Retributive justice
From Wikipedia, the free encyclopedia
Retributive justice is a theory of criminal justice wherein punishments are justified on the grounds that the criminal has created an imbalance in the social order that must be addressed by action against the criminal. The theory is often associated with harsh punishment, and the phrase "an eye for an eye, a tooth for a tooth" is a commonly heard justification for this theory. However, proponents of the theory argue that the retribution should be proportional to the crime, and that minor crimes should have mild punishments while major crimes should have harsh punishment; in other words, not "a life for an eye" or "an eye for life", but "an eye for an eye".
The proportion of the punishment to the crime with relation to the harm done or the imbalance created by the offender is the main objective of this type of justice. As much as retributive justice is common in most legal systems or social settings, it is important to know of its ability to help in crime reduction and eradication. "If it is justice, then it has to be just and not just justifiable" In any case, the weight of Retributive Justice must be proportionate to its Contributive Consequence on the whole of society.
Contents |
[edit] History
In the early period of all systems of law the redress of wrongs takes precedence over the enforcement of contract rights, and a rough sense of justice demands the infliction of proportionate loss and pain on the aggressor as he has inflicted on his victim. Hence the prominence of the "lex talionis" in ancient law. The Bible is no exception: in its oldest form it included the "lex talionis," the law of "measure for measure" (this is only the literal translation of middah ke-neged middah).
In the 19th century, philosopher Immanuel Kant wrote in The Metaphysical Elements of Justice of retribution as a legal principle: "Judicial punishment can never be used merely as a means to promote some other good for the criminal himself or for civil society, but instead it must in all cases be imposed on him only on the ground that he has committed a crime."[1]
In modern times, of all jurisdictions, the U.S. state of California has been the most aggressive in embracing the retributive justice model.[verification needed] In 1976, Governor Jerry Brown signed the Determinate Sentencing Law, which made retributivism the sole objective of the state's sentencing system: "The Legislature finds and declares that the purpose of imprisonment for crime is punishment."[2] Another example of extremism was noted in the case of one American judge who gave victims of burglary the right to enter the burglar's home and take items roughly equal in value to the items taken from the victim.[1]
[edit] Modern philosophies
In practice, retributive punishment's effect on crime has achieved mixed results. Some long-term studies in many countries, including People's Republic of China, U.S.A., and in the Islamic world and South Africa, have shown that, for instance, death penalty measures do not deter murder; others disagree. Some feel that longer sentences do not deter crime nor reduce recidivism, other than a brief respite while the offenders are actually imprisoned; others disagree and point to the obvious fact that an incarcerated offender cannot subject law-abiding people to more crime. Some exploit this limited idea of success to argue for tough justice measures, e.g. "three strikes you're out", which often deal out very long prison sentences in an attempt to keep the offenders off the street longer, and thus to reduce the long term crime rate. Critics charge this can lead to a form of carceral state where huge numbers of people are imprisoned or, at best, on parole.
Many inquiries have shown that such sentencing approaches reduce crime. But the crowded prison conditions and desocialization of inmates seem to make it all but impossible for any education, training or rehabilitation to occur, so that the inmate could find productive work in society after release (if released - again, incarcerated offenders cannot subject law-abiding citizens to further crimes). California, for example, has a three-strikes law where an offender receives strikes for "serious and violent felonies"; each strike is factored into subsequent sentencing for continued convictions, three strikes makes an offender eligble for a life sentence. The effect this has on crime is disputed by some.
At the same time, some have argued that a zero tolerance policy toward minor crimes creates a social atmosphere of order, which prevents more serious crime from occurring; several studies support this notion. Less severe than a zero tolerance approach is the so-called "Broken Windows" approach to policing and criminal justice. This approach involves vigilantly policing petty crime in an effort to prevent a disordered environment conducive to more serious crime. Although intensive, it borrows much from Right Realism in general and Rational Choice Theory in particular.
Furthermore, there are many who advocate punishment of criminals regardless of the presence or absence of a deterrent effect. The belief underlying this view is that the need for a criminal to be punished is a requirement that comes from basic fairness and justice and not necessarily as a result of deterrence.
Alternatives to retributive measures include psychiatric imprisonment, restorative justice and transformative justice. They are discussed more in those articles. A general overview of criminal justice puts each of these ideals in context.
Retributive justice can be contrasted to restorative justice. It is a way to see crime as a violation of the state. It is defined by lawbreaking and establishment of guilt. It determines blame and administers punishment in a contest between the offender and the state.
One libertarian approach to this issue argues that full restitution (in the broad, rather than technical legal, sense) is compatible with both retributivism and a utilitarian degree of deterrence.[1]
[edit] Subtypes
There are two distinct "flavors" of retributive justice. The classical definition embraces the idea that the amount of punishment must be proportional to the amount of harm caused. A more recent version, advocated by Michael Davis, dismisses this idea and replaces it with the idea that the amount of punishment must be proportional to the amount of unfair advantage gained by the wrongdoer. Davis introduced this version of retributive justice in the early 1980s, at a time when retributive justice was making a resurgence within the philosophy of law community, perhaps due to the practical failings of reform theory in the previous decades. This was to many a breath of fresh air into a theory that had been all but abandoned decades prior, particularly in the United States. There currently appears to be a greater amount of discussion about the difference between these two flavors of retribution than between retribution itself and the other theories of punishment.
[edit] Criticism
According to some theories of ethics, punishment (or proportional punishment) is evidently self-contradictory. Retributive punishment is unethical, these theories claim, if "two wrongs do not make a right."
Some hold that the motive behind the Christian sanction for interpersonal relations ("turn the other cheek" before seeking retribution for a wrong), and the motive behind the sanctions for social magistrates (which include the application of retributive justice, e.g., "just stonings"), conflict. On the other hand, the motives for the social sanctions can be attributed to other justifications beyond simple retaliation.
Many jurisdictions following the retributive philosophy, especially in the United States, follow a set tariff, where judges impose a penalty for a crime within the range set by the tariff. As a result, some argue that judges do not have enough discretion to allow for mitigating factors, leading to unjust decisions under certain circumstances. In the case of fines, the financial position of an offender is not taken into account, leading to situations where an unemployed man and a millionaire could be forced to pay the same fine, creating an unjust situation; either the fine would be too punitive for the unemployed offender, or insufficiently large to punish the millionaire.[3]
[edit] See also
[edit] Notes and references
- ^ a b Martin, Jacqueline (2005). The English Legal System (4th ed.), p. 174. London: Hodder Arnold. ISBN 0-340-89991-3.
- ^ California Penal Code Section 1170(a)(1).
- ^ Martin, pp. 174–175.
[edit] Further reading
- Brenda Almond ed., Introducing Applied Ethics (Blackwell 1995), Part III.
- Anthony Duff ed., Punishment (Dartmouth 1993).
- Anthony Duff & David Garland eds, A Reader on Punishment (OUP 1993).
- David Garland, The Culture of Control: Crime and Social Order in Contemporary Society (OUP 2001).
- H.L.A. Hart, Punishment and Responsibility: Essays in the Philosophy of Law (Clarendon 1968).
- Ted Honderich, Punishment: the supposed justifications (Revised edn, Pluto Press 2005).
- Matt Matravers, Punishment: The Rationale of Coercion (OUP 2000).
- C.L. Ten, Crime, Guilt, and Punishment: A Philosophical Introduction (Clarendon 1987).
- Nigel Walker, Why Punish? (OUP 1991).
