Theories of Criminal Punishment

There are a variety of theories about why we punish criminals. While each theory has its adherents and critics, the theories themselves are not necessarily mutually exclusive. The discussion on the theories of criminal punishment is very important in today’s society because of the high level of recidivism in the United States. If criminal laws were implemented that were based on ineffective theories of punishments, these laws could result in an increase in crime rather than a decrease in crime. The following list of theories for criminal punishment is given in Wayne R. LaFave’s Hornbook on Criminal Law 5th Edition:

1. Prevention
2. Restraint
3. Rehabilitation
4. Deterrence.
5. Education
6. Retribution
7. Restoration

Prevention, which if also called intimidation, aims at convincing criminals from becoming recidivist by giving them an unpleasant experience that they do not wish to repeat. This theory of punishment differs from the deterrence theory because it is aimed at someone who is already a criminal rather than at someone who may become a criminal. This theory has been challenged due to the high degree of recidivists. Nonetheless, some argue that prevention should be the main goal of a criminal justice system.

Restraint is expressed as incapacitation, isolation, or disablement. It is the theory of punishment that argues that society may protect itself from individuals who have displayed violent tendencies. The argument is that restrained criminals cannot commit additional crimes. There are several criticisms against this theory including the destructive tendency that that formerly restrained individuals often inflict on society if they are not in some manner rehabilitated.

Rehabilitation is also called correction and sometimes reformation. This theory argues that society ought to “punish” a criminal by giving him appropriate treatment in order to return him to society as a ‘reformed’ individual. The focus in rehabilitation theories of punishment is towards making the criminal’s life better and by changing their behavior. Thus, there is little focus on suffering.  The primary criticism of this theory is that it fails to display results.

Deterrence is sometimes referred to as general prevention. This theory argues that the sufferings of the criminal are able to deter others from committing future crimes. The primary criticism against this theory is that it is ineffective. However, there seems to be some level of agreement that punishment is effective in deterrence at some level. Deterrence may not be effective for crimes of emotion, but it may be effective in reducing the number of individuals that become professional safebreakers.

Education, this theory argues that criminal punishment serves to educate the public regarding the distinctions between good and bad. While the general public may not need education regarding serious evil actions, they may need education for less serious crimes. A major criticism is that failure to prosecute under this theory also infers that the public has been educated not to consider certain actions a crime.

Retribution is the oldest theory of punishment. It is also called revenge or retaliation (or even the “just deserts” theory.) It derives from the principle that the one who has caused harm to society should himself suffer for that harm. The primary criticism is that retribution is merely retaliation and serves no moral or practical purpose. However, supports of this theory claim that it provides a check against tyranny because a person is only punished when he deserves it, and is not punished when he does not deserve it. Likewise, supporters of this theory reject utilitarian approaches on punishment because they hold the view that punishment ought to not be inflicted upon a person in order to benefit society as a whole.

Restoration, also called restorative justice, focuses making amends for the offending, particularly the harm caused to the victim, rather than inflicting pain upon the offender. This is done through a process of the criminal recognizing the wrongfulness of his actions and expressing remorse for the resulting injury and taking necessary steps to repair the wrong. The critics of this theory argue that Restoration Theories treat like criminals unequally, and that it is ineffective in reducing crime.