Sentencing Philosophies: Four Theories of Punishment

Introduction to Punishment Theories

Punishment is grounded in four main theories: retributive, deterrent, reformative, and preventive. Retributive theory is the oldest and arguably the most foundational of the four. The deterrent theory punishes offenders with the primary aim of discouraging wrongdoing—both by the individual offender and by the general public—thereby preventing future criminal acts. Preventive theory focuses on stopping the offender from committing the same crime again, while reformative theory concentrates on rehabilitating the offender. To modern penologists, purposeless punishment is useless; they hold the belief that every offender is, in a sense, a patient who deserves to be treated as a human being. Each of these four theories carries its own advantages and disadvantages (Akers, 2000; Moyer, 2001).

Retributive Theory

Retribution is possibly the most ancient justification for punishment, by which an offender makes amends for wrongdoing by receiving a deserved penalty. It is rooted in a spirit of revenge. At least since the formulation (around 1875 B.C.) of the Code of Hammurabi—"a tooth for a tooth and an eye for an eye"—leaders have supported this approach and the general public has accepted that every criminal should be made to suffer. Several authorities have sought to ground human punishment in instinctive reactions such as anger, wrath, resentment, and revenge. Both philosophers and theologians have supported the theory of retributive justice (Tonry, 2005). Some have attempted to find equivalents of human punishment in the animal kingdom in order to legitimize the instinctive basis of punitive action. However, seeking an exact parallel between human punishment and animal behavior is problematic. In practice, we frequently observe that human reactions to crime—whether from the public or the injured party—tend to be wrathful, indignant, and spontaneous. In American society, particularly offensive crimes such as rape, cold-blooded murder, or kidnapping incite widespread resentment and indignation. Even in other cultural contexts, it is common to witness spontaneous physical responses to offenders caught in the act. Such wrongs and injuries reliably provoke immediate instinctive anger and wrath (Zaibert, 2006).

The conventional retributive principle of "let the punishment fit the crime" formed the main basis for sentencing practices applied to criminals across most of 19th-century Western Europe. This standard was subsequently modified by a neoclassical understanding that certain offenders may be less culpable or blameworthy due to factors beyond their control—such as mental defect or disease, immaturity, or diminished capacity. Under the retributive theory of just deserts, the moral gravity of the offense and the punishment imposed should correspond, and, to a lesser extent, should also reflect the offender's individual characteristics (Von Hirsch, 1992).

A recent example of retributive values informing sentencing policy is the system of mandatory sentencing guidelines in the United States. Mandatory sentences prescribe consistent sanctions for individuals who commit certain types of crimes (for example, enhanced penalties for offenses committed with firearms), while determinate sentencing guidelines and policies recommend specific punishments based on the seriousness of the offense and the extent of the offender's prior criminal record (Tonry, 2005). Consistent with a retributive philosophy, punishment under these sentencing schemes focuses primarily on the severity and nature of the crime rather than on the characteristics of the offender.

Although retribution is most commonly associated with criminal sanctions, it also applies to various legal and informal sanctions. Civil proceedings based on strict liability, for instance, are related to retributive philosophy in that both punitive and compensatory damages focus on the severity of the prohibited act rather than the character of the offender (Zaibert, 2006). Lethal and nonlethal sanctions arising from blood disputes between rival families, range battles in agrarian societies, terror attacks on civilian and government targets, and acts of street justice by vigilante groups are largely fueled by the twin motives of retribution and revenge. Various economic sanctions that restrict business practices—such as injunctions, asset forfeitures, product boycotts, worker slowdowns and strikes, decertification of programs, license revocations, cease-and-desist orders, and denial of benefits—may be justified on utilitarian grounds such as protecting society or deterring wrongdoing, but they ultimately reflect the broad belief that punishment should fit the crime (Zaibert, 2006; Tonry, 2005).

Deterrent Theory

The deterrence doctrine addresses a fundamental question about the relationship between human behavior and sanctions: Are legal and extralegal sanctions effective in minimizing deviance and achieving compliance? The effect of punishment becomes deterrent when the fear of that punishment, or its actual imposition, results in conformity (Tay, 2005). A punishment's deterrent value is directly related to its distinctiveness. In particular, punishments have the greatest potential for deterring misconduct when they are certain, severe, and swift in their application. Punishments are also generally regarded as more effective for instrumental conduct—that is, purposeful actions directed toward achieving a specific goal—and for potential offenders who have little commitment to deviance as a way of life (Jacobs, 2010).

Deterrence depends on a rational conception of human behavior in which individuals freely choose between alternative courses of action to maximize pleasure and minimize pain. From this perspective, criminal solutions to given problems become unattractive when the cost of the action exceeds the expected benefit. Certain, severe, and swift sanctions are costs believed to discourage participation in deviant behavior (Tay, 2005). From a deterrence standpoint, any form of punishment—informal, monetary, corporal, or incapacitative—that produces a lasting deterrent effect is regarded as effective when it is certain, severe, and prompt.

Research on the effectiveness of criminal punishment identifies four main types of deterrence (Jacobs, 2010; Tay, 2005):

Specific Deterrence refers to the effect of punishment on the future behavior of the particular individual who was punished. Recidivism rates—that is, rates of repeated offenses among previously convicted offenders—are commonly used to measure the specific deterrent value of a given punishment.

General Deterrence asks whether punishing certain offenders prevents others from committing similar deviant acts. Comparing crime rates across jurisdictions or over time is the most common method used to measure the overall deterrent value of punishment.

Marginal Deterrence focuses on the comparative effectiveness of different punishment techniques, such as those designed to achieve specific or general deterrent effects.

Partial Deterrence examines situations where the threat of sanctions carries some deterrent value even when those sanction threats fail to produce fully law-abiding behavior.

When the deterrence philosophy is applied to penal reform, it has frequently served as a justification for escalating the severity of sanctions, particularly in Western, more developed nations (Zimring and Hawkins, 1973). Legislative responses to terror attacks, child abductions, drug trafficking, and violent crimes near schools have been primarily aimed at increasing both the severity and duration of punishments—for example, participating in drug trafficking or deadly terrorist activities has been designated a capital crime under federal law in the United States. Although such more severe punitive measures may satisfy widespread public demands to get tough on crime, the general and specific deterrent effects of these efforts are likely limited without adequate attention to the other key conditions for effective deterrence—namely, high certainty and swiftness of punishment (Jacobs, 2010).

Conclusion

The four theories of punishment—retributive, deterrent, preventive, and reformative—each offer a distinct rationale for the practice of criminal sentencing. Retributive theory grounds punishment in moral desert and proportionality; deterrence theory relies on rational cost-benefit calculations to discourage future offending; preventive theory seeks to physically restrict criminal opportunity through incapacitation; and reformative theory aims to rehabilitate offenders and restore harmony between offenders, victims, and the community. Each theory has its strengths and limitations, and in practice, modern sentencing systems often draw on more than one of these philosophies simultaneously. Understanding these theoretical foundations is essential for evaluating the justice, effectiveness, and humanity of any penal policy.

References

Akers, R. L. (2000). Criminological theories. Los Angeles: Roxbury.

Ashworth, A. (2003). Principles of Criminal Law (4th ed.). Oxford: Oxford University Press.

Fogel, D. & Hudson, J. (1981). Justice as Fairness. Cincinnati, OH: Anderson.

Jacobs, B. (2010). Deterrence and deterrability. Criminology, 48(2), 417–441.

King, R. and Mauer, M. (2002). State Sentencing and Corrections Policy in an Era of Fiscal Restraint. Washington, DC: Sentencing Project.

Morris, N. & Tonry, M. (1990). Between Prison and Probation: Intermediate Punishments in a Rational Sentencing System. New York: Oxford University Press.

Moyer, I. L. (2001). Criminological theory: Traditional and nontraditional voices and themes. Thousand Oaks, CA: Sage.

Petersilia, J. & Reitz, K. R. (2012). Oxford Handbook of Sentencing and Corrections. Oxford: Oxford University Press.

Tay, R. (2005). General and specific deterrent effects of traffic enforcement: Do we have to catch offenders to reduce crimes? Journal of Transport Economics and Policy, 39(2), 209–223.

Tonry, M. (2005). The functions of sentencing and sentencing reform. Stanford Law Review, 58, 37–66.

Von Hirsch, A. (1992). Proportionate punishments. In A. von Hirsch & A. Ashworth (Eds.), Principled sentencing. Boston: Northeastern University Press.

Walen, A. (2011). A punitive precondition for preventive detention: Lost status as an element of a just punishment. San Diego Law Review, 48, 1229–1272.

Ward, M. (2004, December 7). Rehab trend for convicts gaining favor. Austin American Statesman, pp. A1, A12.

Weatherburn, D. (2010). The effect of prison on adult re-offending. Crime and Justice Bulletin, 143.

Zaibert, L. (2006). Punishment and retribution. Aldershot, England: Ashgate.

Zimring, F. and Hawkins, G. (1973). Deterrence: The legal threat in crime control. Chicago: University of Chicago Press.

Zimring, F. E. & Hawkins, G. (1995). Incapacitation: Penal confinement and the restraint of crime. Oxford, UK: Oxford University Press.