Theories of Punishment

RETRIBUTIVE THEORY (Retribution)

RETRIBUTIVE THEORY (Retribution)

• Treat punishment as a backward looking moral response to wrongdoing 

• The state punishes because the offender deserves it for what they have done

• The punishment must be proportional to the harm caused

• Characterized as the “oldest” theory grounded in “just desserts”, proportionality, and balancing/restoring moral order 

  • Retribution is not primarily trying to “fix” society or prevent future crime. Trying to do justice to the past act by giving a response that fits the wrong 

Aims 

• Ensures offenders receive the punishment they deserve (severity based)

• express society’s condemnation of the act,

• uphold justice/fairness so no one profits from wrongdoing.

  • Legal aim: justice as accountability: the law publicly marks wrongdoing as blameworthy and responds in a way that matches seriousness 

Assumptions 

• The state has authority to punish because wrongdoing creates a moral deficit that demands a response (the “balance the scales” idea).

• The key constraint is proportionality: even if the public is outraged, the penalty must still be scaled to harm/seriousness. 

What Counts as Success 

• Not measured by lower crime rates, but whether the punishment is deserved, proportionate, and publicly expresses condemnation appropriately

 How It Shapes Punishment in a Legal Context (Sentencing Implications)

Retribution pushes legal decision-makers to focus on:

• culpability (how blameworthy was the act/actor?),
  
  

• seriousness/harm (how grave is the wrong?)

• and producing a sentence that is commensurate with that seriousness (rather than tuned to deterrence/reform outcomes).

• This is why retribution is naturally linked to “fit” language in sentencing: “the punishment should fit the crime.”

Strengths 

• Legitimacy and moral clarity: gives a simple public-facing reason that looks like “justice” rather than social engineering: wrongdoers deserve accountability

• Built in limitations on state power: proportionality blocks the state from punishing purely to scare others or incapacitate indefinitely.

• Expressive Function: explains why punishment is not just prevention but also condemnation (punishment communicates moral blame)

Weaknesses

• Doesn’t guarantee social benefit: because it’s backward-looking, it can justify punishment even if it doesn’t reduce future harm. (Your lecture later explicitly contrasts this with crime-control views.) 

• Fit limitations: the lecture notes it is “best suited” for serious crimes but less fitting for minor or mentally influenced offenses (because desert judgments get complicated).

Underdetermination: “proportionality” still leaves room for disagreement (what counts as proportionate?), so retribution can be criticized as too indeterminate to produce consistent outcomes without a separate scheduling system (which is exactly why later theories like Scheid focus on distribution/schedules).

DETERRENT THEORY (Deterrance)

DETERRENT THEORY (Deterrance)

• A utilitarian, forward looking theory: punishment is justified because it prevents future criminal behaviour by making punishment feared and by emphasizing consequences 

• Treats punishment less as “moral payback”, and more like a social tool: a cost is imposed to change behaviour 

Aim 

• to reduce the overall crime rate,

• to dissuade potential offenders,

• and to prevent convicted offenders from reoffending.

INTERNAL STRUCTURE: TWO DETERRANCE METHODS

• GENERAL DETERANCE: punish A person to influence everyone watching (the public learns “crime has consequences”)

• SPECIFIC DETERANCE: punish A person to influence A (the offender avoids repeating because the experience was so unpleasant)

Assumptions 

• Assumes behaviour is at least partly responsive to incentives: if a punishment is credible and unpleasant enough, it changes choices

• This is why deterrence is closely tied to legal design questions like certainty/visibility of punishment and repeat offender escalation (harsh sentences, publicity, repeat offender longer sentences, and traffic cameras/fines)

What Counts as “Success” For Deterrance 

• Success is empirical: crime reduction (or at least reduced offending in the relevant category).

How it Shapes the Legal Context (Sentencing Implications)

• penalties that signal consequences (general deterrence)

• penalties that teach the offender through unpleasant experience (specific deterrence)

• sometimes escalating sanctions for repeat offenders, and using publicity/enforcement mechanisms.

  • Sentencing becomes: “What punishment is likely to prevent future crime (in society or in this offender)

Strengths 

• Direct harm-prevention rationale: it links punishment to protecting society by preventing future wrongdoing.

• Explains many real legal practices: repeat-offender escalation, publicizing convictions, fines with high enforcement certainty, etc.

Weaknesses 

• Proportionality risk / excessive punishment: if the point is to scare others, deterrence can pressure the system toward harsher-than-deserved punishment (the classic “make an example” worry). The Scheid lecture explicitly notes utilitarian approaches can justify excessive punishment for deterrence.

• Effectiveness limits: deterrence is weaker if offenders are not acting rationally (your lecture flags it’s less effective for impulsive/intoxicated offenses).

Fairness worry: if deterrence is all that matters, it risks treating people as tools for social outcomes rather than as responsible agents being held accountable.

REFORMATIVE THEORY (Rehabilitation/Reformation)

REFORMATIVE THEORY (Rehabilitation/Reformation)

• Justifies punishment as a way to transform the offender into a law-abiding member of society by addressing underlying causes of crime (socio-economic factors, psychological issues, lack of opportunity).

• So the theory reinterprets punishment: not primarily payback or fear, but a corrective social practice aimed at reintegration.

Aims 

• rehabilitate through education/vocational training/counseling/therapy

• reintegrate into society

• reduce recidivism: the tendency of a convicted criminal to reoffend.

• address root causes of criminal behavior.

Assumptions 

• “No one is born a criminal”, criminal behaviour often results from remediable conditions, so punishment should facilitate positive change rather than only impose suffering. 

What Counts as Success

Success is measured by outcomes like:

• reduced recidivism,

• successful reintegration,

• measurable engagement with rehabilitative supports

Sentencing Implications 

Reform pushes law toward individualized, treatment-oriented sentencing, such as:

• juvenile facilities with education/training

• mandated drug rehab

• probation/parole with supervision and reform conditions

• restorative justice processes (meeting victims, making amends).

Strengths 

• Targets long-term crime reduction without relying purely on fear: it tries to actually change the conditions that generate crime.

• Fits contexts like juveniles/first-time offenders: your lecture explicitly says it’s ideal for juveniles and first-time offenders and less applicable to habitual offenders.

Weakness/Criticisms 

• Insufficient for high-risk cases: reform can look naive or dangerous if public protection is urgent (the need to incapacitate may override rehabilitation).
  Legitimacy/condemnation gap: for serious crimes, purely rehabilitative responses can fail to express condemnation and can seem unjust to victims (your lecture notes systems blend theories for precisely this reason).

Practical limits: rehabilitation depends on institutional capacity (programs, funding, compliance), so the theory can be criticized for requiring conditions the system often fails to provide.

PREVENTATIVE THEORY (Prevention/Incapacitation)

PREVENTATIVE THEORY (Prevention/Incapacitation)

• Preventive theory justifies punishment by focusing on public safety through incapacitation: remove the offender’s ability to commit further crimes by confinement or restrictive legal measures.

• So prevention treats punishment as a risk-management tool: it’s justified when it blocks future harm.

Aims 

• managing the threat posed by offenders and protecting society, using tools that restrict liberty to reduce risk.

Assumptions 

• It assumes some people pose a continuing risk, and law’s central duty is protection of society. That’s why it prioritizes incapacitation over condemnation or rehabilitation.

What Counts as Success 

• Success is immediate: fewer harms occur because the offender is unable (or legally blocked) from committing them.

Sentencing Implications 

classic preventive measures:

• imprisonment (most common),

• death penalty / life imprisonment (permanent incapacitation logics),

• preventive detention laws,

• banning/restraining orders, forfeiture of assets.

• So prevention pushes law toward sentences that emphasize incapacity rather than desert or reform.

Strengths 

• Direct public safety justification: where risk is high, incapacitation cleanly explains why the state restricts liberty.

• “crucial for high-risk offenders ensuring public safety.”

Weaknesses 

• Civil liberties / abuse risk: the reading explicitly calls preventive detention “highly controversial” due to misuse and infringement on civil liberties.

• Disproportion risk: your lecture warns it can cause disproportionate punishment for minor crimes (because it’s risk-based rather than desert-based).

Justice concern: prevention can punish on the basis of predicted future behavior, which threatens the idea that punishment should respond to culpable wrongdoing already done.