According to Carmen et al. (2008), retribution is described as being the oldest form of punishment and is responsible for the use of the death penalty in both the ancient times and today. The more traditional definition of the term retribution is seen to contain a number of elements that can be attributed to revenge as it encompasses aspects of the old Mosaic code and the lex talionis idea of an eye for an eye. The Lex talion is seen to have been the main foundation for the Hammurabi Code that allowed for either the victim or the victim’s family to attempt to seek for revenge for any injurious behavior.
While just retribution has been variously defined as individuals being paid back for exactly that which they deserve regardless of whether they happen to welcome this repayment or not, there has been a raging debate as to whether retribution is synonymous with revenge. It is argued that retributive punishment must be regulated so as to be proportional to the exact amount of harm that was inflicted by the offender. Any punishments that are exacted for vengeful purposes generally happen to not have any internal limitation as to the amount of pain being inflicted as punishment.
Carmen et al. (2008) points out that despite attempts to try and differentiate the notion of revenge from the notion of retribution, the merging of these two elements is seen to ultimately constitute the main reason as to why the death penalty is still in use in the United States today . The death penalty in the country is to provide some form of retribution to victims and families of the victim as it at times helps them to obtain some form of closure.
With it postulation that justice essentially requires that people suffer for their own wrong doing and to suffer in a manner that is deemed to be appropriate for their crime. The use of retribution as a rationale for punishment has in recent times been reducing and the concept has come under increasing criticism and especially so in relation to the punishment of capital punishments such as murder that requires that the crime be punishable by death. Delays in exacting capital punishment in the United States have seen criminals being kept on death row for many years. This causes the criminals to endure anticipatory suffering which is argued to cause the punishment to become more severe than simply undertaking to just deprive the criminals of their lives.
Utilitarianism as a Rationale for Punishment
Utilitarianism is commonly perceived as being one of the most persuasive and powerful approaches towards the study and establishment of normative ethics in the entire history of philosophy. While there happens to be a number of notions as to what exactly is utilitarianism, the classical notion is that utilitarianism is the view that the action that happens to produce the most good can be considered to be the morally right action (Bykvist, 2009).
Utilitarianism as a philosophy is seen to mainly be characterized by the two main elements of consequentialism and happiness. In utilitarianism, utility is seen to be found in everything that is seen to contribute the general happiness of every rational being, with everything found to be useful to happiness being considered as being good. Utilitarianism also considers utilitarian happiness as being the biggest form of happiness and that all human beings are constantly in search of this happiness.
Consequentialism as applied to utilitarianism is the fact that all actions must of essence be judged based on their consequence on the happiness of the largest number. In utilitarianism, an individual’s search for happiness essentially stops when it happens to decrease the happiness of either another individual or the happiness of the largest number of the community of society.
The use of utilitarianism as a rationale for punishment is seen to be a continuation of the Roman legislation that has been modified to encompass the modern aspects of legislative, economic and political dimensions to its already existing ethical, well-being and happiness concepts. Sidgwick, Betham and Mills are attributed as being responsible for popularizing utilitarianism by giving the doctrine the more rational and practical dimensions of politics, ethics and economics that are commonly found in the modern society (Bykvist, 2009).
The utilitarian philosophy is seen to use laws in the maximization of the society’s happiness and as a result of punishment and crime being inconsistent with the ideals of happiness; they should generally be kept to a minimum. Punishment should only be used to prevent future crimes and should not be unlimited. Utilitarianism recognized that the use of punishment has consequences for both the society and the offender and that the total good that is produced by the punishment should ideally exceed the total degree of evil.
The most familiar form of incapacitation is found to be imprisonment . Imprisonment is seen to aid in preventing individuals from engaging in any undesirable acts within the general free society by removing the offending individuals form the this society. Incapacitation is usually designed to be so unpleasant such that it will generally tend to greatly discourage the offenders from any attempts at repeating their criminal behavior. Incapacitation is seen to primarily be based on psychological effects and is independent of various psychological mechanisms such as fright or pain; this is because incapacitation is generally independent of the victim’s cooperation (Tsokos, 2008).
As evidenced by the large number of imprisoned individuals in the criminal justice system, it is found that although incapacitation is generally found to be the most widely used rationale for punishment within today’s criminal justice system, it is arguably found to not be quite effective. Research conducted by Leopold (2011) shows that by the end of 2004, an approximated 1.5 million American were imprisoned which is seen to translate to an average of about 1 inmate for every 200 people in the country. Leopold (2011) points out that the approximately 600,000 inmates that are annually released from prisons in America have an average recidivism rate of about 50%. Research also shows that about 67.5% of those released from prison are arrested for committing new crimes within three years of their release. This high recidivism rate is a key indicator as to the general ineffectiveness of the use of incapacitation as a rationale for punishment .
Bykvist, K. (2009). Utilitarianism. [S.l.] : Continuum.
Carmen, R. et al. (2008). The Death Penalty: Constitutional Issues, Commentaries and Case Briefs. Burlington: Elsevier Science.
Leipold, Andrew D. (2006) “Recidivism, Incapacitation, and Criminal Sentencing Policy,” University of St. Thomas Law Journal: Vol. 3: Iss. 3, Article 9. Available at: http://ir.stthomas.edu/cgi/viewcontent.cgi?article=1097&context=ustlj
Tsokos, M. (2008). Forensic pathology reviews. Totowa, N.J. : Humana ; London : Springer [distributor].