

Others offer contractualist or contractarian justifications of punishment, grounded in an account not of what treatment offenders have in fact tacitly consented to, but rather of what rational agents or reasonable citizens would endorse. The punishment of those who commit crimes is then, it is argued, rendered permissible by the fact that the offender himself would, as a rational agent or reasonable citizen, have consented to a system of law that provided for such punishments (see e.g., Dolovich 2004; Brettschneider 2007; Finkelstein 2011; for criticism, see Dagger 2011; see also Matravers 2000). Still others portray punishment (in particular deterrent punishment) as a species of societal (self-) defence — and it seems clear that to defend oneself against a wrongful attack is not to use the attacker ‘merely as a means’, or to fail to show him the respect that is his due. (For versions of this kind of argument, see Alexander 1980; Quinn 1985; Farrell 1985, 1995; Montague 1995; Ellis 2003 and 2012. For criticism, see Boonin 2008: 192–207. For a particularly intricate development of this line of thought, grounding the justification of punishment in the duties that we incur by committing wrongs, see Tadros 2011; for critical responses, see the special issue of Law and Philosophy , 2013.)

One might argue that the Hegelian objection to a system of deterrent punishment overstates the tension between the types of reasons, moral or prudential, that such a system may offer. Punishment may communicate both a prudential and a moral message to members of the community. Even before a crime is committed, the threat of punishment communicates societal condemnation of an offense. This moral message may help to dissuade potential offenders, but those who are unpersuaded by this moral message may still be prudentially deterred by the prospect of punishment. Similarly, those who actually do commit crimes may be dissuaded from reoffending by the moral censure conveyed by their punishment, or else by the prudential desire to avoid another round of hard treatment. What’s more, even if punishment itself did provide solely prudential reasons not to commit crimes, the criminal legal system more generally may communicate with citizens in moral terms. Through its criminal statutes, a community declares certain acts to be wrong and makes a moral appeal to community members to comply, whereas trials and convictions can communicate a message of deserved censure to the offender. Thus even if a system of deterrent punishment is itself regarded as communicating solely in prudential terms, it seems that the criminal law more generally can still communicate a moral message to those subject to it (see Hoskins 2011a).

A somewhat different attempt to accommodate prudential as well as moral reasons in an account of punishment begins with the retributivist notion that punishment is justified as a form of deserved censure, but then contends that we should communicate censure through penal hard treatment because this will give those who are insufficiently impressed by the moral appeal of censure prudential reason to refrain from crime; because, that is, the prospect of such punishment might deter those who are not susceptible to moral persuasion. (See Lipkin 1988, Baker 1992. For a sophisticated revision of this idea, which makes deterrence firmly secondary to censure, see von Hirsch 1993, ch. 2; Narayan 1993. For critical discussion, see Bottoms 1998; Duff 2001, ch. 3.3. For another subtle version of this kind of account, see Matravers 2000.) This kind of account differs from the accounts just discussed, on which retributivist prohibitions on punishment of the innocent or excessive punishment of the guilty constrain the pursuit of consequentialist aims, since in the current account the (retributivist) imposition of deserved censure is part of the positive justifying aim of punishment; and it can claim, in response to the Hegelian objection to deterrence, that it does not address potential offenders merely ‘like dogs’, since the law’s initial appeal to the citizen is in the appropriate moral terms: the prudential, coercive reasons constituted by penal hard treatment as deterrence are relevant only to those who are deaf, or at least insufficiently attentive, to the law’s moral appeal. It might be objected that on this account the law, in speaking to those who are not persuaded by its moral appeal, is still abandoning the attempt at moral communication in favour of the language of threats, and thus ceasing to address its citizens as responsible moral agents: to which it might be replied, first, that the law is addressing us, appropriately, as fallible moral agents who know that we need the additional spur of prudential deterrence to persuade us to act as we should; and second, that we cannot clearly separate the (merely) deterrent from the morally communicative dimensions of punishment — that the dissuasive efficacy of legitimate punishment still depends crucially on the moral meaning that the hard treatment is understood to convey.

One more mixed view worth noting holds that punishment is justified as a means of teaching a moral lesson to those who commit crimes, and perhaps to community members more generally (the seminal articulations of this view are H. Morris 1981 and Hampton 1984; for a more recent account, see Demetriou 2012; for criticism, see Deigh 1984, Shafer-Landau 1991). Like standard consequentialist accounts, the moral education view acknowledges that punishment’s role in reducing crime is a central part of its rationale (see, e.g., Hampton 1984: 211). But education theorists also take seriously the Hegelian worry discussed earlier; they view punishment not as a means of conditioning people to behave in certain ways, but rather as a means of teaching them that what they have done should not be done because it is morally wrong. Thus although the education view sets offender reform as an end, it also implies certain nonconsequentialist constraints on how we may appropriately pursue this end. Another distinctive feature of the moral education view is that it conceives of punishment as aiming to confer a benefit on the offender: the benefit of moral education. Critics have objected to the moral education view on various grounds, however. Some are sceptical about whether punishment is the most effective means of moral education. Others deny that most offenders need moral education; many offenders realise what they are doing is wrong but are weak-willed, impulsive, etc. Also, may liberal theorists object that the education view is inappropriately paternalistic in that it endorses coercively restricting offenders’ liberties as a means to confer a benefit on them.

Each of the theories discussed in this section incorporates, in various ways, consequentialist and nonconsequentialist elements. Whether any of these is more plausible than pure consequentialist or pure retributivist alternatives is, not surprisingly, a matter of ongoing philosophical debate. One possibility, of course, is that none of the theories on offer is successful because punishment is, ultimately, unjustifiable. The next section considers penal abolitionism.

Abolitionist theorising about punishment takes many different forms, united only by the insistence that we should seek to abolish, rather than merely to reform, our practices of punishment. (Classic abolitionist texts include Christie 1977, 1981; Hulsman 1986, 1991; de Haan 1990; Bianchi 1994.) An initial question is precisely what practices should be abolished. Some abolitionists focus on particular modes of punishment, such as capital punishment (see, e.g., Brooks 2004; Yost 2019) or imprisonment (see, e.g., A. Y. Davis 2003). What’s more, a prominent strand of abolitionism focuses on incarceration as practiced in the U.S. context, with links drawn between imprisonment and the American legacy of slavery, Jim Crow, and segregation (see, e.g., Adelsberg et. al. 2015; McLeod 2019; Roberts 2019). Insofar as such critiques are grounded in concerns about racial disparities, mass incarceration, police abuses, and other features of the U.S. criminal justice system, they may have implications for other U.S. criminal justice practices in addition to incarceration. At the same time, insofar as the critiques are based on particular features of the U.S. system, it may be less clear what implications they have for imprisonment as it is implemented in other polities. By contrast, other abolitionist accounts focus not on some particular mode(s) of punishment, or on a particular mode of punishment as administered in this or that legal system, but rather on criminal punishment in any form (see, e.g., Golash 2005; Boonin 2008; Zimmerman 2011). It is important to be clear about the target of critique: to endorse the abolition of imprisonment, or even of criminal punishment in any form, as it is currently practiced allows for the possibility that a suitably reformed system of imprisonment or punishment in some other form could be justified (and here it may be difficult, as with Theseus’s ship, to distinguish between radically rebuilding an existing practice and abolishing it in favour of an alternative practice).

The more powerful abolitionist challenge is that punishment cannot be justified even in principle. After all, when the state imposes punishment, it treats some people in ways that would typically (outside the context of punishment) be impermissible. It subjects them to intentionally burdensome treatment and to the condemnation of the community. Abolitionists find that the various attempted justifications of this intentionally burdensome condemnatory treatment fail, and thus that the practice is morally wrong — not merely in practice but in principle. For such accounts, a central question is how the state should respond to the types of conduct for which one currently would be subject to punishment. In this section we attend to three notable types of abolitionist theory and the alternatives to punishment that they endorse.

Most prominently, many abolitionists look to ‘restorative justice’ as an alternative to punishment. (‘Restorative’ practices and programmes also play an increasingly significant, although still somewhat marginal, role within the criminal process of trial and punishment; but our concern here is with restorative justice as an alternative to punishment.) The restorative justice movement has been growing in strength: although there are different and conflicting conceptions of what ‘restorative justice’ means or involves, one central theme is that what crime makes necessary is a process of reparation or restoration between offender, victim, and other interested parties; and that this is achieved not through a criminal process of trial and punishment, but through mediation or reconciliation programmes that bring together the victim, offender and other interested parties to discuss what was done and how to deal with it (see generally Matthews 1988; Daly and Immarigeon 1998; von Hirsch and Ashworth 1998, ch. 7; Braithwaite 1999; Walgrave 2002; von Hirsch et al 2003; von Hirsch, Ashworth and Shearing 2005; London 2011; Johnstone 2011, 2012).

Advocates of restorative justice often contrast it with ‘retributive’ justice; they argue that we should look for restoration rather than retribution or punishment, and seek to repair harms caused rather than to inflict punitive suffering for wrongs done. But one might regard this as a false dichotomy (see Allais 2011; Duff 2011a). For when we ask what it is that requires ‘restoration’ or repair, the answer must refer not only to whatever material harm was caused by the crime, but to the wrong that was done: that was what fractured the relationship between offender and victim (and the broader community), and that is what must be recognised and ‘repaired’ or made up for if a genuine reconciliation is to be achieved. A restorative process that is to be appropriate to crime must therefore be one that seeks an adequate recognition, by the offender and by others, of the wrong done—a recognition that must for the offender, if genuine, be repentant; and that seeks an appropriate apologetic reparation for that wrong from the offender. But those are also the aims of punishment as a species of secular penance, as sketched above. A system of criminal punishment, however improved it might be, is of course not well designed to bring about the kind of personal reconciliations and transformations that advocates of restorative justice sometimes seek; but it could be apt to secure the kind of formal, ritualised reconciliation that is the most that a liberal state should try to secure between its citizens. If we focus only on imprisonment, which is still often the preferred mode of punishment in many penal systems, this suggestion will appear laughable; but if we think instead of punishments such as Community Service Orders (now part of what is called Community Payback) or probation, it might seem more plausible.

This argument does not, of course, support that account of punishment against its critics. What it might suggest, however, is that although we can learn much from the restorative justice movement, especially about the role that processes of mediation and reparation can play in our responses to crime, its aim should not be the abolition or replacement of punishment: ‘restoration’ is better understood, in this context, as the proper aim of punishment, not as an alternative to it (see further Duff 2001, ch. 3.4–6, but also Zedner 1994).

A similar issue is raised by the second kind of abolitionist theory that we should note here: the argument that we should replace punishment by a system of enforced restitution (see e.g., Barnett 1977; Boonin 2008: ch. 5 — which also cites and discusses a number of objections to the theory). For we need to ask what restitution can amount to, what it should involve, if it is to constitute restitution not merely for any harm that might have been caused, but for the wrong that was done; and it is tempting to answer that restitution for a wrong must involve the kind of apologetic moral reparation, expressing a remorseful recognition of the wrong, that communicative punishment (on the view sketched above) aims to become.

More generally, advocates of restorative justice and of restitution are right to highlight the question of what offenders owe to those whom they have wronged — and to their fellow citizens (see also Tadros 2011 for a focus on the duties that offenders incur). Some penal theorists, however, especially those who connect punishment to apology, will reply that what offenders owe precisely includes accepting, undertaking, or undergoing punishment.

A third alternative approach that has gained some prominence in recent years is grounded in belief in free will scepticism, the view that human behaviour is a result not of free will but of determinism, luck, or chance, and thus that the notions of moral responsibility and desert on which many accounts of punishment (especially retributivist theories) depend are misguided (see s. 5). As an alternative to holding offenders responsible, or giving them their just deserts, some free will sceptics (see Pereboom 2013; Caruso 2021) instead endorse incapacitating dangerous offenders on a model similar to that of public health quarantines. Just as it can arguably be justified to quarantine someone carrying a transmissible disease even if that person is not morally responsible for the threat they pose, proponents of the quarantine model contend that it can be justified to incapacitate dangerous offenders even if they are not morally responsible for what they have done or for the danger they present. One question is whether the quarantine model is best understood as an alternative to punishment or as an alternative form of punishment. Beyond questions of labelling, however, such views also face various lines of critique. In particular, because they discard the notions of moral responsibility and desert, they face objections, similar to those faced by pure consequentialist accounts (see s. 3), that they cannot in principle rule out disproportionate punishment, or that they are inconsistent with respect for persons and with human dignity (see, e.g., Smilansky 2011).

Theoretical discussions of criminal punishment and its justification typically focus on criminal punishment in the context of domestic criminal law. But a theory of punishment must also have something to say about its rationale and justification in the context of international criminal law: about how we should understand, and whether and how we can justify, the punishments imposed by such tribunals as the International Criminal Court. For we cannot assume that a normative theory of domestic criminal punishment can simply be read across into the context of international criminal law (see Drumbl 2007). Rather, the imposition of punishment in the international context raises distinctive conceptual and normative issues.

One key question is which crimes rise to the level of ‘international crimes’ and are thus rightly subject to prosecution and punishment by international rather than domestic institutions. One prominent answer to this question (May 2005) holds that when a state fails to assure its citizens’ safety and security, it thus has no right to prevent international bodies from infringing its sovereignty. Such international intervention is only justified, however, in cases of serious harm to the international community, or to humanity as a whole. Crimes harm humanity as a whole, on this account, when they are group-based either in the sense that they are based on group characteristics of the victims or are perpetrated by a state or another group agent. Such as account has been subject to challenge focused on its harm-based account of crime (Renzo 2012) and its claim that group-based crimes harm humanity as a whole (A. Altman 2006). One response to this sort of account, then, is to reject the international harm requirement and to contend, instead, that a state’s failure to protect its members’ rights is sufficient to justify international intervention (Altman and Wellman 2004), or that international criminal tribunals can be justified if they provide fair procedures for trials and punishments in response to sufficiently heinous crimes (Luban 2010).

We might think, by contrast, that the heinousness of a crime or the existence of fair legal procedures is not enough. We also need some relational account of why the international legal community — rather than this or that domestic legal entity — has standing to call perpetrators of genocide or crimes against humanity to account: that is, why the offenders are answerable to the international community (see Duff 2010). For claims of standing to be legitimate, they must be grounded in some shared normative community that includes the perpetrators themselves as well as those on behalf of whom the international legal community calls the perpetrators to account. (For other discussions of jurisdiction to prosecute and punish international crimes, see W. Lee 2010; Wellman 2011; Giudice and Schaeffer 2012; Davidovic 2015.)

Another important question is how international institutions should assign responsibility for crimes such as genocide, which are perpetrated by groups rather than by individuals acting alone. (Such questions arise in the domestic context as well, with respect to corporations, but the magnitude of crimes such as genocide makes the questions especially poignant at the international level.) The Nuremberg Tribunal articulated what has since become the governing view in international criminal law: ‘Crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced’ (International Military Tribunal 1947). Several scholars in recent years have suggested, however, that rather than focusing only on prosecuting and punishing members of the groups responsible for mass atrocities, it may sometimes be preferable to prosecute and punish the entire group qua group. A worry for such proposals is that, because punishment characteristically involves the imposition of burdens, punishment of an entire group risks inflicting punitive burdens on innocent members of the group: those who were nonparticipants in the crime, or perhaps even worked against it or were among its victims. In response to this concern, defenders of the idea of collective punishment have suggested that it need not distribute among the members of the group (see Erskine 2011; Pasternak 2011; Tanguagy-Renaud 2013; but see Hoskins 2014b), or that the benefits of such punishment may be valuable enough to override concerns about harm to innocents (see Lang 2007: 255).

Punishment theorists should also attend to various other kinds of burdensome consequences of criminal convictions, often called ‘collateral consequences’. Most centrally, those convicted of crimes are subject to a range of coercive state policies: measures restricting offenders’ access to jobs, housing, public assistance, the vote, and a host of others goods; subjecting them to continued detention; making their criminal records publicly available, and so on — often long after they have completed their formal criminal sentences (see, e.g., von Hirsch and Wasik 1997; LaFollette 2005; de Keijser 2012; Hoskins 2014a, 2016, 2019; Sigler 2014; Bennett 2016; Brown 2021). Legal practice has tended to treat these sorts of measures not as part of an offender’s punishment, but as civil or administrative measures (one effect of which is that they often escape the constraints of justice and proportionality to which punishment is subject). Many coercive measures are imposed even on those who have not been convicted, such as the many kinds of restriction that may be imposed on people suspected of involvement in terrorism, or housing or job restrictions tied merely to arrests rather than convictions.

The legal measures are relevant for punishment theorists for a number of reasons, but here we note just two: First, at least some of these restrictive measures may be best regarded as as additional forms of punishment (see Lippke 2016: ch. 9; Hoskins 2019: chs. 3 and 4). For such measures, we must ask whether they are (or can be made to be) consistent with the principles and considerations we believe should govern impositions of punishment. Second, even if at least some measures are not best regarded as additional forms of punishment, we should ask what justifies the state in imposing additional coercive measures on those convicted of crimes outside the context of the punishment itself (see Ashworth and Zedner 2011, 2012; Ramsay 2011; Ashworth, Zedner, and Tomlin 2013; Hoskins 2019: chs. 5–7). For instance, if we regard punishment as the way in which offenders pay their debts to society, we can argue that it is at least presumptively unjustified for the state to impose additional burdensome measures on offenders once this debt has been paid. To say that certain measures are presumptively unjustified is not, of course, to establish that they are all-things-considered prohibited. Various collateral consequences — restrictions on employment or housing, for example — are often defended as public safety measures. We might argue (see Hoskins 2019: ch. 7) that in some cases considerations of public safety can be sufficiently compelling to justify certain measures (for example, measures that bar people with convictions for child sex offences from working as teachers, or that bar fraudsters from working in jobs where they are responsible for other people’s money). Public safety restrictions could only be justifiable, however, when there is a sufficiently compelling public safety interest, when the measures will be effective in serving that interest, when the measures will not do more harm than good, and when there are no less burdensome means of achieving the public safety aim. Even for public safety measures that meet these conditions, we should not lose sight of the worry that imposing such restrictions on people with criminal convictions but who have served their terms of punishment denies them the equal treatment to which they, having paid their debt, are entitled (on this last worry, see, e.g., Walen 2011:1264–66; Lippke 2016: ch. 9; Hoskins 2019: ch. 7).

In addition to these formal legal consequences of a conviction, people with criminal records also face a range of informal collateral consequences, such as social stigma, family tensions, discrimination by employers and housing authorities, and financial challenges. These consequences are not imposed by positive law, but they may be permitted by formal legal provisions (such as those that grant broad discretion to public housing authorities in the United States making admission decisions) or facilitated by them (such as when laws making criminal records widely accessible enable employers or landlords to discriminate against those with criminal histories). There are also widely documented burdensome consequences of a conviction to the family members or loved ones of those who are convicted, and to their communities. These sorts of informal consequences of criminal convictions appear less likely than the formal legal consequences to constitute legal punishment, insofar as they are not intentionally imposed by the state (but see Kolber 2012). Still, the informal collateral consequences of a conviction are arguably relevant to theorising about punishment, and we should examine when, if ever, such burdens are relevant to sentencing determinations (on sentencing, see s. 10), or whether the state has obligations to ensure that the burdens of punishment do not spill over beyond the intended burdens of the criminal sentence (see Manning 2011; Bülow 2014; Lippke 2017).

A number of further important questions are relevant to theorising about punishment, which can only be noted here.

First, there are questions about sentencing. (See generally Robinson 1987; Morris and Tonry 1990; von Hirsch 1993; Tonry 1996; von Hirsch and Ashworth 2005; Ashworth, von Hirsch and Roberts 2009; Frase 2012.) Who should decide what kinds and what levels of sentence should be attached to different offences or kinds of offence: what should be the respective roles of legislatures, of sentencing councils or commissions, of appellate courts, of trial judges, of juries? By what criteria should such decisions be made: how far should they be guided by a retributivist principle of proportionality, requiring punishments to be ‘proportionate’ in their severity to the seriousness of the crime; how far by consequentialist considerations of efficient crime-prevention? What kinds of punishment should be available to sentencers, and how should they decide which mode of punishment is appropriate for the particular offence? Considerations of the meaning of different modes of punishment should be central to these questions (see e.g., Lippke 2007, Hoskins 2013).

Second, there are questions about the relation between theory and practice — between the ideal, as portrayed by a normative theory of punishment, and the actualities of existing penal practice. Suppose we have come to believe, as a matter of normative theory, that a system of legal punishment could in principle be justified — that the abolitionist challenge can be met. It is, to put it mildly, unlikely that our normative theory of justified punishment will justify our existing penal institutions and practices: it is far more likely that such a theory will show our existing practices to be radically imperfect — that legal punishment as it is now imposed is far from meaning or achieving what it should mean or achieve if it is to be adequately justified (see Heffernan and Kleinig 2000). If our normative theorising is to be anything more than an empty intellectual exercise, if it is to engage with actual practice, we then face the question of what we can or should do about our current practices. The obvious answer is that we should strive so to reform them that they can be in practice justified, and that answer is certainly available to consequentialists, on the plausible assumption that maintaining our present practices, while also seeking their reform, is likely to do more good or less harm than abandoning them. But for retributivists who insist that punishment is justified only if it is just, and for communicative theorists who insist that punishment is just and justified only if it communicates an appropriate censure to those who deserve it, the matter is harder: for to maintain our present practices, even while seeking their radical reform, will be to maintain practices that perpetrate serious injustice (see Murphy 1973; Duff 2001, ch. 5).

Finally, the relation between the ideal and the actual is especially problematic in the context of punishment partly because it involves the preconditions of just punishment. That is to say, what makes an actual system of punishment unjust(ified) might be not its own operations as such (what punishment is or achieves within that system), but the absence of certain political, legal and moral conditions on which the whole system depends for its legitimacy (see Duff 2001, ch. 5.2). Recent scholarship on punishment has increasingly acknowledged that the justification of punishment depends on the justification of the criminal law more generally, and indeed the legitimacy of the state itself (see s. 2 above). For example, if the state passes laws criminalising conduct that is not justifiably prohibited, then this calls into question the justification of the punishment it imposes for violations of these laws. Questions of criminalisation are thus directly relevant to punishment’s justification (see Husak 2008). Similarly, if the procedures by which criminal justice officials apprehend, charge, and prosecute individuals are unjustified, then the subsequent inflictions of punishment will be unjustified as well (see Ristroph 2015 and 2016; on specific aspects of criminal procedure, see, e.g., Loader 2014 on policing, Lippke 2011 on plea bargaining, Duff et al 2007 on criminal trials, Flanders 2013 on pardons). More broadly, if a states tolerates (or worse, encourages) serious social injustices, then this may undermine the state’s standing to punish offenders who are also victims of such injustices (see, e.g., Matravers 2006; Duff 2007; Holroyd 2010; Chau 2012; Howard 2013).

Primoratz 1999, Honderich 2005, Ellis 2012, and Brooks 2013 are useful introductory books. Duff and Garland 1994; Ashworth, von Hirsch; and Roberts 2009; and Tonry 2011 are useful collections of readings.

• Adelsberg, L., L. Guenther, and S. Zeman, 2015, Death and Other Penalties: Philosophy in a Time of Mass Incarceration , New York: Fordham University Press.
• Adler, J., 1992, The Urgings of Conscience , Philadelphia: Temple University Press.
• Alexander, L., 1980, ‘The Doomsday Machine: Proportionality, Punishment and Prevention’, The Monist , 63: 199–227.
• Allais, L., 2012, ‘Restorative Justice, Retributive Justice, and the South African Truth and Reconciliation Commission’, Philosophy and Public Affairs , 39: 331–63.
• Altman, A., 2006, ‘The Persistent Fiction of Harm to Humanity’, Ethics and International Affairs , 20: 367–72.
• Altman, A., and C. H. Wellman, 2004, ‘A Defense of International Criminal Law,’ Ethics , 115: 35–67.
• Altman, M. C., 2021, A Theory of Legal Punishment: Deterrence, Retribution, and the Aims of the State , Abingdon: Routledge.
• Anderson, J. L., 1997, ‘Reciprocity as a Justification for Retributivism’, Criminal Justice Ethics , 16: 13–25.
• Ardal, P., 1984, ‘Does Anyone ever Deserve to Suffer?’ Queen’s Quarterly , 91–2: 241–57.
• Ashworth, A. J., 1993, ‘Some Doubts about Restorative Justice ’, Criminal Law Forum , 4: 277–99.
• –––, 2010, Sentencing and Criminal Justice , 5th edition, Cambridge: Cambridge University Press.
• Ashworth, A. J., A. von Hirsch, and J. Roberts (eds.), 2009, Principled Sentencing , 3rd edition, Oxford: Hart Publishing.
• Ashworth, A. J., and L. Zedner, 2011, ‘Just Prevention: Preventive Rationales and the Limits of the Criminal Law’, in R. A. Duff and S. P. Green (eds), Philosophical Foundations of Criminal Law , Oxford: Oxford University Press, 279–303.
• –––, 2012, ‘Prevention and Criminalization: Justifications and Limits’, New Criminal Law Review , 15: 542–571.
• Ashworth, A. J., L. Zedner, and P. Tomlin (eds.), 2013, Prevention and the Limits of the Criminal Law , Oxford: Oxford University Press.
• Bagaric, M., and K. Amarasekara, 2000, ‘The Errors of Retributivism’, Melbourne University Law Review , 24: 1–66.
• Baker, B. M., 1992, ‘Consequentialism, Punishment and Autonomy’, in W. Cragg (ed.), Retributivism and Its Critics , Stuttgart: Franz Steiner, 149–61.
• Barnett, R., 1977, ‘Restitution: A New Paradigm of Criminal Justice’, Ethics 87: 279–301.
• Becker, L., 1974, ‘Criminal Attempts and the Theory of the Law of Crimes’, Philosophy and Public Affairs , 3: 262–94.
• Bennett, C., 2006, ‘State Denunciation of Crime’, Journal of Moral Philosophy , 3: 288–304.
• –––, 2008, The Apology Ritual: A Philosophical Theory of Punishment , Cambridge: Cambridge University Press.
• –––, 2015, ‘Punishment as an Apology Ritual’, in The New Philosophy of Criminal Law , C. Flanders and Z. Hoskins (eds.), London, Rowman Littlefield, 213–30.
• –––, 2016, ‘Penal Disenfranchisement’, Criminal Law and Philosophy , 10: 411–25.
• Bentham, J., 1789, An Introduction to the Principles of Morals and Legislation , [ available online ].
• Berman, M., 2011, ‘Two Kinds of Retributivism’, in R. A. Duff and S. P. Green (eds.), Philosophical Foundations of Criminal Law , Oxford: Oxford University Press, 433–457.
• Bianchi, H., 1994, Justice as Sanctuary: Toward a New System of Crime Control , Bloomington: Indiana University Press.
• Bickenbach, J. E., 1988, ‘Critical Notice of R. A. Duff, Trials and Punishments ’, Canadian Journal of Philosophy , 18: 765–86.
• Boonin, D., 2008, The Problem of Punishment , New York: Cambridge University Press.
• Bottoms, A., 1998, ‘Five Puzzles in von Hirsch’s Theory of Punishment’, in A. J. Ashworth and M. Wasik (eds.), Fundamentals of Sentencing Theory , Oxford: Oxford University Press, 53–100.
• Braithwaite, J., 1999, ‘Restorative Justice: Assessing Optimistic and Pessimistic Accounts’, in Crime and Justice: A Review of Research , Volume 23, ed. M. Tonry, Chicago: University of Chicago Press, 241–367.
• Braithwaite, J., and P. Pettit, 1990, Not Just Deserts , Oxford: Oxford University Press.
• Brettschneider, C., 2007, ‘The Rights of the Guilty: Punishment and Political Legitimacy?’, Political Theory , 35: 175–99.
• Brooks, T., 2004, ‘Retributivist Arguments Against Capital Punishment’, Journal of Social Philosophy , 35: 188–97.
• –––, 2011, ‘Punishment: Political, Not Moral’, New Criminal Law Review , 14: 427–38.
• –––, 2013, Punishment , London: Routledge.
• Brown, J. M., 2021, ‘Collateral Legal Consequences of Criminal Convictions in a Society of Equals’, Criminal Law and Philosophy , 15: 181–205.
• Brownlee, K., 2007, ‘The Communicative Aspects of Civil Disobedience and Lawful Punishment’, Criminal Law and Philosophy , 1: 179–92.
• Brudner, A., 2009, Punishment and Freedom , Oxford: Oxford University Press.
• Bülow, W., 2014, ‘The Harms Beyond Imprisonment: Do We Have Special Moral Obligations Towards the Families and Children of Prisoners?’ Ethical Theory and Moral Practice , 17: 775–89.
• Burgh, R. W., 1982, ‘Do the Guilty Deserve Punishment?’ Journal of Philosophy , 79: 193–210.
• Caruso, G., 2021, Rejecting Retributivism: Free Will, Punishment, and Criminal Justice , Cambridge: Cambridge University Press.
• Chau, P., 2012, ‘Duff on the Legitimacy of Punishment of Socially Deprived Offenders’, Criminal Law and Philosophy , 6: 247–54.
• Chiao, V., 2016, ‘Two Conceptions of the Criminal Law’, in C. Flanders and Z. Hoskins (eds.), The New Philosophy of Criminal Law , London: Rowman Littlefield Intl., 19–36.
• –––, 2018, Criminal Law in the Age of the Administrative State , New York: Oxford University Press.
• Christie, N., 1977, ‘Conflicts as Property’. British Journal of Criminology , 17: 1–15.
• –––, 1981, Limits to Pain , London: Martin Robertson.
• Ciocchetti, C., 2004, ‘Punishment, Reintegration, and Atypical Victims’, Criminal Justice Ethics , 23: 25–38.
• Cogley, Z., 2014, ‘A Study of Virtuous and Vicious Anger’, in Virtues and Their Vices , K. Timpe and C. Boyd (eds.), New York: Oxford University Press, 199–224.
• Cottingham, J., 1979, ‘Varieties of Retribution’, Philosophical Quarterly , 29: 238–46.
• Dagger, R., 1993, ‘Playing Fair with Punishment’, Ethics , 103: 473–88.
• –––, 2007, ‘Republican Punishment: Consequentialist or Retributivist’, in C. Laborde and J. Maynor (eds.), Republicanism and Political Theory , Oxford: Blackwell, 219–45.
• –––, 2008, ‘Punishment as Fair Play’, Res Publica , 14: 259–275.
• –––, 2011a, ‘Republicanism and the Foundations of Criminal Law’, in Philosophical Foundations of Criminal Law , R. A. Duff and S. Green (eds.), Oxford: Oxford University Press, 44–66.
• –––, 2011b, ‘Social Contracts, Fair Play, and the Justification of Punishment’, Ohio State Journal of Criminal Law , 8: 341–368.
• Daly, K., and R. Immarigeon, 1998, ‘The Past, Present, and Future of Restorative Justice’, Contemporary Justice Review , 1: 21–45.
• Davidovic, J., 2015, ‘Universal Jurisdiction and International Criminal Law’, in The New Philosophy of Criminal Law , C. Flanders and Z. Hoskins (eds.), London: Rowman Littlefield, 113–30.
• Davis, A. Y., 2003, Are Prisons Obsolete? New York: Seven Stories Press.
• Davis, L. H., 1972, ‘They Deserve to Suffer’, Analysis , 32: 136–40.
• Davis, M., 1989, ‘The Relative Independence of Punishment Theory’, Law and Philosophy , 7: 321–50.
• –––, 1991, ‘Punishment as Language: Misleading Analogy for Desert Theorists’, Law and Philosophy , 10: 310–322.
• –––, 1992, To Make the Punishment Fit the Crime , Boulder, Colorado: Westview Press.
• –––, 1996, Justice in the Shadow of Death: Rethinking Capital and Lesser Punishments , Lanham: Rowman & Littlefield.
• de Haan, W., 1990, The Politics of Redress: Crime, Punishment and Penal Abolition , London: Unwin Hyman.
• de Keijser, J. W., 2011, ‘Never Mind the Pain, It’s a Measure!: Justifying Measures as Part of the Dutch Bifurcated System of Sanctions’, in Tonry (ed.), 2011, 188–213.
• Deigh, J., 1984, ‘On the Right to be Punished: Some Doubts’, Ethics , 94: 191–211.
• Demetriou, D., 2012, ‘Justifying Punishment: The Educative Approach as Presumptive Favorite’, Criminal Justice Ethics , 31: 2–18.
• Dempsey, M. M., 2009, Prosecuting Domestic Violence , Oxford: Oxford University Press.
• Dimock, S., 1997, ‘Retributivism and Trust’, Law and Philosophy , 16: 37–62.
• Dolinko, D., 1991, ‘Some Thoughts about Retributivism’, Ethics , 101: 537–59.
• Dolovich, S., 2004, ‘Legitimate Punishment in Liberal Democracy’, Buffalo Criminal Law Review , 7: 307–442.
• Drumbl, M., 2007, Atrocity, Punishment, and International Law , Cambridge: Cambridge University Press.
• Duff, R. A., 1986, Trials and Punishments , Cambridge: Cambridge University Press.
• –––, 1996, ‘Penal Communications: Recent Work in the Philosophy of Punishment’, Crime and Justice: A Review of Research , 20: 1–97.
• –––, 2001, Punishment, Communication, and Community , New York: Oxford University Press.
• –––, 2007, Answering for Crime , Oxford: Hart Publishing.
• –––, 2010, ‘Authority and Responsibility in International Criminal Law’, in S. Besson and J. Tasioulas (eds.), Philosophy of International Criminal Law , Oxford: Oxford University Press, 589–604.
• –––, 2011a, ‘Responsibility, Restoration, and Retribution’, in Tonry (ed.), 2011, 63–85.
• –––, 2011b, ‘Retrieving Retributivism’, in White (ed.), 2011, 3–24.
• –––, 2013, ‘Relational Reasons and the Criminal Law’, in L. Green and B. Leiter (eds.), Oxford Studies in Philosophy of Law (Volume 2), Oxford: Oxford University Press, 175–208.
• –––. 2018, The Realm of Criminal Law , Oxford: Oxford University Press.
• Duff, R. A., and D. Garland (eds.), 1994, A Reader on Punishment , Oxford: Oxford University Press.
• Duff, R. A., L. Farmer, S. E. Marshall, and V. Tadros, 2007, The Trial on Trial (Volume 3: Towards a Normative Theory of the Criminal Trial), Oxford: Hart Publishing.
• Duus-Otterström, G., 2017, ‘Fairness-Based Retributivism Reconsidered’, Criminal Law and Philosophy , 11: 481–98.
• Ellis, A., 2003, ‘A Deterrence Theory of Punishment’, Philosophical Quarterly , 53: 337–51.
• –––, 2012, The Philosophy of Punishment , Exeter: Imprint Academic.
• Erskine, T., 2011, ‘Kicking Bodies and Damning Souls: The Danger of Harming Innocent Individuals While Punishing Delinquent States’, in Accountability for Collective Wrongdoing , T. Isaacs and R. Vernon (eds.), Cambridge: Cambridge University Press, 261–86.
• Ewing, A. C., 1927, ‘Punishment as Moral Agency: An Attempt to Reconcile the Retributive and Utilitarian View’, Mind , 36: 292–305.
• Falls, M. M., 1987, ‘Retribution, Reciprocity, and Respect for Persons’, Law and Philosophy , 6: 25–51.
• Farrell, D. M., 1985, ‘The Justification of General Deterrence’, Philosophical Review , 94: 367–94.
• –––, 1995, ‘Deterrence and the Just Distribution of Harm’, Social Philosophy and Policy , 12: 220–240.
• Feinberg, J., 1970, ‘The Expressive Function of Punishment’, in his Doing and Deserving , Princeton, N. J.: Princeton University Press, 95–118.
• –––, 1988, Harmless Wrongdoing (The Moral Limits of the Criminal Law: Volume IV), New York: Oxford University Press.
• Finkelstein, C., 2011, ‘Punishment as Contract’, Ohio State Journal of Criminal Law , 8: 319–340.
• Flanders, C., 2013, ‘Pardons and the theory of the “second best”’, Florida Law Review , 65: 1559–95.
• –––, 2017, ‘Punishment, Liberalism, and Public Reason’, Criminal Justice Ethics , 36: 61–77.
• Frase, R., 2012, Just Sentencing: Principles and Procedures for a Workable System , New York: Oxford University Press.
• Garland, D., 2001, The Culture of Control , New York: Oxford University Press.
• Garvey, S., 1999, ‘Punishment as Atonement’, UCLA Law Review , 47: 1801–58.
• –––, 2003, ‘Restorative Justice, Punishment, and Atonement’, Utah Law Review , 1: 303–17.
• –––, 2004, ‘Lifting the Veil on Punishment’, Buffalo Criminal Law Review , 7: 443–64.
• Giudice, M., and M. Schaeffer, 2012, ‘Universal Jurisdiction and the Duty to Govern’, in Rethinking Criminal Law Theory: New Canadian Perspectives in the Philosophy of Domestic, Transnational, and International Criminal Law , F. Tanguay-Renaud and J. Stribopoulos (eds.), Oxford: Hart Publishing, 233–48.
• Glasgow, J., 2015, ‘The Expressivist Theory of Punishment Defended’, Law and Philosophy , 34: 601–31.
• Golash, D., 2005, The Case against Punishment: Retribution, Crime Prevention, and the Law , New York: New York University Press.
• Goldman, A. H., 1982, ‘Toward a New Theory of Punishment’, Law and Philosophy , 1: 57–76.
• Greene, J. D., 2008, ‘The Secret Joke of Kant’s Soul’, in Moral Psychology (Volume 3: The Neuroscience of Morality: Emotion, Disease, and Development ), W. Sinnott-Armstrong (ed.), Cambridge, Mass.: MIT Press, 35–80.
• Hampton, J., 1984, ‘The Moral Education Theory of Punishment’, Philosophy and Public Affairs , 13: 208–38.
• Hanna, N., 2008, ‘Say What? A Critique of Expressive Retributivism’, Law and Philosophy , 27: 123–150.
• –––, 2014, ‘Facing the Consequences’, Criminal Law and Philosophy , 8: 589–604.
• –––, 2017, ‘The Nature of Punishment: Reply to Wringe’, Ethical Theory and Moral Practice , 20: 969–76.
• –––, 2020, ‘The Nature of Punishment Revisited: Reply to Wringe’, Ethical Theory and Moral Practice , 23: 89–100.
• Hare, R. M., 1981, Moral Thinking: Its Levels, Methods and Point , Oxford: Oxford University Press.
• Hart, H. L. A., 1963, Law, Liberty and Morality , New York: Random House.
• –––, 1968, Punishment and Responsibility , Oxford: Oxford University Press.
• Heffernan, W. C., and J. Kleinig (eds.), 2000, From Social Justice to Criminal Justice , New York: Oxford University Press.
• Hegel, G. W. F., 1821, The Philosophy of Right , trans. T. Knox, Oxford: Oxford University Press (1942).
• Holroyd, J., 2010, ‘Punishment and justice’, Social Theory and Practice , 36: 78–111.
• Honderich, T., 2005, Punishment: The Supposed Justifications Revisited , London: Pluto Publishing.
• Horder, J., 1992, Provocation and Responsibility , Oxford: Oxford University Press.
• Hoskins, Z., 2011a, ‘Deterrent Punishment and Respect for Persons’, Ohio State Journal of Criminal Law , 8: 369–384.
• –––, 2011b, ‘Fair Play, Political Obligation, and Punishment’, Criminal Law and Philosophy , 5: 53–71.
• –––, 2013, ‘Punishment, Contempt, and the Prospect of Moral Reform’, Criminal Justice Ethics , 32: 1–18.
• –––, 2014a, ‘Ex-Offender Restrictions’, Journal of Applied Philosophy , 31: 33–48.
• –––, 2014b, ‘Punishing States and the Spectre of Guilt by Association’, International Criminal Law Review , 14: 901–19.
• –––, 2016, ‘Collateral Restrictions’, in C. Flanders and Z. Hoskins (eds.), The New Philosophy of Criminal Law , London: Rowman Littlefield Intl., 249–65.
• –––, 2019, Beyond Punishment: A Normative Account of the Collateral Legal Consequences of Conviction , New York: Oxford University Press.
• –––, 2020, ‘Anger and Punishment’, in The Ethics of Anger , C. D. Lewis and G. L. Bock (eds.), Lanham, Md.: Lexington Books, 227–49.
• –––, 2021, ‘Hybrid Theories of Punishment’, in The Routledge Handbook of the Philosophy and Science of Punishment , B. Waller, E. Shaw, and F. Focquaert 9eds.), New York: Routledge, 37–48.
• Howard, J., 2013, ‘Punishment, Socially Deprived Offenders, and Democratic Community’, Criminal Law and Philosophy , 7: 121–36.
• Hulsman, L., 1986, ‘Critical Criminology and the Concept of Crime’, Contemporary Crises , 10: 63–80.
• –––, 1991, ‘The Abolitionist Case: Alternative Crime Policies’, Israel Law Review , 25: 681–709.
• Husak, D., 1992, ‘Why Punish the Deserving?’ Noûs , 26: 447–64.
• –––, 2008, Overcriminalization: The Limits of the Criminal Law , Oxford: Oxford University Press.
• –––, 2015, ‘Does the State Have a Monopoly to Punish Crime?’ in The New Philosophy of Criminal Law , C. Flanders and Z. Hoskins (eds.), London: Rowman Littlefield, 97–112.
• Hsu, J. C., 2015, ‘Does Communicative Retributivism Necessarily Negate Capital Punishment?’ Criminal Law and Philosophy , 9: 603–17.
• Imbresevic, M., 2010, ‘The Consent Solution to Punishment and the Explicit Denial Objection’, Theoria , 25: 211–24.
• International Military Tribunal for the Trial of the Major War Criminals, 1947, judgement of Oct. 1, 1946, reprinted in American Journal of International Law , 41: 221.
• Johnstone, G., 2002, Restorative Justice: Ideas, Values, Debates , Cullompton, Devon: Willan.
• Johnstone, G. (ed.), 2003, A Restorative Justice Reader , Cullompton, Devon: Willan.
• Journal of Applied Philosophy , 2005, Symposium on Disenfranchising Felons , 22: 211–273.
• Kahane, G., 2011, ‘Evolutionary Debunking Arguments’, Noûs , 45: 103–25.
• Kant, I., 1797, The Metaphysics of Morals , in Immanuel Kant: Practical Philosophy , Mary J. Gregor (trans. and ed.), Cambridge: Cambridge University Press, 1996.
• Kaufman, W., 2008, ‘The Rise and Fall of the Mixed Theory of Punishment’, International Journal of Applied Philosophy , 22: 37–57.
• Kelly, E., 2018, The Limits of Blame , Cambridge, Mass.: Harvard University Press.
• Kleinig, J., 1991, ‘Punishment and Moral Seriousness’, Israel Law Review 25: 401–21.
• Knowles, D., 1993, ‘Unjustified Retribution’, Israel Law Review , 27: 50–58.
• Kolber, A., 2012, ‘Unintentional Punishment’, Legal Theory , 18 (NYU School of Law, Public Law Research Paper No. 12-10), doi:10.1017/S1352325211000218
• Königs, P., 2013, ‘The Expressivist Account of Punishment, Retribution, and the Emotions’, Ethical Theory and Moral Practice , 16: 1029–47.
• Lacey, N., 1988, State Punishment: Political Principles and Community Values , London: Routledge.
• Lacey, N., and H. Pickard, 2013, ‘From the Consulting Room to the Court Room? Taking the Clinical Model of Responsibility Without Blame Into the Legal Realm’, Oxford Journal of Legal Studies , 33: 1–29.
• –––, 2015, ‘To Blame or To Forgive? Reconciling Punishment and Forgiveness in Criminal Justice’, Oxford Journal of Legal Studies , 35: 665–96.
• –––, 2018, ‘A Dual-Process Approach to Criminal Law: Victims and the Clinical Model of Responsibility Without Blame’, Journal of Political Philosophy , 27: 229–51.
• –––, 2021, ‘Why Standing to Blame May Be Lost But Authority to Hold Accountable Retained: Criminal Laws as a Regulative Public Institution’, The Monist , 104: 265–80.
• LaFollette, H., 2005, ‘Collateral consequences of punishment: civil penalties accompanying formal punishment’, Journal of Applied Philosophy , 22: 241–61.
• Lang, A. F., 2007, ‘Crime and Punishment: Holding States Accountable’, Ethics and International Affairs , 21: 239–57.
• Law and Philosophy , 2013, Special Issue on V. Tadros, The Ends of Harm , Volume 32: 1–157.
• Lee, A., 2019, ‘Arguing Against the Expressive Function of Punishment: Is the Standard Account Insufficient?’ Law and Philosophy , 38: 359–85.
• Lee, W., 2010, ‘International Crimes and Universal Jurisdiction’, in International Criminal Law and Philosophy , L. May and Z. Hoskins (eds.), New York: Cambridge University Press, 15–38.
• Lewis, C. S., 1953, ‘The Humanitarian Theory of Punishment’, Res Judicatae , 6: 224; reprinted in W. Sellars and J. Hospers (eds.), Readings in Ethical Theory , 2nd edition, New York: Appleton-Century-Crofts, 1970, 646–50.
• Lipkin, R. J., 1988, ‘Punishment, Penance and Respect for Autonomy’, Social Theory and Practice , 14: 87–104.
• Lippke, R., 2001a, ‘Criminal Offenders and Rights Forfeiture’, Journal of Social Philosophy , 32: 78–89.
• –––, 2001b, ‘The Disenfranchisement of Felons’, Law and Philosophy , 20: 553–580.
• –––, 2007, Rethinking Imprisonment , Oxford: Oxford University Press.
• –––, 2011, The Ethics of Plea Bargaining , Oxford: Oxford University Press.
• –––, 2016, Taming the Presumption of Innocence , New York: Oxford University Press.
• –––, 2017, ‘Punishment Drift: The Spread of Penal Harm and What We Should Do About It’, Criminal Law and Philosophy , 11: 645–59.
• Loader, I., 2016, ‘In search of civic policing: recasting the “Peelian” principles’, Criminal Law and Philosophy , 10: 427–40.
• London, R., 2011, Crime, Punishment, and Restorative Justice , Boulder: First Forum Press.
• Luban, D., 2010, ‘Fairness to Rightness: Jurisdiction, Legality, and the Legitimacy of International Criminal Law’, in Philosophy of International Law , S. Besson and J. Tasioulas (eds.), Oxford: Oxford University Press, 569–88.
• Manning, R., 2011, ‘Punishing the Innocent: Children of Incarcerated and Detained Parents’, Criminal Justice Ethics , 30: 267–87.
• Markel, D., 2011, ‘What Might Retributive Justice Be?’, in White 2011, 49–72.
• –––, 2012, ‘Retributive Justice and the Demands of Democratic Citizenship’, Virginia Journal of Criminal Law , 1: 1–133.
• Marshall, S. E., and R. A. Duff, 1998, ‘Criminalization and Sharing Wrongs’, Canadian Journal of Law & Jurisprudence , 11: 7–22.
• Mason, K., 2011, ‘Moral Psychology and Moral Intution: A Pox on All Your Houses’, Australasian Journal of Philosophy , 89: 441–58.
• Mathiesen, T., 1990, Prison on Trial , London: Sage.
• Matravers, M., 2000, Justice and Punishment: The Rationale of Coercion , Oxford: Oxford University Press.
• –––, 2006, ‘“Who’s Still Standing?” A Comment on Antony Duff’s Preconditions of Criminal Liability’, Journal of Moral Philosophy , 3: 320–30.
• –––, 2011a, ‘Duff on Hard Treatment’, in R. Cruft, M. Kramer, M. Reiff (eds.), Crime, Punishment, and Responsibility , Oxford: Oxford University Press, 68–83.
• –––, 2011b, ‘Political Theory and Criminal Law’, in Philosophical Foundations of Criminal Law , R. A. Duff and S. Green (eds.), Oxford: Oxford University Press, 44–66.
• Matthews, R. (ed.), 1988, Informal Justice , London: Sage.
• May, L., 2005, Crimes Against Humanity: A Normative Account , Cambridge: Cambridge University Press.
• McCloskey, H. J., 1957, ‘An Examination of Restricted Utilitarianism’, The Philosophical Review , 66: 466–85.
• McLeod, A. M., 2019, ‘Envisioning Abolition Democracy’, Harvard Law Review , 132: 1613–49.
• Menninger, K., 1968, The Crime of Punishment , New York: Viking Press.
• Montague, P., 1995, Punishment as Societal Defense , Lanham: Rowman & Littlefield.
• Moore, M. S., 1997, Placing Blame: A Theory of Criminal Law , Oxford: Oxford University Press.
• Morison, J., 1988, ‘Hart’s Excuses: Problems with a Compromise Theory of Punishment’, in P. Leith and P. Ingram (eds.), The Jurisprudence of Orthodoxy , London: Routledge, 117–46.
• Morris, C. W., 1991, ‘Punishment and Loss of Moral Standing’, Canadian Journal of Philosophy , 21: 53–79.
• Morris, H., 1968, ‘Persons and Punishment’, The Monist , 52: 475–501.
• –––, 1981, ‘A Paternalistic Theory of Punishment’, American Philosophical Quarterly , 18: 263–71.
• Morris, N., 1974, The Future of Imprisonment , Chicago: University of Chicago Press.
• Morris, N., and M. Tonry, 1990, Between Prison and Probation: Intermediate Punishments in a Rational Sentencing System , New York: Oxford University Press.
• Murphy, J. G., 1973, ‘Marxism and Retribution’ Philosophy and Public Affairs , 2: 217–43.
• –––, 1985, ‘Retributivism, Moral Education and the Liberal State’, Criminal Justice Ethics , 4: 3–11.
• –––, 1999, ‘Moral Epistemology, the Retributive Emotions, and the “Clumsy Moral Philosophy” of Jesus Christ’, in S. Bandes (ed.), The Passions of Law , New York: NYU Press, 149–67.
• –––, 2003, Getting Even: Forgiveness and its Limits , New York: Oxford University Press.
• –––, 2012, Punishment and the Moral Emotions: Essays in Law, Morality, and Religion , New York: Oxford University Press.
• Murphy, J. G., and J. Coleman, 1984, The Philosophy of Law , Totowa, N. J.: Rowman & Littlefield.
• Murphy, J. G., and J. Hampton, 1988, Forgiveness and Mercy , Cambridge: Cambridge University Press
• Narayan, U., 1993, ‘Appropriate Responses and Preventive Benefits: Justifying Censure and Hard Treatment in Legal Punishment’, Oxford Journal of Legal Studies , 13: 166–82.
• Nino, C. S., 1983, ‘A Consensual Theory of Punishment’, Philosophy and Public Affairs , 12: 289–306.
• Nussbaum, M. C., 2016, Anger and Forgiveness: Resentment, Generosity, Justice , New York: Oxford University Press.
• Pasternak, A., 2011, ‘The Distributive Effect of Collective Punishment’, in T. Isaacs and R. Vernon (eds.), Accountability for Collective Wrongdoing , Cambridge: Cambridge University Press, 210–30.
• Pereboom, D., 2013, ‘Free Will Skepticism and Criminal Punishment’, in The Future of Punishment , T. A. Nadelhoffer (ed.), Oxford: Oxford University Press, 49–78.
• Pettit, P., 1997, ‘Republican Theory and Criminal Punishment’, Utilitas , 9: 59–79.
• Philips, M., 1986, ‘The Justification of Punishment and the Justification of Political Authority’, Law and Philosophy , 5: 393–416.
• Primoratz, I., 1989, ‘Punishment as Language’, Philosophy , 64: 187–205.
• –––, 1999, Justifying Legal Punishment , 2nd edition, New Jersey: Humanities Press.
• Quinn, W., 1985, ‘The Right to Threaten and the Right to Punish’, Philosophy and Public Affairs , 14: 327–73.
• Ramsay, P., 2011, ‘A Political Theory of Imprisonment for Public Protection’, in Tonry (ed.) 2011, 130–154.
• Rawls, J., 1955, ‘Two Concepts of Rules’, The Philosophical Review , 64: 3–32.
• Renzo, M., 2012, ‘Crimes Against Humanity and the Limits of International Criminal Law’, Law and Philosophy , 31: 443–76.
• Ristroph, A., 2015, ‘Regulation or resistance? A counter-narrative of constitutional criminal procedure’, Boston University Law Review , 95: 1555–617.
• –––, 2016, ‘The conditions of legitimate punishment’, in C. Flanders and Z. Hoskins (eds.), The New Philosophy of Criminal Law , London: Rowman-Littlefield Intl, 79–95.
• Roberts, D. E., ‘Abolition Constitutionalism’, Harvard Law Review , 133: 1–122.
• Robinson, P., 1987, ‘A Sentencing System for the 21st Century?’, Texas Law Review , 66: 1–61.
• Sadurski, W., 1985, ‘Distributive Justice and the Theory of Punishment’, Oxford Journal of Legal Studies , 5: 47–59.
• Scheid, D. E., 1980, ‘Note on Defining “Punishment”’, Canadian Journal of Philosophy , 10: 453–462.
• –––, 1990, ‘Davis and the Unfair-Advantage Theory of Punishment: A Critique’, Philosophical Topics , 18: 143–70.
• –––, 1995, ‘Davis, Unfair Advantage Theory and Criminal Desert’, Law and Philosophy , 14: 375–409.
• –––, 1997, ‘Constructing a Theory of Punishment, Desert, and the Distribution of Punishments’, Canadian Journal of Law and Jurisprudence , 10: 441–506.
• Shafer-Landau, R., 1991, ‘Can Punishment Morally Educate?’ Law and Philosophy , 10: 189–219.
• –––, 1996, ‘The Failure of Retributivism’, Philosophical Studies , 82: 289–316.
• Sher, G., 1987, Desert , Princeton: Princeton University Press.
• Sigler, M., 2011, ‘The Political Morality of the Eighth Amendment’, Ohio State Journal of Criminal Law , 8: 403–30.
• –––, 2014, ‘Defensible Disenfranchisement’, Iowa Law Review , 99: 1725–44.
• Singer, P., 2005, ‘Ethics and Intuitions’, The Journal of Ethics , 9: 331–52.
• Skillen, A. J., 1980, ‘How to Say Things with Walls’, Philosophy , 55: 509–23.
• Smart, J. J. C., 1973, ‘An Outline of a System of Utilitarian Ethics’, in J. Smart and B. Williams, Utilitarianism: For and Against , Cambridge: Cambridge University Press, 1–74.
• Smilansky, S., 2011, ‘Hard Determinism and Punishment: A Practical Reductio’, Law and Philosophy: An International Journal for Jurisprudence and Legal Philosophy , 30: 353–367.
• Stephen, J. F., 1873, Liberty, Equality, Fraternity , ed. J. White, Cambridge: Cambridge University Press (1967).
• Stichter, M. K., 2010, ‘Rescuing Fair Play as a Justification of Punishment’, Res Publica , 16: 73–81.
• Tadros, V., 2011, The Ends of Harm: The Moral Foundations of Criminal Law , Oxford: Oxford University Press.
• Tanguay-Renaud, F., 2013, ‘Criminalizing the state’, Criminal Law and Philosophy , 7: 255–84.
• Tasioulas, J., 2006, ‘Punishment and Repentance’, Philosophy , 81: 279–322.
• Ten, C. L., 1987, Crime, Guilt and Punishment , Oxford: Oxford University Press.
• –––, 1990, ‘Positive Retributivism’, Social Philosophy and Policy , 7: 194–208.
• Tonry, M., 1996, Sentencing Matters , New York: Oxford University Press.
• Tonry, M. (ed.), 2011, Retributivism Has a Past: Has it a Future? New York: Oxford University Press.
• Tonry, M. (ed.), 2011, Why Punish? How Much? New York: Oxford University Press.
• Tudor, S. K., 2001, ‘Accepting One’s Punishment as Meaningful Suffering’, Law and Philosophy , 20: 581–604.
• Vilhauer, B., 2013, ‘Persons, Punishment, and Free Will Skepticism’, Philosophical Studies , 162: 143–63.
• von Hirsch, A., 1976, Doing Justice: The Choice of Punishments , New York: Hill & Wang.
• –––, 1990, ‘Proportionality in the Philosophy of Punishment: From “Why Punish?” to “How Much?”’ Criminal Law Forum , 1: 259–90.
• –––, 1993, Censure and Sanctions , Oxford: Oxford University Press.
• –––, 1999, ‘Punishment, Penance and the State’, in M. Matravers (ed.), Punishment and Political Theory , Oxford: Hart Publishing, 69–82.
• von Hirsch, A., and A. J. Ashworth, 1992, ‘Not Not Just Deserts: A Response to Braithwaite and Pettit’, Oxford Journal of Legal Studies , 12: 83–98.
• –––, 2005, Proportionate Sentencing , Oxford: Oxford University Press
• von Hirsch, A., A. J. Ashworth, and C. Shearing, 2005, ‘Restorative Justice: A “Making Amends” Model?’, in von Hirsch and Ashworth 2005, 110–30.
• von Hirsch, A., J. Roberts, A. E. Bottoms, K. Roach, and M. Schiff (eds.), 2003, Restorative Justice and Criminal Justice: Competing or Reconcilable Paradigms? , Oxford: Hart Publishing.
• von Hirsch, A., and M. Wasik, 1997, ‘Civil Disqualifications Attending Conviction: A Suggested Conceptual Framework’, Cambridge Law Journal , 56: 599–626.
• Walen, A., 2011, ‘A Punitive Precondition for Preventive Detention: Lost Status as a Foundation for a Lost Immunity’, San Diego Law Review , 48: 1229–72.
• Walgrave, L. (ed.), 2002, Restorative Justice and the Law , Cullompton, Devon: Willan Publishing.
• Walker, N., 1980, Punishment, Danger and Stigma , Oxford: Blackwell.
• –––, 1991, Why Punish? Oxford: Oxford University Press.
• Wellman, C. H., 2009, ‘Rights and State Punishment’, The Journal of Philosophy , 106: 419–39.
• –––, 2011, ‘Piercing Sovereignty: A Rationale for International Jurisdiction Over Crimes That Do Not Cross International Borders’, in Philosophical Foundations of Criminal Law , R. A. Duff and S. Green (eds.), Oxford: Oxford University Press, 44–66.
• –––, 2012, ‘The Rights Forfeiture Theory of Punishment’, Ethics , 122: 371–393.
• White, M.D. (ed.), 2011, Retributivism: Essays on Theory and Policy , New York: Oxford University Press.
• Wiegman, I., 2015, ‘The Evolution of Retribution: Intuitions Undermined’, Pacific Philosophical Quarterly , 98: 193–218.
• Williams, B., 1976, Morality , Cambridge: Cambridge University Press.
• Wilson, J. Q., 1983, Thinking about Crime , revised edition, New York: Basic Books.
• Wood, D., 2002, ‘Retribution, Crime Reduction, and the Justification of Punishment’, Oxford Journal of Legal Studies , 22: 301–21.
• Wootton, B., 1963, Crime and the Criminal Law , London: Stevens.
• Wringe, B., 2013, ‘Must Punishment Be Intended to Cause Suffering?’ Ethical Theory and Moral Practice , 16: 863–77.
• –––, 2016, An Expressive Theory of Punishment , London: Palgrave MacMillan.
• –––, 2019, ‘Punishment, Jesters, and Judges: A Response to Nathan Hanna’, Ethical Theory and Moral Practice , 22: 3–12.
• –––, 2021, ‘Punishing Noncitizens’, Journal of Applied Philosophy , 38: 384–400.
• Yankah, E., 2015, ‘Republican Responsibility in Criminal Law’, Criminal Law and Philosophy , 9: 457–75.
• Yost, B., 2019, Against Capital Punishment, New York: Oxford University Press.
• Zaibert, L., 2006, Punishment and Retribution , Aldershot: Ashgate.
• Zedner, L., 1994, ‘Reparation and Retribution: Are They Reconcilable?’ Modern Law Review , 57: 228–50.
• Zimmerman, M., 2011, The Immorality of Punishment , Peterborough, ON: Broadview Press.

How to cite this entry . Preview the PDF version of this entry at the Friends of the SEP Society . Look up topics and thinkers related to this entry at the Internet Philosophy Ontology Project (InPhO). Enhanced bibliography for this entry at PhilPapers , with links to its database.

[Please contact the author with suggestions.]

criminal law, theories of | justice: retributive | legal obligation and authority | legal reasoning: interpretation and coherence in | legal reasoning: precedent and analogy in

Copyright © 2021 by Zachary Hoskins < Zachary . Hoskins @ nottingham . ac . uk > Antony Duff

• Accessibility

Support SEP

Mirror sites.

View this site from another server:

• Info about mirror sites

The Stanford Encyclopedia of Philosophy is copyright © 2024 by The Metaphysics Research Lab , Department of Philosophy, Stanford University

Library of Congress Catalog Data: ISSN 1095-5054

The Palgrave Handbook on the Philosophy of Punishment pp 1–20 Cite as

Introduction: Punishment, Its Meaning and Justification

• Matthew C. Altman 3  
• First Online: 24 March 2023

471 Accesses

Part of the book series: Palgrave Handbooks in the Philosophy of Law ((PHPL))

In this Introduction, Altman surveys some of the most important positions and debates regarding the definition of punishment and its justification. After explaining the so-called “standard definition” of punishment, he poses several questions, including whether any definition can be value-neutral, whether punishments (as opposed to mere penalties) must include an expressive dimension, and whether punishment must intend to cause suffering. Altman then examines the traditional dichotomy between consequentialism and retributivism, and their different versions. Many theories of punishment blur the distinction or resist easy categorization, which has led to alternative classifications. He describes the political turn in punishment theory, how legal punishment has been criticized as a tool of oppression, and the challenge of abolitionism. He also surveys the chapters in the book.

This is a preview of subscription content, log in via an institution .

Buying options

• Available as PDF
• Read on any device
• Instant download
• Own it forever
• Available as EPUB and PDF
• Compact, lightweight edition
• Dispatched in 3 to 5 business days
• Free shipping worldwide - see info
• Durable hardcover edition

Tax calculation will be finalised at checkout

Purchases are for personal use only

I am grateful to Cynthia Coe and Christopher Bennett for helpful comments on earlier drafts.

Alexander, Larry, and Kimberly Kessler Ferzan. 2009. Crime and Culpability: A Theory of Criminal Law . Cambridge: Cambridge University Press.

Book   Google Scholar  

Alexander, Michelle. 2020. The New Jim Crow: Mass Incarceration in the Age of Colorblindness . 10th anniversary ed. New York: New Press.

Google Scholar  

Altman, Matthew C. 2021. A Theory of Legal Punishment: Deterrence, Retribution, and the Aims of the State . London: Routledge.

Altman, Matthew C., and Cynthia D. Coe. 2022. “Punishment Theory, Mass Incarceration, and the Overdetermination of Racialized Justice.” Criminal Law and Philosophy 16, no. 3 (October): 631–49.

Andenaes, Johannes. 1974. Punishment and Deterrence . Ann Arbor, MI: University of Michigan Press.

Beccaria, Cesare. 1995. On Crimes and Punishments and Other Writings . Translated by Richard Davies, Virginia Cox, and Richard Bellamy. Edited by Richard Bellamy. Cambridge: Cambridge University Press.

Benn, S. I. 1958. “An Approach to the Problems of Punishment.” Philosophy 33, no. 127 (October): 325–41.

Bentham, Jeremy. 1970. An Introduction to the Principles of Morals and Legislation . Edited by J. H. Burns and H. L. A. Hart. Oxford: Clarendon.

Boonin, David. 2008. The Problem of Punishment . Cambridge: Cambridge University Press.

Braithwaite, John, and Philip Pettit. 1990. Not Just Deserts: A Republican Theory of Criminal Justice . Oxford: Clarendon.

Chiao, Vincent. 2019. Criminal Law in the Age of the Administrative State . Oxford: Oxford University Press.

Cottingham, John. 1979. “Varieties of Retribution.” Philosophical Quarterly 29, no. 116 (July): 238–46.

Davis, Angela Y. 2003. Are Prisons Obsolete? New York: Seven Stories.

Davis, Michael. 2009. “Punishment Theory’s Golden Half Century: A Survey of Developments from (about) 1957 to 2007.” Journal of Ethics 13, no. 1 (January): 73–100.

Duff, R. A. 1986. Trials and Punishments . Cambridge: Cambridge University Press.

Farmer, Lindsay. 2016. Making the Modern Criminal Law: Criminalization and Civil Order . Oxford: Oxford University Press.

Feinberg, Joel. 1965. “The Expressive Function of Punishment.” Monist 49, no. 3 (July): 397–423.

Flew, Antony. 1954. “The Justification of Punishment.” Philosophy 29, no. 111 (October): 291–307.

Hampton, Jean. 1984. “The Moral Education Theory of Punishment.” Philosophy & Public Affairs 13, no. 3 (Summer): 208–38.

Hanna, Nathan. 2008. “Say What? A Critique of Expressive Retributivism.” Law and Philosophy 27, no. 2 (March): 123–50.

———. 2009. “Liberalism and the General Justifiability of Punishment.” Philosophical Studies 145, no. 3 (September): 325–49.

Hart, H. L. A. 1960. “Prolegomenon to the Principles of Punishment.” Proceedings of the Aristotelian Society 60, no. 1 (June): 1–26.

Husak, Douglas N. 2000. “Retribution in Criminal Theory.” San Diego Law Review 37, no. 4: 959–86.

Kant, Immanuel. 1996a. Groundwork of the Metaphysics of Morals . In Practical Philosophy , translated and edited by Mary J. Gregor, 41–108. Cambridge: Cambridge University Press.

———. 1996b. The Metaphysics of Morals . In Practical Philosophy , translated and edited by Mary J. Gregor, 363–602. Cambridge: Cambridge University Press.

Matravers, Matt. 2000. Justice and Punishment: The Rationale of Coercion . Oxford: Oxford University Press.

McCloskey, H. J. 1962. “The Complexity of the Concepts of Punishment.” Philosophy 37, no. 142 (October): 307–25.

McPherson, Thomas. 1967. “Punishment: Definition and Justification.” Analysis 28, no. 1 (October): 21–27.

Mill, John Stuart. 2001. Utilitarianism . 2nd ed. Edited by George Sher. Indianapolis, IN: Hackett.

Nathanson, Stephen. 2001. An Eye for an Eye: The Immorality of Punishing by Death . 2nd ed. Lanham, MD: Rowman & Littlefield.

Nietzsche, Friedrich. 1967. On the Genealogy of Morals . Translated by Walter Kaufmann and R. J. Hollingdale. New York: Vintage.

Plato. 1961. Crito . In The Collected Dialogues of Plato , edited by Edith Hamilton and Huntington Cairns, 27–39. Princeton, NJ: Princeton University Press.

Platt, Joel. 2021. “(Cr)immigration, Race and Belonging: Why We Must Conceptualize Immigration Detention as Punishment?” Journal of Identity and Migration Studies 15, no. 1: 2–28.

Rawls, John. 1955. “Two Concepts of Rules.” Philosophical Review 64, no. 1 (January): 3–32.

Reiman, Jeffrey, and Paul Leighton. 2020. The Rich Get Richer and the Poor Get Prison: Thinking Critically about Class and Criminal Justice . New York: Routledge.

Robinson, Paul H., and John M. Darley. 1997. “The Utility of Desert.” Northwestern University Law Review 91, no. 2 (Winter): 453–99.

Thorburn, Malcolm. 2011. “Criminal Law as Public Law.” In Philosophical Foundations of Criminal Law , edited by R. A. Duff and Stuart P. Green, 21–43. Oxford: Oxford University Press.

Chapter   Google Scholar  

———. 2012. “Constitutionalism and the Limits of the Criminal Law.” In The Structures of the Criminal Law , edited by R. A. Duff, Lindsay Farmer, S. E. Marshall, Massimo Renzo, and Victor Tadros, 85–105. Oxford: Oxford University Press.

Walker, Nigel. 1999. “Even More Varieties of Retribution.” Philosophy 74, no. 4 (October): 595–605.

Wirts, Amelia. 2020. “Criminal Oppression: A Non-Ideal Theory of Criminal Law and Punishment.” Ph.D. diss., Boston College, 2020. https://dlib.bc.edu/islandora/object/bc-ir:108954/datastream/PDF/view .

Wringe, Bill. 2013. “Must Punishment Be Intended to Cause Suffering?” Ethical Theory and Moral Practice 16, no. 4 (August): 863–77.

Zaibert, Leo. 2006. Punishment and Retribution . Aldershot, UK: Ashgate.

Download references

Author information

Authors and affiliations.

Central Washington University, Ellensburg, WA, USA

Matthew C. Altman

You can also search for this author in PubMed   Google Scholar

Corresponding author

Correspondence to Matthew C. Altman .

Editor information

Editors and affiliations.

Philosophy & Religious Studies, Central Washington University, ELLENSBURG, WA, USA

Rights and permissions

Reprints and permissions

Copyright information

© 2023 The Author(s), under exclusive license to Springer Nature Switzerland AG

About this chapter

Cite this chapter.

Altman, M.C. (2023). Introduction: Punishment, Its Meaning and Justification. In: Altman, M.C. (eds) The Palgrave Handbook on the Philosophy of Punishment. Palgrave Handbooks in the Philosophy of Law. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-031-11874-6_1

Download citation

DOI : https://doi.org/10.1007/978-3-031-11874-6_1

Published : 24 March 2023

Publisher Name : Palgrave Macmillan, Cham

Print ISBN : 978-3-031-11873-9

Online ISBN : 978-3-031-11874-6

eBook Packages : Religion and Philosophy Philosophy and Religion (R0)

Share this chapter

Anyone you share the following link with will be able to read this content:

Sorry, a shareable link is not currently available for this article.

Provided by the Springer Nature SharedIt content-sharing initiative

• Publish with us

Policies and ethics

• Find a journal
• Track your research

ReviseSociology

A level sociology revision – education, families, research methods, crime and deviance and more!

Sociological Perspectives on Punishment

Last Updated on February 9, 2017 by

One way of controlling and reducing crime is to punish offenders. Given that punishment typically involves restricting people’s freedom and sometimes inflicting harm on people, it requires some justification as a strategy for crime control. Two main justifications exist for punishment: Crime reduction and retribution . These methods link to different penal policies.

One justification for punishing offenders is that it prevents future crimes. This can be done through:

Deterrence – Punishing the individual discourages them from future offending – and others through making an example of them. This relates to Durkheim’s Functionalist Theory that crime and punishment reinforce social regulation , where prison sentence for a crime committed reaffirms the boundaries of acceptable behaviour.

Rehabilitation – The aim is to change offenders’ behaviour through education so they can earn an ‘honest living’ on release

Incapacitation – Removing the capacity for offenders to re-offend through long term prison sentences, cutting of hands, chemical castration or the death penalty.

Retribution

Reducing crime is not the only function of punishment, it also performs a straightforward ‘retributive function’ – in which the criminal is simply punished for harming another person, and the victim gets a sense of satisfaction that the criminal is ‘paying for their crime. This is an expressive rather than an instrumental view of punishment – it expresses society’s outrage at the crime.

Left Realism

Left realists believe that prison alone is an ineffective method at reducing crime. They believe it needs to be combined with the practice of restorative justice …which involves the offender actively doing something to make up for the harm done as a result of their crime. This may involve measures such as reparation, (paying back) mediation, (offender meeting victim) reintegrative ‘shaming’, (facing offenders with the consequences of their actions and family conferencing which seeks to bring offender, victim and members of the community into some form of dialogue and ‘healing’ process. All this is very unlike the anonymous processing and exclusionist shaming of the courts and prison sentences.

Home office research suggests meeting the offender benefits 80% of victims who choose to participate. For some victims it is about forgiveness – letting go of anger in order to move on with their lives. But for many, meeting the offender is about confronting them with the real impact of their crime, asking the questions that never get answered in court, and the hope that – for some offenders at least – understanding the impact of their actions might help to prevent them reoffending.

The research evidence on RJ is stronger than for almost any other criminal justice intervention. Research using randomised control trials ( Home Office/Ministry of Justice seven-year, £7m evaluation of the impact of RJ ) has found that offenders who met their victim compared to those who did not, the frequency of reoffending fell by 27% (ie 27% less crime after RJ). However, at present fewer than 1% of victims of crime have access to a restorative justice process. ( http://www.guardian.co.uk/commentisfree/2010/sep/17/restorative-justice-cuts-crime )

According to the Marxist Sociologist David Gordon prison benefits the Capitalist system in three major ways:

• The imprisonment of selected members of the lower classes neutralises opposition to the system, keeping potential revolutionaries from forming together and taking political action.
• The imprisonment of many members of the underclass also sweeps out of sight the ‘worst jetsam of Capitalist society’ such that we cannot see it
• By punishing individuals and making them responsible for their actions, defining these individuals as ‘social failures’ we ignore the failings of the system that lead to the conditions of inequality and poverty that create the conditions which lead to crime. Our attention is diverted away from the immorality and greed of the elite classes.

NB – We are not talking about small numbers here – Focussing on the USA, David Garland argues that we have entered the era of mass incarceration. Approximately 2.3 million people are in jail in the US (about 750/100 000)

Focusing on the UK, the prison population has doubled since 1993 from approximately 40 000 to nearly 90 000 today.

There is evidence to support the Marxist view that it is mainly the marginalised who end up in jail – Looking at stats on prisoners we find that…

• 10% of men and 30% of women have had a previous psychiatric admission to hospital before they come into prison.

• 48% of all prisoners are at, or below, the level expected of an 11 year old in reading, 65% in numeracy and 82% in writing.

• 71% of children in custody have been involved with, or in the care of, social services before entering custody.

NB2 – While Right Realists would claim that locking more people up is a causal factor in the crime rate going down over the last two decades, this claim is challenged. This correlation may be a coincidence – other factors (such as abortion and the rise of ICT meaning more people stay indoors) may also play a role in this).

  Interactionism

Once a person is labelled as deviant, it is extremely difficult to remove that label. The deviant person becomes stigmatised as a criminal or deviant and is likely to be considered, and treated, as untrustworthy by others. The deviant individual is then likely to accept the label that has been attached, seeing himself or herself as deviant, and act in a way that fulfils the expectations of that label. Even if the labelled individual does not commit any further deviant acts than the one that caused them to be labelled, getting rid of that label can be very hard and time-consuming. For example, it is usually very difficult for a convicted criminal to find employment after release from prison because of their label as ex-criminal. They have been formally and publicly labelled a wrongdoer and are treated with suspicion likely for the remainder of their lives.

Total Institutions and The Mortification of the Self

Erving Goffman (1961) argued that places such as mental asylums, concentration camps and prisons function as ‘total institutions’ – places which are closed off to the outside world and where inmates’ lives come under the complete control of the institution.

According to Goffman, becoming an inmate in a total institution involves a process of “mortification of the self” – inmates are subjected to degrading and humiliating treatments designed to remove any trace of individual identity. For instance, personal clothing and items are confiscated, inmates are strip searched, their heads are shaved, and they are issued an ID number. The point of such treatment is to mark a clear separation between the inmates’ former selves and their institutional selves. Inmates are constantly under surveillance and they have no privacy. Minute behaviour is observed and assessed, and if necessary, sanctioned.

As a result of having every aspect of their daily lives controlled, inmates effectively lose the ability to construct their own identities and function independently. Rather than making sick people well, asylums make them more insane, and rather rehabilitating, prisons actually make prisoners more criminal.

Post and Late Modernism

In his classic text, entitled ‘discipline and punish’ Michel Foucault’s points out that punishment has changed from being very direct, immediate and physical – involving torture and sometimes death to being more focused on incarceration and rehabilitation. However, although punishment today may be less severe than in the past, the state has expanded its control over its citizens in more subtle ways and ‘invades’ our private lives much more than at it ever used to. This is especially true when you look at the way criminals are treated today. While prisoners are unlikely to be subjected to torture or death (unless you’re Muslim, black or stupid and live in Texas) they are subjected to an ever increasing array of what Foucault calls ‘technologies of surveillance’ – they are kept under surveillance programmes and are expected to reform their behaviour.

Prison is the most obvious example of this – with prisoners under (potential) constant surveillance, while those who avoid prison might have to subject themselves to being tagged, visit probation officers, or turn up to ‘rehabilitation classes’ (such as drug counselling or anger management) all of which involve surveillance and behavioural modification.

Foucault sees the growth of prison as a means of punishment as reflecting the move from sovereign power to disciplinary power – Sovereign power involves direct physical coercion to get people to obey the laws, and under this system punishments are carried out on people’s physical bodies – punishment is harsh – it is a spectacle.

Today, however, political and economic systems are maintained through ‘disciplinary power’ – power is exercised through surveillance – people change their behaviour because they know they are being watched. Prison seams more humane than physical punishment but in reality it is much more invasive as a means of social control.

NB – As with Marxism above, we are talking about huge numbers 7 million people (1/32 of the population) are either in jail, on probation or parole, and Garland uses the concept of Transcarceration to refer to this shift. Certain people move between various state institutions – from care – to prison – to mental hospital – throughout their whole lives, effectively being under constant surveillance by the state.

David Garland – The Punitive State and The Culture of Control

David Garland argues that there has been a relatively recent shift in attitudes towards punishment.

He argues that in the 1950s the state practised ‘penal welfarism’ – in which the criminal justice system did not just try to catch and punish offenders, but also tried to rehabilitate them, so that they could be reintigrated into society

However, since the 1950s individual freedoms have increased, while social bonds have weakened, life is more uncertain and less predictable, and (despite the fact that crime is now decreasing) the public are more worried about crime than ever.

As a result, the state has now abandoned ‘penal welfarism’, it is much less concerned with rehabilitation and reintegration of prisoners, it’s primary concern is now convincing the public that it is taking a tough approach on crime and reassuring communities that something is being done about crime.

Garland argues that we have now moved into a new era in which a ‘punitive state’ enforces a ‘culture of control’ – there are three main ways in which the state now seeks to control crime and punish offenders:

The state increasingly identifies potential groups who are at risk of offending at a young age and take early interventions. This links to the Actuarialism (risk management) strategy referred to in a previous topic.

The state locks increasing amounts of people up, Garland argues we have entered the era of ‘mass incarceration’ and ‘transcarceration’.

Politicians increasingly use the issue of crime control, and ‘being tough on crime’ as a means to win elections – in effect, crime control has become a political tool which politicians use to win power, rather than being about reducing crime perse.

Evaluations of Garland

This is an important contribution in that it draws our attention towards the ‘political nature of crime control – and it helps to explain the increasing prison populations and ‘transcacerated’ population even though crime has been decreasing for decades.

This is a rather cynical theory – Garland seems to be saying that politicians today simply use their ‘tough on crime’ approach to get votes and maintain power, rather than trying to do anything which will really address the underlying causes of crime. Is this really the case?

Michel Foucault would probably argue that this theory is too simplistic in terms of its understanding of political power – it diverts our attention away from other agencies of social control in preventing/ constructing deviance through surveillance.

Share this:

• Share on Tumblr

Leave a Reply Cancel reply

This site uses Akismet to reduce spam. Learn how your comment data is processed .

Discover more from ReviseSociology

Subscribe now to keep reading and get access to the full archive.

Continue reading

1000-Word Philosophy: An Introductory Anthology

Philosophy, One Thousand Words at a Time

Theories of Punishment

Author: Travis Joseph Rodgers Category:  Ethics , Social and Political Philosophy Word Count: 995

Criminals are punished with fines, public scorn, imprisonment, death and more.

Philosophical theories of punishment ask what justifies punishment, both in general and what justifies particular punishments. Most theories appeal to punishment’s effects on the future or facts about the past .

This essay reviews these theories.

1. Forward-Looking Theories

According to forward-looking theories of punishment, punishments are justified to the extent that they bring about future good results. Theories differ in terms of what those results are.

1.1. Deterrence Theories

One goal of punishment is to bring about less crime. One way of doing this is by discouraging would-be criminals. Deterrence theories propose that punishments are justified to the degree to which they reduce, or deter , crime by preventing people from committing crimes or discouraging repeat offenses.

To understand how effective a punishment is as a deterrent, we consider the negative consequences for the criminal. If thieves are asked only to return stolen goods, that “punishment” is a very light consequence. Stealing might then be a good gamble: if a thief succeeds, she gets the items; if she is caught, she simply returns them. Fines or imprisonment provides a more effective deterrent and a stronger incentive to not steal.

A punishment’s deterrent force results from the severity of the penalty and the likelihood of punishment. More severe punishments and more effective means of catching and prosecuting criminals increase a punishment’s deterrent effect.

1.2. Rehabilitation Theories

Rather than focusing on reducing crime, rehabilitation theories of punishment focus on making criminals into people who are less likely to commit crimes. [1]  

Consider two purse thieves. One steals for excitement. Another steals because of a lack of legitimate job opportunities and a lack of food: this thief feels bad about snatching purses but, nonetheless, he steals.

In the first case, rehabilitation theorists urge trying to improve the person’s character and values. In the second, mandatory job training or education could be part of the punishment. Rehabilitation is often attempted using education, training, medication, and therapy.

1.3. Concerns about Forward-Looking Theories

All forward-looking theories must specify what resources can be used to bring about the desired results. Costly punishments like the death penalty and life imprisonment might be justified if they effectively realize whatever goods the theory aims at: e.g., killing some criminals could most improve the world on some views, and since some wrongdoers might be incapable of rehabilitation, permanently removing them from society might be best. [2]

A problem for forward-looking theories is that the punishments recommended might not seem “proportional” to the crime. Serious crimes might call for light punishments if recidivism – repeat criminal offenses – is unlikely; light crimes might call for brutal punishments if that effectively reduces them. [3] Subjecting criminals, or even innocent people, to extreme punishments to “send a message” or deter others from committing crimes is another potential problem for forward-looking theories. [4]

2. Backward-Looking Theories

Backward-looking theories identify the justification for punishment in some fact about how the to-be punished crime was committed.

Most theories seek a punishment “proportional to” or “fitting” the crime. Retributivist theories see punishment as a “paying back” for the crime committed. Restorative theories seek to return the victim’s status to what it was prior to the crime. Both theories look “backward” to the crime itself to determine an appropriate punishment: retributivists focus on doing harm to the wrongdoer; restorative theories focus on doing good to the crime victim.

2.1. Retributivist Theories

An influential example of retributivism is the lex talionis (the law of retaliation), the view that the crime is to be revisited upon the perpetrator of the crime: we should “reap what we sow.” [5] So, thieves should be deprived of their property, murders should forfeit their own life, and so on.

On this view, punishment is not intended to make the world a better place, to reduce criminality, or to improve the perpetrator. [6] These may sometimes happen, and these may be further goods, but the justification for the punishment is simply that it is what the criminal deserves . That such theories do not aim at making the world an overall better place is sometimes a point of criticism of the theory. Why punish, some ask, if it serves no broader good? One reply is that people, especially criminals, getting what they deserve is its own good.

Some potential problems for retributivism include that some crimes are incapable of being paid back in full: e.g., a mass murderer can be killed only once; a criminal might destroy a unique artifact that no punishment can restore. In other cases, paying the person back with a similar punishment seems morally abhorrent, as in the case of sexual assault.

2.2. Restorative Theories

A second backward-looking theory suggests that the justification for punishment is not to inflict suffering on someone or to create an overall better world but to restore those who were harmed by the crime.

This restorative theory of punishment is backward-looking in that it targets the victim’s situation prior to the crime, by forcing the wrongdoer to help the victim. [7] A punishment, which the wrongdoer is forced to do, is justified to the extent that it restores victims to their standing prior to the crime, e.g., their mental and/or physical state, property restoration, and so on. This may seem more compassionate than retributivism since the goal of these punishments is to make the victim better off, comparatively, and thus the world a better place. [8]

Restorative justice faces a similar retributivist problem of fully “restoring” someone. Some losses cannot be restored (e.g., the losses to murder victims loved ones), and sometimes restoring the harmed individual would require seemingly unjustified offenses (e.g., enslaving a criminal to the victim until a theft is paid back). [9]

3. Conclusion

Some of the elements of these theories of punishment can be combined. We might recommend rehabilitation when possible and deterrence when not possible. We might also recommend restoration in addition to retribution. And forward-looking and backward-looking elements might be balanced against one another, to decrease crime while giving no more punishment than deserved. [10]

[1] An important question about whether a punishment is justified is whether the proposed punishment would be just or unjust . Thus, questions about the justification for punishment lead to fundamental questions about justice in general.

[2] Mill (1868) argues in favor of the death penalty only in cases where rehabilitation is not possible, for instance.

[3] Murray Rothbard (1998) defends a backward-looking, retributivist theory of punishment and challenges forward-looking theories on these and other grounds.

[4] Punishing innocents to decrease criminality in others is often called telishment rather than punishment.

[5] Douglas Husak (1992), Immanuel Kant (1887), and Christopher Heath Wellman (2012) discuss slightly different versions of this kind of theory.

[6] Indeed, Kant (1887) notoriously argues that those who murder must die, and that a society has a duty to execute those who have committed murder, regardless of the consequences for the society.

[7] Murray Rothbard’s (1998) writing in economics explains the “victim’s situation” as their rights. In other words, you must compensate (or restore) a victim for any right you violate.

[8] Some proponents consider restorative justice an alternative to punishment, but note that like other views of punishment, restorative justice involves some “hard treatment” of the wrongdoer and serves to protect rights of individuals and order in society.

[9] Roderick Long, a proponent of restorative justice, raises and attempts to address some of these concerns.

[10] This article focuses on theories of criminal punishment, but these same theory types can be applied to non-criminal cases of punishment as well. For instance, we might view “making a good person” as a desirable future state and then justify punishing a child to the extent that that punishment does the best job of making the child a good or better person. And we might think that boycotting a business owned by a bigot is giving it exactly what it deserves.

Husak, Douglas. 1992. “Why Punish the Deserving.” Nous 26 (4): 447-464.

Kant, Immanuel. 1887. The Philosophy of Law: An Exposition of the Fundamental Principles of Jurisprudence as the Science of Right, trans. W. Hastie (Edinburgh).

Long, Roderick. 1993-94. “Punishment vs. Restitution: A Formulation.” Formulations .

Mill, John Stuart. 1988. “Speech in Favor of Capital Punishment 1868.” The Collected Works of John Stuart Mill, Vol. XXVIII.: Public and Parliamentary Speeches. Eds. John M. Robson and Bruce Kinzer. Toronto: University of Toronto Press, 1988. pp. 266-273.

Rothbard, Murray. 1998. “Punishment and Proportionality . ” New York University Press, (2 nd edition with an introduction by Hans-Hermann Hoppe); originally published Atlantic Highlands, NJ: Humanities Press, 1982.

Wellman, Christopher Heath. 2012 . “The Rights Forfeiture Theory of Punishment”, Ethics , 122: 371–393.

For Further Reading

Boonin, David. 2008. The Problem of Punishment . Cambridge University Press.

Hart, H.L.A. 1968. Punishment and Responsibility. Oxford University Press.

Related Essays

The Death Penalty  by Benjamin S. Yost

Praise and Blame  by Daniel Miller

Introduction to Consequentialism by Shane Gronholz

Introduction to Deontology: Kantian Ethics by Andrew Chapman

John Rawls’ ‘A Theory of Justice’ by Ben Davies

Social Contract Theory by David Antonini

Philosophy of Law: An Overview  by Mark Satta

Moral Luck  by Jonathan Spelman

Hell and Universalism  by A.G. Holdier

Pascal’s Wager: A Pragmatic Argument for Belief in God  by Liz Jackson

PDF Download

Download this essay in PDF . 

About the Author

  Travis Joseph Rodgers is Professor of Humanities at Valencia College in Orlando, Florida. He received his Ph.D. in philosophy from Florida State University. His specialties are ethics and ancient philosophy. His research focuses on the question of political legitimacy – that is, under what conditions governments might be justified in forcing someone to do something, applied ethics, and ethical theory. valenciacollege.academia.edu/TravisRodgers

Follow 1000-Word Philosophy on  Facebook  and  Twitter  and subscribe to receive email notifications of new essays at  1000WordPhilosophy.com

Share this:, 14 thoughts on “ theories of punishment ”.

• Pingback: Online Philosophy Resources Weekly Update - Daily Nous
• Pingback: The Death Penalty – 1000-Word Philosophy: An Introductory Anthology
• Pingback: Political Philosophy: A Collection of Online Resources and Key Quotes – The Daily Idea
• Pingback: Hell and Universalism – 1000-Word Philosophy: An Introductory Anthology
• Pingback: Ethics: A Collection of Online Resources and Key Quotes | The Daily Idea
• Pingback: Free Will and Free Choice – 1000-Word Philosophy: An Introductory Anthology
• Pingback: Free Will and Moral Responsibility – 1000-Word Philosophy: An Introductory Anthology
• Pingback: Ethics: A Collection of Online Resources and Key Quotes - The Daily Idea
• Pingback: Free Speech – 1000-Word Philosophy: An Introductory Anthology
• Pingback: Moral Luck – 1000-Word Philosophy: An Introductory Anthology
• Pingback: Pascal’s Wager: A Pragmatic Argument for Belief in God – 1000-Word Philosophy: An Introductory Anthology
• Pingback: Just War Theory – 1000-Word Philosophy: An Introductory Anthology
• Pingback: Philosophy of Law: An Overview – 1000-Word Philosophy: An Introductory Anthology
• Pingback: Cultural Relativism: Do Cultural Norms Make Actions Right and Wrong? – 1000-Word Philosophy: An Introductory Anthology

Comments are closed.

Discover more from 1000-Word Philosophy: An Introductory Anthology

Subscribe now to keep reading and get access to the full archive.

Type your email…

Continue reading

Essay on Punishment

Students are often asked to write an essay on Punishment in their schools and colleges. And if you’re also looking for the same, we have created 100-word, 250-word, and 500-word essays on the topic.

Let’s take a look…

100 Words Essay on Punishment

Understanding punishment.

Punishment is a way to correct wrong behavior. It is often used by parents, teachers, or law enforcement officers. It can be in the form of time-out, fines, or even jail time. The main goal is to discourage bad behavior.

Types of Punishment

There are two main types of punishment: physical and non-physical. Physical punishment can be spanking or hitting. Non-physical punishment can be things like taking away privileges. Both types aim to teach a lesson.

Effects of Punishment

Punishment can have different effects. It can stop bad behavior, but it can also cause fear or resentment. It’s important to use punishment wisely and fairly.

Punishment vs Discipline

Punishment and discipline are not the same. Punishment focuses on past wrongs. Discipline focuses on teaching the right behavior for the future. Both are used to guide behavior.

In conclusion, punishment is a tool for correcting behavior. It should be used carefully to teach and guide, not to harm or create fear.

250 Words Essay on Punishment

Punishment is a way people face consequences for their actions. It is a method used by parents, teachers, and the law to teach right from wrong. It helps to maintain order and discipline.

There are two main types of punishment: physical and non-physical. Physical punishment involves causing bodily pain, like a smack. Non-physical punishment can be taking away privileges or giving extra work. Each type has its own effects on the person being punished.

Punishment can have different effects. It might stop bad behavior for a while. But, it can also lead to fear, anger, and resentment. It may not teach the person why their behavior was wrong.

Alternatives to Punishment

Instead of punishment, some people prefer to use positive reinforcement. This means rewarding good behavior. This can encourage the person to behave well, rather than just avoiding punishment.

In the end, the goal of punishment is to help people learn from their mistakes. It’s important to use it wisely and fairly. It should teach a lesson, not cause harm. It’s also good to remember that there are other ways to teach good behavior.

500 Words Essay on Punishment

What is punishment.

Punishment is a penalty given to someone for a mistake or wrongdoing. It is a way to correct wrong behavior. For example, if a child does not do their homework, their teacher might give them extra work as punishment. This is meant to teach the child to do their homework on time in the future.

There are two main types of punishment: physical and non-physical. Physical punishment involves causing pain to the body, like spanking. It is often seen as harsh and is not widely accepted today. Non-physical punishment does not cause physical pain. It involves things like timeouts, grounding, or taking away privileges.

Punishment can have different effects on people. Sometimes, it can help correct bad behavior. A person might think twice about doing something wrong if they know there will be a punishment. But, punishment can also have negative effects. It can cause fear, anger, or resentment. It might not teach the person why their behavior was wrong, only that they should avoid punishment.

There are other ways to correct wrong behavior besides punishment. One way is through positive reinforcement. This means rewarding good behavior instead of punishing bad behavior. For example, a parent might give their child a treat for cleaning their room. This encourages the child to clean their room in the future. Another way is through teaching and communication. This involves explaining why a behavior is wrong and how to behave better.

In conclusion, punishment is a tool used to correct wrong behavior. It comes in different forms and can have different effects. While it can sometimes be effective, there are also other ways to encourage good behavior. It is important to consider the best approach for each situation.

That’s it! I hope the essay helped you.

If you’re looking for more, here are essays on other interesting topics:

• Essay on Purple Hibiscus
• Essay on Purpose In Life As A Student
• Essay on Purpose Of Arnis

Apart from these, you can look at all the essays by clicking here .

Happy studying!

Leave a Reply Cancel reply

Your email address will not be published. Required fields are marked *

Save my name, email, and website in this browser for the next time I comment.

Punishment And Purpose ~ Summary And Conclusions

• by: Jan Willem de Keijser

In order to investigate the link between moral theory of punishment and the practice of punishment the first step was to explore whether concepts derived from moral legal theory have a meaning for criminal justice officials. Furthermore, it was necessary to explore how these concepts, as utilised by judges, interrelate. The gamut of perspectives concerning the justification and goals of punishment was narrowed down to three main categories: Retributivism, Utilitarianism and Restorative Justice. Retributivist theories are retrospective in orientation. The general justification for retributive punishment is found in a disturbed moral balance in society; a balance that was upset by a past criminal act. Infliction of suffering proportional to the harm done and the culpability of the offender (desert) is supposed to have an inherent moral value and to restore that balance.

Utilitarian theories are forward-looking. Legal punishment provides beneficial effects (utility) for the future that are supposed to outweigh the suffering inflicted on offenders. This utility may be achieved, through punishment, by individual and general deterrence, incapacitation, rehabilitation and resocialisation, and the affirmation of norms. Restorative justice emphasises the importance of conflict-resolution through the restitution of wrongs and losses by the offender. The victim of a crime and the harm suffered play a central role in restorative justice. The main objective is to repair or compensate the harm caused by the offence.

The central concepts of these three approaches to legal punishment were systematically operationalised as a pool of attitude statements to enable the measurement and modelling of penal attitudes. As a result of two extensive studies involving Dutch law students, this measurement instrument was refined, replicated, and validated. Based on the results of the second study with law students, a theoretically integrated (structural) model of penal attitudes was formulated. Following the two studies with law students, data were collected from judges in Dutch courts. Almost half of all judges working full-time in the criminal law divisions of the district courts and the courts of appeal cooperated with the study. Analyses revealed a number of interesting findings.

In the past it had been asserted that there is much conceptual confusion among Dutch judges as to the meaning of various goals and functions of punishment (cf. Chapter 3). In contrast, the present study shows that the relevant concepts are consistently measurable and meaningful for Dutch judges. In both student samples as well as in the judges’ sample Deterrence, Incapacitation, Rehabilitation (Utilitarian concepts) and Desert and restoring the Moral Balance (Retributive concepts) could be represented by five separate, internally consistent scales. The approach of Restorative Justice could be empirically represented by a single homogeneous attitude scale in all three samples. As such, unlike Retributivism and Utilitarianism, Restorative Justice was the only approach that was reflected by a single dimension and thus appears to offer a more integrated account of punishment than the other approaches. To our knowledge (see literature review in Chapter 3) this is the first study to have successfully operationalised Restorative Justice and to position it empirically amongst the more traditional approaches to criminal justice. It was, however, the factor least supported by judges. An examination of the theoretically integrated model of penal attitudes amongst judges confirmed earlier findings with law students: in three different samples, the two student samples and the sample of judges, (basically) the same structure in penal attitudes was found. Further analyses revealed that instead of mirroring any particular approach or theoretical framework exclusively, the overall structure of Dutch judges’ penal attitudes reflects a streamlined and pragmatic approach to punishment. Two clusters of substantially correlated concepts were identified in judges’ attitudes. These included Deterrence, Incapacitation, Desert, and restoring the Moral Balance on the one hand and Rehabilitation and Restorative Justice on the other. The first set includes concepts generally associated with punitiveness, or, rather, harsh treatment of offenders. The second set involves socially constructive aspects of the reaction to offending. Rehabilitation involves socially constructive aspects of the offender and his position in society, while Restorative Justice is concerned with socially constructive aspects of the victim’s position and the relationship between victim and offender. The fact that Restorative Justice and Rehabilitation turned out to be strongly correlated may seem awkward from a theoretical point of view. After all, an important impetus for the development of the Restorative Justice approach has been a high degree of dissatisfaction with the existing retributive and utilitarian approaches. Two explanations come to mind. First, there is an inclination in the Netherlands to regard restorative aspects as means of helping to bring about behavioural changes in offenders. Second, the Restorative Justice paradigm does not disqualify rehabilitation and resocialisation of offenders. Though not the primary objective, resocialising effects of a restorative intervention are regarded as probable and desirable spin-offs (e.g., Bazemore & Maloney, 1994; Walgrave, 1994; Weitekamp, 1992). In penal practice both views may therefore be regarded as complementary.

Moreover, this empirical finding can be taken as an illustration of how an alternative paradigm (like Restorative Justice) may become incorporated in or perhaps even corrupted by the existing criminal justice system, thus losing its identity as a true alternative paradigm (cf. Levrant, Cullen, Fulton, & Wozniak, 1999). This finding may also lead one to ponder on opportunities for a theoretical integration of Restorative Justice and the utilitarian view of Rehabilitation. However, both views share an important weakness that cannot be resolved by integration. This is the lack of a limiting and guiding negative principle, since both views are quite indifferent to the (unintended) punitive effects of an intervention. Furthermore, since rehabilitation is a likely and beneficial spin-off of restorative actions (perhaps even more so than interventions explicitly aimed at rehabilitation), little is to be gained from such integration. A final note on the association between Restorative Justice and Rehabilitation in the minds of Dutch magistrates relates to our operationalisation of Restorative Justice.

For the purpose of this study we concentrated on a modest (i.e., immanent; see Chapter 2), less radical version of Restorative Justice. A radical version would, with the current group of respondents, presumably have led to Restorative Justice being represented by a dimension much isolated from the other concepts in the study.

In essence, results showed the complex of penal attitudes to be dominated by two straightforward perspectives: harsh treatment (incorporating Deterrence, Incapacitation, Desert, and Moral Balance) and social constructiveness  (incorporating Restorative Justice and Rehabilitation). Thus, in terms of general, case-independent penal attitudes, Dutch judges appear not to feel constrained by theoretical incompatibilities or boundaries. One might expect the general perspectives of harsh treatment and social constructiveness to be conflicting. However, these two ‘down to earth’ attitudinal perspectives were found to be uncorrelated. Given this pragmatic general structure of penal attitudes, no systematic and consistent approach or direction is implied regarding the justification and goals of punishment in sentencing practice. Instead, particular characteristics of offence and offender are more likely to determine the value attached to specific goals and justifications of punishment in each and every case. The pragmatic approach that was revealed can be interpreted as an attitudinal structure that reflects or facilitates the strong desire in Dutch sentencing practice to individualise sentences, i.e., to tailor a sentence to the unique aspects and circumstances of specific cases and individual offenders (cf. Chapter 5). We will return to this point shortly.

A limited number of judges’ background characteristics were available for a closer look at judges’ penal attitudes (i.e., court of appointment, age, gender, function within criminal law division of the court, experience in criminal law division, and previous occupation). Gender and years of experience in the criminal law division appeared to be the only characteristics substantially related to individual penal attitudes. Preferences for ‘harsh treatment’ increase with years of experience while, at the same time, support for ‘social construction’ drops. Furthermore, female judges tend to be less favourable towards Incapacitation, Deterrence, and Desert than their male counterparts.

In order to acquire an overall and well-founded impression regarding the link between supposed purposes and justifications of punishment and the actual practice of punishment, it is not sufficient simply to measure and analyse abstract penal attitudes. A necessary further step is to examine the goals that judges pursue in specific criminal cases. In short, the two aspects of interest are abstract notions of punishment on the one hand, and ‘punishment in action’ on the other. Punishment in action was examined by means of a scenario study. This involved presenting judges with four criminal cases (robbery cases) and examining the differences in preferences for goals of punishment and sentencing decisions. The cases employed in the scenario study were based on a selection from a large database of real cases that were heard by criminal courts in the Netherlands. The four cases that were presented to judges differed from one another in terms of the incorporation of pointers (i.e., bits of information) that were expected to evoke preferences for different goals of punishment. As such a ‘balanced vignette’ (equal pointers for deterrence, incapacitation, desert, rehabilitation, and reparation), a ‘harsh treatment vignette’ (dominated by pointers for deterrence, incapacitation, and desert), a ‘rehabilitation vignette’ (dominated by pointers for rehabilitation) and a ‘reparation vignette’ (dominated by pointers for reparation) were created (cf. Chapter 7). The study further aimed to determine whether or not substantial and consistent patterns of association exist between goals and sentences and also the relevance of abstract penal attitudes for pursuing particular goals of punishment in specific cases. Thus, for selected cases, the study was tailored to explore the consistency and relevance of sentencing goals in the light of sentencing decisions rather than to explain sentencing decisions. The scenario study explicitly focused on judges’ penal attitudes and preferences for goals of punishment while, through the experimental nature of the design, controlling as many other factors as possible. A major strength of such a design, in which the same cases are presented to all judges in the study is that, given a particular case, any differences found between judges’ evaluations cannot be attributed to differences in specific case characteristics.

The scenario study showed that, within the same criminal cases, judges’ preferences for goals of punishment varied substantially. Apparently, there is no commonly shared vision among Dutch judges in relation to the goals of punishment that apply in specific cases (at least not with the goals that we have focused upon). A partial exception was the harsh treatment vignette, the most serious case in the scenario study, in which the majority of judges agreed about the relative low level of importance of rehabilitation and reparation as goals of punishment.

The study also showed that judges’ sentencing decisions varied widely in the same criminal cases. Moreover, it was shown that different types of criminal cases with different types of offenders elicit different types of variation in sentencing. In the most serious robbery case in the study (i.e., the harsh treatment vignette) the offender and offence characteristics showed few opportunities for rehabilitation and reparation, as reflected in judges’ preferences for the goals of punishment. While there was little variation among judges in choice of principal punishment (i.e. unconditional prison term), as well as in the choice of special conditions, variation in sentencing in this case manifested itself predominantly in terms of severity, that is, length of the prison term. In the three other vignettes, where opportunities (pointers) for rehabilitation and/or reparation were present, the variation in sentencing decisions was more complex. This was due mainly to variations in choice of principal punishments as well as variations in the use of special conditions with suspended sentences.

While the judges evaluated the cases from the scenario study individually, in practice serious cases are tried by panels of three judges (cf. Chapter 5). In deliberations in chambers, such panels have to reach agreement amongst themselves on the sentence to be passed. To relieve the caseload of panels of judges in the Netherlands, it has been suggested that the competence of police judges (unus iudex) should be increased from six to twelve months imprisonment (cf. Tweede Kamer der Staten Generaal, 1998; Van der Horst, 1993). The wide variation in sentencing decisions among individual judges found in this study raises a cautionary note when considering such a change in the system. Before implementing such a change, the effect on sentencing disparity of trying more serious cases by judges sitting alone should be considered very seriously. The mitigating effects of consensus as a result of the deliberations by panels of judges should not be undervalued. [i]

The relationship between preferred goals of punishment and sentencing decisions in the scenario study was examined in order to determine whether or not the variation in both sets of variables was linked in a consistent and substantial manner. Even though, with respect to the same cases, judges may differ amongst themselves, both in terms of their preferred goals of punishment as well as in their sentencing decisions, it is still possible for goals and sentences to be related in a consistent and meaningful way. Overall, results show that preferences for goals of punishment were not very relevant for choosing a particular sanction, nor were sentencing decisions consistently rationalised by goals of punishment. As might be expected, however, the harsh treatment vignette constituted an exception. In this case at best 18 percent of the variance in sentencing could be accounted for by variance in goal preferences. The two sets of variables were clearly associated along the lines of harsh treatment versus social constructiveness.

Regarding the relationship between personal, case-independent, penal attitudes and preferred goals at sentencing, penal attitudes were expected to be of relevance only when pointers for the range of goals of punishment are equally present in a particular case. In the balanced vignette (i.e. balanced in terms of pointers for the range of goals), penal attitudes were expected to act as tiebreakers, whereas their role was expected to be irrelevant in the other vignettes. Results of the study show judges’ penal attitudes not to be relevant for preferred goals at sentencing in any of the four cases in the scenario study.

Thus, the current study went looking for a clear and consistent link between justifications and goals of punishment derived from moral legal theory on the one hand, and the practice of punishment on the other.

Such a link could not be established. The argument was put forward that if there is a consistent legitimising moral framework underlying the current practice of punishment, this should somehow be reflected by that practice. This argument has been explored from several points of view. The overall structure in general penal attitudes reveals a pragmatic inclination that is insufficient to serve as a consistent and legitimising (moral) framework. In specific criminal cases there was no agreement on the goals of punishment to be aimed for. Sentences in the same criminal cases differed widely and no substantial and consistent patterns of association between goals and sentences were found. Perhaps there are other mechanisms or processes, apart from those derived from moral legal perspectives that may provide sufficient justification and guidance for the practice of punishment. From the perspective adopted in this study, however, it seems safe to conclude that there is no consistent legitimising and guiding moral framework underlying the current practice of punishment.

While individualisation is valued in Dutch sentencing practice and judges may aim to individualise their sentences as much as possible, the scenario study has shown that individualisation can, depending on the sentencing judge, imply a wide variety of sentences in terms of type, severity, and special conditions for exactly the same criminal case. In the light of these findings, individualisation has, in fact, two components: a judgecomponent and a case characteristics-component. [ii] While individualisation in sentencing may be a highly valued principle in the Dutch practice of punishment, it obviously has a number of potential drawbacks. The wish to individualise sentences may, for example, be in direct conflict with the principle of equality in sentencing. Concerns about equality in sentencing have increased in the Netherlands over the last decade and have led to various initiatives to enhance consistency in sentencing. Initiatives for attaining a greater level of consistency in sentencing include structured deliberations between chairpersons of the criminal law divisions of the courts, attempts to formulate ‘band widths’ or ‘starting points’ for sentencing in certain types of cases, and the development of and experimentation with computer-supported decision systems and computerised databases (e.g., Oskamp, 1998). Without a commonly shared underlying moral framework or vision of punishment, the (strict) application of such essentially inanimate mechanisms may eventually lead to a bureaucratic equality in sentencing (cf. Kelk, 1992; Kelk & Silvis, 1992) in which the moral justification and goals of punishment are pushed still further into obscurity. [iii]

Moreover, and perhaps paradoxically, in the absence of a commonly shared vision on the justification and goals of punishment, it remains questionable whether or not such mechanisms will ever be accepted or consistently applied by sentencing judges (De Keijser, 1999). Perhaps cases similar to the harsh treatment vignette (i.e. few opportunities for rehabilitation/ reparation), where there was some level of consensus about the goals of punishment and appropriate type of sentence, will be the most amenable to the use of such mechanisms.

The present study constitutes an appreciable simplification of the complex and dynamic process of sentencing in real life court cases. By choosing such an approach, however, the extreme dependence of judges on external influences and mechanisms has been shown. A commonly shared vision underlying criminal justice on fundamental moral principles and their practical implications may constitute a first line of defence against extra-judicial influences, such as short-term criminal politics (e.g., passed on through the public prosecutor), and media hypes that may be considered undesirable. An intricate and at heart morally problematic institution such as legal punishment, that cannot fall back on and does not reflect a coherent underlying vision, will, in the long run, forfeit its credibility. On the part of policymakers, the necessity of normative and theoretical reflection already seems to become irrelevant or is even viewed as an obstacle (cf. ’t Hart, 1997). The essence of the practice of punishment is being reduced to or reformed into technocratic rationalisations primarily based on considerations for manageability, control (Van Swaaningen, 1999; Kelk, 1994; Feeley & Simon, 1992), and instrumentality (Foqué & ‘t Hart, 1990; Schuyt, 1985). One may legitimately wonder whether actions within such a practice can or should, in the long run, still be called ‘punishment’.

The fact that we have not been able to establish a clear and consistent link between justifications and goals of punishment derived from moral theories and the practice of sentencing, may be attributed to a number of causes. If one accepts the basic premise of this study, namely that punishment is morally problematic and therefore needs a consistent and practically relevant moral justification, the present results should at least lead one to reconsider and discuss the justification and goals of punishment and the way in which they relate to our contemporary practice. One argument may be that the theories of utilitarianism, retributivism, and restorative justice are in themselves plainly too awkward for practical purposes, i.e., to provide a clear and practically relevant legitimising and guiding framework for the contemporary practice of sentencing. Therefore, the gap between these legitimising theories of punishment and the actual practice cannot be bridged. Theoretical compromises, i.e. hybrid theories, will not effectively solve the problem. Hybrid theories, it has been argued, can very well disguise eclecticism in sentencing practice (cf. Chapter 2). A second argument takes the opposite point of view, i.e., that the practice of sentencing, conceived as an essentially morally problematic practice, is defective: it is a practice in which a coherent vision on the moral foundations of punishment and the goals at sentencing is absent. While individual judges may have their own idiosyncratic models of the relationship between goals of punishment and specific sanctions, such a relationship is hard to discern at the aggregate level. These arguments are not mutually exclusive. Moreover, either way, a defective link between moral theory and the practice of legal punishment, as observed in this study, remains. This suggests, at least, two general and simultaneous courses of action.

First, the necessity of serious and fundamental theoretical reflection is evident. In this respect, it is striking that in the Netherlands the theoretical debate appears to have died out. To date, relatively few lawyers and scholars appear to attach great value to moral theorising. An important course of action would therefore be to revive the theoretical debate, not just for the sake of theorising, but rather for the sake of repairing the moral foundations of legal punishment with clear implications for sentencing practice.

A second and related course of action would be to put serious effort into reaching a consensus and to make the link between (theoretically derived) goals of punishment and actual sentences explicit. Such deliberations should not simply include principal punishments, but the whole array of sentencing options that are currently available to judges. This requires serious reflection and, more importantly, would imply making certain commitments that may not be popular from a political perspective. While mixing cocktails consisting of a multitude of frequently conflicting goals may be smart from a (short-term) political point of view, it renders sentencing practice impalpable and difficult to legitimise. Rather than conceiving of such processes as attempts to limit judges’ discretion in sentencing, they may eventually help to avoid more serious constraints on sentencing discretion through bureaucratic mechanisms. Currently, in the Netherlands, the unduly complex and fragmented nature of our sanctions system is being scrutinized. The Department of Justice has recently suggested a number of ways to streamline the system (cf. Department of Justice, 2000; see also Justitiële Verkenningen, 2000). Incorporating explicit and well-considered notions of the link between punishment and purpose in such a process of streamlining is an opportunity for real improvement that should not be missed (cf. Van Kalmthout, 2000; see also De Jong, 2000).

These courses of action should constitute the first steps towards a sentencing practice that is less impalpable and more coherent. Simultaneously they may stimulate a search for other methods of promoting disciplined conduct and social control (cf. Garland, 1990). As such, they may fuel a process of decremental change (Braithwaite & Pettit, 1990) in the reach and workings of the current criminal justice system. Obviously the debates should not be limited to the judiciary but must also be extended to the legislator and the government. [iv] One of the great challenges is to establish common ground for such debates. After all, political and philosophical reflection can often be difficult to reconcile (’t Hart & Foqué, 1997). The readiness of criminal justice officials, government, and the legislature to address these issues will depend on an acknowledgement that the current state of affairs is unsatisfactory. It will also depend on the belief in the potential to improve the current state of affairs and, subsequently, on the actual willingness to act on these beliefs (cf. Likert & Lippitt, 1966; see also Denkers, 1975). This study may contribute to the acknowledgement of this fundamental moral problem in contemporary criminal justice.

Powerful tools that can contribute to the process of improving the current state of affairs are readily at hand. Structured deliberations between chairpersons of the criminal law divisions of the courts, a council for the administration of justice, attempts to establish ‘band widths’ or ‘starting points’ for sentencing in certain types of cases, and the development of and experimentation with computer-supported decision systems and computerised databases have been focussed on attaining greater levels of consistency in sentencing. Consistency in sentencing does not necessarily solve the moral problems at stake. Moreover, without a commonly shared vision of the justification and goals of punishment and the way they should relate to actual sentences, the effectiveness of such initiatives is questionable. However, these initiatives are the tools par excellence for making differences explicit (in terms of goals and motivations as well as in terms of sentences) and for forming a body of knowledge on which a common vision can start to take shape.

NOTES i. For further objections, see Doorenbos (1999) and Corstens (1999). ii. Recently, after an examination of sentencing disparity in the British House of Lords, Robertson (1998) also stressed the highly personal nature of judicial decision-making. By identifying which judges tried the case, he has been able to correctly predict the outcome of appeal cases more than 90 percent of the time. His study, however, focused on differences between judges on other types of dimensions than the penal attitudes employed in this study. iii. For instance, the formulation of ‘band widths’ or ‘starting points’ in sentencing for certain types of cases is predominantly founded upon averages of sentences passed in similar cases. iv. Concerning the specific maxima (i.e. per individual offence) of principal punishments in Dutch criminal law, such a fundamental reflection on part of the legislator was recently recommended by De Hullu et al. Normative standards that (ought to) underpin legislative choices and decisions need to be developed and made explicit (De Hullu, Koopmans, & De Roos, 1999).

You May Also Like

• Thailand Leads Southeast Asia: Parliament Approves Landmark Same-Sex Marriage Bill
• Sri Lanka: Govt-IMF Reach Agreement But Basic Question Remains
• What’s So Green About Burning Trees? The False Promise Of Biomass Energy
• Europe Sleepwalks Through Its Own Dilemmas

PVV Blog 6 ~ "Geert Wilders Is A Fascist"

• Why Artificial Intelligence Must Be Stopped Now

Leave a Reply

Name (required)

Email Address(required)

XHTML: You can use these tags: <a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <s> <strike> <strong>

Rozenberg Quarterly

• 632 pages of information and entertainment in 21 sections - 3790 posts. The views and opinion expressed in this site are purely those of the individual writers and contributors to the site and do not specifically reflect the thinking and views of the RQ editorial staff.

Recent Articles

• PVV Blog 6 ~ “Geert Wilders Is A Fascist”
• The Double Edge Theater’s Project To ‘Rematriate Land’
• We Need A Plan For The Transition To Renewable Energy
• Featured Articles
• The Great Archaeological Discovery Of Our Time
• Speaking Papiamentu ~ On Re-Connecting To My Native Tongue
• De wegbereiders
• The Abuse Of The Right To Sexual And Reproductive Health In Nigeria: The Way Out
• Philip Roth ~ The Plot Against America
• Decolonising ‘Decolonisation’ With Mphahlele
• Full Text Books
• De ideologie van de PVV. Het kwade goed en het goede kwaad
• Over de rol van ijdelheid in de wetenschap ~ Inhoudsopgave
• Over de rol van ijdelheid in de wetenschap ~ Voorwoord
• High Amsterdam ~ Ritme, roes en regels in het uitgaansleven
• Allegories of Wildness ~ The Name, Fame And Fate Of The Nambikwara ~ Three Nambikwara Ethnohistories Of Sociocultural And Linguistic Change And Continuity ~ Contents
• George Orwell – Politics And The English Language
• Revolutie in galop – De onmisbare rol van het paard in de Mexicaanse Revolutie
• Elif Shafak – Zo houd je moed in een tijd van verdeeldheid
• Verslagen uit Spanje
• Riches To Rags To Virtual Riches: The Journey Of Jewish Arab Singers
• Riches To Rags To Virtual Riches: When Mizrahi Artists Said ‘No’ To Israel’s Pioneer Culture
• Naeim Giladi ~ World Organization Of Jews From Islamic Countries
• Translating The Arab-Jewish Tradition: From Al-Andalus To Palestine/Land Of Israel

Recent Comments

• henk bakker on Hamburgerstraat 28 – De omzwervingen van een Vrouwe Justitia
• Danny on Einde van het stenen tijdperk – Mijn eerste standplaats Mindiptana
• Anastasia on The Art Of Cooking – Aruk
• Supriya Kutty on The Art Of Cooking – Chicken Schnitzel Recipe
• WUDI789456 on Sabrina Iovino – Smokey Mountain: A Walk Trough The Slums Of Manila, Philippines
• Affordable Housing Forum
• Anthropology
• Asia Global
• Bonger Instituut
• Dutch Colonial History
• EuropeGenerations.com
• General Interest
• Recht te Utrecht
• Language & Literature
• On Friendship/Collateral Damage)
• Paula Bermann
• Peer Reviewed
• Rozenberg Publishers
• Social Sciences
• Studio Meritis MaKOM
• W.J. Vredenberg

Search this site

Like us on facebook.

• February 2024
• January 2024
• December 2023
• November 2023
• October 2023
• September 2023
• August 2023
• February 2023
• January 2023
• December 2022
• November 2022
• October 2022
• September 2022
• August 2022
• February 2022
• January 2022
• December 2021
• November 2021
• October 2021
• September 2021
• August 2021
• February 2021
• January 2021
• December 2020
• November 2020
• October 2020
• September 2020
• August 2020
• February 2020
• January 2020
• December 2019
• November 2019
• October 2019
• September 2019
• August 2019
• February 2019
• January 2019
• December 2018
• November 2018
• October 2018
• September 2018
• August 2018
• February 2018
• January 2018
• December 2017
• November 2017
• October 2017
• September 2017
• August 2017
• February 2017
• January 2017
• December 2016
• November 2016
• October 2016
• September 2016
• August 2016
• February 2016
• January 2016
• December 2015
• November 2015
• October 2015
• September 2015
• August 2015
• February 2015
• January 2015
• December 2014
• November 2014
• October 2014
• September 2014
• August 2014
• February 2014
• January 2014
• December 2013
• November 2013
• October 2013
• September 2013
• August 2013
• February 2013
• January 2013
• December 2012
• November 2012
• October 2012
• September 2012
• August 2012
• February 2012
• January 2012
• December 2011
• November 2011
• October 2011
• September 2011
• February 2011
• January 2011

©2024 Rozenberg Quarterly - home

• Search Menu
• Advance articles
• Author Guidelines
• Submission Site
• Open Access
• Why Submit?
• About Oxford Journal of Legal Studies
• About University of Oxford Faculty of Law
• Editorial Board
• Advertising and Corporate Services
• Journals Career Network
• Self-Archiving Policy
• Dispatch Dates
• Journals on Oxford Academic
• Books on Oxford Academic

Article Contents

1. introduction, 2. the aims and capacities of criminal law and punishment in relation to victims, 3. the purposes and capacities of criminal law and punishment in relation to society, 4. conclusions.

• < Previous

The Rationale and Purposes of Criminal Law and Punishment in Transitional Contexts

• Article contents
• Figures & tables
• Supplementary Data

Elena Maculan, Alicia Gil Gil, The Rationale and Purposes of Criminal Law and Punishment in Transitional Contexts, Oxford Journal of Legal Studies , Volume 40, Issue 1, March 2020, Pages 132–157, https://doi.org/10.1093/ojls/gqz033

• Permissions Icon Permissions

Recently, the idea that criminal sanctions should be seen as an essential mechanism within transitional justice for dealing with collective violence has gained increasing traction. The article focuses on the purposes of criminal law and punishment, and what they can achieve in relation to victims and society in transitional contexts. As to victims, it proposes a reorientation of the victim-oriented theories of punishment towards consequentalism and the adoption of a wider concept of justice. As to society, it argues that in transitional contexts the main purpose is positive general prevention. Under both perspectives, the conclusion is that victims’ interests should be weighed up against other social aims and that a flexible approach to the prosecution and/or punishment of offenders should be permitted, in the search for the best optimum means possible to guarantee the ultimate aim of the maintenance of social order.

In recent years, the idea that criminal sanctions should be seen as an essential mechanism within transitional justice 1 for dealing with collective violence has gained increasing traction. The theory has been given impetus by various phenomena, noteworthy among which are the prominence now given to victims in criminal policy 2 and the pressure from international law. In this context, both the development of international criminal law with the maxim of the ‘fight against impunity’ and the case law of human rights courts have made a contribution. 3 The latter, especially the Inter-American Court of Human Rights (IACtHR), has consolidated victims’ rights to truth, justice, reparation and non-repetition, as well as a maximalist interpretation of the right to justice as a right to the punishment of criminals. 4

The concept of punishment as being the only possible form of reparation for serious human rights violations, as a means of satisfying victims, or even as the victims’ right, is a significant challenge to the traditional understanding of criminal law. First, it implies ceasing to conceive of criminal law as a tool for social control, designed originally to protect legal interests for peaceful social coexistence; rather, seeing it as a mechanism designed for the reparation of victims’ rights. 5 This involves abandoning the idea of criminal law as ius puniendi , as a right of the state, and instead seeing it as a state obligation, officium puniendi. 6

Such a notion, in turn, means eliminating the set of non-exculpatory defences and mitigating circumstances based on merely political considerations, which take into account the efficacy of criminal law itself or the prevalence of other public interests, irrespective of the perpetrator’s culpability. 7 These defences and mitigating factors appear frequently in national laws 8 and allow a rational use of criminal law, based on the premise that the latter is an instrument for the protection of legal interests and may be set aside when other measures grant a more satisfactory fulfilment of this aim. 9

Besides that, and more importantly, the new conception of punishment as a state obligation diminishes the rights and guarantees of the accused—created as a containing wall against the repressive apparatus of the state—to merely individual interests over which, furthermore, according to this ideology, the victims’ interests must always prevail. 10

It is not the purpose of this article to look at all of these consequences in depth. 11 We wish to call attention, above all, to the fact that this change of orientation with regard to the use and meaning of criminal law is often invoked, without a prior analysis of its real capacity, to fulfil the aims assigned to it by these doctrines. That is to say, even before verifying whether the drawbacks of this doctrine are compensated by the benefits it may bring, we must analyse whether criminal law is indeed able to fulfil the purposes attributed to it when punishment is conceived of as a state’s obligation and a victim’s right.

Furthermore, this question must be analysed within the framework of the broadest aims of transitional justice. We start from the premise that the mechanisms for recovery from a situation of collective violence involving serious human rights violations must cover diverse interests and aims, the compatibility of which may be challenging. 12 Paying attention to victims and their rights is a condition sine qua non for the resolution of the conflict. However, a partial view of the problem, which covers only a possible claim for retributive justice by the victims, can lose sight of the other interests in play; it may give rise to the ultimate frustration of the objectives of transitional justice, namely, those of reconciliation, reconstruction of the social fabric, recovery from a conflictive past and consolidation of the new social order. Moreover, seeing criminal punishment as sacred—under the maxim of the fight against impunity—may hide the fact that victims’ needs are varied, that criminal law rarely fulfils them, and that punitive solutions are prescribed in general without a prior analysis of the purposes of punishment and what it can actually achieve.

The present article is a contribution towards filling this gap: analysing the purposes of criminal law and punishment, and what they can achieve in relation to victims (section 2) and society (section 3) in transitional contexts. What we hope to achieve is to demonstrate (section 4) that there is no victims’ right to punishment and that criminal law is not a sufficient—nor, on occasions, the most appropriate—measure for providing an adequate response to the complex web of the aims of transitional processes. Our hypothesis is that the rise of the idea that the full punishment of criminals has to be an essential component of transitional justice overburdens criminal law with aims that it is unable to fulfil and/or that are more satisfactorily achieved through the application of other mechanisms. In contrast, criminal law and punishment should always be considered as just one of the many tools that states have at their disposal, even in transitional contexts, in the search for the best possible solution to fulfil the ultimate aim of maintaining social order, that is, the set of protected legal interests in a society.

A. Victim-oriented Theories of Punishment

The first aspect we shall address in our study is that of the supposedly beneficial effects that criminal punishment of the offender may have on the victim. We shall analyse the various theories elaborated in criminal law and in philosophy that may in some way serve as a theoretical support to the idea of punishment as a means to satisfy the victim or even as a victim’s right.

(i) The crime as a moral requirement or a demand for justice: classical retributionist theories

The victim-oriented theories of punishment share with Kant’s conception of criminal sanction the notion of punishment as an imperative, or obligation (of society, of the state), as well as the frequent appeal to justice as a foundation, the demand for talionic punishment 13 —regardless of political and criminal considerations, and of the possible absence of preventive needs—and the requirement of the full execution of the sentence imposed. For this reason, certain authors have labelled the doctrines that promote the state’s duty to punish and the victims’ right to the punishment as retributionist. 14

However, it should be noted that there are significant differences between the two doctrines. 15 The classical theory of retribution focuses on the offender and on the fact that he or she deserves to be punished; 16 therefore, its perspective is centred on the past. The victim-oriented theory of criminal punishment focuses instead on the present, on the victims and their satisfaction. 17

Furthermore, retributionist theories, in both their classical and more modern versions, have been widely rebutted by scholars. 18 Among many other criticisms, it is argued that these theories, seeking a metaphysical foundation for punishment, forget that the foundation of the latter lies within a complex legal system. Critics point out that the conception of punishment as an evil and a purpose in itself is not rational and that one evil cannot be obliterated or compensated by another. 19

(ii) Punishment as a right of the victim generated as a consequence of the crime: the appeal to historical evolution

Some authors have tried to justify the victim’s right to the punishment of the offender by appealing to the evolution from vengeance to punishment. 20 It is argued that refraining from private justice and assigning to the state the monopoly on punishment means that the state has a duty to exercise it. Such an argument involves affirming a kind of natural right, not only to self-protection, but also to punishment, the existence of which is more than doubtful. 21 Additionally, more than a millennium after its consolidation, state punishment can no longer be perceived as an imaginary act of conferring by the victim; rather, it is the outcome of the will of the democratic legislator.

The main problem with these theories lies, nevertheless, in the fact that the appeal to tradition or historical evolution cannot be a substitute foundation for the imposition of punishment. In other words, evidence of historical evolution from the institution of vengeance to punishment does not explain why and for what one is punished, whether then or now. This argument would require us to investigate the purposes of the archaic institution of vengeance, in order to determine whether this could assist us in uncovering the purposes of punishment in modern times.

(iii) Punishment as a means of producing beneficial effects on the victim

Some authors have argued that the purpose of punishment is to give satisfaction to the victim, in the sense that it makes the victim feel ‘better’. 22 The beneficial effects of punishment are usually said to include the recognition that the victim has suffered an unjust act and that what has occurred is neither a mere accident, the product of bad luck, nor the consequence of one’s own errors. 23 The punishment of the offender also offers the symbolic assurance that it will not recur, thereby protecting the victims’ sense of safety 24 or self-confidence 25 and preventing them from feeling guilty. 26 Lastly, it expresses the sympathies and solidarity of society, 27 and it furthers the consequent ‘re-socialisation’ or reintegration of the victim. 28

Scholars, however, have cast doubt on the capacity of punishment to fulfil all of these purposes. 29 In reality, the effects of the criminal offence—and of the criminal trial—are different for each victim, 30 depending on a wide variety of circumstances. Moreover, many of the desirable effects attributed to punishment by the supporters of these theories are achievable by other means that do not imply the imposition of an evil. 31 In addition, when one wishes to show sympathy towards, and solidarity with, an individual, their acts should be better directed towards the person they wish to comfort and not towards someone else. Punishment, as the imposition of an evil, goes beyond solidarity and cannot be explained by it. 32

Moreover, this argument faces further difficulties: if the sole purpose of punishment is to offer the victim satisfaction, then its harshness should be determined exclusively on the ground of the victim’s needs, which are different for each victim. 33 Were this criterion applied, sentencing would infringe the principles of legal certainty and equality before the law. 34

Those who see the satisfaction of certain interests of the victim, together with other social aims, as one of the possible aims (or desirable effects) of punishment ally themselves to consequentialist theories in the traditional sense, or to mixed or unitary theories of punishment. 35 These scholars have no option but to admit that the various purposes may conflict with each other and, in case they are weighted, may have to give way. 36 Therefore, these authors cannot affirm that the victim has a right to punishment as such.

Those who, on the contrary, deem the victims’ satisfaction as the sole purpose of the punishment can claim a right to punishment, but they cannot explain why exactly this purpose (giving satisfaction or happiness to the victim) must prevail over any other. 37

In conclusion, we cannot claim the existence of a right to punishment 38 solely on the basis of its possible beneficial effects for victims. 39

(iv) Punishment as constituting the elimination or cessation of a harm to the victim as differentiated from the harm to a legal interest

Contrary to (or even together with) the previous positions, we find some others, along similar lines yet with distinctive nuances, which argue that a criminal offence always causes a harm to the victim, further and distinct from the specific harm caused to the protected legal interest. The only way this harm may be ended or eliminated would be by imposing a criminal punishment on the offender. It is thus argued that criminal punishment fulfils the function of putting an end to a disorientation in social life suffered by the victims, where this may arise from a lack or loss of confidence in the law if no punishment were imposed. 40 Others maintain that its purpose is to liberate the victim from the offender’s domination, 41 restoring or reaffirming his or her social worth, 42 or to put an end to an ongoing harm to his or her honour, which continues as long as the offender is not prosecuted and sanctioned. 43 There has also been an attempt to relate the theory of the victim-oriented punishment to positive general prevention, by stating that criminal sanction pursues the reaffirmation not of the legal values infringed by the offence—as is claimed by the positive general prevention 44 —but of the victims themselves. 45 In other words, criminal punishment is deemed to seek the ‘re-socialisation of the victim’. 46

The divergence from the position described in the previous section would be founded on the belief that it is precisely the absence of the punishment that causes the continuing perpetration of the harm, from which arises the state’s duty to punish 47 in order to put an end to this harm. This argument reminds us of the Kantian theory, 48 which holds that a society that fails to punish is accomplice in the crime. 49 Furthermore, it follows the doctrine of human rights courts, in arguing that the state commits a new and independent violation of human rights when it fails to punish a primary violation thereof.

These arguments usually present the same defects that have already been denounced in interpretations discussed in the previous section, namely, that the need to equalise the victim and the offender in the evil suffered lacks a rational explanation; also, that there is no demonstration that the expression of concern for the victims and their suffering requires the imposition of an evil on the offender. Very much to the contrary: one asks oneself how the causing of an evil, ie imprisonment, to another can relieve the suffering of the victim, and whether reparatory measures centred on the victims themselves would not be more effective for this purpose. 50 How can the exclusion of the offender return the victim to society? 51

It is also unclear up to what point and in which crimes the victims suffer a trauma, and of what kind 52 or for what reason the recovery from this trauma necessarily requires the imposition of an evil on the offender. In reality, the victim’s expectations in relation to the declarations of solidarity of the rest of society, an important factor for overcoming trauma and for avoiding its desocialising effect, would also vary depending on the method adopted by the victim to deal with the crime. The victim who reacts to the trauma with a confrontational strategy expects that society’s solidarity will consist of sharing this strategy in relation to the crime. However, social psychology has demonstrated that not all victims confront crime using such strategies, nor that they are likely to be the optimum strategies for overcoming or avoiding psychological disorder and suffering. 53

The supposed domination by the perpetrator or the humiliation or subjection of the victim are no more than a subjective response experienced by some (not even the majority) of the victims. This response should not be turned into a reality by virtue of a legislative choice, nor could it constitute the foundation of criminal prosecution. The same is true of the argument that attempts to endow punishment with the restoration of the victim’s honour, worth or dignity. 54 Fortunately, this is not in accordance with the current conception of honour and dignity. If it were indeed to be accepted, it would send an utterly incorrect message. Where, historically, within the ambit of private vengeance, the absence of a physical response to the crime through punishment was sanctioned socially with a loss of honour, this was because in a non-institutionalised system of control few alternative ways existed of obliging compliance with the so-called secondary rule, which addressed all of the members of the community. 55 Nowadays, however, these theories, affirming that the victim’s restoration of honour, value or dignity depends on the imposition of a punishment, instead of correcting moral judgments or erroneous attributions of meanings, would reinforce a false claim: that a correlation exists between power, on the one hand, and the value or honour of a human being, on the other. 56

B. Alternative Proposal

(i) reorientation of victim-oriented theories on punishment towards a consequentialist approach.

In our opinion, the—at least abstract—potential of punishment to produce beneficial effects for the victims cannot be refuted. The effects consist principally of demonstrating the injustice suffered by them and offering a certain degree of non-repetition guarantees, thereby assuaging their need for justice, restoring their confidence in the law and in society, and encouraging their non-desocialisation. We must acknowledge it as evident that, as human beings, our sense of justice leads us to require that bad acts be punished. However, we must not forget that these feelings respond to the calculated reciprocity mechanism, 57 present not only in the human being, but also in other species with social behaviours. 58 This mechanism, which acts as a preventive tool, ultimately serves to promote the conservation of the group and of the individual as a social being. 59 In other words, even when the punishment does serve to satisfy the needs for reciprocity that are so firmly inherent in our system of social interrelations, this purpose is ultimately instrumental. For this reason, the victims’ satisfaction may never be extrapolated and placed as either a purpose in itself or superior to the classic preventive aims, nor can it eclipse or replace the main rationale of criminal law, that is, to protect legal interests and the social order. 60

In conclusion, we may state that a strategy that attempts to satisfy all of the interests in play in order to build a sustainable peace must not neglect to respond to past crimes. Having said this, the state, through its monopoly on violence, may in our opinion moderate the understandable and legitimate instincts and desires for reciprocity of the victims and of the society as a whole and submit these to certain rational limits. The state should attempt to give satisfaction to those desires through other mechanisms and weigh them against other social aims, and even against other victims’—equally legitimate—interests in the search for the optimum means possible to guarantee the ultimate aim of the maintenance of social order. 61

(ii) Requiring a wider concept of justice for victims

When talking of victims’ right to justice, it is essential to require a broader concept of justice, one not limited to the imposition of a punishment, but one that opens its doors to the enormous possibilities offered by restorative justice. 62 Specifically, restorative justice is characterised by seeking the reparation of the harm caused to the victim by the crime, rather than merely the punishment of the offender, and it attempts to overcome certain deficiencies in the traditional system of retributive justice. 63

The various restorative justice mechanisms, eg mediation, are designed such that the victim has a voice in the conflict resolution process and is thus able to express his or her needs and obtain reparation. This is an attempt to favour ‘de-victimisation’, also assuaging feelings of a lack of understanding or of guilt. Furthermore, restorative justice mechanisms contribute—and do so more effectively than conventional criminal justice—to the acknowledgement of responsibility by the offender, to his or her re-socialisation and to the restoration of interpersonal relations. 64 Lastly, as some authors have remarked, restorative justice not only has an impact at the interpersonal level, but may also have broader transformative effects on institutions and community as a whole. 65

Social psychology has also questioned the affirmation that only criminal punishment, based on the idea of just deserts, re-establishes justice. A broader concept of justice is needed; it has been argued that, from the victims’ own point of view, their need for justice is better satisfied by an apology from the offender, an acknowledgement of the injustice committed and the acceptance of responsibility than by the unilateral imposition of a punishment by the state. Various studies have demonstrated that restorative measures such as saying ‘Sorry’ have a reparatory effect as to the sense of justice. 66 Besides that, with these tools, the legal values harmed by the crime are reaffirmed. The situation of asking for forgiveness expresses, first, that the offender shares those values and, secondly, an acknowledgement of and restoration of the dignity of the victims. In conclusion, these studies state that punishment may be seen as insufficient or as unnecessary for restoring justice for victims. 67

It is worth clarifying that we do not deem restorative justice to constitute an alternative to the traditional criminal justice system. 68 Rather, it could be a mechanism complementary to the latter, one that allows the incorporation of new elements that humanise the system and favour the fulfilment of its aims. At the same time, when restorative justice is applied, there may be evidence of a reduced need for punishment if some of the purposes of the punishment are deemed to be at least partially fulfilled. In such circumstances, there is an argument to be made in favour of the reduction of the criminal punishment, or its replacement by an alternative sanction, a conditional suspended sentence or probation. 69

These ideas run counter to the requirement of the punishment’s being in any event proportional to the gravity of the crime and the degree of culpability, which prevents it from being mitigated by any other consideration. 70

It is also appropriate to point out the differences between transitional justice and restorative justice, and how the latter must be understood within the framework of the former. While transitional justice is the product of a public design, restorative justice starts from the premise that all involvement in the various measures is voluntary. For this reason, we cannot talk about an imposed restorative justice. Rather, it is a case of the transitional justice processes allowing, on the one hand, the application of restorative justice mechanisms and, on the other, adopting a restorative perspective in their design, by adapting some of those mechanisms to the specific transitional framework. 71 For instance, certain transitional tools, such as truth commissions, may be classified as forms of transitional justice with a restorative perspective, since they formally acknowledge that a wrong has been committed, especially if they encompass the issuing and receiving of apologies. 72 The same definition may be applied to official apologies by state actors, official ceremonies of recognition of victims or compensation schemes provided by the state for past wrongdoing.

Of course, not even restorative justice, or transitional justice with a restorative perspective, is sufficient to fulfil all of the aims of a transitional process, since it focuses on relationships and the interpersonal plane. And even if some of the tools implemented under this perspective also have potential community benefits, they cannot provide an answer to the (political, economic, or social) macro aspects of the conflict, which are related to peace building. For this reason, we must bear in mind that this is only one perspective to take into account within the set of tools that must make up the complex mechanism of transitional justice. 73 To achieve these further aims, transitional processes require the use of other tools, ones that go beyond the concept of justice—both criminal and restorative—by applying the so-called integral or holistic approach to transitional processes. 74

This broader view has also been labelled ‘transformative justice’, a concept which would comprise a range of policies and approaches that can impact on the social, political and economic status of a large range of stakeholders, therefore going beyond the traditional goals of truth and justice as accountability. 75

The aims that criminal law fulfils (or should fulfil) in relation to society undergo profound changes in the contexts of transition when faced with the legacy of experiences of mass violence. The phenomenology of the crimes themselves calls into question some of the purposes traditionally attributed to criminal law and to punishment: in particular, special deterrence, general deterrence and retribution or desert. In addition, there is a marked tendency to entrust to criminal law the achieving of new aims that are central to all transitional processes, such as the search for truth, the building of peace, and the founding of the new social and legal order arising as a result of the transition.

A. The Rethinking of the Traditional Purposes of Criminal Law and Punishment

The contexts of transition require at least a partial rethinking of the traditional purposes of criminal law and of punishment. 76 Aside from the fact that the debate on the identification of the aim or aims of criminal law and of punishment remain open and are probably inexhaustible, 77 we can say that both the inherent traits of these crimes and the peculiarities of the transitional period raise doubts and new challenges in relation to those aims. 78

(i) Retribution and deterrence when faced with a particular criminal phenomenology

The massive nature of the violence perpetrated gives rise to the impossibility in practice of trying all of the persons who in some way participated in committing the crimes. This circumstance frequently combines with the institutional weakness during the transitional period, which also affects the courts. These factors normally impose a selective criminal prosecution, which should at least be based on rational criteria such as the gravity or type of crimes, the identification of those who bear the greatest responsibility 79 or the representative nature of the cases. 80 Such selectivity, while being necessary and inevitable when facing experiences of collective violence, challenges the ethical concept of retribution, 81 ie the idea of retribution understood as the offenders ‘getting their just deserts’ for what they have done, because it applies punishment unequally and incompletely. 82 Similarly, a selective criminal prosecution also adversely affects the deterrence function, inasmuch as it allows a proportion of the criminals to escape sentencing and punishment. 83

Another common feature of the crimes faced by transitional processes is their commission by organised groups or organisational structures governed by a strict hierarchy and, usually, by an ideology (political, religious or rooted in other beliefs) that is very strong and exclusive. Although these circumstances do not serve to dilute individual criminal responsibility within a more diffuse collective responsibility, it is worth asking whether, once the apparatus or group concerned has been dismantled, the risk that the criminals will commit new crimes really exists. 84 These considerations raise doubts about the special deterrence that punishment may pursue in these contexts.

It can be argued that transitional processes do not always involve the disappearance of the organisations involved in committing the abuses, but, rather, their conversion into legitimate groups and their participation in the new regime. Even in these cases, the disappearance of the context that favoured the structural violence, such as the cessation of armed conflict, the reduction in the power they held previously or the loss of support of (part of) the population, makes it really unlikely that these individuals would once again commit the same crimes.

Otherwise, where these circumstances have not disappeared and the criminals continue to perceive that they are supported by the power structures to which they belong, criminal punishment actually does little to contribute to its elimination. 85 What are really needed in these contexts are wider measures of institutional reform. 86

Similarly, both deterrence and the rehabilitation function of punishment appear to have less relevance when dealing with crimes that are not the result of the deviant conduct of one or a few people, but are the consequence of the activity of perverted institutions 87 or of an extraordinary context generated by an inter-community conflict. The systematic nature of these crimes requires a response combining the penalties directed towards individuals with wider structural measures that eliminate, or at least reduce, the ground on which the ideology of the criminal system, or the origins of the conflict, is founded.

(ii) Positive general prevention and communication

The purpose of criminal law which has the greater chance of retaining its full validity in transitional contexts is the protection of legal interest through the positive general, or integrating, prevention 88 or, according to concepts pertaining more closely to Anglo-Saxon doctrine, through the expressive function of punishment. 89

From this standpoint, punishment serves to express the community’s reprobation of certain conducts, thus confirming the norm and the social values protected by it and restoring confidence in them. 90 This confirmation of the validity of the norm and the reminding of the value of the protected interests is intended to prevent future attacks against those norms and interests. 91

This communication is delivered at two different stages. At a first stage, the mere existence of the law, by prohibiting some conducts and by threatening them with punishment, performs the function of informing about the prohibited behaviour and expressing the value of the protected legal interest. At a second stage, the same function is developed by the application of criminal law. Here, we can distinguish three successive phases: first, the central core of the message of reprobation and stigmatisation is expressed through the ritual of the criminal trial, when the defendant is seated in the dock and faces the prosecution and the judge, as well as through the judgment officially declaring his or her responsibility. Naturally, the validity and efficacy of the reproach expressed goes hand in hand with the legitimacy of the institutions (national or international) sending this message. 92

The second phase in the construction of this message lies in sentencing. We believe that the role of punishment is more than an element added to the message of reproach already contained in the fact of the criminal process and in the conviction. 93 If this were the case, it would delegitimise the function and value of the punishment; it would lead us to propose its elimination not only in the extraordinary contexts of transition, but also in general. On the contrary, it appears to us that punishment meets an expressive function of its own that consists in reflecting the gravity of the offence and the degree of blameworthiness: the more serious the act and the greater the degree of blameworthiness of the convicted person, the greater the punishment required to express the (negative) evaluation merited by the crime.

The third phase in which this function is developed is the enforcement of the punishment. When the offender serves his or her sentence, the seriousness and importance of the message of reproach and the gravity and blameworthiness of the act are once again confirmed, giving it a concrete and thus tangible content.

An acknowledgement of the three phases in which the communicative function is fulfilled does not, however, mean that the complete elimination of one of these impinges on the fulfilling of this purpose. This circumstance may be seen in transitional contexts, where specific priorities and demands arise, such as reaching a peace agreement or maintaining it; involving the criminals in investigating what has occurred and in reparations to benefit the victims; or avoiding a resurgence of the violence. The combination of these objectives with the demand for criminal prosecution and sanctioning for past crimes generates an intrinsic tension inherent to all transition scenarios. They must achieve a balance between short-term solutions and long-term aspirations, which can be partially managed only by considering the objectives and transitional mechanisms as dynamic 94 and are therefore subject to a necessary balancing exercise. 95

The concurrence of these objectives may therefore suggest a flexible approach to criminal prosecution in one or all of the three phases mentioned. Thus, the priorities of the transitional process may be taken into account as constituting the factors affecting the enforcement of the punishment through extinguishing it with a pardon, suspending it, limiting it or replacing it with other kinds of measures. This was the option chosen, for example, in Northern Ireland, with the early releases provided under the Good Friday Agreement of 10 April 1998. 96

The same considerations could also affect the second phase in which the expressive function manifests itself, ie sentencing. They may lead to opting for a punishment less than proportionate to the gravity of the offence and its blameworthiness. 97 The alternative punishments provided by the Colombian Peace and Justice Law (Law 975/2005, of 25 July 2005) fall within this second category. 98 Furthermore, criteria based on special deterrence and rehabilitation may also suggest changes in the punishment to be imposed or in its enforcement. The participation of the accused in particular truth-finding and/or reparation mechanisms would show their potential for re-socialisation and a corresponding reduced need for punishment.

Finally, we believe that in transitional contexts, solutions that involve (at least partial) waivers of the criminal trial, in the form of amnesties or equivalent measures, rooted equally in political and criminal law considerations, should not be completely ruled out. 99 Our position therefore runs counter to the reiterated doctrine of the IACtHR, which, since the seminal Barrios Altos case, has been affirming the prohibition not only of self-amnesties, but also of all kinds of amnesty (even those passed by democratic parliaments and confirmed by referendum), pardons and all measures preventing criminal prosecution. 100 The more nuanced position we defend seems to be closer to the ECtHR traditional view, 101 although there are good reasons to think that in the future this body might adopt a position closer to its Inter-American counterpart. 102

If we maintain the admissibility of these waivers of criminal prosecution, as we suggest, the communicative function to which the criminal trial is directed could be replaced, as an exception and due precisely to the exceptional nature of the transitional context, by other mechanisms transmitting the same message of stigma and reaffirmation of the legal values violated. The ritual of the criminal trial has historically been chosen as the best tool with which to comply with the above-mentioned function; however, there is no reason why other mechanisms (eg a public declaration of guilt before a truth commission, such as the South African Truth and Reconciliation Commission 103 ) could not transmit the message satisfactorily in these exceptional circumstances, provided that certain requisites of legitimacy and fairness are satisfied. 104

It is essentially a case of acknowledging that the characteristics and requirements of a specific community could require a review of the traditional concepts and definitions (at least within Western legal systems) of punishment and the ascertaining of guilt, where these are not in line either with local realities or with specific circumstances of a particular historical juncture, according to the idea of ‘cosmopolitan pluralism’ defended by Drumbl. 105

B. The New Aims of Criminal Law in Transition Processes

Transitional experiences have led to the rise of a tendency to attribute to criminal law, as well as the classical aims we have discussed, other added objectives that are strictly related to the unusual context in which the transition develops.

(i) Criminal law as a truth-finding mechanism

First, there is a widespread imperative that the criminal trial is central to ascertaining the truth about the violent experience. This truth is deemed to be not only one of the indispensable elements for overcoming a conflictive past and giving non-repetition guarantees, but also a true right of victims. 106 In this regard, the fact finding contained in a judgment, which needs to be proven beyond all reasonable doubt, requires rigorous documentation and reconstruction, 107 thereby providing a high-standard declaration of what occurred. Furthermore, the criminal trial offers a public forum in which the truth determined in this way is officially declared by bodies (the courts) whose legitimacy is at least in principle consolidated. 108

However, we know all too well the significant differences between the material or historical truth, which seeks the widest possible reconstruction, and procedural truth, which is structurally limited. 109 The latter, on the one hand, adopts a more restricted focus, centring on the conduct of the accused and the harmful effects thereof, leaving aside the macro dimension within which this kind of crime occurs. 110 On the other hand, procedural truth has to submit to the limits imposed by the fundamental guarantees of defence. The presumption of innocence, the in dubio pro reo principle, the right not to incriminate oneself, the burden of proof falling on the prosecution, the so-called cross examination, the res judicata , the exclusionary rules of evidence: all of these guarantees act simultaneously as a limitation on ascertaining the truth. 111 The consolidation of these rules has led to a general rethinking of the truth-finding goal of the criminal trial even in inquisitorial procedural systems, where the outcome of ascertaining the truth about the facts has traditionally been considered a priority, as opposed to the focus that the adversarial systems put on the rules applied to the confrontation between the parties and their competing truths. 112 Yet, the progressive blurring of the differences between these two pure models (in favour of the creation of various kinds of hybrid procedural systems), together with the consolidation of the fair trial standards as human rights recognised by international law, has consolidated the almost universal acceptance of procedural limits to the truth-finding role of criminal trials. 113

Therefore, an exhaustive investigation of a collective violence experience can undoubtedly benefit from the contributions contained in court investigations, yet it cannot be limited only to these. Establishing the truth must be complemented by other mechanisms, exempt from the strict limits applied within the criminal jurisdiction, thus offering the broadest, deepest and most multifaceted reconstruction of the events that have occurred. 114

(ii) Criminal law as a mechanism for reconciliation

Criminal prosecution is often seen as being indispensable to fulfilling the aim of social reconciliation, one of the priorities of transitional processes.

However, it appears to us that the criminal trial, the structure of which reproduces a conflict as a formalised ritual on a specific, temporal and procedural level, 115 does not favour the meeting between victim and offender. Rather, it brings into focus the conflict of perceptions between them. Therefore, there is some doubt as to its appropriacy as a tool for reconciliation. Nothing may be predicted in relation to the criminal trial except its capacity to promote a—purely formal—acknowledgement of the criminals and the victims as members of the political community. This mutual acknowledgement may in turn contribute to reconstructing a minimum level of social coexistence. 116

Nonetheless, attaining a deeper reconciliation between victims and offenders will require the use of restorative justice mechanisms that favour an inclusive dialogue between the parties and the restoration of interpersonal relations. 117 In addition, from the perspective of the whole society, reconciliation will need, instead of criminal prosecutions, a set of political, economic and educational measures that may foster the elimination of the division between opposing social groups.

On the contrary, a criminal prosecution rooted in a purely retributionist and maximalist standpoint—a perspective, it appears, defended by the IACtHR—involves the risk of becoming a potent factor of exclusion of criminals. The latter, far from enjoying the desired acknowledgement as members of the community, would be the ‘other’, the enemy, and would be subject to permanent ostracism. Such an outcome is entirely contrary to the objectives of social reconciliation. 118

(iii) Criminal law as a peace-building and foundational mechanism

A third idea that has been widely disseminated recently, under the maxim ‘No peace without justice’, 119 is that criminal law in transitional contexts plays a peace-building role. This idea assumes as axiomatic the notion that the exemplary punishment of crimes committed by one or all of the parties to a conflict contributes to the construction of peace. 120

Similarly, some authors have stressed the foundational function fulfilled by criminal law in transitional contexts in terms of the creation of a new legal order. 121 By expressing firm condemnation of past violence, the criminal trial restores social values and rules violated by such violence, marks a clear break between the previous and the current regime, promotes confidence of citizens in the new order and restores the offenders’ full participation in society. 122 In this way, criminal law fulfils a clear transformative and foundational function, particularly oriented towards the future and to the (re-)establishment of the democratic rule of law. 123

In reality, both theories merely constitute an expression of positive general prevention theories, described above, 124 in the specific contexts of the transition. The contribution offered by criminal law to the construction of the new legal and social order and a stable and lasting peace is no more than an indirect effect of the functions of stigmatisation, communication and reaffirmation of the violated values normally fulfilled by criminal prosecution. For this reason, it seems to us unnecessary to isolate these objectives as being the aims in themselves of criminal law. Moreover, as Teitel herself acknowledges, criminal justice fulfils this foundational task even when applied in a limited way, when responsibility for past wrongdoing is not fully ascribed and/or when sentences are not fully served. 125

Additionally, criminal prosecution is in itself manifestly insufficient to act as the basis of a new social and legal order and a peaceful coexistence. As we recalled referring to social reconciliation, here again other measures are needed, such as restorative justice mechanisms, education plans, institutional reforms, and training and reconstruction programmes. 126

Finally, in some specific circumstances, holding criminal trials could even make the fulfilment of the aims mentioned above more difficult. 127 The consolidation of new institutions could be placed in jeopardy by prosecuting those responsible for past crimes where these persons still hold a degree of power within the new regime. 128 The priority aim of putting an end to an armed conflict could, similarly, require certain concessions, such as the imposition of a reduced punishment or of alternative sanctions, 129 to be made: moves that encourage those responsible for the crimes to take part in the disarmament and in the peace process. 130

The application of criteria of selection and prioritisation in criminal prosecution would similarly allow obstacles to the viability of criminal prosecution, raised by the magnitude of crimes committed, to be overcome. What is more, as has already been stated, other out-of-court measures exist that could perform this foundational and constructive role equally satisfactorily: the South African experience clearly shows how the conditional amnesty applied there has played a truly constituent function in the transitional process experienced by that country. 131

Therefore, we do not propose refraining completely from exercising criminal prosecution, but we suggest that, in these extraordinary contexts, a flexible approach to the prosecution and/or punishment of criminals should be permitted when it is considered that trials and sanctions constitute an obstacle rather than an aid to achieving peace. A more appropriate maxim for transitional processes could therefore be ‘as much [criminal] justice as peace allows’. 132

In recent years, we have seen the rise of the idea that the full punishment of criminals has to be an essential component of transitional justice. Punishment has come to be understood as a mechanism for giving satisfaction to the victim, or even as a victim’s right, as well as being the preferred means of obtaining peace and of constructing the new social order.

This study, on the contrary, shows that such an interpretation overburdens criminal law with aims that it is unable to fulfil or that are more satisfactorily achieved through the application of other mechanisms.

With regard to the possible beneficial effects of punishment on victims, the analysis of various theories of punishment that could serve as a foundation for this doctrine have shown that punishment, in the form of the imposition of a subsequent evil, may only be rationally explained through its preventive effect. For this reason, it is argued that the diverse theories that attempt to defend the need for the imposition of an evil on the offender, based on its possible beneficial effects or on the cessation of harm that this would have for the victim, are merely an attempt to rationalise the victim’s desire for reciprocity (or vengeance, using the term with no pejorative intent). 133

In our opinion, one cannot dismiss the idea that punishment may indeed have beneficial effects for the victim, such as by demonstrating publicly the injustice suffered and by offering a certain guarantee of non-repetition. This would satisfy the victim’s need for justice, restore his or her confidence in the legal system and society, and favour his or her non-desocialisation. It must nevertheless not be forgotten that these feelings of justice are grounded on the reciprocity mechanism that, in the final instance, serves to uphold the conservation of both the group and the individual as social entities. The feeling of justice is the result of the standardisation of an evolutionary positive reaction (the punishment being a preventive tool), and that concept of justice is also a limit to the quantum of punishment (by imposing proportionality in sanctions). Therefore, punishment must never be extrapolated and invoked as an end in itself, nor should the ‘victims’ right’ to justice eclipse or replace the rationale of criminal law to protect legal values or interests by means of the preventive function of punishment.

The state, therefore, through its monopoly on violence, can control the victims’ understandable and legitimate instincts and desires for reciprocity, and place certain rational limits on these. We must not forget that beneficial treatments in criminal law, making the application of more benevolent sanctions conditional on demobilisation, confession, an acknowledgement of responsibility and the making of reparations, will undoubtedly involve renouncing the ‘just’ punishment, that is, a punishment proportional to the gravity of the offence and the degree of culpability of the perpetrator. However, it will comply with other aims that are also of interest to the victims and to society as a whole, such as favouring the promptness of the punishment (which results in achieving the aim of justice) and contributing to truth finding, reparation and non-repetition.

The state may therefore try to offer satisfaction to victims’ claims through other mechanisms (such as truth-finding mechanisms, official apologies, public events acknowledging the victims and their suffering, memorials, material and symbolic reparations), measuring them against other aims and needs, in the search for the best possible solution to fulfil the ultimate aim of maintaining social order, that is, the set of protected legal interests in a society.

Moreover, we have confirmed that collective violence phenomena (characterised by a massive scale and, in most cases, the systematic nature of the crimes) and transitional contexts, with their exceptional priorities and features, require the rethinking of the classical purposes of criminal law and a wider reflexion on the supposed new aims with which many authors attempt to endow it. In these scenarios, the aim of positive general and integrating prevention is of central importance, since criminal prosecution—in its three phases, the trial, the sentencing and the enforcement of the sentence—serves to express the community’s rejection of specific conducts, thereby confirming the legal values protected by criminal law, restoring confidence in the norms and consequently preventing future crimes. Through these effects, criminal law also contributes, indirectly, to the foundation and consolidation of the new legal order and the construction of a stable peace.

On the one hand, the insufficiency of criminal proceedings per se must be recognised in fulfilling such objectives, which require further complementary reform, investigation, reparations and education measures, within the framework of an idea of ‘transformative justice’ that is much broader than criminal justice, 134 in order for this future project to take shape in all its complexity.

On the other hand, the circumstances pertaining to the transitional process may produce the paradoxical effect of making criminal law an obstacle, and not an instrument, for the maintenance of social order and the protection of legal interests. This occurs when criminal prosecution and punishment, through using a purely retributive and maximalist approach, triggers new episodes of violence or prevents putting an end to ongoing violence, distances criminals from truth and reparation initiatives, and weakens the new institutions.

As a consequence, we wish to stress the importance of the maintenance of criminal law as a ius puniendi and as a tool of the state—not the only tool available, nor an absolute obligation—to achieve the ultimate aim of protecting legal interests and thus ensuring peaceful coexistence among the individuals making up a community. 135 This allows the use of criminal law only inasmuch as it is useful and necessary. When other mechanisms exist that provide this protection more satisfactorily, or when criminal law runs the risk of becoming, if applied, a danger to these legal interests, inasmuch as it ends up destabilising the legal system that is entrusted with this protection, then criminal prosecution and punishment have to take a step back, and be adjusted and restricted according to the specific circumstances of each case.

This article is part of the Research Project ‘La influencia de las víctimas en el tratamiento jurídico de la violencia colectiva’ (DER2013-43760-R), funded by the Spanish Ministry of Economy and Competitiveness.

We understand transitional justice as the set of legal and political measures that a society may apply in order to overcome a situation of (generally inter-group) conflict where collective violence has been experienced. Whereas the concept originally developed as referring to the transitional processes after a dictatorship (such as in Latin-American countries in the 1980s, or in Post-Communist Eastern countries) or to post-conflict contexts (see Ruti Teitel, Transitional Justice (OUP 2000)), its recent evolution has broadened its scope, by expanding it to situations of ongoing armed conflicts like the Colombian experience (see Rodrigo Uprimny Yepes et al, ¿Justicia transicional sin transición? Verdad, justicia y reparación para Colombia (DeJusticia 2006) 14) and even to experiences of collective violence within democratic regimes (Amaia Alvarez Berastegi, ‘Transitional Justice in Settled Democracies: Northern Ireland and the Basque Country in Comparative Perspective’ (2017) 10 Critical Studies on Terrorism 542), all situations where a proper ‘transition’ lacks: see Joanna R Quinn, ‘Whither the “Transition” of Transitional Justice?’ (2014–15) 8 Interdisciplinary Journal of Human Rights Law 63. Therefore, we maintain a broad concept of transitional justice with regard to both its scope and its goals. In contrast to other definitions that focus exclusively on transitional justice being instrumental to repair victims of serious human rights violations (see Naomi Roth-Arriaza, ‘The New Landscape of Transitional Justice’ in Naomi Roth-Arriaza and Javier Mariezcurrena (eds), Transitional Justice in the Twenty-First Century. Beyond Truth Versus Justice (CUP 2006) 1; or the definition offered by the International Centre for Transitional Justice: ‘Transitional justice refers to the ways countries emerging from periods of conflict and repression address large-scale or systematic human rights violations so numerous and so serious that the normal justice system will not be able to provide an adequate response’ <www.ictj.org/about/transitional-justice> accessed 1 February 2019), we share the view that it furthers a wider set of purposes, namely, overcoming a conflictive past (or present), reconciling the society, and consolidating peace, democracy and the rule of law. In a similar vein, see Marc Engelhart, ‘Objetivos de la Justicia de transición’ in Pablo Galáin Palermo (ed), ¿Justicia de Transición? (Tirant lo Blanch 2016) 35ff; Ezequiel Malarino, ‘Transición, derecho penal y amnistía. Reflexiones sobre la utilización del derecho penal en procesos de transición’ (2013) 9 Revista de Derecho penal y Criminología 205; Bronwyn A Leebaw, ‘The Irreconciliable Goals of Transitional Justice’ (2008) 30 Hum Rts Q 95, 98ff; Kimberly Theidon, ‘Transitional Subjects: The Disarmament, Demobilization and Reintegration of Former Combatants in Colombia’ (2007) 1 International Journal of Transitional Justice 66. For a deeper analysis of the evolution and the various experiences of transitional justice (as well as on the differences among their respective challenges, priorities and outcomes), see, among others, Ruti Teitel, ‘Transitional Justice Genealogy’ (2003) 16 Harv Hum Rts J 69; Roth-Arriaza (ibid) 1ff.

Cornelius Prittwitz, ‘The Resurrection of the Victim in Penal Theory’ (1999) 3 Buffalo Criminal Law Review 109; Pedro Cerruti, ‘Procesos emocionales y respuestas punitivas: acerca del activismo penal de las víctimas del delito’ (2009) 20 Revista Electrónica de Psicología Política 15; Ana Isabel Cerezo Domínguez, El protagonismo de las víctimas en la elaboración de las leyes penales (Tirant lo Blanch 2010) 37ff; Luca Lupária and Raphaële Parizot, ‘Which Good Practices in the Field of Victim Protection?’ in Luca Luparia (ed), Victims and Criminal Justice. European Standards and National Good Practices (Wolters Kluwer 2015) 333.

Karen Engle, Zinaida Miller and Dennis Davis, Anti-impunity and the Human Rights Agenda (CUP 2016); M Cherif Bassiouni, ‘Victims’ Rights’ in M Cherif Bassiouni (ed), The Pursuit of International Criminal Justice: A World Study on Conflicts, Victimization, and Post-conflict Justice , vol I (Intersentia 2010) 599ff; Kai Ambos et al (eds), Sistema interamericano de protección de los derechos humanos y derecho penal internacional , vol I (Konrad-Adenauer Stiftung (KAS) 2010) and vol II (KAS 2011); Javier Chinchón Álvarez, Derecho internacional y transiciones a la democracia y la paz: Hacia un modelo para el castigo de los crímenes pasados a través de la experiencia iberoamericana (Parthenos 2007) 235ff, 434ff.

Ezequiel Malarino, ‘Judicial Activism, Punitivism and Supranationalisation: Illiberal and Antidemocratic Tendencies’ (2012) 12 International Criminal Law Review 665. Some scholars have criticised this interpretation as being weakly and questionably grounded in human rights treaties and lacking deeper questioning into the rationale and purposes of criminal law. See Jesús María Silva Sánchez, ‘Una crítica a las doctrinas penales de la “lucha contra la impunidad” y del “derecho de la víctima al castigo del autor”’ (2009) 11 Revista de Estudios de la Justicia 35; Daniel R Pastor, ‘La ideología penal de ciertos pronunciamientos de los órganos del sistema interamericano de derechos humanos: ¿garantías para el imputado, para la víctima o para el aparato represivo del Estado?’ in Ambos et al, Sistema interamericano vol II (n 3) 481. The European Court of Human Rights (ECtHR) has traditionally held a more cautious view, although recently it seems to come closer to the position of its American counterpart. See Anja Seibert-Fohr, Prosecuting Serious Human Rights Violations (OUP 2009) 118ff; Kai Ambos and Laura Böhm, ‘Tribunal Europeo de Derechos Humanos y Corte Interamericana de Derechos Humanos ¿Tribunal tímido y tribunal audaz?’ in Ambos et al, Sistema interamericano vol II (n 3) 55ff; Francesco Viganó, ‘Sobre las obligaciones de tutela penal de los derechos fundamentales en la jurisprudencia del TEDH’ in Santiago Mir Puig and Mirentxu Corcoy Bidasolo (eds), Garantías constitucionales y Derecho penal europeo (Marcial Pons 2012) 320ff; Carmen Tomás-Valiente Lanuza, ‘Deberes positivos del Estado y Derecho penal en la jurisprudencia del TEDH’ (2016) 3 InDret 6ff.

Silva Sánchez (n 4) 54; Alicia Gil Gil and Elena Maculan, ‘Responsabilidad de proteger, derecho penal internacional y prevención y resolución de conflictos’ in Miguel Requena (ed.) La seguridad: un concepto amplio y dinámico (IUGM 2013) 35.

By talking about the role of criminal law and of the goals of punishment, we do not underestimate the differences between the two concepts, even though some scholars in continental literature question this differentiation as a consequence of the rise of the expressive, non-consequentialist theories of ‘general positive prevention’: Günther Jakobs, Strafrecht, Allgemeiner Teil. Die Grundlagen und die Zurechnungslehre (2nd edn, De Gruyter 1998) 1/1ff, 2/22ff; Winfried Hassemer, Hauptprobleme der Generalprävention (Metzner 1979) 40ff. An analysis of this topic goes beyond the scope of this article; for a wider view on this discussion, see Rafael Alcácer Guirao, Los fines del Derecho penal (Universidad Externado de Colombia 2001) 19ff. What we want to point out here is simply that to assign a new nature and new purposes to punishment will also change the nature and goals of criminal law, and, conversely, pursuing new purposes through criminal law entails assigning new aims to punishment.

On non-exculpatory defences from the Anglo-Saxon doctrine, see Paul H Robinson and Michael Cahill, Criminal Law (2nd edn, Wolters Kluwer 2012) 405–35; Paul H Robinson et al, ‘Extralegal Punishment Factors: A Study of Forgiveness, Hardship, Good Deeds, Apology, Remorse, and Other Such Discretionary Factors in Assessing Criminal Punishment’ (2012) 65 Vand L Rev 737. In the continental legal tradition, these circumstances fall within a separated element that forms part of the analytical structure of the criminal offence, named ‘punishability’: see eg Alicia Gil Gil et al, Derecho penal. Parte general (2nd edn, Dykinson 2015) 117ff.

eg testimonial and bargained immunity, or sentence mitigation for cooperation with the criminal justice system.

José Núñez Fernández, ‘Algunas reflexiones sobre la punibilidad en el tratamiento jurídico penal del terrorismo’ in Alicia Gil Gil and Elena Maculan (eds), La influencia de las víctimas en el tratamiento jurídico de la violencia colectiva (Dykinson 2017) 243ff.

Silva Sánchez (n 4) 169; Malarino (n 4); Pastor (n 4); Jean Pierre Matus Acuña, ‘Víctima, idealismo y neopunitivismo en el Derecho Penal internacional’ (2013) 81 Revista Nuevo Foro Penal 139.

For a detailed study, see Alicia Gil Gil and Elena Maculan (eds), El papel de las víctimas en el tratamiento jurídico de la violencia colectiva (Dykinson 2017).

Leebaw (n 1) 95.

Immanuel Kant, Die Metaphysik der Sitten (Modes und Baumann 1838); Cerezo Domínguez (n 2) 81.

Julio González Zapata, ‘La justicia transicional o la relegitimación del derecho penal’ (2007) 31 Estudios Políticos 23, 27; Carlos S Nino, Radical Evil on Trial (Yale UP 1996) 111–12.

Prittwitz (n 2) 118.

Bernardo Feijoo Sánchez, La legitimidad de la pena estatal (Iustel 2014) 24ff.

Silva Sánchez (n 4) 56.

Ulrich Klug, Skeptische Rechtsphilosophie und humanes Strafrecht , vol 2 (Springer 1981) 149ff; Bernd Schünemann, ‘Aporien der Straftheorie in Philosophie und Literatur—Gedanken zu Immanuel Kant und Heinrich von Kleist’ in Cornelius Prittwitz et al (eds), Festschrift für Klaus Lüderssen (Nomos 2002) 327.

Feijoo Sánchez (n 16) 29ff; Klug (n 18); Schünemann (n 18).

Adil A Haque, ‘Group Violence and Group Vengeance: Toward a Retributivist Theory of International Criminal Law’ (2005) 9 Buffalo Criminal Law Review 273.

Thomas Weigend, ‘„Die Strafe für das Opfer“?—Zur Renaissance des Genugtuungsgedankens im Straf- und Strafverfahrensrech?—Zur Renaissance des Genugtuungsgedankens im Straf- und Strafverfahrensrech’ in Zeitschrift für rechtswissenschaftliche Forschung , vol 1 (Nomos 2010) 39, 45.

On the defenders of this idea within the common law tradition, see Whitley Kaufman, Honor and Revenge: A Theory of Punishment (Springer 2013) 50ff.

Klaus Günther, ‘Die symbolisch-expressive Bedeutung der Strafe’ in Cornelius Prittwitz et al (eds.) Festschrift für Klaus Lüderssen (Nomos 2002) 205, 218; Jan P Reemtsma, Das Recht des Opfers auf die Bestrafung des Täters –als Problem (CH Beck 1999) 26.

Wilfried Holz, Justizgewähranspruch des Verbrechensopfers (Duncker & Humblot 2007) 134ff.

Günther (n 23) 208ff.

Tatjana Hörnle, ‘Die Rolle des Opfers in der Straftheorie und im materiellen Strafrecht’ (2016) 19 Juristenzeitung 950, 955.

Hörnle (n 26).

Reemtsma (n 23) 27.

Weigend (n 21) 48ff.

Darío Páez Rovira et al, ‘Afrontamiento y violencia colectiva’ in Darío Páez Rovira et al (eds), Superando la violencia colectiva, construyendo cultura de paz (Fundamentos 2011) 279, 293. On the inability of punishment to ‘heal’ the victim in many cases, see also, with subsequent bibliography, Hörnle (n 26) 955.

Prittwitz (n 2) 120–1; Michael Wenzel and Tyler Okimoto, ‘How Acts of Forgiveness Restore a Sense of Justice: Addressing Status/Power and Value Concerns Raised by Transgressions’ (2010) 40 European Journal of Social Psychology 401; M Ángeles Maitane Arnoso et al, ‘Violencia colectiva y creencias básicas sobre el mundo, los otros y el yo: impacto y reconstrucción’ in Páez Rovira et al (n 30) 247.

Hörnle (n 26) 956 does not agree with this, arguing that the punishment envisaged in any criminal code for each offence is already sufficient to comply with the function of expressing solidarity. From this we can deduce that, in her view, criminal punishment is not aimed to satisfying the needs of each single victim.

Alicia Gil Gil, ‘Sobre la satisfacción de la víctima como fin de la pena’ (2016) 4 InDret 1ff.

Holz (n 24) 200; Hörnle (n 26) 956.

Kaufman (n 22) 50ff.

Kaufman (n 22) 51.

This right is refuted by Holz (n 24) 129, who exclusively defends a right of access to the criminal proceeding, finding support mainly on the basis of the case law of the ECtHR. Weigend (n 21) 46 recalls that the German Supreme Court has clearly stated that there is no right of the victim to the criminal prosecution of the offender.

Weigend (n 21) 57.

Reemtsma (n 23) 26.

George P Fletcher, ‘The Place of Victims in the Theory of Retribution’ (1999) 3 Buffalo Criminal Law Review 51.

Jeffrie Murph and Jean Hampton, Forgiveness and Mercy (CUP 1988) 132; for further references, see Heather J Gert et al, ‘Hampton on the Expressive Power of Punishment’ (2004) 35 Journal of Social Philosophy 79.

Kaufman (n 22) 117ff.

See also below, section 3A(ii).

Fletcher (n 41) 58.

Reemtsma (n 23) 27. On all these theories in more depth, see Gil Gil (n 34).

Kant (n 13) 127ff.

Fletcher (n 41) 60ff.

Silva Sánchez (n 4) 53. Zedner also warns against the possible conflict between the claim for compensation, under a reparative approach, and penalties belonging to the classic criminal law paradigm, such as custody: see Lucia Zedner, ‘Reparation and Retribution: Are They Reconciliable’ (1994) 57 MLR 228, 247.

In similar terms, see Jan P Reemtsma, Im Keller (6th edn, Rowohlt 2012) 216; against, Prittwitz (n 2) 129.

Prittwitz (n 2) 124–5.

As indicated by Prittwitz (n 2) 128, it is preferable simply to talk of the beneficial effects that punishment may have on the victim and not of ‘compensation’, ‘aid for survival’, ‘cessation of a harm’, etc.

For a critical comment on this argument, see Gil Gil (n 34).

According to Santiago Mir Puig, Derecho penal. Parte General (10th edn, Tirant lo blanch 2015) 67ff, the secondary rule is the rule that envisages a sanction of the violation of a primary rule, whereas the primary rule is that which expresses a mandate or prohibition on a certain action. For instance, if we recall the old Barbaricino Code, being the primary rule ‘do not kill’, the secondary rule was ‘to punish those who kill with the death penalty’. Therefore, infringement of the primary rule brings with it, according to this example, the death penalty, whereas infringement of the secondary rule brings with it the punishment of dishonour. This is clearly confirmed by art 1 of the Barbaricino Code, which imposed on every citizen the duty of vengeance. Accordingly, anyone who renounced vengeance was not considered a man of honour. See Lorenzo Passerini Glazel, ‘La semántica nomotrofica della vendetta’ in Giuseppe Lorini and Michelina Masia (eds), Antropologia della vendetta (ESI 2015) 169, 175.

Gert et al (n 42) 84.

Raffaele Caterina, ‘La reciprocià: alle origini della vendetta e dello scambio’ in Giuseppe Lorini and Michelina Masia (eds), Antropologia della vendetta (ESI 2015) 205, 213.

ibid 212; Filippo Aureli et al, ‘Kin-oriented Redirection among Japanese Macaques: An Expression of a Revenge System?’ (1992) 44 Animal Behaviour 283.

See Émile Durkheim, De la division du travail social (Les Presses universitaires de France 2008). Nowadays, we find various studies (from anthropology, psychology and the philosophy of law) that support the idea of a preventive ground of both punishment (even when the latter is understood as retribution) and vengeance itself. These studies have found that both punishment and vengeance are based on the calculated reciprocity mechanism. See eg Napoleon Chagnon, ‘Life Histories, Blood Revenge, and Warfare in a Tribal Population’ (1988) 4843 Science 985; Dale T Miller, ‘Disrespect and the Experience of Injustice’ (2001) 52 Annual Review of Psychology 527, 541; Mario Gollwitzer and Markus Denzler, ‘What Makes Revenge Sweet: Seeing the Offender Suffer or Delivering a Message?’ (2009) 45 Journal of Experimental Social Psychology 840, 843; Olimpia G Loddo, ‘Reciprocità aspettative e aspettative di reciprocità nella vendetta’ in Giuseppe Lorini and Michelina Masia (eds), Antropologia della vendetta (ESI 2015) 217; Daniel Rodríguez Horcajo, Comportamiento humano, y pena estatal: disuasión, cooperación y equidad (Marcial Pons 2016) 308ff; Glazel(n 55) 171; Gil Gil (n 34) 31.

In a similar sense, Rodríguez Horcajo (n 59) 308ff highlights how the feeling of justice is the result of the standardisation of an evolutionary positive reaction. In his opinion, what remains of retribution in the rationale of punishment would be just a willingness towards a behaviour (the punishment) which in turn pursues a favourable goal.

Jesús María Silva Sánchez, Malum passionis. Mitigar el dolor del Derecho penal (Atelier 2018) 195ff also points out the need for criminal law to be subordinated to other interests that are alien to its scope. In his view, this explains why it is legitimate to reduce the penalty when the offender performs certain post delicto conducts, such as confession: ibid 122ff.

John Braithwaite, Restorative Justice & Responsive Regulation (OUP 2002) 16ff; Josep Tamarit Sumalla, ‘Comisiones de la verdad y justicia penal en contextos de transición’ (2010) 1 InDret 21; Kerry Clamp (ed), Restorative Justice in Transitional Settings (Routledge, 2016); Wenzel and Okimoto (n 31) 413ff. However, the scope and definition of restorative justice are still heavily contested. See eg Andreas von Hirsch, Julian V Roberts and Anthony E Bottoms (eds), Restorative Justice and Criminal Justice: Competing or Reconcilable Paradigms (Hart Publishing 2003).

Gerry Johnstone and Daniel Van Ness (eds), Handbook of Restorative Justice (Willan 2007) 5ff; Marian Liebmann, Restorative Justice: How It Works (Jessica Kingsley 2007) 32; Howard Zehr, The Little Book of Restorative Justice: Revised and Updated (Good Books 2014) 4ff; Marina Sanz Díez de Ulzurrun, ‘Justicia restaurativa y mediación penal’ in Gil Gil and Maculan (n 9) 121; Gema Varona Martínez, ‘El papel de las víctimas respecto de los mecanismos utilizados en la justicia transicional’ in Gil Gil and Maculan (n 9) 145 (especially at 163ff). Yet, the incorporation of a restorative approach into the classic retributive paradigm also poses some practical and conceptual challenges, as suggested by Zedner (n 50) 238ff.

Howard Zher, Changing Lenses: A New Focus for Crime and Justice (Herald Press 1990); Johnstone and Van Ness (n 63); Liebman (n 63) 32.

M Kay Harris, ‘An Expansive, Transformative View of Restorative Justice’ (2004) 7 Contemporary Justice Review 117, arguing that restorative justice ‘necessarily must address community well-being along with that of the specific parties to crime and conflict’ (120); Zehr (n 64) s 4; Dennis Sullivan and Larry Tifft, Restorative Justice: Healing the Foundations of our Everyday Lives (Willow Tree Press 2001), pointing out that restorative justice is ‘concerned with processes of healing but also with transforming the social institutions’ (ix–x); Dennis Sullivan and Larry Tifft, ‘The Transformative and Economic Dimensions of Restorative Justice’ (1998) 22 Humanity & Society 38.

Wenzel and Okimoto (n 31) 402–3, 414.

Wenzel and Okimoto (n 31).

Although some penal abolitionists have made precisely this claim. See eg Herman Bianchi, Justice as Sanctuary: Toward a System of Crime Control (Indiana UP 1994) 10ff; Louk Hulsman and Jacqueline Bernat de Celis, Peines perdues. Le système pénal en question (Le Centurion 1982) 45. This is currently a minority view, though, which we do not share. In contrast, we agree with Zehr’s idea that ‘real world justice’ may be seen as a ‘continuum’ from criminal justice to restorative justice, and that these forms of justice should be complementary: Zehr (n 64) s 4.

Paul H Robinson, ‘The Virtues of Restorative Processes, the Vices of “Restorative Justice”’ (2003) 1 Utah L Rev 387. In contrast, Silva Sánchez (n 61) 219ff maintains that restorative processes must always be applied after the completion of the criminal trial and in a separate manner, in order to guarantee the sincerity of the offender. Silva Sánchez nevertheless recognises the utility of those processes, especially in those situations in which the penalty has not been imposed even though the perpetrator was found guilty, due to the prevalence of other public interests.

Although the latter view is held in some of the judgments by the IACtHR (see eg IACtHR, Case of the Rochela Massacre v Colombia Series C no 163, 11 May 2007, para 196), we deem it to be incorrect.

For more details on these possibilities, see Clamp (n 62); Varona Martínez (n 63) 167ff.

James L Gibson, ‘Truth, Justice, and Reconciliation: Judging the Fairness of Amnesty in South Africa’ (2002) 46 American Journal of Political Science 547.

Ivo Aertsen et al, Restoring Justice after Large-Scale Violent Conflicts (William 2008) 17ff.

Carsten Stahn, ‘The Geometry of Transitional Justice: Choices of Institutional Design’ (2005) 18 LJIL 425.

Paul Gready and Simon Robin, ‘From Transitional to Transformative Justice: A New Agenda for Practice’ (2014) 8 International Journal of Transitional Justice 339ff; Wendy Lambourne, ‘Transformative Justice, Reconciliation and Peacebuilding’ in Susanne Buckley-Zistel et al (eds), Transitional Justice Theories (Routledge 2014) 19. The latter author identifies four elements in this idea of transformative justice: criminal justice or responsibility; truth as knowledge and acknowledgement; socioeconomic justice; and political justice (23ff).

Paul Seils, Squaring Colombia’s Circle. The Objectives of Punishment and the Pursuit of Peace (ICTJ 2015) 9–11 <www.ictj.org/publication/squaring-colombia-circle-objectives-punishment-peace> accessed 1 February 2019.

For a recent and complete description of the various theories of punishment developed by both Anglo-Saxon and continental scholars, see Rodríguez Horcajo (n 59) 29–86. See also George Fletcher, Rethinking Criminal Law (OUP 2000) 414–40.

See the critical account by Mark Osiel, ‘Why Prosecute? Critics of Punishment for Mass Atrocity’ (2010) 22 Hum Rts Q 118; see also Jon Elster, ‘Retribution in the Transition to Democracy’ in Arend Soeteman (ed), Pluralism and Law (Springer 2001) 19; Nino (n 14).

In addition to having been used by the ad hoc International Criminal Tribunal to rationalise their activity, this criterion is specified at the statutory level to determine the jurisdiction of the SCSL (art 1 of the Statute of the Special Court for Sierra Leone: ‘… persons who bear the greatest responsibility’) and of the ECCC (art 2 of Law on the Establishment of the ECCC: ‘… senior leaders of Democratic Kampuchea and those who were most responsible for the crimes’).

This criterion is combined with other objective and subjective criteria to govern the policy of selection and prioritisation of cases introduced in Colombia with the constitutional reform known as ‘Marco Jurídico para la Paz’ (Acto Legislativo 1/2012) and developed by the General Prosecutor of the Colombian Nation in its Directive 001/2012 of 4 October. This is one of the original transitional justice mechanisms that the Colombian State has adopted into its extremely interesting peace process, where the challenging goal is to put an end to an especially complex and long-lasting armed conflict that is still ongoing. For further information, see eg Alicia Gil Gil, Elena Maculan and Susana Ferreira (eds), Colombia como nuevo modelo para la justicia de transición (IUGM 2017); Alejandro Aponte Cardona, ‘El Acuerdo de paz y el modelo transicional colombiano: hacia un reconocimiento y dignificación de las víctimas’ in Gil Gil and Maculan (n 9); Alejandro Aponte Cardona, ‘Colombia’ in Kai Ambos et al (eds), Justicia de transición (KAS 2009) 235. For a comparison between various policies of selection and prioritising international crimes cases, applied both by international and hybrid criminal tribunals and in national legal systems, see Morten Bergsmo (ed), Criteria for Prioritizing and Selecting Core International Crimes Cases (2nd edn, Torkel Opsahl Academic 2010).

Mark A Drumbl, Atrocity, Punishment and International Law (CUP 2007) 151–4; Robert Cryer, ‘Aims, Objectives, Justifications of International Criminal Law’ in Robert Cryer et al, An Introduction to International Criminal Law and Procedure (3rd edn, CUP 2014) 28, 44.

We may also recall the practice of plea bargaining, used both by international criminal tribunals and by many domestic courts in relation to international crimes. This instrument is a response to requirements for procedural economy and flexibility of procedures, but as it brings with it the imposition of a reduced penalty to those accused persons who request it, it contradicts the idea of retribution as proportionality: Antony R Duff, ‘Process, not Punishment: The Importance of Criminal Trials for Transitional and Transnational Justice’ (2014) Minnesota Legal Studies Research Paper 14 < http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2387601 > accessed 1 February 2019; Pablo D Eiroa, Políticas del castigo y derecho internacional (Ad Hoc 2009) 162; Drumbl (n 81) 163–9. Furthermore, it has been argued that for these kinds of crimes there is an intrinsic impossibility of fitting within any proportionality criterion. As indicated by Garapon, citing Hannah Arendt, these are ‘crimes that one can neither punish, nor forgive’: Antoine Garapon, Des crimes qu'on ne peut ni punir ni pardonner (Odile Jacob 2002). This raises doubts as to whether there are punishments that are sufficiently burdensome both in the absolute sense (measurement between the offence and the punishment in themselves) and in a relative perspective (measurement based on the comparison between various crimes and the corresponding punishments), unless one accepts the imposition of treatments that would in turn entail a violation of human dignity and fundamental rights, such as torture, the death penalty or treatments that cause great suffering to the convicted person. Such a view, nonetheless, is grounded on a pure retributivist approach, which we have already criticised (cf section 2); additionally, problems related to proportionality also appear in ordinary criminality, eg in cases of conviction for multiple offences: see Osiel (n 78) 128–9.

The capacity to intimidate is prejudiced especially when selectivity is based more on political criteria and mainly concerned that nothing can interfere in the interests of the state apparatus or of the powerful countries: Gil Gil and Maculan (n 5) 49.

In similar terms, Kai Ambos, ‘Punishment without a Sovereign? The Ius Puniendi Issue of International Criminal Law: A First Contribution towards a Consistent Theory of International Criminal Law’ (2013) 33 OJLS 293; David Luban, ‘Fairness to Rightness: Jurisdiction, Legality, and the Legitimacy of International Criminal Law’ in Samantha Besson and John Tasioulas (eds), Philosophy of International Law (OUP 2010) 569, 577; Teitel, Transitional Justice (n 1) 44ff. Similarly, Elster (n 78) 28ff.

Eiroa (n 82) 165; Jaime Malamud-Goti, ‘Transitional Government in the Breach: Why Punish State Criminals?’ (1990) 12 Hum Rts Q 1, 9.

Cryer (n 81) 43; Naomi Roth-Arriaza, Impunity and Human Rights in International Law and Practice (OUP 1995) 14.

Malamud-Goti (n 85) 10.

Kai Ambos, Treatise of International Criminal Law. Vol. I. Foundations and General Part (OUP 2013) 72.

The resurgence of these theories was inaugurated by the seminal work by Joel Feinberg, ‘The Expressive Function of Punishment’ in Joel Feinberg, Doing and Deserving (Princeton UP 1970) 95. For a general account on expressive theories of law, see eg Elizabeth S Anderson and Richard H Pildes, ‘Expressive Theories of Law: A General Restatement’ (2000) 148 U Pa L Rev 1503.

Elena Maculan, ‘Fines de la pena y del proceso penal en contextos de transición’ in Gil Gil and Maculan (n 9) 207.

Alicia Gil Gil, ‘Prevención general positiva y función ético-social del derecho penal’ in José Luis Díez Ripollés (ed), La ciencia del derecho penal ante el nuevo siglo: libro homenaje al profesor doctor don José Cerezo Mir (Tecnos 2002) 9ff. This position represents a unitary or mixed theory of punishment that combines retribution (understood, according to a modern view, as the confirmation of the validity of the norm and of the legal protected values) and deterrence. Together with the general prevention, we admit specific deterrence as an aim of punishment. Von Hirsch’s theory can also be labelled as unitary, since he recognises a deterrence element, subject to the ‘censuring framework’: Andrew von Hirsch, Censure and Sanctions (OUP 1993) 14.

Luban (n 84) 582 brilliantly expresses this idea in the slogan ‘fairness to rightness’: the courts have to comply with the fair trial standards and other minimum requirements in their creation and composition in order to be legitimate institutions that really dispense justice.

See also Victor Tadros, The Ends of Harm: The Moral Foundations of Criminal Law (OUP 2011) 100.

Leebaw (n 1) 118.

Alicia Gil Gil, ‘El tratamiento jurídico de los crímenes cometidos en el conflicto armado colombiano. La problemática jurídica en el marco de la dicotomía paz-justicia’ in Alicia Gil Gil et al (eds), Colombia como nuevo modelo para la justicia de transición (IUGM 2017) 21, 36.

This mechanism, the application of which was entrusted to the Sentence Review Commission, an independent body created in 1998, was used for persons serving sentences for political and associated crimes, committed prior to the signing of the agreement itself and subject to a series of conditions. The experience of Northern Ireland does not fit into the traditional transitional settings (namely, the aftermath of a dictatorship or of an armed conflict), yet some of its features and some of the mechanisms adopted within it can be properly defined as transitional justice: Colm Campbell et al, ‘The frontiers of Legal Analysis: Reframing the Transition in Northern Ireland’ (2003) 66 MLR 317.

This view is in line with the conceptual distinction made by Feinberg (n 89) between the ‘reprobative symbolism of punishment’ and its character as ‘hard treatment’ (98), and the subsequent affirmation that ‘it is social disapproval and its appropriate expression that should fit the crime, and not hard treatment (pain) as such’ (118).

This law provided for the imposition of a punishment of the deprivation of liberty of between five and eight years, plus an additional term of conditional release (art 29 of the Law), for members of illegal armed groups that demobilise, give a free version of the crimes of which they are aware and contribute with their assets to reparations for the victims. A similar sanction (imprisonment for between five and eight years) is also provided in the Special Jurisdiction for Peace created by the agreement between the Colombian Government and the FARC-EP signed last November. This penalty will be applied to those persons who declare their responsibility for crimes committed after an investigation has been opened but before the trial against them begins. For those who give this declaration before the investigation begins, an even more beneficial punishment is provided, ie an alternative penalty that involves a restriction of liberty (although not to be served in prison) and carrying out restorative activities.

The same view is also held, with special reference to the ECtHR position, by Miles Jackson, ‘Amnesties in Strasbourg’ (2018) 38 OJLS 1, 17–18 and 22–4.

See IACtHR, Barrios Altos v Perú Series C no 75, 14 March 2001, paras 41–3; Gelman v Uruguay Series C no 221, 24 February 2011 (declaring that an amnesty law passed under the recovered democracy and confirmed in two different referendum amounted to a violation of the American Convention of Human Rights); Barrios Altos and La Cantuta v Perú ‘Supervisión de cumplimiento de sentencia’, 30 May 2018 (affirming the inadmissibility of pardons whenever they aim to cover gross human right violations, with specific reference to the pardon recently issued to the former President of Perú Alberto Fujimori). Yet, the IACtHR appears to be more flexible in its position when facing an ongoing armed conflict: IACtHR, El Mozote Massacre v El Salvador Series C no 252, 25 October 2012. For a deeper analysis, see Louise Mallinder, ‘The End of Amnesty or Regional Overreach? Interpreting the Erosion of South America’s Amnesty Laws’ (2016) 65 International and Comparative Law Quarterly 645.

See eg Ould Dahl v France App no 13113/03 (ECtHR, 17 March 2009). In a more recent judgment, the ECtHR recognised that ‘a growing tendency in international law is to see such amnesties as unacceptable’: Marguš v Croacia App no 4455/10 (ECtHR, 13 November 2012) para 139, while not completely closing the door on amnesties. See Elena Maculan, ‘Derecho penal, obligaciones internacionales y justicia de transición’ (2018) 41 Revista penal 117, 126ff.

See the brilliant criticism developed by Jackson (n 99). For a comparative analysis of the case law of the two human rights bodies, see Seibert-Fohr (n 4) 51ff and 105ff.

This experience is commonly viewed as a turning point in evolution of transitional justice, since its key mechanism was not a self-amnesty nor a blanket one, but a properly democratic, bilateral and conditional amnesty. Here, the benefit could be granted for crimes committed for political motives, even when they amounted to serious human rights violations, in exchange for the offenders’ public declaration of guilt and their contribution to the ascertaining of the truth about the wrongdoings. This approach allowed, at least in principle, the combination of different goals, namely, accountability (not in the traditional criminal sense), truth finding and reconciliation. See Antje Du Bois-Pedain, Transitional Amnesty in South Africa (CUP 2007); Jeremy Sarkin-Hughes, Carrots and Sticks: The TRC and the South African Amnesty Process (Intersentia 2004).

Mark Freeman, Truth Commissions and Procedural Fairness (CUP 2006) 88ff. Here again, Osiel (n 78) 134–7 warns against the risks and limits of truth commissions or other official public reports as alternatives to criminal trial.

Drumbl (n 81): the author maintains the universality of the blaming for certain crimes at the same time as arguing for the pluralism of mechanisms created to deal with them.

Bassiouni, ‘Victims’ Rights’ (n 3); Jonathan Doak, Victims’ Rights, Human Rights and Criminal Justice (Hart Publishing 2008) 180ff.

Malamud-Goti (n 85) 11.

Duff (n 82) 10.

See the brilliant and still relevant study of Piero Calamandrei, who describes the differences between the judge and the historian, alerting readers of the risks involved in merging the two roles: Piero Calamandrei, ‘Il giudice e lo storico’ (1939) Rivista di Diritto Processuale Civile 105.

M Cherif Bassiouni, ‘Accountability for Violations of International Humanitarian Law and Other Serious Violations of Human Rights’ in M Cherif Bassiouni (ed), Post-Conflict Justice (Transnational 2002) 383, 400.

Daniel Pastor, ‘Acerca de la verdad como derecho y como objeto exclusivo del proceso penal’ in Elena Maculan and Daniel Pastor, El derecho a la verdad y su realización por medio del proceso penal (Hammurabi 2013) 19; Thomas Weigend, ‘Is the Criminal Process about Truth? A German Perspective’ (2003) 26 Harvard Journal of Law & Pubic Policy 157. Yet, some authors also maintain the opposite view that the criminal trial is a perfect venue for the truth-finding task: see eg Michele Taruffo, ‘Verità e giustizia di transizione’ (2015) Criminalia 21.

This different set of priorities may reflect a different concept of truth, being the inquisitorial model in line with the correspondence theory (truth exists a priori and the judge has the task to discover and reveal it) and the adversarial one, more congruent with the consensus theory (truth is what reasonable people agree upon, in a trial, after an antagonistic presentation of competing versions of the facts): Thomas Weigend, ‘Should We Search for the Truth, and Who Should Do It’ (2010) 36 NCJ Int'l L & Com Reg 389. In a similar vein, Grande points out the correspondence of the two models with the concept of ontological truth and interpretive truth , respectively: Elisabetta Grande, ‘Dances of Criminal Justice: Thoughts on Systemic Differences and the Search for the Truth’ in John Jackson et al (eds), Crime, Procedure and Evidence in a Comparative and International Context (Hart Publishing 2008) 145, 147. See also the seminal work by Mirjan Damaška, ‘Truth in Adjudication’ (1998) 49 Hastings LJ 289.

For instance, the respect for the defendant’s right to silence and the rejection of evidence that was acquired in clear violation of Constitutional rights (such as dignity and privacy) are nowadays almost universally accepted also in inquisitorial systems, despite the obstacle they create for the ascertaining of truth: Weigend (n 112) 400–1. Besides the fair trial standards, there is a set of social needs and values that exercise a constraining effect on truth values in trials, such as the demand for stability in decision making and cost: Damaška (n 112) 301.

See the mechanisms recalled by Freeman: truth commissions, human rights commissions, commissions of inquiry, complaints procedures: Freeman (n 104) 40–69.

Antoine Garapon, Bien juger. Essai sur le rituel judiciaire (Odile Jacob 2001).

Duff (n 82) 7.

cf section 2B(ii).

Luban (n 84) 579; Eiroa (n 82) 205ff.

We find this formula in the founding instruments of the International Criminal Tribunals: Considering 9 of UN Security Council Resolution no 808/1993, of 22 February, setting up the ICTY; Considering 7 of UN Security Council Resolution no 955/1994, of 8 November, setting up the ICTR) and in all the rhetoric surrounding their legitimation (Danilo Zolo, ‘Peace through Criminal Law?’ (2002) 2 JICJ 727, 729.

For a critical look at the arguments of the defenders of this idea, see Mark Kersten, Justice in Conflict (OUP 2016) 19–36. See also Lisa Schirch, ‘Linking Human Rights and Conflict Transformation. A Peacebuilding Framework’ in Julie Mertus and Jeffery Helsing (eds), Human Rights and Conflict. Exploring the Links between Rights, Law and Peacebuilding (UN Institute for Peace Press 2006) 63.

Teitel, Transitional Justice (n 1) 49–51.

Malamud-Goti (n 85) 11–12.

Teitel, Transitional Justice (n 1) 30.

cf section 3A(ii).

Teitel, Transitional Justice (n 1) 49.

Janine N Clark, ‘Peace, Justice and the International Criminal Court: Limitations and Possibilities’ (2011) 11 JICJ 521, 521; Eiroa (n 82) 143.

As stated by Pablo D Eiroa, ‘El impacto de las jurisdicciones penales internacionales en la finalización de un conflicto de violencia grave y la consolidación de la paz’ in Gil Gil and Maculan (n 9) 81. See also Michael Broache, ‘Irrelevance, Instigation and Prevention: The Mixed Effects of International Criminal Court Prosecutions on Atrocities in the CNDP/M23 Case’ (2016) 10 International Journal of Transitional Justice 388.

Malamud-Goti (n 85) 14.

Both solutions have been adopted in the Colombian peace process, both in the Peace and Justice Law and in the recently created Special Jurisdiction for Peace.

Along the same lines, see the dissenting opinion of Judge García Sayán in IACtHR, El Mozote v El Salvador Series C no 252, 25 October 2012, paras 30–1.

Andrea Lollini, Constitutionalism and Transitional Justice in South Africa (Berghan Books 2011) 95ff.

Malarino (n 1) 211. This proposal differs from another interesting view that can be summarised by the phrase ‘First peace, then justice’. According to Kersten (n 120) 31–2, this idea has the advantage of converting the peace versus justice dilema into a question of sequence that does not eliminate the justice element, but rather defers it to a time when peace and stability have been consolidated. However, as the same author notes, the sequence cannot be premeditated, because no leader would be prepared to sit down to negotiate knowing in advance that the benefits obtained in such negotiations would sooner or later be annulled. Furthermore, this idea fails to take into account the fact that on many occasions the negotiations concede to the adversary party guarantees regarding not only criminal prosecution, but also positions of political power (ibid). Finally, these solutions involve serious legal problems as to the retroactive nature of the new, unfavourable law and the resurgence of criminal liability already cancelled, which would bring into question the commitment to the rule of law of the new democratic regime.

Prittwitz (n 2) 129; Silva Sánchez (n 4) 56.

Lambourne (n 75) 23ff.

Ambos (n 84) 314–15.

Email alerts

Citing articles via.

• Recommend to your Library

Affiliations

• Online ISSN 1464-3820
• Print ISSN 0143-6503
• Copyright © 2024 Oxford University Press
• About Oxford Academic
• Publish journals with us
• University press partners
• What we publish
• New features  
• Open access
• Institutional account management
• Rights and permissions
• Get help with access
• Accessibility
• Advertising
• Media enquiries
• Oxford University Press
• Oxford Languages
• University of Oxford

Oxford University Press is a department of the University of Oxford. It furthers the University's objective of excellence in research, scholarship, and education by publishing worldwide

• Copyright © 2024 Oxford University Press
• Cookie settings
• Cookie policy
• Privacy policy
• Legal notice

This Feature Is Available To Subscribers Only

Sign In or Create an Account

This PDF is available to Subscribers Only

For full access to this pdf, sign in to an existing account, or purchase an annual subscription.

• Environment
• Information Science
• Social Issues
• Argumentative
• Cause and Effect
• Classification
• Compare and Contrast
• Descriptive
• Exemplification
• Informative
• Controversial
• Exploratory
• What Is an Essay
• Length of an Essay
• Generate Ideas
• Types of Essays
• Structuring an Essay
• Outline For Essay
• Essay Introduction
• Thesis Statement
• Body of an Essay
• Writing a Conclusion
• Essay Writing Tips
• Drafting an Essay
• Revision Process
• Fix a Broken Essay
• Format of an Essay
• Essay Examples
• Essay Checklist
• Essay Writing Service
• Pay for Research Paper
• Write My Research Paper
• Write My Essay
• Custom Essay Writing Service
• Admission Essay Writing Service
• Pay for Essay
• Academic Ghostwriting
• Write My Book Report
• Case Study Writing Service
• Dissertation Writing Service
• Coursework Writing Service
• Lab Report Writing Service
• Do My Assignment
• Buy College Papers
• Capstone Project Writing Service
• Buy Research Paper
• Custom Essays for Sale

Can’t find a perfect paper?

• Free Essay Samples

Purposes of Punishment

Updated 07 July 2023

Subject Hero

Downloads 38

Category Law ,  Crime

Topic Criminal Justice ,  Punishment ,  Criminal Behavior

Systems of criminal justice use punishment to discourage, disable, rehabilitate, exact revenge, and make amends.

By instilling dread in the defendant and the public, punishment administered with the intention of deterrence is intended to stop the commission of the crime or error in the future. The suffering inflicted on the individual receiving punishment by the punishing person or body teaches the public, who may not have participated in the punishment, valuable lessons. Punishments can prevent crime directly or implicitly. As a result, according to De Keijser, specific deterrence occurs when a person receiving punishment from the government, for example, refrains from committing the same crime out of concern for receiving a comparable or even worse punishment. (2000). When punishment is administered to achieve general deterrence, the penalty of an individual or a group of people instills some knowledge about the pain and suffering the defendants have suffered for their crime in the rest of the public. As a result, the public becomes less likely to commit the same offense for fear of being punished the same way or even worse. For example, it is more likely that the public will fear falling victims of the same prosecution after learning that the defendant who had been convicted of committing murder has been sentenced to life in prisons or has been given a death penalty.

Incapacitation

Punishment is sometimes meant to target the defendant and remove him or her from amongst people to prevent reoccurrence of the criminal act in the society. Unlike other purposes that are preventive, incapacitation is more of a reaction instigated by security concerns than not. In the preventive purposes of punishment, the offenders are removed from the society with the aim of improving them while in incapacitation, the criminals have locked away from the community because we fear them (Walgrave, 2013). Examples of the punishment serving the purpose of incapacitation are house arrest and execution following a death penalty.

Rehabilitation

Punishment can be targeted at reforming the behavior of the offenders, and as a result, reducing the chances of the crime reoccurring. The government in this effect will take the criminal to educational centers and vocational programs where he will receive regular counseling and treatment over a period until the offenders show signs of not being able to repeat the offense (Roberts, 2002). Offenders can be rehabilitated, incarcerated, probated and paroled at the same time to achieve the best outcome from a punishment. For the same possibility, the courts in some states in the United States have made it mandatory for nonviolent drug offenders to participate in rehabilitation programs coupled with probation but not submitting them to incarceration. The abovementioned approach to punishment has been found to significantly lower the loads in the jails and prisons as well as reduce reoffending.

Retribution

According to Roberts (2002), retribution is the removal of the desire for personal advancement against the defendant by the offended. The angry would want to react to an offense committed against them in the form an assault, criminal homicide, and battery among others. When the courts punish the offenders well, the public learns of it, and their faith in the justice system increases. As a consequence, their satisfaction on the criminal justice working effectiveness prevents them from reacting violently against the offenders when they come back to the society.

Restitution

Restitution is the process through which the courts or the justice system in place punishes the offenders by charging them a given amount of money. For example, the courts can order the criminal to pay the victim of their crimes a given sum of money for any harm caused or for the damages. The courts can order the offender to pay retribution for physical injuries, property damages, money loss and emotional distress. Also, the revenge in many cases also serves as a fine that covers a certain amount of costs incurred in the process of criminal prosecution and administering punishment (De Keijser, 2000).

The different forms of punishment differ in their significance and the manner in which they can achieve effectiveness when applied. According to my view, the purposes of punishment ranked as follows in order of importance.

1. Rehabilitation

2. Deterrence

3. Incapacitation

4. Retribution

5. Restitution

Rehabilitation is the best purpose of punishment because it involves the use of rehabilitation, incarceration, probation, and parole achieving the best result ever. It also aims at improving the offenders rather than arming them for the crimes they committed. Deterrence is better that incapacitation because it serves as an example for others who then will fear to commit the same crimes committed by the offender while incapacitation seeks to eliminate the offender from the society without giving them a chance to reform. It is informed by fear for the offender rather than the intent of exercising a corrective measure. Retribution helps both parties to an offense to come to terms with the situation the best way. Lastly, restitution can give away for the rich to buy their way into the justice system.

In conclusion, punishments are administered to serves as a deterrence, incapacitation, rehabilitation, retribution and restitution. They all differ in significance.

De Keijser, J. W. (2000). Punishment and purpose: from moral theory to punishment in action. Thela Thesis.

Roberts, J. V. (2002). Changing attitudes to punishment: Public opinion, crime, and justice. Routledge.

Walgrave, L. (2013). Restorative Justice, Self-interest Responsible Citizenship. Willan.

Deadline is approaching?

Wait no more. Let us write you an essay from scratch

Related Essays

Related topics.

Find Out the Cost of Your Paper

Type your email

By clicking “Submit”, you agree to our Terms of Use and Privacy policy. Sometimes you will receive account related emails.

Finished Papers

Customer Reviews

Make the required payment

After submitting the order, the payment page will open in front of you. Make the required payment via debit/ credit card, wallet balance or Paypal.