NCJ Number
136596
Date Published
1991
Length
187 pages
Annotation
This analysis of justifications for punishment argues that the modern retributive theory of punishment has not solved the problems of the classical utilitarian approach and has indeed created new ones of its own.
Abstract
The discussion notes that punishment is an institution in almost every society, although its name varies according to the context. Punishment has seven basic features. It involves the infliction of something unwelcome to the recipient; the infliction is intentional; those who order it are viewed as having the right to do so; and the infliction results from an action or omission that infringes a law, rule, or custom. In addition, the recipient has acted voluntarily, the punisher offers a justification, and the punisher's belief determines whether the action is punishment. Punishment differs from vengeance in that punitive feelings are more disinterested and based on a breach of some law or code of conduct. British and American judges and policy makers have taken a mainly utilitarian view of punishment, but the recent movement toward just deserts has threatened this approach. Compromises have been proposed to reconcile the two approaches. Both sides should compromise, with utilitarians accepting proportionality and retributivists giving up the assumptions that their approach is more moral and that retributive feelings must lead to action. Chapter notes, reference lists, and index