The Ethics of Punishment and Correction Policy
In the history of the development of legal thought, the topic of punishment seems to be one of the most ancient. According to the dictionary of ethics, "the punishment is a kind of negative sanctions applied in case of violation of adopted statutes (rules, laws), which is represented as the restriction of abilities and decreasing of the social status (deprivation of rights, property, freedom) of a guilty person." Punishment is a public institution designed to respond to cases of violation of the law, which bring the most significant harm to the society as a whole and to its individual members. It involves application of measures to a violator, which are aimed at causing him/her all sorts of damage (from financial losses and imprisonment to deprivation of life).
In the broadest sense, punishment means any damage to a person who has committed a serious violation. In this case, punishment includes extrajudicial execution of an offender, isolation of a dangerous, but deranged person by the decision of the state court, compensation by an offender of material and moral losses caused.
In the socio-ethical theory, just as in law, a more strict and narrow definition of punishment is often used. According to it, punishment is a harsh treatment of an offender, which is carried out by the state and is based on assertion of the exclusive right of the state to punish. It is a response to actions of varying degrees of intention and its immediate goal is causing harm to an offender, but not reimbursing victims.
Moral specificity of punishment consists in the fact that it involves the use of force to another person not at the moment when he/she directly threatens someone's life, physical integrity, health, property, and so on, but after the threat has been created and implemented. This is related to some additional difficulties for moral justification of punishment that is not specific to moral justification of action to force self-defense or protection of another person. Punishment is such an institution that is the most vulnerable to an argument stating that "the addition of two evils does not end up good".
In the process of socio-historical development, understanding and practice of punishment have changed. At the dawn of the humanity (in the pre-state condition), punishment was understood in the spirit of retaliation: an eye for an eye, a tooth for a tooth and, virtually, it was indistinguishable from revenge. A direct vengeance by the law of retaliation (equal retribution) could be both generic and individual. The rule of retaliation grew out of a deep knowledge of the people and of understanding that they were not as terrible in crimes as in blindness, fury, deceit, and subsequent vengeance.
The blood feud was considered as mandatory in relation to "foreigners" and did not require a justification, but it was categorically excluded from intra-relations. Throughout the history of punishment, retaliation was demanded in practical relations of people as a vital regulatory, conflict-resolving tool that deterred destructive aggressiveness.
The law of retaliation had a limiting prohibiting character, which was manifested in the requirement of equal recompense. The ancient custom obliged to limit damage of punishment proportionally to the harm caused. In the period of legal regulation of the tribal system, punishment was mostly prohibitive.
In antiquity, retaliation gave way to a new moral principle: "Do unto others as you want others to do unto you." This principle is called "The Golden Rule of morality." Both genetically and essentially, the Golden Rule was a denial of retaliation. The latter was transformed in two directions: the damage to be revenged was a) calculated based on the subjective aspect of the action and b) was replaced by material compensation and redemption. These changes have led to the need to move away from collective responsibility to individual responsibility of people and to the removal of a sharp division between "ours" and "foreigners", which could only be balanced by mutual recognition of the right of force.
With further development of the religious consciousness, God became the embodiment of retributive justice. Now, only God could punish. In the Middle Ages, people began to distinguish between punishment on the earth and in the afterlife. Punishment itself was understood as a retribution for evil caused by a person by a free will. Punishment was a divine retribution for sins committed in life. A person was not so much afraid of the earthly court as of the court of God.
It should be noted that initially punishment was corporeal and distinguished by extreme cruelty. A person who did not have property was forced to answer for misdeeds with their own body. However, this did not imply an intent to abandon corporal punishment. Execution was at the same time a punishment and a national holiday, a sort of a public entertainment spectacle.
Suffering and pain of offenders brought joy to other people seeking circus. Executions were public and were usually performed either in town squares or in front of the victim’s house so that the corpse could see the offender. There were processions in different parts of the city to demonstrate the criminal who was to repent of sins. At the end of the execution, offender’s head and body were hung in the main square.
The differentiated system of penalties depending on the strength of sin became an alternative to corporal punishment. With emergence of property, an offender could buy back ("redeem") the guilt. Along with the era of absolutism, a new phase in the development of the practice of punishment began. Instead of God, the state assumed the function of punishment. The idea of punishment as retribution began to relate to the idea of frightening punishment. The aim of punishment was strengthening of the monarchy. The number of diverse and sophisticated corporal punishments increased. However, the punitive practice of absolute monarchies soon showed its inconsistency.
During the Enlightenment, fundamental changes occurred in the practice of punishment. The Italian researcher Cesare Beccaria in his work "On Crimes and Punishment" developed the idea of immorality and ineffectiveness of corporal punishment. He criticized brutality of medieval punishment (burning at stake, quartering, burying alive in the ground) with the purpose of intimidating citizens. According to Beccaria, the essence of punishment was the ability to prevent commission of a new crime by the criminal. It was necessary to maintain proportionality between crime and punishment; otherwise, the offender could be sentenced to an unduly harsh punishment for a very minor offense.
Beccaria’s ideas have long been shared by a large number of lawyers as they fully correspond to a modern liberal trend. However, as a rule, no punishment can act as a guarantor of preventing crimes. A deep philosophical analysis of the evolution of the practice of punishment was carried out by the French philosopher Michel Foucault.
Foucault described transformation of criminal punishment from medieval tortures to modern isolation of criminals in prisons. Foucault pointed out that for less than a century there occurred a radical change in the style of punishment. Traditional public execution of torture was replaced by more practical methods of deterrence and rehabilitation without the use of physical torture.
At the end of the 18th and in early 19th century, a punitive festival lost its appeal. Punishment gradually ceased to be a spectacle and became a part of a hidden criminal procedure. The "Era of restricted punishment" began. Punishment ceased to be corporal. Effectiveness of punishment was understood in the idea of its inevitability, but not in the intimidation of a spectator. A scary-prohibitive and generally violent practice of punishment did not justify itself. The emerging bourgeois society demanded a change of aims and means of punishment.
However, there was another problem: what could replace physical torture and serve as a measure of comparison of crime and punishment. Freedom was declared to be a measure of comparison. The classical theory of punishment agrees that the only civilized form of punishment is imprisonment. Thus, development of the institution of punishment, as well as its types and forms has evolved over time in different historical periods.
Currently, there is no effective theory of punishment, which would serve as the foundation for the penological practice. This situation can largely be explained by the fact that punishment is controversial in moral terms. Inherently, punishment involves commission of immoral, violent actions on others and, so, it must be justified and substantiated. From the perspective of moral justification of punishment, all existing theories can be divided into retributive (based on the idea of retribution) and utilitarian (pragmatic) or oriented to results.
According to retributive concepts, punishment is a natural reaction to a crime committed. Morally, punishment is justified as retribution of a criminal for having committed a crime. An offender deserves punishment and must be punished in proportion to the severity of guilt. Thus, retributivism gives punitive justification of punishment, describing it in a spirit of revenge, which corresponds to the ancient principle of retaliation. A typical example of retributivism is a development concept of the German philosopher Immanuel Kant. According to Kant, punishment is necessary as every criminal deserves suffering.
The position of retributivism is denied by one of the founders of utilitarianism – J. Bentham. According to Bentham, punishment can be allowed only if it is possible to prevent future crimes thereby. Punishment is justified if it has good results that outweigh bad results. Utilitarianism has resulted in the fact that people began talking not about punishment, but about correction of an offender and began using the term “correctional institution” instead of the word "prison."
However, as seen from historical examples, criminal rehabilitation programs have not produced the desired effect. Although the idea of correction of offenders is very attractive, people are not a piece of clay, from which it is possible to make a law-abiding citizen. Penal consequentialism and rehabilitation practices have been subjected to serious criticism. According to Kant, people have the right to punish offenders, but they have no right to manipulate a personality, infringing on human dignity. Punishing a person, people still refer to them as to a person responsible for their actions. Thus, punishment is morally justified and should be proportional to seriousness of a crime. Utilitarianism is completely contrary to this idea, believing that in order to ensure the public good, the innocent must be punished or, if a greater punishment could help strengthen the deterrent effect, then it should not be neglected.
Actually, it is possible to conclude that punishment has remained the same as it was for the ancestors. This is still an act of revenge by the law of retaliation and, at the same time, an act of atonement. The true function of punishment is to satisfy the public outraged moral sense, as well as conservation of the society’s cultural and moral values. However, it seems reasonable that a criminal should be punished according to the gravity of offense. Punishment is a not senseless cruelty of the society, but the fact of redemption, reimbursement of evil inflicted upon the society and its morality.
In the legal culture, there are two extreme positions in relation to punishment. First position is legalism. It comes from the rule of law and is based on the thesis that "the crime must be inevitably followed by a symmetric punishment." Evil must be punished in any way as it is a legal necessity and duty of the state to its citizens to act in such a way. The second position is moralism. It is based on the thesis that "the legal punishment is unacceptable since any violence is immoral."
Many researchers believe that the modern penal system is in crisis and needs to be reformed. There are several ways to reform it, for example, through consistent humanization of the penal system, its liberalization and diversification (i.e. expanding the number of possible punishments to be chosen as a form of criminal punishment by the court, taking into account personality of the guilty and severity of the offense). There is no a universally accepted direction.
Assessing the situation, the idea of some researchers who note that the correct balanced attitude of the society to a criminal punishment is only possible if the society forms a legal culture seems plausible. As a comprehensive institution, it includes many elements like justice, legal thinking, and legitimate activities. Legal culture is changeable and variable and different combinations of its elements are possible. A certain final configuration, in turn, determines attitude of the society to punishment.
The problem of effectiveness of punishment cannot be satisfactorily resolved without turning to the moral state of the society in the development of its legal culture. The redemption function of punishment can be performed only in a society where the sense of justice and moral consciousness are developed. It should not be forgotten that development of legal culture is equidistant from the extremes of legalism and moralism.