Numerous theories or philosophies exist for imposing some form of sanction upon criminal conduct, including:
- Retribution
- Deterrence
- Incapacitation
- Rehabilitation
- Restoration
Legislators and judicial figures do not have to state their reasoning when passing criminal statutes or handing down criminal sentences.
Theories Behind Criminal Punishment
Next Article: Federal Sentencing Guidelines Back to: CRIMINAL LAW
Retribution theory states that an individual should suffer or incur some harm for her conduct.
Deterrence theory states that imposing sanctions on conduct will prohibit that type of conduct. Individual deterrence says that imposing sanctions will prevent an individual from undertaking that conduct. General deterrence focuses on the signaling effect that punishing a criminal has on the population. Those who are aware of the sanctions inflicted upon an individual will be less likely to undertake that conduct.
Incapacitation theory says that society should be protected against individuals who commit a crime for a specific period of time.
This theory states that an individual receives sanctions with the purpose of allowing the individual time to mentally process her actions. This may include training to help the individual understand the wrongfulness of the conduct and, hopefully, reform and refrain from committing further criminal conduct.
This theory states that the victim deserves to be made whole (or as close as possible) from the criminal activity. The cost of making the victim whole should be borne by the criminal. This may include providing the victim with the sanctity of mind that this type of conduct will not happen again.
Discussion Question
Which, if any, of these philosophical justifications for criminal punishment convince you? Why or why not?
- Many people will identify multiple justifications for criminal punishment. One might even identify unique justifications for punishment based upon the nature of the offense.
Practice Question
The Oregon legislature is revisiting the state statutes concerning penalties for specific crimes. The legislature has asked you to testify as an expert regarding theories of criminal punishment. In a concise paragraph, provide an explanation of the primary theories supporting punishment for criminal infractions.
- There are myriad theories behind criminal punishments. Some of the most common include:
- Deterrence - This refers to having policies in place that will scare people from committing crimes. The utilitarian philosopher Jeremy Bentham is credited with articulating the three elements that must be present if deterrence is to work; the punishment must be administered with celerity, certainty and appropriate severity.
- Incapacitation - This is a very pragmatic goal of criminal justice. The idea is that if criminals are locked up in a secure environment, they cannot go around victimizing everyday citizens.
- Rehabilitation - This is a noble goal of punishment by the state that seeks to help the offender become a productive, non-criminal member of the society. This can be achieved through education programs, faith-based programs, drug treatment programs, anger management programs, and many others are aimed at helping the offender get better.
- Retribution - Retribution means giving the offenders the punishment they deserve. Under this theory, the state aims at ensuring that the punishment offered to the criminal fits the offense committed. This is best explained by the doctrine of proportionality.
- Restoration - The perpetrator is ordered to restore the victim to the state they were in before the crime was committed.
Related Topics
- Criminal Law (Intro)
- What is Criminal Law?
- What are the elements of a crime?
- Classifications of crimes Misdemeanor vs Felony Criminal Charges?
- What is the process of bringing criminal charges?
- Cease and Desist Order
- What is the process for executing an arrest?
- What are the exceptions to reading Miranda Rights?
- What is the process for initiating criminal charges?
- Prima Facie
- What is the Arraignment and Initial Appearance
- Investigation - Subpoena
- Common Defenses to Criminal Conduct
- Ex. Castle Doctrine
- Types of Punishment for Criminal Activity
- Theories Behind Criminal Punishment
- Federal Sentencing Guidelines
- What are the 4th Amendment protections against Search and Seizure?
- What are the 5th Amendment criminal law protections?
- What are the 6th Amendment criminal law protections?
- What are the 8th Amendment criminal law protections?
- Crimes Against the Property of Others
- Activity Constituting Fraud
- Good Faith as a Defense to Fraud
- Common Types of Business Fraud
- False Statement as a Criminal Charge
- Conspiracy as a Criminal Charge
- Obstruction of Justice as a Criminal Charge
- Aiding and Abetting or Conspiracy to a Crime
- What is a White Collar Crime?
- Lone-back Method of Money Laundering
- Defalcation
- Kiting
- Lapping Scheme
- Whistleblower
- Crimes or Conduct Endangering Workers
- Bribery or Illegal Kickback as a Crime
- Racketeer Influenced and Corrupt Organization Act
- Racketeering
- The False Claims Act
- Sarbanes Oxley Act
- What is Cyber Crime
- Phishing
