Criminal Punishment

I

INTRODUCTION

Criminal Punishment, penalties imposed by the government on individuals who violate criminal law. (Criminal law prohibits behavior deemed harmful to society as a whole, whereas civil law governs private interactions between individuals.) People who commit crimes may be punished in a variety of ways. Offenders may be subject to fines or other monetary assessments, the infliction of physical pain (corporal punishment), or confinement in jail or prison for a period of time (incarceration). In general, societies punish individuals to achieve revenge against wrongdoers and to prevent further crime—both by the person punished and by others contemplating criminal behavior. Some modern forms of criminal punishment reflect a philosophy of correction, rather than (or in addition to) one of penalty. Correctional programs attempt to teach offenders how to substitute lawful types of behavior for unlawful actions.

Throughout history and in many different parts of the world, societies have devised a wide assortment of punishment methods. In ancient times, societies widely accepted the law of equal retaliation (known as lex talionis), a form of corporal punishment that demanded “an eye for an eye.” If one person’s criminal actions injured another person, authorities would similarly maim the criminal. Certain countries throughout the world still practice corporal punishment. For instance, in some Islamic nations officials exact revenge-based corporal punishments against criminals—such as amputation of a thief’s hand—under the law of hudūd. Monetary compensation is another historic punishment method. In England during the early Middle Ages (5th century to 15th century) payments of “blood money” (wergeld) were required as compensation for death, personal injury, and theft.

Penology, the study of criminal punishment, is a subfield of criminology. Criminologists theorize about why people commit crimes and deviate from society’s norms of behavior. They also study how society punishes criminals because different methods of punishment may cause people to alter their behavior in different ways. Thus, criminologists devise theories that not only explain the causes of crime but that also address its prevention and control.

II

FORMS OF CRIMINAL PUNISHMENT

Although some societies still use ancient forms of harsh physical punishment, punishments have also evolved along with civilization and become less cruel. Punishments range in severity depending on the crime, with the most severe forms applied to individuals who commit the most serious crimes. In most industrialized societies, contemporary punishments are either fines or terms of incarceration or both. Contemporary criminal punishment also seeks to correct unlawful behavior, rather than simply punish wrongdoers.

A

Compensation

Certain punishments require offenders to provide compensation for the damage caused by their crimes. There are three chief types of compensation: fines, restitution, and community service.

A fine is a monetary penalty imposed on an offender and paid to the court. Most criminal statutes in the United States and Canada contain provisions for the imposition of fines. However, fines have not been widely used as criminal punishment because most criminals do not have the money to pay them. Moreover, fining criminals may actually encourage them to commit more crimes in order to pay the fines.

The term restitution refers to the practice of requiring offenders to financially compensate crime victims for the damage the offenders caused. This damage may include psychological, physical, or financial harm to the victim. In most cases, crime victims must initiate the process of obtaining restitution from the offender. Thus, when the criminal is prosecuted, the victim must inform the court of financial losses or medical expenses. Otherwise, the judge may fail to require restitution. Judges may impose restitution in conjunction with other forms of punishment, such as probation (supervised release to the community) or incarceration.

In the United States, the Victim and Witness Protection Act of 1982 authorizes restitution (along with incarceration) as a punishment for individuals who violate federal criminal laws. Under this act, judges may impose restitution when initially sentencing offenders for federal crimes. Alternatively, restitution may be included as a condition of an offender’s parole program. (Prisoners who receive parole obtain an early release from incarceration and remain free, provided they meet certain conditions.) In most U.S. states criminal laws also authorize restitution as a punishment option. Criminals in Canada may also be required to pay restitution to victims for personal injuries or property damage.

Offenders sentenced to community service perform services for the state or community rather than directly compensating the crime victim or victims. Some of the money saved by the government as a result of community service work may be diverted to a fund to compensate crime victims. Courts may also sentence offenders to community service to defray a portion of the administrative expenses of prosecution. Judges and parole authorities have discretion to determine the nature of the community service to be performed by the offender.

B

Incarceration

The most serious or repeat offenders are incarcerated. In the United States about one-fourth of all persons who are convicted of a crime are incarcerated. Canada incarcerates about one-third of all convicted offenders. However, inmates in Canada are eligible for parole at earlier points in their sentence. Criminals may be incarcerated in jails or in prisons. Jails are locally operated facilities that house criminals sentenced to less than one year of incarceration. Jails typically house persons convicted of misdemeanors (less serious crimes), as well as individuals awaiting trial. Prisons are state or federally operated facilities that house individuals convicted of more serious crimes, known as felonies. Offenders sentenced to a year or more of incarceration are housed in prisons rather than jails. Canada uses a similar bifurcated system of local correctional centers and provincial and federal prisons.

Restrictions on incarcerated offenders vary. Some offenders are kept in solitary confinement or maximum security with no opportunity to interact with other inmates. In minimum-security facilities, the most common form of incarceration, inmates are housed together in large cells or in dormitory-like facilities.

Prisons deprive inmates of virtually all liberty and control over their lives. Each aspect of an inmate’s daily life is regulated by others and highly structured. Many prisons offer self-help educational and counseling programs. In some prisons, inmates may be able to work at different trades to acquire vocational and technical skills. However, a majority of inmates do not utilize these rehabilitation-oriented programs because the programs typically are not compulsory. Instead, prisons often function as long-term warehouses where offenders are merely housed and forgotten. Rates of recidivism (repeated criminal behavior) are fairly high for former inmates in the United States, averaging about 60 percent. Rates in Canada are substantially lower, at 40 percent.

In a variation of incarceration known as shock probation, first-time offenders are placed on probation after having served only a short amount of the incarceration that they had expected to serve. Some offenders receive a split sentence, serving some time in jail before being released on probation. The theory behind these practices is that the jail time, albeit brief, will shock the criminal into acceptable behavior. In another variation, called intermittent sentencing, offenders spend weekends in jail but return to the community during the week. This practice enables offenders to maintain jobs and remain in contact with their families while also being punished.

In the United States and Canada, younger offenders may be sentenced to highly regimented, military-style correctional programs known as boot camps. Generally, offenders volunteer to participate in boot camp programs to avoid other types of incarceration. At boot camps, officials subject offenders to strict discipline and physical training. They also provide educational or vocational programs. Boot camps serve as an alternative to traditional, long-term incarceration and attempt to train offenders to be law-abiding. Typically, boot camp sentences range from two to six months.

C

Corporal Punishment

Throughout history, societies have used corporal punishments to inflict physical pain on wrongdoers. Tribal societies find these punishments particularly appealing, since they are immediate and direct, and often debilitating. Such societies often lack the facilities to confine offenders, and corporal punishment offers a more direct application of penalties for violating community rules. Many people believe that corporal punishments, which graphically demonstrate the consequences of crime, help deter future wrongdoing. Harsh physical punishment also satisfies the goal of retribution (revenge).

In Europe during the Middle Ages, entire families would take revenge against members of rival families for crimes or wrongs committed by one or more members of the rival family. Some of these blood feuds lasted for many years—even several generations. In some tribal societies, entire tribes would feud with other tribes, and members of rival tribes would hunt and kill one another. Because ongoing feuds among kin groups were disruptive, various European countries drafted agreements setting societal policies concerning punishment. For example, in 1215 King John of England signed the Magna Carta, which provided that accused criminals could not be executed or incarcerated prior to a trial by a jury of their fellow citizens.

Governmental and religious authorities also used many forms of corporal punishment, often to torture persons into confessing to a crime or heresy (unorthodox religious belief). During the 13th century the Roman Catholic Church established the Inquisition, a judicial institution charged with finding, trying, and punishing heretics. Forms of torture used by inquisitors included flogging, boiling, and stretching on a device known as the rack. A person who underwent the rack torture was forced to lie on a long board. After the person’s hands and feet were tied to mechanisms at opposite ends of the board, pressure on the mechanisms was increased in opposite directions. Frequently the person’s arms and legs would pop from their sockets. This painful torture was sometimes fatal and commonly resulted in permanent physical injuries.

The colonists who settled North America used several types of corporal punishment, including the use of the ducking stool. In this punishment, a criminal was tied to a chair at the end of a long pole and lowered into a lake or river and nearly drowned. Branding—the searing of flesh with a hot iron—was another form of punishment used by the colonists. Persons convicted of adultery (having sexual relations with someone other than one’s spouse) were sometimes branded with the letter A on their faces or foreheads. During the late 1700s many of these corporal punishments were discontinued in favor of more humane methods, such as incarceration.

D

Banishment

Some societies punish certain undesirable individuals, such as criminals and political and religious dissidents, with banishment or exile. In ancient times banishment was a common form of punishment, and it often amounted to capital punishment because authorities would deny food and shelter within a certain distance to those banished. The Old Testament of the Bible contains the story of Adam and Eve, who were banished from the Garden of Eden for their disobedience to God.

During the 18th and 19th centuries officials in various Chinese provinces used banishment as a punishment. It ranked second only to death as the most serious punishment imposed. China and other countries also used banishment as a means to colonize regions. For example, from 1788 to 1868 England banished more than 160,000 prisoners to Australia or Africa to work in labor colonies they established.

Banishment has also been used in modern times. In 1993, for example, tribal officials banished two teenaged members of the Tlingit tribe of Native Americans as punishment for a robbery. The offenders were sent from their home in Everett, Washington, to a desolate island off Alaska to live in isolation for several months.

E

Capital Punishment

The most extreme form of punishment is death. Execution of an offender is known as capital punishment. Like corporal punishment and banishment, capital punishment has been used since ancient times. The Old Testament of the Bible prescribes death as the punishment for over 30 crimes. The Romans executed Jesus Christ by crucifixion, a common form of capital punishment between the 6th century bc and the 4th century ad. In England in the 1800s more than 200 crimes were punishable by death.

In the late 18th century, social commentators began to criticize penal practices they considered brutal and unnecessary. Many of these philosophers condemned the use of capital punishment, initiating a debate that has continued to modern times. During the 19th century, legal reformers in England and the United States helped enact laws limiting the death penalty to the most serious crimes. Shortly after World War II (1939-1945), many countries in Western Europe, beginning with Italy and Germany, abolished capital punishment. Britain, Canada, and Australia followed suit. A similar abolition movement coincided with the breakup of the Union of Soviet Socialist Republics in 1991, when several nations in Eastern Europe eliminated capital punishment. The use of the death penalty has become increasingly controversial, especially in the United States and Japan, the only industrialized democracies that continue to practice capital punishment.

In the U.S. system of government, power is divided between a central (federal) authority and smaller local units of government (the states). Federal law authorizes capital punishment for more than 40 offenses, including premeditated murder, treason, and murder related to aircraft hijacking, drug trafficking, and civil rights violations. The majority of states also authorize the death penalty for violations of state criminal law, including such crimes as treason, murder, and rape. As of early 2005, 12 states did not permit capital punishment. Methods for executing offenders vary among the states. The majority of states that have the death penalty execute offenders by means of lethal injection—the administration of fatal amounts of fast-acting drugs and chemicals. Other common methods include lethal gas and electrocution. Three states execute criminals by hanging and three states provide for execution by firing squad.

In the 1972 case of Furman v. Georgia, the Supreme Court of the United States ruled that the procedures leading to imposition of the death penalty in Georgia were unlawful. Although the Court indicated that capital punishment was not necessarily a “cruel and unusual punishment” in violation of the Constitution of the United States, it determined that allowing a jury unlimited discretion to choose between a death sentence and a prison sentence is unconstitutional. Because all of the states that provided for capital punishment at that time also used a standardless system—that is, a system in which the sentencing decision of jurors was unguided—this ruling invalidated every state’s death penalty statute. Following the Furman decision, many states passed new death penalty legislation. These laws still gave the jury the discretion to choose between imprisonment or death, but they also restricted the types of crimes for which death could be imposed and provided instructions to guide the jury’s determination of punishment. In 1976 the Supreme Court ruled such systems constitutional.

Opponents of capital punishment see it as barbaric and degrading to the dignity of the individual. Many believe it poses too great a risk of executing an innocent person. Supporters respond that the death penalty provides a uniquely effective punishment. They consider it a necessary form of retribution for terrible crimes. Opponents of the imposition of capital punishment in the United States assert that authorities apply the death penalty unfairly. These critics emphasize the disproportionate numbers of African Americans on death row and also note that the race of the crime victim provides a statistically clear determinant of whether an offender receives a sentence of death or imprisonment. Although about half of all murder victims are nonwhite, 80 percent of death sentences are imposed for murders of whites. Those who believe capital punishment is not imposed unfairly attribute this trend to differences in the types of crimes involving white victims.

Those who support capital punishment believe it serves an important function of vengeance. Some proponents of the death penalty argue that those who kill should also be killed because death is the only fitting punishment for an individual who takes another’s life. Supporters of capital punishment also believe that executing offenders will deter others from committing similar crimes. See also Capital Punishment.

F

Other Approaches

Modern forms of criminal punishment include alternatives that contrast vividly with corporal punishments and large-scale warehousing of offenders in prisons. Modern programs increasingly emphasize an individualized approach to the rehabilitation and treatment of offenders.

In the United States and Canada, persons convicted of crimes are most often placed on probation. A person who receives probation remains in the community but is subject to supervision and must comply with various conditions. The conditions may include mandatory group or individual psychological counseling sessions, classes, or vocational training. Because growing numbers of offenders have drug or alcohol dependencies, drug rehabilitation programs are often included as a condition of probation.

Probationers who have committed more serious crimes require tight supervision, including house arrest and electronic monitoring. People under house arrest must remain in their house and may leave only for periods of work during the day. They must observe rigid curfews and allow probation officers to enter their homes at any time to inspect the premises for illegal drugs or other contraband. Electronic monitoring is often used in conjunction with house arrest. The offender must wear electronic bracelets or anklets that emit electronic signals and permit probation officers to detect whether the probationer is where he or she is supposed to be. Another type of electronic monitoring involves a telephonic device that reads the electronic signal of the probationer’s bracelet. When probation officers call at random times, offenders must insert their bracelets into the device so that the officers can ascertain the offender’s location.

Prison inmates who are within six months of their release date or who have recently been released may qualify for special transitional programs. Inmates who wish to enroll in colleges or perform work outside the prison during their final months of incarceration may request study- or work-release time. If such time is granted, prison officials will permit the inmates daily unescorted leaves from prison for such purposes. Vermont developed the first work- and study-release programs in the United States in 1906. In 1998 about 25,000 U.S. prisoners participated in work- or study-release programs. Canada instituted work-release programs in 1992. In 1998 about 1,200 inmates in Canada received work releases.

Some inmates may be granted furloughs (temporary leaves) so that they can spend weekends visiting with their families at home. Furlough programs originated in Mississippi in 1918. By 1998 approximately 10,000 prisoners in the United States received furloughs each year. Canada does not utilize furloughs. However, a small portion of inmates are granted day parole.

Parole boards place some paroled inmates in halfway houses. These community residences, staffed by counselors and aides, assist offenders in making the transition back into community life. Halfway houses provide released prisoners with a place to sleep and eat. In addition, halfway-house personnel help parolees find jobs and get access to needed services. Halfway houses originated in England during the 1800s. Pennsylvania established the first halfway house in the United States in 1817. Today there are hundreds of halfway houses in the United States helping former prisoners cope with their freedom.

III

GOALS OF CRIMINAL PUNISHMENT

The major driving force underlying all punishment is revenge, also referred to as retribution. The word retribution derives from a Latin word meaning “to pay back.” In retaliation for wrongdoing, societies seek to punish individuals who violate the rules. Criminal punishment is also intended as a deterrent to future criminality. Offenders who are punished may be deterred from future wrongdoing because they fear additional punishment. Others who contemplate crime may also be deterred from criminal behavior. Societies also impose punishments in order to incapacitate dangerous or unlawful individuals by restricting their liberty and to rehabilitate these wrongdoers and correct their behavior.

The various goals of criminal punishment may conflict with one another. For instance, the goal of incapacitation may be achieved by confining offenders for long prison terms. However, inmates who are warehoused in large prisons where they associate closely with other criminals and lack control over their life may develop additional antisocial behaviors. Consequently, punishment may perpetuate criminal dispositions and behaviors rather than eliminate them.

A

Retribution

Retribution is probably the oldest goal of criminal punishment. The Babylonian Code of Hammurabi, dating from the 18th century bc, contained this principle of equal retaliation. Similarly, the laws of the ancient Hebrews demanded “an eye for an eye and a tooth for a tooth.” The corporal punishments used in England and the American colonies were based on retribution.

Over time many came to believe that the brutal punishments imposed on offenders far exceeded the seriousness of the crimes. French novelist Victor Hugo satirized criminal punishment in France during the 19th century in his novel Les Miserables (1862), in which a character is sentenced to 20 years of hard labor after stealing a loaf of bread to feed his family. When the character later escapes, officials hound him for years as though he had committed murder. Although extreme, this fictional account captured the vengeful nature of punishment in those times.

In the United States, the retributionist philosophy remains apparent in the sentencing practices of courts, the laws enacted by state legislatures and Congress, and the rules and regulations of various correctional programs. Common punishments include restitution; fines; and victim compensation for losses, pain, and suffering resulting from crimes. Furthermore, offenders perform hundreds of hours of public service work as restitution to the state in partial payment for the losses resulting from their crimes.

There is little evidence to indicate that criminals change their behavior as a result of government-imposed retribution. Many released prisoners and former probationers repeatedly commit crimes. The value of retribution to society may be ritualistic. That is, when formal measures of retribution are imposed citizens may feel satisfied that crime has been appropriately addressed.

B

Deterrence

Another goal of punishment is deterrence—the prevention of crime. There are two types of deterrence: specific and general. Specific deterrence refers to the preventive effect of a specific punishment, such as a large fine and a long prison sentence, on a specific individual for committing a specific crime. Many believe that imposing a sufficiently severe punishment on an offender will deter that individual from future crime. General deterrence is intended to apply to any person who contemplates committing a crime. For example, advocates of the death penalty believe that imposition of such a severe punishment on murderers will prevent others from killing people.

C

Incapacitation

Modern punishments seek to incapacitate certain offenders who are believed to pose a threat to the community. Incapacitation involves restricting offenders’ movement or liberty. In contemporary practice, the goal of incapacitation is associated with attempts to punish offenders in a manner proportionate to the seriousness of the crime.

Isolating criminals from society through confinement or incarceration is the most direct method of crime prevention. Containing offenders in prisons and jails prevents them from harming others or damaging property. For many offenders incapacitation is also psychologically painful. Most people consider incarceration a sound defensive strategy to protect the public and combat crime. However, because many criminals remain undetected, unapprehended, and unrestrained, the defensive value of incarceration may be overrated.

In the United States, severe prison overcrowding frustrates efforts to incarcerate all offenders who deserve to be incarcerated. Even with new construction, it will remain impossible to incarcerate all eligible offenders. Furthermore, prison and jail construction is costly and often unpopular. In certain communities a “not in my backyard” syndrome typifies citizen reaction to proposed prison or jail construction.

D

Rehabilitation

Contemporary criminal punishment seeks to correct criminals and transform their behavior, rather than merely penalize wrongdoers. As early as 1787 the Society of Friends (Quakers) in Pennsylvania espoused inmate reform as a major aim of prisons. Prisons became known as penitentiaries because the Quakers believed that prisons could help criminals become penitent (remorseful) and change their behavior. However, it was not until the late 19th century that rehabilitation became an acknowledged goal of criminal punishment in the United States. Rehabilitation programs of this era differed from the reform-oriented practices promoted by the Quakers. Rather than requiring solitary religious study, prisons began to emphasize basic education and skills training. At its first convention in 1870, the National Congress on Penitentiary and Reformatory Discipline officially recognized rehabilitation as a valid and useful function of incarceration. Shortly thereafter, American prison administrator Zebulon Brockway established the Elmira Reformatory in Elmira, New York. The reformatory’s stated goals included rehabilitation and reform of inmates. Between 1876 and 1920 a fourth of the states modeled the construction and administration of their prisons on the Elmira Reformatory. These institutions provided vocational training and other programs to promote inmate rehabilitation.

The rehabilitation philosophy of punishment dominated in the United States through the first half of the 20th century. However, high recidivism rates among former inmates caused many experts to become skeptical of rehabilitation programs. Increasingly, the goal of rehabilitation has received lower priority in corrections. Today the primary emphasis of punishment in the United States is ensuring that offenders receive penalties commensurate with the seriousness of their offenses. The primary philosophy of Canadian corrections is rehabilitation. Since 1992, Canada has worked to reduce its incarcerated population by implementing various alternatives to incarceration and accelerating parole release of incarcerated offenders.

IV

ATTITUDES ABOUT CRIMINAL PUNISHMENT

During the late 1700s and early 1800s, several French, English, and Italian philosophers and social reformers achieved prominence through their criticisms of corporal punishments. For example, in Des L’espirit des lois (1748; translated as The Spirit of the Laws, 1750), French political theorist Montesquieu criticized the French penal code and the inhuman punishments suffered by prisoners. He believed that punishments should fit the crimes committed and that more humane conditions should be provided for incarcerated offenders. French philosopher and social critic Voltaire also objected to injustices against criminals, such as arbitrary sentencing practices and secret trials. Denis Diderot, another French philosopher, campaigned for political reforms to eliminate punishments he believed to be cruel and inhuman.

During the late 1700s, British philosopher and economist Jeremy Bentham, who founded the doctrine of utilitarianism, became an outspoken critic of penal policy in England. In An Introduction to the Principles and Morals of Legislation (1789), Bentham applied his philosophy of utilitarianism to crime and punishment. Bentham believed that criminals engage in crime for pleasure and calculate the gains and losses (or pleasures and pains) associated with criminal conduct. He argued that a utilitarian philosophy of punishment would be useful in deterring crimes by minimizing or eliminating the pleasures offenders obtain from wrongdoing. Bentham proposed that the punishment inflicted should offset the pleasure offenders achieve from their crimes. He also believed that people would be more effectively deterred from crime if they did not consider punishments arbitrary and capricious. Many of Bentham’s ideas were adopted by the British legislature, including the limitation of capital punishment to only the most serious crimes.

One of the most influential writers of this time, Italian jurist and economist Cesare Beccaria, built on the work of Montesquieu and Voltaire. Like Voltaire, Beccaria objected to judicial tyranny and injustice, as well as torturous corporal punishments. Beccaria’s work, Tratto dei delitti e delle pene, (1764; translated as An Essay on Crimes and Punishments, 1880), contained the basic principles of the classical school of criminology. These include (1) the best approach to crime is prevention and prevention is maximized by establishing written legal codes that define prohibited behaviors and the punishments for them; (2) law serves the needs of society rather than enforces moral virtues and therefore should be limited to the most serious offenses; (3) all persons should be considered innocent until proven guilty; (4) punishment should be swift and certain, with no regard for personalities or social characteristics of offenders; and (5) punishment should be retributive and the degree of retribution should fit the seriousness of the crime.

Many countries, including Canada, England, France, and Italy, have incorporated Beccaria’s principles into their legal system and jurisprudence (legal philosophy). When Beccaria originally proposed his ideas, many considered them antithetical to the existing legal system. Prior to Beccaria’s time, only those with wealth, property, and political influence possessed legal rights and privileges. His work influenced several of the authors of the U.S. Constitution. The language of many U.S. criminal laws reflects Beccaria’s ideas.