Theories of Punishment

¶ … Punishment

We can generalize about the motivation for crime. Although violent crime is prevalent, the generalization that seems most accurate is that the majority of crime is motivated by economic factors. This assumption gains more weight when one considers that some violent crimes, such as robbery, aggravated assault, and murder, may be driven by primarily economic factors. Even without allowing for economic motivators to the above crimes, property crimes are approximately ten times more prevalent than violent crimes. For example, in the United States, in 1981, there were 1,321,900 violent crimes reported, including murder, forcible rape, robbery and aggravated assault. (Report to the Nation on Crime and Justice, p. 7). In contrast, there were 11,958,400 reported property crimes, including burglary, larceny-theft, and motor-vehicle theft. (Report to the Nation on Crime and Justice, p. 7). Therefore, it appears that purely economic crimes are ten times as likely to occur as crimes that may or may not be motivated, at least partially, by economic factors.

Furthermore, law enforcement is well-aware that not all crimes are reported. This lack of reporting further tilts the scales in favor of economic motivation for crimes. For example, in 1981, the reporting rate for violent crimes was almost 20% higher than the reporting rate for personal crimes of theft. Furthermore, there are many serious economic crimes that are not listed on the crime index, though almost all serious violent crimes are reflected in reporting data. For example, a substantial portion of white-collar crime does not fall under any of the available headings. In addition, many otherwise average citizens might engage in this type of crime. Income tax evasion may be one of the most pervasive crimes in the United States. The IRS estimates that there is a 300 million dollar gap between income earned and income taxes paid, and attributes this gap to people failing to report all of their income on their income taxes. (Dalrymple). That alone greatly increases the number of criminal incidents in the United States, and is clearly motivated by economic factors.

Embezzlement and fraud are also economically-motivated crimes, and the actual incident rate of those crimes may never be known. High-profile embezzlers garner attention and can steal exorbitant sums of money before being detected. However, embezzlers in low-profile, smaller businesses can also net serious financial gains. For example, in 2002, small businesses who were hit by fraud lost an average of $127,000. (Zipkin, handout p.25). Moreover, almost six percent of all small-business revenue is lost to fraud. (Zipkin, handout p. 25). Some businesses are reluctant to prosecute offenders, making it possible for offenders to hit multiple businesses throughout their working lifetimes.

Furthermore, when one looks at organized crime, one has to recognize that it is motivated solely by economic factors. This is in spite of the fact that most organized criminal activity fall under different headings, such as vice criminal activity. There is some interrelationship between organized criminal activity and white collar crime; for example, "drug dealers, gamblers, and prostitutes evade taxes on at least 34 billion dollars a year." (U.S. News and World Report, p. 64). In addition, organized criminal activity frequently involves the reselling of stolen goods, which involves several distinct crimes, each motivated by economic factors. For example, a stolen-good ring may use forged credit cards to purchase goods, and then re-sell those goods. (Garland). Such a crime involves the initial forgery of the credit card, the larcenous purchase of the goods, and the receipt of stolen property, which means at least three economically-motivated crimes, and possibly that many criminals, for each transaction.

Finally, by looking at who commits crime, one can surmise that many crimes, including crimes that may appear purely violent, like sexual assault, may be, at least partially economically-motivated. Those most likely to commit crimes are those most likely to be disenfranchised and disadvantaged; in modern U.S. society, those are young black males. Convicted criminals are likely to be unemployed, or have a history of unsteady employment. (Report to the Nation on Crime and Justice, p. 38). Furthermore, most convicted felons were at the poverty level prior to their convictions. (Report to the Nation on Crime and Justice, p.38). Finally, though most violent crimes occurred within groups that shared the same characteristics, some violent crime may be motivated by a sense of disenfranchisement, which is fueled by economic factors.

4. Retributive justifications for punishment- such as theories about making punishment "fit" what the crime or criminal "deserves" have been criticized on grounds that they assume we know a lot more than we do. For example, it is notorious that different jurisdictions assign different punishments for the same offense. In addition, it is notoriously difficult to assess an individual's personal blameworthiness for criminal conduct in terms of his or her personal history. However, neither of these factors is substantial enough to challenge the validity of retributive justice schemes. After all, it is to be expected that different jurisdictions would have different punishments for the same criminal behavior, because cultural values vary across the United States, with certain cultures and regional areas placing greater emphasis on different values. The federal system of government practically dictates that there will be conflict among the many criminal justice systems in the United States. Furthermore, an individual's personal history really should not be relevant to a punishment system. Regardless of an individual's background, one either had the ability to understand that what they were doing was a crime and should not be done at the time the crime was committed, or one did not. Such a determination, which would examine a defendant's mental competence, screening out issues such as mental retardation and mental illness, would place all competent defendants on an equal footing. A democratic form of government demands nothing less; in a society like ours, which is plagued by both racial and social prejudice, consideration of a person's personal background inevitably leads to harsher punishments for those who are disadvantaged and have had troubled lives, the very people that most opponents of a retributive justice system believe should receive less punishment.

However, a defendant's personal history can have a tremendous bearing on individual culpability in at least three ways, which are not fully accounted for in our modern criminal justice system. First, although there is currently a moratorium on the death penalty for the mentally retarded, there are no clear-cut laws regarding their criminal culpability. On the contrary, those decisions are made on a case-by-case basis. However, they are done so within a retributive justice scheme, which gives people like judges and jurors, who may not truly understand mental retardation and its impact on an individual's decision-making capabilities and impulse control, the ability to determine whether or not someone is competent to face prosecution and punishment.