Punishment

PUNISHMENT

The imposition of hardship in response to misconduct.

Punishments authorized in modern U.S. law include community service, monetary fines, forfeiture of property, restitution to victims, confinement in jail or prison, and death.

Some civil sanctions are punitive in nature. The primary aim, though, in most civil cases is to compensate the victim. However, a judge or jury may assess punitive damages against a party in a civil case if that party's conduct was especially wicked. Punitive damages are intended to punish a party or set an example for similar wrongdoers. Though onerous, punitive damages in a civil case do not carry with them the same stigma attached to criminal punishment.

Human transgressions have been punished in various ways throughout history. The standard punishments in ancient Greek and Roman societies were death, slavery, mutilation (corporal punishment), imprisonment, or banishment. Some punishments were especially creative. In ancient Rome, for example, a person who murdered a close relative was enclosed in a sack with a cock, a viper, a dog, and a monkey, and then cast into the sea.

The ancient punishments were brought to England. Until the nineteenth century, the death penalty, or capital punishment, was imposed in England for more than 200 different crimes. Most of these crimes were petty violations, such as pick-pocketing or swindling. A defendant could be hanged, burned at the stake, or beheaded. In some cases the process of death was drawn out. A person found guilty of treason, for example, was placed on a rack and stretched, hanged until not quite dead, then disemboweled, beheaded, and quartered (cut into four pieces).

Until the nineteenth century, corporal punishment in England could consist of whipping, branding, or the cutting off of a body part. Noses, ears, hands, fingers, toes, and feet were all subject to removal for criminal acts. Often the body part sliced off was the part thought responsible for the act. A pickpocket, for example, might have a hand cut off, and a spy might lose an ear, tongue, or eye. Corporal punishment could be inflicted in addition to other punishments, such as banishment, forced labor, or short-term incarceration.

The American colonies adopted and cultivated the traditional punishments of England. The most common punishments were corporal and capital. Petty criminals were often sentenced to a combination of corporal punishment and incarceration in jail for several months. The punishment for more serious crimes was usually death.

Punishment was the most comprehensive and severe in colonies founded on religious principles. In Massachusetts, controlled by the Puritans, a woman who committed adultery could be forced to wear the letter A in public as a punishing reminder of her conduct. Men who committed adultery were put to death, as were those who engaged in bestiality.

The witch trials in Salem, Massachusetts, illustrated the inventiveness of punishment in some of the colonies. In 1692, 19 people were executed after children claimed that several women were practicing witchcraft. One of the alleged witnesses, who refused to participate in the trials, was slowly pressed to death under the weight of heavy rocks.

Theories of Punishment

Governments have several theories to support the use of punishment to maintain order in society.

Theories of punishment can be divided into two general philosophies: utilitarian and retributive. The utilitarian theory of punishment seeks to punish offenders to discourage, or "deter," future wrongdoing. The retributive theory seeks to punish offenders because they deserve to be punished.

Under the utilitarian philosophy, laws should be used to maximize the happiness of society. Because crime and punishment are inconsistent with happiness, they should be kept to a minimum. Utilitarians understand that a crime-free society does not exist, but they endeavor to inflict only as much punishment as is required to prevent future crimes.

The utilitarian theory is "consequentialist" in nature. It recognizes that punishment has consequences for both the offender and society and holds that the total good produced by the punishment should exceed the total evil. In other words, punishment should not be unlimited. One illustration of consequentialism in punishment is the release of a prison inmate suffering from a debilitating illness. If the prisoner's death is imminent, society is not served by his continued confinement because he is no longer capable of committing crimes.

Under the utilitarian philosophy, laws that specify punishment for criminal conduct should be designed to deter future criminal conduct. Deterrence operates on a specific and a general level. General deterrence means that the punishment should prevent other people from committing criminal acts. The punishment serves as an example to the rest of society, and it puts others on notice that criminal behavior will be punished.

Specific deterrence means that the punishment should prevent the same person from committing crimes. Specific deterrence works in two ways. First, an offender may be put in jail or prison to physically prevent her from committing another crime for a specified period. Second, this incapacitation is designed to be so unpleasant that it will discourage the offender from repeating her criminal behavior.

Rehabilitation is another utilitarian rationale for punishment. The goal of rehabilitation is to prevent future crime by giving offenders the ability to succeed within the confines of the law. Rehabilitative measures for criminal offenders usually include treatment for afflictions such as mental illness, chemical dependency, and chronic violent behavior. Rehabilitation also includes the use of educational programs that give offenders the knowledge and skills needed to compete in the job market.

The counterpart to the utilitarian theory of punishment is the retributive theory. Under this theory, offenders are punished for criminal behavior because they deserve punishment. Criminal behavior upsets the peaceful balance of society, and punishment helps to restore the balance.

The retributive theory focuses on the crime itself as the reason for imposing punishment. Where the utilitarian theory looks forward by basing punishment on social benefits, the retributive theory looks backward at the transgression as the basis for punishment.

According to the retributivist, human beings have free will and are capable of making rational decisions. An offender who is insane or otherwise incompetent should not be punished. However, a person who makes a conscious choice to upset the balance of society should be punished.

There are different moral bases for retribution. To many retributivists, punishment is justified as a form of vengeance: wrongdoers should be forced to suffer because they have forced others to suffer. This ancient principle was expressed succinctly in the Old Testament of the Judeo-Christian Bible: "When a man causes a disfigurement in his neighbour … it shall be done to him, fracture for fracture, eye for eye, tooth for tooth…."

To other theorists, retribution against a wrongdoer is justified to protect the legitimate rights of both society and the offender. Society shows its respect for the free will of the wrongdoer through punishment. Punishment shows respect for the wrongdoer because it allows an offender to pay the debt to society and then return to society, theoretically free of guilt and stigma.

A third major rationale for punishment is denunciation. Under the denunciation theory, punishment should be an expression of societal condemnation. The denunciation theory is a hybrid of utilitarianism and retribution. It is utilitarian because the prospect of being publicly denounced serves as a deterrent. Denunciation is likewise retributive because it promotes the idea that offenders deserve to be punished.

The U.S. conception of punishment is a combination of the utilitarian, retributive, and denunciation theories. The most widely accepted rationale for punishment in the United States is retribution. If convicted, the sentence a defendant receives is always, at least in part, a form of retribution.

A sentence may, however, combine utilitarian ideals with retribution. For example, a defendant sentenced to prison for several years is sent there to quench the public's thirst for vengeance. At the same time, educational programs inside the prison reflect the utilitarian goal of rehabilitation.

Our legal system shows its adherence to utilitarian ideals in the creation of systems such as pretrial diversion programs, probation, and parole. These systems seek to limit punishment to the extent necessary to protect society. The utilitarian philosophy is also reflected in the assignment of different punishments for different crimes and in the notion that the amount of punishment a convicted criminal receives should be in proportion to the harm caused by the crime. For example, murder calls for imprisonment or even the death penalty. A simple assault and battery with no serious injuries is usually punished with a short jail sentence or probation and a fine.

Judges generally have the discretion to fashion punishment according to the needs of both society and the defendant. This is an expression of utilitarian tenets. However, judicial discretion in sentencing is limited. In some cases statutes require judges to impose mandatory minimum prison sentences as punishment, and these laws stand as a monument to the retributive theory.

cross-references

Utilitarianism.

After the colonies won freedom from English control, enlightened social discourse led to the imposition of restraints on punishment. In 1791 the states ratified the eighth amendment to the U.S. Constitution to prohibit excessive bail, excessive fines, and the infliction of cruel and unusual punishments. Because the amendment did not define "cruel and unusual punishment," lawmakers and courts have had to determine what punishments are cruel and unusual. Throughout the nineteenth century, the cruel and unusual punishment Clause was interpreted to prohibit only torture and barbarous punishments.

After the ratification of the Eighth Amendment, corporal punishment was replaced by incarceration in jail or prison. Capital punishment, essentially the ultimate form of corporal punishment, survived into the 1970s, when it was held to be cruel and unusual (furman v. georgia, 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346 [1972]). That decision was overturned four years later in gregg v. georgia, 428 U.S. 153, 96 S. Ct. 2909, 49 L. Ed. 2d 859 (1976), and capital punishment was restored in many juris dictions.

The United States is the only western industrialized country to use the death penalty. Most states authorize the death penalty as a punishment for first-degree murder. Hanging, death by electrocution, and the firing squad are still used, but the most common form of capital punishment is death by lethal injection.

For more than a century after the Eighth Amendment was ratified, lawmakers and courts did not interpret its prohibition of cruel and unusual punishment to include a prohibition of disproportionate punishment. Federal and state lawmakers were free to impose punishment on convicted criminals without concern for whether the punishment fit the crime.

In 1910 the U.S. Supreme Court recognized the proportionality concept in Weems v. United States, 217 U.S. 349, 30 S. Ct. 544, 54 L. Ed. 793. In Weems, Paul A. Weems was convicted of falsifying a single item of a public record and sentenced to hard labor for 12 to 20 years while chained at the wrists and ankles. The Court in Weems examined the nature of the crime, compared Weems's sentence with punishment in other jurisdictions for the same offense, and looked at the punishment for more serious crimes within the same jurisdiction.

In light of the comparisons, the Court found that the punishment of Weems was too harsh. According to the Court, the Eighth Amendment was designed to protect against such disproportionate punishment, and it ordered the case against Weems dismissed. Since the Weems decision, courts and lawmakers in the United States have attempted to find the right amount of punishment for various criminal acts.

Both legislators and judges determine punishment. Legislators identify the range of punishments that a court may impose for a certain crime. Punishment for crimes is listed in federal, state, and local laws. In most cases statutes name a variety of punishments appropriate for the crime, and courts have discretion in determining the precise punishment. However, many federal and state laws on narcotics identify a mandatory minimum prison sentence that must be imposed, and this ruling removes sentencing discretion from the judge.

In Harmelin v. Michigan, 501 U.S. 957, 111 S. Ct. 2680, 115 L. Ed. 2d 836 (1990), Ronald Harmelin challenged the punishment he received for possession of more than 650 grams of cocaine. Though he had no prior felonies, Harmelin was convicted in Michigan state court and sentenced to spend the rest of his life in prison. On appeal the U.S. Supreme Court upheld the sentence, ruling that "severe, mandatory penalties may be cruel, but they are not unusual in the constitutional sense, having been employed in various forms throughout our Nation's history."

Critics argue that the Harmelin opinion sidestepped the proportionality requirement created in earlier High Court cases and threw into doubt the standard for cruel and unusual punishment. Under Harmelin, proportionality is not required; what is relevant is whether the punishment has been used in the United States in the past. If it has been used, it is not unusual, and therefore not violative of the Cruel and Unusual Punishment Clause.

Because lawmakers can change laws, the list of acts that warrant punishment is not static. Before the twentieth century, many acts, such as sodomy, adultery, and premarital sex were punished with prison terms. In most states either these acts are no longer illegal or the laws prohibiting them are no longer enforced. Possession of most psychotropic substances was not punished until the late nineteenth and early twentieth centuries. The manufacture, sale, and transportation of alcohol was punished in the United States from 1919 to 1933 (see Prohibition).

Some acts have always been illegal, but the level of punishment inflicted for the crime has fluctuated. Drunk driving, for example, is punished more severely in the early 2000s than it was before the 1970s. The possession of a small amount of marijuana used to warrant a long prison term in most jurisdictions, but modern statutes limit the punishment for this crime to monetary fines and probation.

In assigning punishment for drug offenses, most laws differentiate between distribution and possession. State and federal statutes generally punish the selling or distribution of drugs more severely than possession. Repeat possession violators may receive short-term incarceration, but long prison terms are usually reserved for purveyors of illicit drugs. Lawmakers may vary the punishment within the same offense for different forms of the same drug. Possession of crack cocaine in most states and in the federal system, for example, is punished more harshly than possession of powder cocaine.

Before the Civil War, many states in the South had separate statutory codes for slaves, which imposed more severe punishment on slaves than on free persons. For example, any attempt by a slave to commit a crime punishable by death was punished with death, but free persons were not put to death for attempts. Also, the range of acts punished under slave codes was wider than that punished under the statutory codes for free persons.

Since the end of the Civil War, statutory codes in all states have purported to punish all persons equally. However, the unfairness concerning who gets punished has not disappeared. Many analysts of punishment in the United States cite the disproportionate number of African Americans in prisons as proof of selective prosecution and punishment. Scholars and others have also questioned a system that punishes drug offenses more harshly than violent offenses. Critics also note disparities between punishment of impoverished persons and punishment of wealthy persons, noting that poor defendants are punished more harshly because they do not have the resources necessary to mount a vigorous defense to criminal charges.

The United States relies primarily on incarceration as punishment. However, many states have sought alternatives to incarceration. Many states use short-term boot camps to rehabilitate first-time offenders. These highly regimented camps are intended to give offenders the discipline and respect for authority necessary to succeed in society. Other states and localities are experimenting with alternatives to imprisonment for drug offenders, such as treatment, probation, and work requirements. Others have supplanted long periods of confinement with a small dose of public humiliation and a variety of deprivations.

In Nevada, for example, a person convicted of one drunk driving offense may be ordered to perform 48 hours of community service dressed in clothing that identifies the person as a drunk driving offender. Additionally, the defendant is deprived of his or her driver's license for 90 days; ordered to pay a fine ranging from $200 to $1,000; and required to attend, at the defendant's own expense, an alcohol abuse education course.

further readings

Beccaria, Cesare. 1996. Of Crimes and Punishments. New York: Marsilio.

Denno, Deborah W. 1994. "Is Electrocution an Unconstitutional Method of Execution? The Engineering of Death over the Century." William and Mary Law Review 35.

Fletcher, Betty B. 1995. "The Death Penalty in America: Can Justice Be Done?" New York University Law Review 70.

Gutterman, Melvin. 1992. "Prison Objectives and Human Dignity: Reaching a Mutual Accommodation." Brigham Young University Law Review (fall).

Jackson, Bernard S. 1995. "Modelling Biblical Law: The Covenant Code." Chicago-Kent Law Review 70.

Johnson, Paula C. 1995. "At the Intersection of Injustice: Experiences of African American Women in Crime and Sentencing." American University Journal of Gender and Law 4.

Kittrie, Nicholas N., and Elyce H. Zenoff. 2002. Sentencing, Sanctions, and Corrections: Federal and State Law, Policy, and Practice. 2d ed. New York: Foundation Press.

Petersen, Scott K. 1993. "The Punishment Need Not Fit the Crime: Harmelin v. Michigan, and the Eighth Amendment." Pepperdine Law Review 20.

Sendor, Benjamin B. 1996. "The Relevance of Conduct and Character to Guilt and Punishment." Notre Dame Journal of Law, Ethics and Public Policy 10.

Spohn, Cassia C. 2002. How Do Judges Decide?: The Search for Fairness and Justice in Punishment. Thousand Oaks, Calif.: Sage Publications.

cross-references

Criminal Law; Drugs and Narcotics; Racketeering; Salem Witch Trials; Sentencing; Slavery.