Punishments For Breaking Laws: Deciding Fair And Square

how should punishments for breaking laws be decided

The severity of punishment for breaking laws is a complex issue that varies across different legal systems. The punishment should fit the crime and be decided based on the harm caused, the offender's culpability, and the need for deterrence and rehabilitation. Judges have the challenging task of imposing sentences within the limits set by lawmakers, who define crimes and their maximum punishments. The punishment's severity can range from fines and community service to incarceration and, in extreme cases, the death penalty.

Characteristics Values
Decided by Crime committed
Punishment type Public, prompt, necessary, minimum possible, proportionate to the crime, and established by law
Purpose of punishment Deter the offender from reoffending and discourage others from committing the crime
Severity Based on the harm caused rather than intent, and should not be more severe than required to achieve deterrence
Lawmakers Define crimes and their punishments
Juries or judges Decide issues of guilt
Judges Sentence the offender based on the limits set in the law
Law Specifies prohibited conduct and maximum punishment
Punishment Incarceration, fines, diversion, probation, restitution, community service
Factors judges consider Seriousness of the crime, defendant's criminal history, circumstances of the crime, harm caused to the victim, and remorse or potential for rehabilitation

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Retribution

Retributive justice holds that the punishment should be proportional or similar to the crime committed. It is not personal, is directed only at wrongdoing, has inherent limits, and does not involve pleasure at the suffering of others. The punishment must be deserved and follow culpable actions; it is not meant to be used as a means to compensate for inadequacies in the justice system. Additionally, offenders who cannot be held responsible for their actions, such as those with mental illnesses or intellectual disabilities, should not be penalised for their actions.

The philosopher Immanuel Kant argued that retribution is the only legitimate form of punishment. He believed that punishment is a matter of justice and must be carried out by the state for the sake of the law, not for the sake of the criminal or the victim. If the guilty are not punished, Kant argues, then the idea of law itself is undermined. This view is supported by the Stanford Encyclopedia of Philosophy, which states that retributive justice is committed to three principles:

  • Those who commit certain kinds of wrongful acts, particularly serious crimes, morally deserve to suffer a proportionate punishment.
  • It is "intrinsically morally good—good without reference to any other goods that might arise—if some legitimate punisher gives [those who commit certain kinds of wrongful acts] the punishment they deserve."
  • It is morally impermissible to intentionally punish the innocent or to inflict disproportionately large punishments on wrongdoers.

Retributive justice stands in contrast to other purposes of punishment, such as deterrence, exile, and rehabilitation of the offender. While deterrence seeks to prevent future crimes, exile aims to prevent the opportunity for crime, and rehabilitation focuses on correcting the offender's behaviour.

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Incapacitation

In most countries, prison sentences are applied for a range of different crimes but are almost certain to be applied to those who commit serious assaults, murder or sex crimes. The risk that offenders pose to society is largely a matter of perception, and so the type of punishment for a particular crime will differ depending on the country. For example, the United States uses incarceration to incapacitate offenders at much higher rates than other countries.

Supervision can also serve the purpose of incapacitation. Parole and probation have long been justified as means of reintegrating offenders into the community, but they are increasingly being perceived as cost-effective ways of imposing long-term management on dangerous individuals.

One criticism of incapacitation is that it focuses on predictions of dangerousness rather than on the rights of the accused. For example, incapacitation theory might advocate prolonged pre-trial detention of a defendant who has not yet been proven guilty. Another criticism is that, if a prisoner is to be eventually released from prison, then their incarceration could be criminogenic, as offenders are more likely to commit a crime after release from prison than before incarceration.

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Deterrence

Research shows that the certainty of being caught is a vastly more powerful deterrent than the punishment itself. The presence of police officers, for example, can deter crime by increasing the perception that criminals will be caught and punished. However, deterrence has been criticised for being neither effective nor morally acceptable. The research evidence is generally inconclusive on whether punishment deters potential offenders from committing future crimes. Furthermore, deterrence allows for punishments to be imposed that are disproportionate to the harms done, for the innocent to be punished, and for the punishment of crimes that have not yet been committed.

Additionally, sending an individual convicted of a crime to prison is not a very effective way to deter crime. Prisons are good for punishing criminals and keeping them off the streets, but prison sentences are unlikely to deter future crime. Prisons may even have the opposite effect, as incarcerated individuals can learn more effective crime strategies from each other, and time spent in prison may desensitise many to the threat of future imprisonment.

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Rehabilitation

In practice, rehabilitation can take the form of releasing an offender on probation with certain conditions, or it may involve a longer period of custody during which the offender undergoes treatment or training. One instrument of rehabilitation that has been widely used in the United States is the indeterminate sentence, where the duration of detention is based on the offender's progress in reform.

While rehabilitation faced criticism in the United States in the 1970s, it gained greater acceptance in the following decades as research demonstrated that carefully implemented rehabilitation programs could effectively reduce recidivism. Despite this, critics have objected to the significant discretion given to prison administrators in deciding whether to release or further detain an offender based on their assessment of the offender's progress. This has led to concerns about potential abuses of power, such as the lengthy detention of individuals guilty of minor crimes due to their inability or refusal to adopt a subservient attitude.

The effectiveness of rehabilitation as a form of punishment has been a subject of debate. While it aims to provide offenders with the skills and treatment necessary for their reintegration into society, it may fall short in expressing society's rejection of certain behaviours or serving as a deterrent to others. Additionally, rehabilitation can conflict with other theories of punishment, such as retribution and proportionality. As a result, sentencing systems often require officials to make difficult choices between different theories on a case-by-case basis.

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Reparation

There are several types of reparation measures that can be implemented. Restitution, for example, aims to restore the victim to their original situation before the violation occurred. This could include restoring liberty, reinstating employment, returning property, or allowing the victim to return to their place of residence. Compensation is another form of reparation, which involves providing monetary payment for any economically assessable damages, loss of earnings, loss of property, or loss of economic opportunities.

Rehabilitation is a crucial aspect of reparation, as it focuses on providing victims with the necessary medical and psychological care, as well as legal and social services, to help them recover from the harm they have suffered. This can include access to healthcare to cure the sequelae of torture or sexual violence. Additionally, reparation measures can include satisfaction, which involves the cessation of continuing violations, truth-seeking, the recovery and reburial of remains, public apologies, and judicial and administrative sanctions.

In some cases, reparation may be directed towards the victim's relatives, usually their children, as a way to help them build a better future. This is particularly important when the victim has suffered a violation that has resulted in long-term or permanent damage. Overall, reparation as a form of punishment for breaking laws can provide practical and symbolic benefits to victims, their families, and affected communities.

Frequently asked questions

The punishment for breaking the law is influenced by the seriousness of the crime, the offender's criminal history, the circumstances of the crime, the harm caused to the victim, and the offender's remorse and potential for rehabilitation.

Punishments for breaking the law can include incarceration, fines, diversion or deferred sentencing programs, probation, restitution, and community service.

The punishment for breaking the law is decided by lawmakers (legislators) who define crimes and their maximum punishments. Judges then sentence offenders based on the limits set by the law and their discretion.

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