Three Ethical Frameworks for Punishment

¶ … humans have been concerned with the most expedient and effective means of punishment for a crime committed. Recently, the United States has turned more to a correctional than a rehabilitative approach to punishing offenders. Studies conflict as to the success of this approach, although numbers of crimes have declined moderately. In addition, such incarceration leads to other problems such as considerably higher costs and increasing numbers of offenders having chronic diseases such as AIDS.

According to Gould and Sitren in "Crime and Punishment: Punishment Philosophies and Ethical Dilemmas," there are three major frameworks that address the purpose of punishment -- utilitarianism, deontology and peacemaking.

Utilitarianism recognizes the purpose of punishment in terms of the end result. For utilitarians, punishment is justifiable because it creates a greater balance of happiness vs. unhappiness. For Bentham, punishment should be utilized to maximize the total pleasure or minimize the total pain of all parties impacted by the crime (Gold, 2000). Perhaps the most common defenses of capital punishment are on utilitarian grounds. From the utilitarian perspective, capital punishment is justified if it prevents the criminal from repeating his crime or deters crime by discouraging would-be offenders, since both of these contribute to a greater balance of happiness in society.

Kant, a deontologist argues, however, that punishment cannot be promoted only for the good of society or the criminal. Rather, punishment must occur only when an offender has committed a crime.

Peacemaking aims to include three factors into the criminal justice system -- connectedness to each other, caring as the primary element in corrections, and mindfulness of the needs of others (Braswell & Gold, 2002). In short, the correctional system must change its response to crime from one of violence to use of approaches such as mediation, meditation and spiritual growth (Braswell et. al., 2001), dispute resolution and conciliation. Braswell, Fuller, and Lozoff in their book Corrections, Peacemaking and Restorative Justice: Transforming Individuals and Institutions (2001) argue that that a peacemaking approach involves the use of humane, nonviolent and scientific ways to effectively deal with unethical behavior.

The basic question is why should wrongdoers be punished? Those favoring retribution argue that punishment serves as a means of restoring the balance between the offender and society. Arguments against this retributive approach include: the burden of proof is on the defender of capital punishment to show that the same effects could not be accomplished with less severe punishment, such as life imprisonment and, as pointed out by contemporary political philosopher Bedeau (2002), concerns the ratio of innocent lives saved per execution. In the best case scenario, executing five dangerous convicts will result in saving five innocent lives in the future. As the number of executions increases, the number of innocent lives saved will not increase proportionally. Eventually, it may be necessary to have one thousand additional executions to save one innocent life.

Another reason for punishment is to incapacitate criminals and cut them off from the society they are harming. Those supporting this philosophy say that it is a means to maintain control over offenders. Those in the other camp argue that incarceration does nothing but warehouse offenders. There are no rehabilitative processes for when, and if, they are placed back in society. Recidivism rates run high.

The question of how best to reduce the number of repeat criminal offenses continues. Studies have not yet been successful on finding exact causative factors. The "three strikes you are out" law in California has been very costly and inconsistently followed by the judicial system. Prosecutors have wide discretion on the charging of offenders and the definition of the word "felony."

Meanwhile, the success of rehabilitation and treatment programs such as boot camps, vocational training and intensive counseling has also been inconclusive. Some programs appear to be effective for specialized populations: delinquents receiving family therapy have lower rate of adult offenses than those only receiving probation.

Deterrence appears to be a positive and forward-looking alternative. Since it is impossible to change the past, the best thing for society to do is to be preventative and keep offenders from committing crimes in the future (Wesley, 2003). The idea is that an individual's choice can be deterred by the anticipation of punishment if engaging in a criminal act (Hudson, 2002). This approach has its advantages, but problems as well. For example is the difficulty in determining what will deter individuals, since even the death penalty has not been proven to be effective.