Opinion:Punishment

From Exterior Memory
Jump to: navigation, search
This article represent the personal opinion of Freek Dijkstra. It was written in June 2010. Remember that opinions may change over time, and this article will likely not cover a topic in detail. Modification by third parties is disabled. If you do not have your own website and really like to leave feedback, do so on the discussion page.
Afterthought (2015): In retrospect, I've written this article because I felt that retributive justice is not always the best solution, and restorative justice may be too soft for most cases. This article explored some of the ideas in penology on my own.


After a particular bad misconduct, the public opinion calls for more severe punishment. I argue that this is a bad tendency.

Why Punishment?

Punishment does not only do justice to the culprit, but in fact serves three distinct people:

  1. The victim
  2. The perpetrator
  3. Potential (future) criminals (including the perpetrator)

This leads to three distinct reasons to punish a criminal:

Retribution
While most misbehaviour can not be reversed, we have a natural tendency to retaliate. This aspect of punishment serves (the need for revenge by) the victim.
Incapacitation
The miscreant may physically be prevented from making the same error again. Jails are literally holding cells, and restraining orders also put physical constraints on the convicted. The aspect of punishment targets the perpetrator.
Discouragement
Punishment discourages others to misbehave in the future. The idea is that a potential criminal will make a (unconscious) decision weighing the (negative) punishment against the positive gain from a crime. This aspect of punishment targets potential future criminals, and may lead to severe or even excessive punishments.

There are more reasons to punish miscreants, but each reason is always targeted against one of these three group (victim, perpetrator, potential criminals). Restoration compensates the victim by reverting the misdeed; rehabilitation targets the perpetrator by "curing" him; denunciation (either by strong condemnation in newspapers, or a less subtle pillory) both targets potential future criminals and the sense of justice of the victim.

Will it Help?

In order to determine the effect of punishment, most studies only consider the effect on potential (future) criminals: will the crime rate decrease because of the punishment at a macro scale? This view is too limited, and all three target groups need to be examined.

Victim
Punishment usually does not help the victim. Often, the misconduct can not be reversed, and even if the perpetrator is to financially compensate the victim, most perpetrators simply do not have that money. The most effective way to improve sense of justice is to acknowledge the suffering of the victim.
Perpetrator
The effectiveness of incapacitation is 100%, but is very costly to society. The effectiveness of rehabilitation varies widely. A simple type of "alternative" punishment will not help. Extensive guidance is more likely to help, but can never cure a perpetrator, only help him to cope with his or her instinct to steal or deceit.
Potential criminals
It is yet unclear to what extend the type and severity of punishment influences the decision making of potential criminals, but it seems that the chance of getting caught significantly outweighs the type and severity of the punishment.

Other Concerns

If effectiveness was the only concern when deciding on the type and severity of the punishment, the best option would be to throw everyone in jail forever and throw away the key. That way, there would be no more crime outside the prison. Clearly, effectiveness is not the only concern when deciding on the type and severity of the punishment.

Morality

Why do we punish in the first place? To discoureage behaviour which harms the group as a whole. So the goal of punishment it to let society function best as a whole.

So the "best" punishment is not one that will prevent as many crimes as possible, but one which gives most benefits society as a whole. For a large part, these goals align, but additional parameters like cost and loss of productivity should also taken into account.

We wish to only punish those who break the law. Society regards an innocent man in jail to be a worse problem than a guilty man walking free.

Pros and Cons of Longer Jail Time

Pros:

  1. Perpetrator is incapacitated for a longer time
  2. Feeling of security to the victim
  3. Potential Criminals may be discoureaged even more

Cons:

  1. Higher cost for society (jails are expensive)
  2. Loss of productivity (perpetrator has no income)
  3. Increased recidive because perpetrator loses contact with society

The one big advantage of jail is that is incapacitates the perpetrator: as long as he is in jail, he can not commit any crime. Other than that, it does seem costly and not very effective. Extended jail time does not help in reducing recidivism. It does provide a feeling of security to the victim as long as the jail time last, but this is likely a false sense of security, as other (potential) criminals may still walk free. We are not able to predict a crime before it has been committed, so this is unavoidable.

Alternative Punishments

Punishments will not cure any perpetrator, and neither will alternative punishments. However, jail time is costly (both in direct costs and loss of productivity).

It is worth to investigate punishments which incapacitate the perpetrator but still allow to function in society. This includes GPS trackers and even voluntary medical treatment (libido-reducing medicines) of sexual offenders. The effects on privacy and personal integrity of the perpetrator should not be neglected. A GPS tracker should be temporary (just like jail time is temporary), and personal integrity should only be violated with consent of the perpetrator, and offered as alternative for jail time.

Behavioural Chances

An ideal punishment removes the incentive for the perpetrator to commit the crime again, but it is very unlikely that such punishment exists. Brain research suggests that a large part of an individual's behaviour is caused by the inherit characteristics of his brain. If this is true, can we still hold individuals accountable for their behaviour? Yes, because punishment can still influence human behaviour. We may not be able to change the desire or willingness to commit crime by individuals, but we may be able to influence the behaviour of individuals by clearly letting them know about the consequences.

Unfortunately, little is still known what treatment or punishment is most effective. We need that knowledge to design effective punishment, as opposed to punishment which simply satisfies our desire for retaliation.

False positives

Studies on the effectiveness of punishment only concern with he positive effects of punishment. However, society prefers false negatives (criminals walking free) over false positives (innocent people in jail). Irreversible punishments, like death penalty, are bad for this reason. It is not easy to weigh the two effects (false positives and false negatives), but it is important, especially when the number of people getting caught is to increase.

My Conclusion

Society is best served if the chance of getting caught is very high. The type and severity of punishments seem almost irrelevant, although a clear condemnation from society may help in both prevention and in the sense of justice by society and the victim.

The study for optimal punishment should not only look at prevention and recidive, but look at the benefits and costs for society as a whole, including effects on the victims and the cost of punishment. Restraining orders, other than imprisonment may provide the same result, at a lower cost.

There should be more evidence-based justice, where the effectiveness of different types of punishments are studied in practice. In the long run, this will be more effective then simply answering the request for revenge by society.