In this lesson, you will learn about the purposes of sentencing. Specifically, this lesson will cover:
1. Retribution
In this lesson, we will discuss the four primary purposes of sentencing, including:
- Retribution
- Deterrence
- Incapacitation
- Rehabilitation
Retribution, arguably the oldest of the philosophies of punishment, is the only one that is “backward-looking,” or focused on the past offense; the punishment does not address anything in the future, only for the past harm done. The primary goal of retribution is to ensure that punishments are proportionate to the seriousness of the crimes committed, regardless of the individual differences between offenders.
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Retribution focuses on the past offense, rather than the offender.
This can be phrased as “a balance of justice for past harm.” People committing the same crime should receive a punishment of the same type and duration that balances out the crime that was committed.
Retribution expresses a primordial, or existing since the beginning of time, concept of revenge, or "an eye for an eye." This concept of vengeance implies that if someone perceives harm, they are within their rights to retaliate at a proportionate level. The idea that retaliation against a transgression is allowable has ancient roots in the concept of lex talionis, which roughly translates as the “law of retaliation.”
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EXAMPLE
A person who injures someone should experience a similar amount of pain and suffering.
The idea of lex talionis was developed in early Babylonian law, and it is here that we see some of the first written forms of justice policy.
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The Babylonian Code, or the Code of Hammurabi, which dates back to 1780 B.C.E., is considered to be the first attempt to codify laws within a societal formation. These laws largely represent a retributive approach to punishment.
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- Retribution
- A theory of punishment suggesting that offenders should be punished because they deserve it, based on the severity of their crime, to provide a sense of justice and moral balance.
- Vengeance
- A punishment inflicted or retribution exacted for an injury or wrong.
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Lex Talionis
- A “law of retaliation.” A person who injures someone should experience a similar amount of pain and suffering.
2. Deterrence
Forward-looking ideologies are designed to provide punishment, but also to reduce the level of reoffending. Philosophies of deterrence evolved during the Enlightenment, which also gave rise to the "classical era" of criminology, which regarded crime as a rational—and thus preventable—behavior.
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Deterrence is designed to punish current behavior while also warding off future criminality through the threat of sanctions.
Deterrence is often discussed within two categories:
- Specific
- General
Specific deterrence is geared toward the existing, individual offender. It is meant to better that individual so they will not recidivate or reoffend. By punishing the offender (or threatening a sanction), it is assumed they will avoid future criminality, having experienced the pains of punishment. It is this point that makes deterrence a forward-looking theory of punishment.
General deterrence runs along the same track as specific deterrence; however, general deterrence intends to dissuade would-be offenders who observe the punishment of others.
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EXAMPLE
If HR (human resources department) publicly reprimands a late employee, other workers may increase their efforts to arrive on time.
For deterrence to work, the people to be deterred (including society as a whole) must have some knowledge and understanding of the punishments they might receive. Theories of deterrence operate on three basic assumptions:
- Individuals have free will, some level of rationality, and orientation toward pleasure. Free will refers to everyone’s ability to make choices about their future actions, like choosing when to offend and not offend.
- They must have the ability to rationally predict the outcomes of their chosen behaviors.
- Individuals must be oriented toward feelings of pleasure and the avoidance of pain. This is known as hedonistic calculus, or the tendency to balance pleasure with pain. Applied to offending, it means that individuals will weigh the pleasures associated with offending against the pains they may suffer if caught and sanctioned.
It is more probable that crime will be deterred if all three of these elements are in place within society.
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Can you think of examples in modern society where general deterrence is used to influence public behavior? Are there cases where this approach might fail?
The success of deterrence also requires that punishments are certain, swift, and proportionately severe.
- By making punishment certain (or at least making the public think that their offenses will be punished), would-be offenders may be appropriately deterred. According to classical criminologist Cesare Beccaria, who you might remember from an earlier lesson, this is the most important of these three preconditions of effective deterrence.
- The celerity, or swiftness, of punishment, is a secondary factor in preventing crime. If people know that punishment will be quickly delivered, they may be more afraid to break the law.
- Finally, in order for the law to retain its legitimacy, punishment must only be as severe as necessary.
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The three elements for deterrence to be effective: certainty, swiftness, and proportionality of punishment.
Today, we have a more scientific understanding of the effectiveness of deterrence, based on crime statistics. It does appear to work for some lower-level offenses and for individuals that are generally prosocial. However, the overall effect of deterrence is limited.
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- Deterrence
- A strategy that aims to discourage individuals from committing offenses by instilling fear of punishment or consequences.
- The Enlightenment
- An intellectual movement that took place in the 17th and 18th centuries that emphasized reason and science over superstition and faith.
- Specific Deterrence
- A strategy that aims to prevent an individual offender from reoffending by imposing a punishment that discourages them from committing future crimes.
- General Deterrence
- A concept of preventing crime by using the threat of punishment to discourage the broader public from engaging in illegal activities.
- Free Will
- The power of acting without the constraint of necessity or fate; the ability to act at one's own discretion.
- Hedonistic Calculus
- A theory that individuals weigh the potential pleasure of an action against its possible pain or consequences to make rational decisions about whether to commit a crime.
- Certain
- A guaranteed and predictable consequence for committing a crime, ensuring that offenders know they will be punished if they violate the law.
- Swift
- The promptness of punishment following a crime, ensuring that consequences are immediate and closely linked to the offense to effectively discourage future criminal behavior.
- Severe
- A punishment is harsh enough to outweigh the benefits of committing a crime, thereby discouraging individuals from engaging in illegal behavior.
3. Incapacitation
Rooted in the concept of banishment, incapacitation is the removal of an individual from society, for a set amount of time, so they cannot commit crimes (at least not in society) during that period.
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In British history, this often occurred on large ships that carried convicted individuals off to faraway lands. The point was to prevent them from committing crimes in their original community.
Beginning in the 1950s, punishment became much more of a politically relevant topic in the United States. Lawmakers and others began to campaign based on their perceived toughness on crime, using the public’s fear of crime and criminals to benefit their agendas.
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One way that such officials could show that they were tough on crime was through their support for long prison sentences.
Such policies might be considered as collective incapacitation, or the incarceration of large groups of individuals to limit their ability to commit crimes.
The 20th century saw a continued increase in the use of prison—and long prison sentences—to punish offenders. For this reason, the U.S. experienced a rapid growth in state and federal prison populations over the past 40 years—what we commonly refer to now as mass incarceration. This "politicization of punishment" increased the overall imprisonment rate in two ways:
- By limiting the sentencing discretion of judges, the country as a whole has effectively gotten tougher on crime.
- More people were being sentenced to prison that may have otherwise received probation or another community sanction alternative.
- The legal sentences and sentencing ranges passed by legislators (and endorsed by prosecutors, in their charging decisions) have led to harsher and lengthier punishments for certain crimes.
- Offenders are being sent to prison for longer sentences, which has caused the intake-to-release ratio to increase, causing enormous buildups of the prison population.
The incapacitative ideology followed this design for several decades. In the early 1990s, policies were implemented that targeted individual offenders more specifically, through habitual offender or “three strikes” policies. Such policies incarcerate individuals for greater lengths of time if they have prior offenses. These policies reflect a philosophy of
selective incapacitation.
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How do you think long prison sentences affect not just offenders, but their families and communities? Are there alternative approaches that might achieve the same goals?
Evidence on the effectiveness of selective and collective incapacitation is mixed at best. Policymakers may promote their utility through anecdotal examples of locking certain offenders away, in order to help assuage the fear of crime. Researchers, however, have shown that there are minimal savings at best, stating that these goals do not achieve the intended results as previously suggested (Blokland & Nieuwbeerta, 2007).
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- Incapacitation
- A goal of punishment that aims to protect society by physically restricting offenders, typically through imprisonment, to prevent them from committing further crimes.
- Collective Incapacitation
- A crime control strategy that involves imposing long or mandatory sentences on broad categories of offenders, regardless of individual risk, to reduce crime by restricting the ability of these groups to reoffend.
- Selective Incapacitation
- A crime control strategy that involves imposing longer sentences on high-risk offenders who are deemed more likely to commit serious crimes, aiming to reduce crime by targeting those who pose the greatest threat to society.
4. Rehabilitation
Rehabilitation is the only one of the four main ideologies that most accurately attempts to address all three goals of corrections, which are:
- Punish the offender.
- Protect society.
- Rehabilitate the offender.
Certainly, all four ideologies address the first two goals of punishment and societal protection. However, the goal of rehabilitating the offender is either silent or not addressed in retribution, deterrence, or incapacitation. This does come as a cost. As we will talk about in more detail when covering prisons and jails, our societal reliance on incarceration has resulted in a persistent paradox, or something that runs contrary to one’s expectation.
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Most offenders will come out of institutions—roughly 95% of all people who enter prisons are released—yet little is done to change them while they are there.
This is mostly due to our attitudes towards people who commit crimes, the policies that guide prison life, and the institutions themselves. And yet, there is the expectation that individuals leaving prisons will not commit crimes in the future.
Rehabilitation has taken on different forms through its history in the United States. In the 19th century, a group of justice reformers theorized that prisons might serve as a place for spiritual rehabilitation. Offenders were conceptualized as out of touch with God, and so a solution to their criminality was to show penitence or remorse after reflection.
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One of America’s earliest prisons was designed with this in mind. The Eastern State Penitentiary, opening in 1829, included outside reflection yards so that people housed there could look up to God in penance.
Reformatories, which followed the penitentiary model, were another example of how rehabilitation was viewed in the past. The reform movement tried to rehabilitate people through more humane treatment, to include:
- Basic education
- Religious services
- Work experience
- General reform efforts
This was done to “fix” and improve individuals, thus allowing them to come back to society successfully.
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EXAMPLE
The Elmira Reformatory was one of the earliest efforts of the reform ideal, and many prisons built in the United States were based on this prison.
Other attempts at rehabilitation included more medical approaches. Beginning in the early 20th century, some correctional theorists promoted the idea that people who committed crimes were sick or biologically abnormal—sometimes incurably so. Such theories informed policies of prisoner sterilization, as well as surgical interventions that we would now recognize as inhumane or cruel.
Rehabilitation, as an ideology, has had critics. This is in large part due to how it is perceived. Many have voiced the objection that such efforts are “soft” on crime—a critique that is particularly effective during times where there is a high fear of crime. Yet researchers have also problematized the use of rehabilitative efforts in prison.
IN CONTEXT
Most notably, Robert Martinson published a review of such polices in 1974 entitled “What Works?” In his review of over 230 programs, Martinson concluded that:
"With few and isolated exceptions, the rehabilitative efforts that have been undertaken so far have had no appreciative effect on recidivism."(Martinson, 1974, p. 25)
This was the spark that many needed to turn toward the more punitive ideologies that characterize the correctional system today. At the same time, this study did raise many important questions about why rehabilitation was not working, how to better evaluate it, and how to understand the differences between what does and does not work.
Today’s rehabilitative efforts do still carry punishment and societal protection as goals, but the focus of rehabilitation is on the changing of offenders’ behaviors so that they are not dangerous in the future. This is done by better understanding risk factors for offending, and how some people are at a higher risk for recidivism than others. Such evidence-based risk factors include:
- Prior criminal history
- Antisocial attitudes
- Antisocial (pro-criminal) friends
- A lack of education
- Family or marital problems
- A lack of job stability
- Substance abuse
- Personality characteristics (mental health and antisocial personality)
While we can’t change the number of priors someone already has, all of these other items can be addressed. These are considered offenders’
criminogenic needs. Criminogenic needs are items that, when changed, can lower an individual’s risk of offending.
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This is a core component of Gendreau’s (1996) principles of effective intervention and are at the heart of most modern effective rehabilitation programs.
Additionally, thousands of people convicted of crimes have been assessed on these items, which has helped to further develop evidence-based rehabilitation practices. When these criminogenic needs are addressed, higher-risk individuals demonstrate positive reductions in their future risk for offending.
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- Rehabilitation
- A goal of punishment that focuses on reforming offenders by addressing the underlying causes of their criminal behavior, with the aim of reintegrating them into society as law-abiding citizens.
- Reformatory
- An institution to which youthful offenders are sent as an alternative to prison; a reform school.
- Criminogenic Needs
- The factors or behaviors, such as substance abuse or lack of employment, that directly contribute to an individual's likelihood of engaging in criminal activity and can be targeted for intervention to reduce reoffending.
In this lesson, you learned about the four primary purposes of sentencing—retribution, deterrence, incapacitation, and rehabilitation—each representing a different philosophy about punishment. Retribution is a backward-looking ideology that focuses on punishing people based on the severity of their crimes, ensuring proportionate justice without considering future behavior. Rooted in ancient practices like lex talionis, or the "law of retaliation," retribution aims to balance the scales of justice, providing punishment as a response to the harm done.
Deterrence, on the other hand, is forward-looking, seeking to prevent future offenses by instilling fear of punishment. It operates on two levels: Specific deterrence targets individuals to discourage repeat offenses, while general deterrence uses the punishment of one individual as a warning to others. Effective deterrence relies on punishment being certain, swift, and severe enough to outweigh the perceived benefits of crime.
Incapacitation aims to protect society by removing people who have committed crimes from the community, often through imprisonment. This strategy has evolved from practices which impose harsh sentencing to prevent crime to selective incapacitation, focusing on high-risk individuals who are more likely to reoffend. Despite its widespread use, especially during the rise of mass incarceration in the U.S., evidence on its effectiveness is mixed.
Lastly, rehabilitation focuses on reforming people by addressing criminogenic needs like substance abuse, lack of education, or antisocial behavior. Although rehabilitation has faced criticism for being seen as "soft" on crime, modern approaches emphasize evidence-based practices that target specific risk factors, aiming to reduce recidivism by supporting peoples' reintegration into society. In the next lesson, you will learn more about indeterminate and determinate sentencing.
