Theories of Punishment - Criminal Law

Welcome back everybody to The Criminal Law, we're continuing to talk about the theories and principles of the criminal law. We're going to focus in this lesson on theories of punishment. Now again, just like with the previous lessons that we've been doing talking about the sort of justification for criminalisation, theories of punishment is of course a theoretical discussion in and of itself that probably merits its own separate series of about thirty or so lessons. So we're only going to be really scratching at the surface in this video because the aim is to just provide some of the theoretical groundings for how the criminal law operates and some of the ways in which we can understand the criminal law from a theoretical perspective. But we're going to be soon shifting away from theories of punishment, theories of criminalisation, all these ideas of the philosophy of criminal law, and moving into actually the procedural and substantive legal and doctrinal ideas behind the criminal law itself. So like I said, we've been exploring some of the basics and some of the major theories of criminalisation, we looked at harm principles and then we also looked at the concept of legal moralism. This lesson is going to talk about the theoretical underpinnings of the sort of end result of the criminal law, the finding of an individual guilty of an offence and then looking at what the purpose of punishment really is. The idea of, we know that punishment exists, we know that if an individual is found guilty of an offence, depending on the offence, you may be fined, you may be subjected to community service, you may be subjected to a prison sentence, but what are the theories behind that? Why is it the case that an individual is subjected to, say, a prison sentence or to community service? What purpose does that serve for broader society? So where an act may be criminalised, the result is that if one is found guilty of said act, there will be some kind of punishment. Now we can justify punishment on a number of different bases and essentially we need to justify the need to include punishment as part of the broader criminal process. We're going to look at four of the common justifications for having punishment as part of the criminal process in this lesson. The first of which is this idea of deterrence. Now I will also like to preface this lesson and preface this before we look at these different theories of punishment in more detail by making clear that I'm not going to suggest that all of these may be correct, or that some may be incorrect, or some may be more valuable than others, or some may be more important than others. I'm simply going to be quite descriptive in my explanation of each of these different theories. And so for the first one we're going to talk about this idea of deterrence. Now this is the theory that the idea behind punishment is to essentially deter those other people from committing a crime, essentially to deter others from committing said crime. So the idea here is if you see someone who has committed theft and then they are then subjected to quite a hefty punishment, they may be subjected to some prison time, that punishment seems so bad that you don't want to do the same thing. That's going to deter you from committing that offence as well. So if, for example, there was some crime of benefit, like an act or an omission which would benefit you in some way, like theft or fraud, then you'd be more likely to do it in circumstances where there is no punishment attached to the performance of said act, or where the risks outweigh or do not out, or sorry, do outweigh the reward itself. It's too risky. The risk of getting caught and then being sentenced to a hefty prison time, for example, or a hefty fine or quite a significant punishment outweighs the risk, sorry, outweighs the reward that would be had if you committed theft or fraud, for example. So when it comes to crimes of benefit, this may be one way in which we can justify the existence of that punishment. You may be able to say, well, if you're going to benefit from said crime, if you're going to somehow come out better, and there are lots of crimes in which this may take place, I've just written here two of the dishonesty offences, but there may be others, then therefore you may feel like you are going to be less likely to commit that offence if you believe that the punishment would be so severe. So when one may be deterred from committing a crime in this nature, they have to know that they run the risk of being punished in some severe way, and so what deterrence often does is justify not only punishment, or potentially justify punishment, but then also justify quite significant punishment. So if, for example, the committing of theft resulted in only a £4,000 fine, if the theft that you're going to commit is for a lot of money, for potentially more than that, then you're not going to be that deterred from committing that offence because the punishment isn't particularly hefty. So this therefore causes a deterrence-based mindset within punishment theory to essentially allow for and to justify more and more severe punishments. So if, for example, the death penalty was on the agenda for somebody who committed theft, then the argument goes that you are less likely to commit theft because the risk of death, essentially, for the relatively minor reward of committing theft or fraud might be a deterrent to that particular offence. So you end up having quite significant punishments for the crimes that you are talking about, and that's one way in which deterrence not only justifies punishment, but then justifies quite severe punishment. The second justification for punishment is a rehabilitative format. So the idea here justifies the existence of punishment in that where there is punishment, there can be a certain degree of rehabilitation. So the aim is essentially getting those people who are found guilty of an offence to go through a process of punishment where they then learn the errors of their ways, they learn what is wrong, what is right, they learn about how to behave effectively within society, and that they come out of this punishment process as being reformed and therefore re-entering into society in a new reformed way. And what this does is treat punishment not necessarily as something that you do as penance for the crime that you have committed. It's not necessarily to deter people from crimes either, but rather it is for you to essentially reform individuals in a way that means that they do not commit crimes again. And so the aim here is that by implementing a rehabilitative format of punishment, you are then going to reduce what is known as the rate of recidivism, the rate of re-offending. So the rate of an individual coming out of prison, for example, or coming out of a particular criminal punishment and re-offending, doing the same thing again or doing something similar again, and being forced to live through this cycle of punishment and offence and crime committing and then more punishment. So rehabilitation. And this idea influences the type of punishment as well, because rehabilitation therefore does not suggest that punishments ought to be horrible or ought to be terrible. They ought to be a way for people to reform. And whatever that mode of reform is, whatever way that is that works the best, is the way that rehabilitation ought to be implemented, the way in which punishment ought to be implemented. So it doesn't justify further and further and harsher and harsher punishments. It rather just focuses on the individual and the ability for the individual to not commit crimes again. A third justification for a retributive theory of punishment essentially asserts that people who are found guilty to have committed an offence ought to have something bad done to them as a way to give them their just desserts, as a way to sort of be retributive to the bad thing that they've done to some other person. So for one, this is understood as the more colloquial meaning behind the idea of punishment. Punishment sort of in a colloquial sense is described as something of a retributive idea. The idea that you've done something bad, well because you've done something bad, something bad is going to happen to you. Essentially a sort of an eye for an eye perspective. Now the idea here, you can see when we look at more heinous offences, when you look at some for example serious sexual offences or even sexual offences involving children, there is almost a perception within society that retribution is required. Something terrible has to be done to that individual as a way to try and justify or as a way to try and balance the wrong that has been committed by said individual in question. And so for the most part this also assumes that criminals should not be subjected to punishment which is not proportional to the harm that is caused. So each of these theories as you notice kind of informs the type of punishment that is going to be applied to different offences. So for example with deterrence there is often a justification to have quite significant punishments for offences to try and stop others from doing the same offence. With rehabilitation the type of punishment is depending on entirely whether or not it reforms the person who is going to go through said punishment. But with retribution you're sort of supposed to, you look for this idea of an eye for an eye, you have this idea of proportionality that you should be subjected to the kind of punishment, to a kind of bad that is proportional to the kind of bad that you have committed. So for example smaller offences may require smaller punishment, larger offences require quite large punishments. That is the idea that is presented within this particular idea. Finally then we have this idea of incapacitation. This is the final theory of punishment and it asserts essentially that in some cases there may be individuals who are a danger to society and the purpose of punishment is to remove them from society. Now this again operates on the basis that it depends on the particular punishment in question, so the imposition of a prison sentence may be the best way of keeping people outside of society, bringing them out to protect others. And so this is another theory in which we can see the type of punishment being implemented. This doesn't necessarily work for instances where the punishment is a fine or some kind of fixed penalty notice, but it is something that may work for individuals who commit quite serious offences and therefore need to be taken out of society and put into prison to essentially keep the rest of society safe from that individual who may be a danger to the society in question.