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PUNISHMENT

PUNISHMENT. A. Revenge. 1. def: vindictive retaliation; usually personal, accomplished with vengeance in mind; spite 2. little scientific research exists a. i.e., there is no “theory” of revenge b. concept has not been successfully identified and

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PUNISHMENT

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  1. PUNISHMENT

  2. A. Revenge 1. def: vindictive retaliation; usually personal, accomplished with vengeance in mind; spite 2. little scientific research exists a. i.e., there is no “theory” of revenge b. concept has not been successfully identified and operationalized (measured) c. however, often used in court as a prosecutorial (criminal justice) consideration to establish motive, crime causation, and guilt

  3. 3. Barton (1999) a philosophical treatment a. Western culture views revenge with suspicion no matter how unfairly treated or abused the victim has been b.there is nothing inherent “wrong’ with resenting injustice or wanting proportional retribution 1) the Anti-Revenge perspective is the Western method of justice 2) the Pro-Revenge perspective holds that revenge is the appropriate response to victimization a) the impersonal legal response is actually revenge in disguise b) it is the moral right of the victim to impose either punishment or mercy

  4. c) instead of eliminating revenge, the goal of law should be the reduction of the wildness, the barbarity of it 4. Messina and Messina (2001), a psychological treatment a. those who seek it 1) cannot / will not forgive and forget 2) seek pay back (retribution) 3) want to see those who inflict suffering suffer themselves 4) want to get even as way of getting on with their lives

  5. b. the exhibition of emotion > bitter, intolerant, resentful, vindictive, angry, cold, critical, antagonistic, cruel, ruthless, pessimistic c. deficiency of empathy; does not feel > satisfaction, peace, gratification, contentment, relief 5. Jacoby (1983) in Wild Justice suggests that the “need for revenge is innate” a. criminal procedure expends a great deal of energy trying remove human emotion from criminal process b. so as to provide the mantle of objectivity and rationality c. unemotional justice is preferable justice d. however, punishment is bounded by a visceral as well as ethereal need for revenge

  6. B. Questions of Societal Response 1. def: punishment isa penalty or reprisal for a wrongdoing 2. in a free society / civilization, how do we punish those who have committed social wrongs? a. Why punish? b. How to punish? c. Is there anything we can do that we are not doing? d. Do issues of “harm” matter? > to the victim; to the offender; to society? 3. what is the theory of punishment? > effective punishment will halt crime

  7. C. Considerations of Punishment 1. a society of laws punishes those who are guilty; i.e., those responsible for committing crime 2. US Constitution requires due process, which allows for the judicious application and structure of fairness leading to just punishment 3. just punishment is based on proportionality a. just deserts : punishment should fit the crime b. a follow-up question would be: “Should the punishment fit the crime or the criminal?” c. included in conversation: the quantification of crime

  8. d. How much punishment is “enough” punishment? > Menninger’s (1966) “moral surcharge” 4. basic punishment principles a. punishment exists to address a moral wrong; b. punishment must not be imposed on the innocent; c. punishment must not be excessive or overdone; d. punishment must be equitable (proportionate) e. punishment must not be imposed without due process; f. punishment must be constructive, educational, and symbolic

  9. D. Justifications for Punishment 1. Philosophy / Ethics 101 a. teleology : punishment is the just end of a logical (political / scientific) process ergo: 1) the ends justifies the means 2) morality varies with the situation > what is just in one situation may not be so in another b. deontology : morality is absolute; what is wrong (or right) is always wrong regardless of when or in whatever context that wrong is committed > Rule Followers Forever!!!

  10. 2. tenets (some call these theories, but they are wrong) of punishment a. retribution : payback for a social wrong 1) some argue that this should not form the basis of judicial punishment 2) social recompense for a law violation is the responsibility / obligation of a just society 3) justification : we punish because we can and because it is a reasonable social response 4) lex talionis: the law of retaliation > an eye-for-an-eye perspective

  11. 5) it is the belief that all crimes warrant response (punishment) regardless of the criminal or whether or not the punishment has any deterrent value > punishment is virtuous 6) concern: what is the purpose of punishment? a) Education? Deterrence? Social equity? b) who decides? c) e.g.1.: persecution / prosecution of Nazi concentration camp guards, SS officers d) e.g.2: Symbionese Liberation Army soldiers e) punishment is valid whenever it can be administered

  12. b. Deterrence 1) punishment that prevents or discourages future crimes; socially virtuous 2) types a) general: reduction of crime through broad-based education 1] a concern for the common welfare 2] the recognition that it is acceptable to punish the factually innocent if the punishment prevents others from engaging in similar behaviors

  13. b) specific: crime prevention through the incapacitation of a particular individual 1] individual punishments to individuals 2] not punishing the factually guilty is only acceptable if the punishment does not provide an acceptable social lesson 3] “They did the crime, they WILL do the time!” 3) basic deterrence question: “Does punishment prevent others from committing crime?” > (do you care whether or not punishment deters?)

  14. c. incapacitation 1) depriving / removing / preventing some behavior 2) typically imposed in the form of incarceration 3) process: identify those who are criminal or who have criminal inclinations and upon detection, detain them so that they cannot commit subsequent crime 4) types a) collective: detention of all those engaged in or who may be considering similar offenses > e.g., juveniles wearing gang colors

  15. b) selective: detain specific offenders for specific offenses > Megan’s Law d. social defense 1) preservation of public safety is consideration enough for punishment / incapacitation 2) a special form of deterrence, concern lies with the prevention of harm to all (society) via the punishment of the individual > e.g., Charles Manson, inmates at Guantanamo 3) ANY punishment that prevents future crime is justifiable

  16. e. reform / rehabilitation 1) crime is a social disease that can be cured through treatment > individualized punishment and treatment 2) the quintessential dilemma of the corrections enterprise 3) Question: If an inmate does not wish to be reformed or rehabilitated, and is mandated to receive treatment or programs, is this a violation of his / her 8th Amendment protections? 4) promotes paternalism; humanistic vision of justice toward the offender

  17. a) treatment as social defense b) because the state knows best and can treat offenders, it must 5) conflicting evidence as to the effectiveness of rehabilitative programs > Lipton, Martinson, and Wilks (1974) 6) fundamental concern: “Why should limited resources/ funds, be spent on those who have offended us when the innocent and others in need do not receive this same consideration?” > rehabilitation supporters: ALL those in need should receive the same benefit

  18. f. restitution 1) monetary or service payment compensation > mostly financial remuneration for a wrong committed 2) amount is based on consideration of what would serve as the greatest benefit for the victim and/or his / her family, as well as the seriousness of the crime committed 3) rationale: monetary or physical punishment may be “more satisfactory” than incarceration

  19. D. Modern History 1. 1895 through the 1960s, emphasis of corrections on rehabilitation and incapacitation a. the Medical Model 1) product of Freud’s US Tour (1895) 2) criminals are afflicted with a social disease 3) criminals are in need of care and treatment 4) advent of the indeterminate sentence b. concern with recidivism 1)how to prevent offenders from re-offending 2) treatment v harsher punishment

  20. 2. late 1960s ushered in the decline of the Rehabilitation Era a. disillusionment with rehabilitation and break down of social controls b. could the State actually predict criminals and protect society from those who would cause harm? c. “personal responsibility” d. rise of Post-Modernism 3. 1970s-1990s a. the Retributive Era

  21. b. Greenwood’s (1982) Rand Corporation funded Selective Incapacitation 1) research question: “What effect would long-term incarceration have the crime problem?” 2) assessing available data and computer simulation, examined instances of robbery 3) conclusion, long-term (10+ years) incarceration would likely reduce instances of robbery by as much as 20% 4) suggests that specific crime categories could lead to just as significant crime reduction 5) need to increase be-space by 400%

  22. Police: ease restraints concerning investigations; less than probable cause warrants and arrests; better equipment / advanced technology; public attitude to “do something”; fear of crime Courts: streamline of the appellate process; “tough laws / tougher sentences” (Megan’s Law, 3 Strikes Laws) less than unanimous jury decisions; philosophically conservative judges appointed by conservative “get tough” presidents / governors Corrections: 1979 770,000 total incarcerated 2006 2,310,000 total incarcerated elimination of rehabilitation programs; reduction of mental health treatment facilities and staff; outsourcing of correctional services

  23. 4. The New Millennium (2000 +) a. growth of community justice ; Restorative Justice Era b. questions arising, “what’s going on in prison?” c. attempt to remedy “harm” > address community healing d. Issue: Can personal and social damage resulting from crime truly be repaired? > How? When?

  24. E. Conclusion / Summary 1. justification for punishment 2. type of punishment 3. end result

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