Why Do We Punish Criminals?
As I have been learning more and more about free will, I’ve concluded that it may not exist. This has a significant number of implications, one of which is how, as a society, we should deal with criminality.
The law, regardless of its various permutations across the world, exists on the foundation and assumption of free will. It is right to hold individuals accountable for their actions — because they could have chosen otherwise.
If a defendant (D) engages in behaviour that is illegal or that causes harm to a victim (V), the law should apply. It must apply.
Right?
Well yes, if D’s actions are the factual and legal cause of the harm to V. But, what if D couldn’t not have chosen to commit the crimes? What if from the moment D was born, he was always going commit this criminal action? From their first breath, a long causal chain that led to the murder, or rape, or kidnapping.
Putting the issue of free will aside, we punish criminals in five different ways, and the reasons why we punish criminals are two-fold:
- Preventing future crime.
- Giving victims justice.
If we consider the first point, preventing future crime, this informs us that every crime, if detected and prosecuted, has a silver lining. Any action has causal ripples across time and space, and the action of prosecution ripples out information that criminals do get caught. Anyone that interacts with that criminal case, whether they are the family of the defendant or they hear about it on the local news, is affected. Each case, in its own way, helps to shape society and nudge it towards a more ideal and safe place for individuals.
But, we should not reach a faulty conclusion that this means more prosecutions = lower crime. This might be the case in a world of limitless resources, but we don’t live in that world. Governments and police have finite resources and manpower, so prosecutions need to marshal scarce resources for only the most serious crimes. Thus, the “De-Minimis” Principle that ‘the law does not concern itself with trifles.’
The second point, giving victims justice, is also important because the law must appear to work.
Katherine Kelaidis, resident scholar at the National Hellenic Museum in Chicago, said, “The Greeks very much had this sense … that civilization is a very thin veneer and that under even slight amounts of pressure, that social contract starts to break down, and [when] people lose that veneer … that can be very dangerous.”
And let’s forget that a state is a monopoly on violence at its core. This has been perhaps one of humanity’s best inventions, although very much a double-edged sword.
And this monopoly is constantly challenged, both by criminals as well as vigilantes, who want to take justice into their own hands.
If victims feel that the law is on their side and that justice has been served, this removes at least one of the threats on the monopoly of state violence.
So, there are five main reasons why we punish criminals:
- Deterrence
- Incapacitation
- Rehabilitation
- Retribution
- Restitution
1. Deterrence
The idea behind deterrence is that it prevents future crimes from happening. It does this by frightening would-be criminals.
Deterrence can be split into two: specific deterrent and general deterrence.
Specific deterrence aims to ensure that the defendant in question learns from his punishment and does not commit any further crime in the future once he is integrated into society.
General deterrence aims to frighten the public at large, which will inevitably contain a percentage of criminals. I have watched copious amounts of maximum security prison documentaries, and being incarcerated in one of these places for decades is something that I honestly would not want to experience. Thus, I moderate my behaviour to reduce the risk of this happening — thus, I don’t commit any major crimes! I assume this train of thinking is why, in the past, executions such as beheadings and hangings were carried out in public.
2. Incapacitation
Incapacitation works by removing a defendant from society for the public’s safety.
This can be done in three escalating methods: house arrest, imprisonment in a dedicated facility, and finally, killing the defendant (i.e. the death penalty).
House arrest can work well for non-violent criminals and does not create too much cost for society as a whole. Full-time imprisonment is costly and should typically be reserved for violent crimes or defendants who are dangerous to society.
The death penalty is highly controversial, and many studies claim that it has no deterrent effect and that it is more expensive than life imprisonment due to the numerous appeals. Thus it is just a more expensive and brutal method of incapacitation.
Notably, some countries like Singapore have the death penalty for non-violent crimes such as drug smuggling. This is an approach which is extremely difficult to justify morally. It is much easier to understand a death sentence for a serial killer like Ted Bundy or Jeffrey Dahmer.
3. Rehabilitation.
Rehabilitation has the same aim as deterrence, preventing future crime, but uses a different method: behaviour change in the defendant.
Typical examples of rehabilitation can include treatment to overcome drug addiction, psychological counselling, vocation programs, and structured education courses.
Often, courts can combine incapacitation, or the threat of incapacitation, with rehabilitation. So, either mandatory programs within a prison, or a deal where non-violent offenders can be on parole as long as they participate in the rehabilitation programme. This is beneficial because it keeps spaces open in prisons for more violent offenders.
4. Retribution
Retribution, in the same ethos as deterrence and rehabilitation, prevents future crime. But not from the defendant! The idea behind retribution is that it provides victims, and society at large, the feeling that there has been justice. This means that non-state actors do not need to engage in vigilantism or additional criminal behaviour to “get even” or “serve justice”.
I feel that this one is actually an overarching or foundational point that is always present, while the rest may or may not be present when sentencing criminals. I believe that there is a deep-seated psychological need to “get even” or ensure fairness in social matters.
5. Restitution
Restitution is different from the above because it does try to right some of the wrongs that the criminal defendant has caused. This is by punishing the defendant financially and ordering them to pay the victim for the harm they have caused. The fine can be for numerous reasons, including damage to property, physical injuries, and covering some of the costs of the criminal prosecution process.
What is interesting is that in most cases, the reasons above would still be valid in a world without free will.
