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The main theories of motives for punishment are retribution, incapacitation, rehabilitation, and deterrence. Which should be hierarchically the primary focuses of punishment? and which views have the best arguments in favor of them?

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  • The question seems very subjective and depending on the crime.
    – tkruse
    Mar 22, 2023 at 6:56
  • i would think, personally ^ speaking, we should not seek retribution when it will not reduce re-occurrence of the crime, perhaps because it is not clear to me what the difference between revenge and retribution exactly is
    – user65174
    Mar 22, 2023 at 8:33
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    @zero No offense. I just mentioned it because you asked for a difference and they listed a bunch of differences in the first paragraph i.e. official vs personal, proportional and limited vs unrestricted, wrongdoings legally defined vs emotionally felt, procedural standards vs suffering and sadism. Aso so retribution would be a formalized and restricted version of revenge. Feel free to disagree with that I just didn't know what you knew.
    – haxor789
    Mar 22, 2023 at 9:30
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    oh ok that's fine then @haxor789 well personally i just feel that a will to punish is sadism (etc,), without the need to control. which suggests i am against retributive punishment at all hmm worth thinking about if it was at all salient for me
    – user65174
    Mar 22, 2023 at 9:31
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    I agree with you. I have heard it said, and I believe it, that the greatest deterrent of crime is the calculation that one will not get caught. Detection, detection, detection. I have seldom heard this point mentioned. I suppose because people are so fixated on the punishment process and forget that if that is weak, there can be no deterrence.
    – Ludwig V
    Mar 22, 2023 at 12:53

3 Answers 3

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Incapacitation within reason, rehabilitation and deterrence are all rational responses to offences. But it is clear that none of the usual punishments is particularly effective in achieving their supposed aims. One of the greatest difficulties is that they can only be achieved if the offender recognizes the punishment as appropriate. Most systems do not pay attention to this, and it undermines the effectiveness of the punishment. Prevention is arguably a much more rational and effective policy.

Retribution can be interpreted as paying back. If this means compensation for the victim, it is also appropriate. But it frequently means some symbolic restoring of balance, and this seems to me very dubious, even if the victim derives some sort of comfort or consolation from the process. It is hard to distinguish this from revenge (in a controlled form).

Foucault suggests that the key point of punishment is to display the power of the authority that inflicts the punishment. There is something to be said for this and if it is aimed at deterring further crime, it might be rational. But since it also displays the weakness of the authority in failing to prevent the offence, the justification seems rather weak.

From the fact that you do not include revenge in the justifications of punishment, it would seem that you do not think that it is any justification. I agree with that. Revenge, it seems to me, is a displacement behaviour that expresses the anger and frustration of the authority and/or the victim at the fact that the offence has been committed.

The key problem is that since nothing can put right the fact that the offence has been committed, it is necessary to live with that. Our institutions seem very bad at acknowledging that. Comparatively little effort goes in to trying to deal with it. If that were the aim, more attention would be paid to working out the conditions for forgiveness, which is the only way that the consequences of the offence, for victim, offender and authority to draw a line under it.

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  • Regarding your statement "... if the offender recognizes the punishment as appropriate": many violent crimes are responses to previous actions by others. Someone feels they were harmed, and they retaliate. We catch the second mouse, but the first one made off with the cheese. We could subject criminals to 'philosophy' so they see the error they made, but until the earlier offence stops happening... first, crime will go on. Expecting people to not react to offenses in whatever way is possible for them is not reasonable. We need to lock the barn door before the horses get away.
    – Scott Rowe
    Mar 22, 2023 at 10:12
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    @ScottRowe Again, I agree with you, both about retaliation (though I have no idea how common it is) and about expecting people not to react when they suffer harm. About the latter, all I can say is, prevention, prevention, prevention.
    – Ludwig V
    Mar 22, 2023 at 12:57
  • @IndianLawApplicant. I'm sorry. I don't know the answer to your question. Perhaps someone else will. But I take your point.
    – Ludwig V
    Mar 22, 2023 at 12:58
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The crucial problem with asking for criteria, paradigms and their priority in an ideal criminal justice system is that the problems with a criminal justice system might stretch beyond the boundaries of such a system.

Like you could naively say that the it's purpose is to resolve, prevent and reduce crime.

The problem is that "crime" isn't really an absolute. You could fairly easily solve all crime. Just scrap all the laws et voilà there is no crime. However as you might have guessed that doesn't really solve the problem that you associate with crime, it just refuses to label it as a problem.

But it exemplifies that laws aren't something absolute that transcends human existence and can be without it, but it's just the result of struggles and negotiations to organize a society. And crimes are just ways to assert ones interests that move around agreed upon ways to assert one's interests.

So to "criminalize" something serves 2 major purposes one is to assert the dominance and authority of the "agreed upon ways" of doing something (law making process, monopoly of violence and (serious) conflict resolution process, aso). So it's simply criminal, because it challenges the current power structure. And the other is to preserve the integrity of society itself. Whether that is for it's own sake, because without society there is no universal law or whether it is because society is needed to perform some task and if everyone is fighting each other that task is not getting done.

So most of that has less to do with "right" and "wrong" and more to do with preserving the power relations, the status quo and the overall stability of a society.

So what the criminal justice system's job would be is to defuse the major conflict within society and to assert itself as the only legitimate way of conflict resolution.

So when crime does damage to society, the goal is to stop the damage from being done, organize the repair of that damage, resolve that underlying conflict and prevent that or something similar from happening again.

And the priority of the options that you've mentioned mainly depends on the crime and the urgency of the problem. Like if you have a fragile system where everything is falling apart you might feel the urgency to assert your dominance and to prioritize deterrence.

The problem is that deterrence is a very temporary solution. To take up an aggressive posture works quite well when it comes to intimidating, confusing and deterring them from a conflict because they didn't anticipate the escalation and aren't prepared for it. But those emotions will decrease over time and the preparation for such an event will go up and if you haven't solved the actual problem in the mean time, that approach is likely going to backfire. Also with regards to ever higher sentences. That doesn't really scale well as the human conception of it doesn't really allow to fully comprehend what that means. Like 3 years are more than 1 year, but life is so fast that you have no conception of what 1 year in prison even means and if you deal that out to often you create a new normal where it either loses it's intimidation factor or increases such a panic that people would commit more severe crimes just do up the chance to dodge it. Leading to the opposite of what it was meant to accomplish.

Likewise if the perpetrator is continuing to be a threat than it might take priority to stop them from doing so. At least on the short timescale. However that doesn't really solve the problem. You can't hold up people indefinitely, that creates ethical as well as resource problems and as well as capital punishment might end up being a treatment that exceeds the crime in terms of brutality and as people are usually social animals with their own social networks that might create an outrage of it own. So if you have to release them eventually you should make sure that you have solved the problem by then. Whether that is a personal problem, a lesson that needs to be learned, a change in the law or whatnot.

And in terms of retribution in the sense of recoupment and reparation. That works for material damages and monetary losses, although even there you might run into a problem if you want to punish a thief who never had the money to begin with and neither has the money to pay the fine. But it completely fails when it comes to violent crimes as you can't revive the dead and even to "restore" the before attack state of a traumatized person might not be as easy as it sounds on paper.

So ideally the justice system would not treat it as criminal but as a problem that is solved between the different parties, but practically it might pose a very urgent problem to the stability of society and they might resort to symbolic action just to appease people and preserve the status quo.

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Here's how I would prioritize the four:

  1. Deterrence: I would like the criminal act to become extinct.
  2. Incapacitation: Until the criminal can be fixed, keep them away from society.
  3. Rehabilitation: No repeat offenses. Fix the criminal.
  4. Retribution: The victims of the criminal should receive some form of compensation.
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  • I agree. My only concern is that people do the things they do largely because of circumstances. So, for criminal behavior to stop, the conditions that cause it have to change. I don't know if just a few things need to be fixed, or if basically the entire enterprise of being human is irremediable?
    – Scott Rowe
    Mar 25, 2023 at 1:16
  • @ScottRowe Of the four, deterrence needs the most work and its also the most difficult to address. The only deterence currently is fear of incarceration for an extended time, fines, or execution. What other options for deterrence are there?
    – user64314
    Mar 25, 2023 at 3:46
  • Mind control? Anyway, what I meant was that we have made criminality a 'thing', but it arises from the circumstances people grew up in, mostly. To banish crime forever is easy: make everyone's life wonderful. Failing that, there will always be problems. You won't be able to deter it hard enough. Prevention works way better than cure.
    – Scott Rowe
    Mar 25, 2023 at 11:51

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