The Justification of Punishment

In one line

There are five classical justifications of punishment, none of them is sufficient by itself, and the position modern law has reached is that a forward looking aim may be pursued only within limits fixed by what the offender deserves.

In the wording a student can write in an exam: the justifications of punishment are the retributive, which looks backward to desert; the deterrent, which looks forward to the prevention of offences by others and by the offender; the preventive or incapacitative, which removes the offender's opportunity to offend; the reformative, which seeks to change the offender; and the expiatory, which treats punishment as atonement; and the prevailing modern position is a combined theory in which the general justifying aim is forward looking while the distribution and the amount of punishment are limited by desert.

The five theories

Retributive

Punishment is deserved. The offender has done wrong and the wrong itself is the reason for the punishment. Kant is the classical exponent, and chapter 470 sets him out in full. Its answer to "how much" is the offence itself.

Strength. It is the only theory that explains why we may punish only the guilty and only in proportion, and it treats the offender as a responsible agent.

Weakness. It requires punishment even where nothing is gained, and it cannot measure non-violent offences without help.

Deterrent

Punishment prevents future offences by making the prospect unattractive, to the offender and to others watching. Bentham is the classical exponent. Chapter 500 works it in detail.

Strength. It gives a reason for punishing that is intelligible to somebody who does not accept desert.

Weakness. It permits punishing the innocent if that would deter, and it permits disproportionate sentences where they would deter more.

Preventive or incapacitative

Punishment removes the offender's ability to offend, by imprisonment, disqualification, forfeiture or, at the limit, death. Chapter 500 also covers this.

Strength. It works whether or not anybody is deterred, since the incapacitated person simply cannot offend against the public.

Weakness. It looks to what the person may do rather than to what they did, so taken alone it leads to detention on prediction, which is punishment without an offence.

Reformative

Punishment should change the offender so that they do not offend again, and should be measured by what will achieve that. Chapter 510 works it, with the Gandhian version and the Indian cases.

Strength. It is the only theory that treats the sentence as an opportunity, and it produces the whole apparatus of probation, parole, remission, open prisons and juvenile justice.

Weakness. Its measure is need rather than desert, so it can justify detaining a minor offender until they are cured, and it has no answer to the offender who is not in need of reform.