overarching purpose of criminal justice is to uphold the central tenets of a liberal democracy, then on the surface, punishment would have no legitimate use. After all, punishment meted out by the state represents state control, power, and authority over individuals and that power can too easily be abused. Therefore, the imposition of punishment by the state for crime must be justified. Not only must punishment by the state be justified; it must also be exacted within a strict and transparent criminal justice system.
Punishment by the state for crime does serve several functions in a liberal democracy. For one, punishment helps legitimate the laws that are in place to protect the positive and negative rights of citizens. If crimes were to go unpunished, then laws would have no real purpose. Second, punishment is often framed as the end stage in the criminal justice system. Punishment becomes the natural and inevitable consequence for breaking a law, thereby legitimizing that law. If a suspect is arrested by law enforcement officials and then found guilty in a court of law by a jury of peers, then the perpetrator endures some kind of sentencing. In many cases, that sentencing is doled out as a form of punishment: such as incarceration or a fine.
A third function of punishment in a liberal democracy is theoretically to prevent future crime from being committed. Here, the function of punishment begins to become murkier. The relative severity of punishment may not necessarily impact the tendency to commit or not to commit a crime. Deterrence theory suggests that fear of punishment works according to classical conditioning rules; and that even the thought of being punished may deter future crimes. Although it sounds fine on paper, deterrence theory is not always supported by empirical research. Pilivian, Thornton, Gartner & Matsueda (1986) found that while rewards do have a significant effect on modeling behavior, punishments do not deter antisocial or deviant behavior.
Deterrence is not the only justification used for empowering the state to exact punishments on its citizens. Punishment also prevents future crime, again theoretically, by physically segregating the criminal population. One of the most common types of retributive punishments is incarceration, which has a dual function: punitive justice and the prevention of future crime.
Incarceration can therefore be justified in a liberal democracy. In fact, incarceration must be justified given that the condition of being locked away essentially strips from the citizen rights and freedoms. Incarceration must be humane, although it was not long ago that prisons had no standards and prisoners had fewer rights than they do now. It is necessary to justify the imposition of punishment because by definition the act permits the stripping away of certain rights and freedoms for the duration of the court-ordered sentence. Without justification, punishment becomes the hallmark of a tyrannical regime.
Yet it may also be critical to justify whether punishment is worthwhile, at least the specific types of punishment being used in the criminal justice system. If punishment proves to keep communities safer by keeping criminals off the street, then one of the functions of punishment is clearly justified. This type of justification rests on the fact that the rights of citizens can and should be protected and the state is legitimated by its enforcement of the law.
If, however, punishment does not deter or prevent crime then its use must be honestly questioned. There is also the question of whether punishment can be a form of rehabilitation. Without the focus on rehabilitation, prisons and other types of punishment simply serve as forms of revenge or retribution. An “eye for an eye” system of justice may be one of humanity’s oldest forms of law enforcement, but only because autocracy is one of humanity’s oldest forms of government.
Not all victims seek vindication in the form of the punishment of those who perpetrated crimes against them. Rehabilitation remains one of the most idealistic state-sponsored criminal justice interventions. Criminal justice seeks to preserve the rights of citizens in a democracy by legitimizing the law. Providing criminals with the resources that enable rehabilitation is promoting a more just society. Successful rehabilitation also means that future crimes are prevented. Rehabilitation is like a form of cognitive-behavioral therapy for criminals. As such, rehabilitation serves both the interests of the state and that of the criminal. The idea that rehabilitation is a form of taxpayer-funded psychology treatment goes against the notion of punitive justice. Rehabilitation does the criminal a favor by introducing options for healthy social functioning, and it also does the community a favor by helping to prevent future crime. When rehabilitation is unsuccessful, as may be the case with psychopaths and sociopaths, incarceration as punishment serves mainly to protect the community. Revenge is therefore not the only purpose punishment serves.
It would appear, though, that a shift in consciousness has taken place that for purely punitive purposes. “The concept of punishment — its definition — and its practical application and justification during the past half-century have shown a marked drift away from efforts to reform and rehabilitate offenders in favor of retribution and incarceration,” (Bedau 2010).
Rehabilitation has flown out the window because of several reasons such as its failure to bear out quantifiable results or its financial burden on the system. In place of a system that embraces rehabilitation as part of the punitive process, and indistinguishable from it in fact, is a system that sees punishment as an end in itself. Punishment as an end in itself hearkens to the Hammurabi code of “eye for an eye” justice.
A punitive criminal justice system reflects deeper, underlying social values and norms. According to Johnson (2009), the support for punishment as end-in-itself also has important psychological roots. “Research shows that anger about crime is a significant predictor of punitive attitudes, after controlling for other factors such as racial prejudice, fear of crime, causal attributions for criminal behavior, and political ideology,” (Johnson 2009).
The liberal democracy is not a system built on emotions, though. Reason is supposed to be the underlying motif in a liberal democracy because without it, fear and prejudice would govern society. The law and the criminal justice system that supports it are built on principles of reason. Unfortunately, human beings run the show and human beings are not fully rational. Especially in the face of gross injustice as with the case of heinous crimes, anger and fear are bound to bubble to the surface. Anger and fear do indeed fuel a punitive criminal justice system. It is in fact not entirely unreasonable to if it serves the function of providing a sort of metaphysical balance in the community. The sense that crime upsets the cosmic order leads to social unrest; therefore crime must be balanced by an opposing form of justice. Punishment provides that opposing force..
One of the most salient reasons for justifying the imposition of punishment by the state for crime is embedded within the criminal justice system itself. In short, the courts do sometimes fail. Law enforcement sometimes fails. Institutional ambiguity raises questions at nearly every stage in the criminal justice process. Criminal justice is often political in nature, too.
The conviction of the innocent equals punishment for crimes that were not committed. Ideally, the system is robust enough to prevent such travesties, but the system is prone to human error and outright corruption. Therefore, punishment must be thoroughly justified on an individual, . The state needs to prove that a person is guilty before any punishment is given.
Punishment must also be justified in terms of its proportionality to the crime being committed. Nowhere is the potential disproportionality of punishment as obvious as in the case of drug possession and use. The criminalization of drugs can be framed as an illegitimate rule of law because there is nothing inherently criminal about drug use. In fact, drug use can be re-framed as a positive right of citizens. Even at the level of addiction, drug abuse is a psychological issue as well a public health issue but is not necessarily a criminal issue. State-mandated punishment for drug possession and use would be useful if the punishment were only rehabilitation. Yet the punishment is too often incarceration without rehabilitation. The opposite case can be made for some white-collar crimes, for which punishment is sometimes too lenient in proportion to the number of its victims. Disproportionality with regards to white-collar vs. other types of crime is easily discussed in terms of class conflict theory.
Legitimacy remains the most fundamental reason to continually justify the imposition of punishment by the state for crime. Legitimacy must be maintained at each stage of the criminal justice system, in spite of or because of the institutional ambiguity that characterizes complex and diverse large societies. In the United States, Fagan (2008) notices a “crisis of legitimacy” that threatens the underpinning of the entire liberal democracy. If citizens do not trust the police, then citizens might not cooperate in the reporting of crimes. If citizens do not trust the courts to deliver fair sentences, then trust in the government itself falls apart. If citizens do not recognize the legitimacy of the correctional institutions that embody punishment, then the entire criminal justice system has failed.
Punishment by the state for crime must be legitimate. The act of punishment must be systematic and not arbitrary, dealt in an unbiased manner and according to rule of law. For years, differential sentencing for crack cocaine and powdered cocaine in the United States reveals an arbitrary punishment that reflects race and class conflict. Such irrational manifestations of punishment serve to delegitimize the authority of the state. When the legitimacy of the state is lost, the foundation of a free society crumbles.
Ideally, the state possesses credible authority. That authority is used to uphold the rights and freedoms upon which a liberal democracy is based. The shared values of a liberal democracy can coexist with the legitimate use of punishment within certain boundaries. Authority is “legitimated power,” the ability to wield power, exert power over others without challenge (Levine 2005, p. 1). If the state did not have authoritative power to maintain a criminal justice system, then there would be legitimacy of law. When the criminal justice system uses punishment as part of its overall strategy to preserve the rights and freedoms of citizens, the state exercises a mandate to take away the rights of one citizen in order to preserve the rights of others. Punishment can fall within the framework of a criminal justice system when punishment is not arbitrary, and when punishment is fair.
References
Bedau, H.A. (2010). Punishment. Stanford Encyclopedia of Philosophy. Retrieved online: http://plato.stanford.edu/entries/punishment/
Fagan, J. (2008). Legitimacy and criminal justice. Retrieved online: http://docs.google.com/viewer?a=v&q=cache:CCgCViIiz_QJ:moritzlaw.osu.edu/osjcl/Articles/Volume6_1/Fagan.Intro.PDF.pdf+punitive+legitimacy+criminal+justice&hl=en&pid=bl&srcid=ADGEEShJXobcMDmglV5TlF0d0d8XPcpqHyHT7gApxqlyHB-ynAXZXXBPBiOhsyEDeO_9hXlAmWbI6NALIf6VspF0Ox77-F-8kGN04vmftun6kxQh1cvaeK8KZQMg92kQ3GRmlfssgPQ2&sig=AHIEtbTOhZcNkalDBm6G11ceblm6HlrRng
Johnson, D. (2009). Anger about crime and support for punitive criminal justice policies. Punishment & Society. January 2009 vol. 11 no. 1 51-66.
Levine, B.B. (2005). Legitimacy and the process why which it is pursued. In Encyclopedia of Economic Sociology. Eds. Beckert, J. & Zafirovski, M. Retrieved online: http://www.google.com/url?sa=t&source=web&cd=7&ved=0CE4QFjAG&url=http%3A%2F%2Fwww2.fiu.edu%2F~levineb%2FReadings%2FLegitimacy_for_Milan_final.doc&rct=j&q=weber%20legitmacy&ei=0yeaTYvCJMOBhQfLh6j5CA&usg=AFQjCNFY2ueJB2ECMxAN1Wz9m0_b248JAQ&sig2=lZTHzm5bjGI4oVULeml3wg&cad=rja
Pilliavin, I., Thornton, C., Gartner, R., & Matsueda, R.L. (1986). Crime, deterrence, and rational choice. American Sociological Review 51(Feb: 101-119).
