Punishment fit the crime Essay

The just-desert approach to sentencing aims to â€Å"make the punishment fit the crime. † Just deserts is a very old idea revived periodically when officials are desperate for a simple solution to the crime problem. It swept the United States with some success in the 1970s because a few articulate professors and others, when disillusioned with the rehabilitation emphasis of the preceding decades, momentarily overlooked the realities of criminal justice system. They were charmed by the simplicity of prescribing the same penalty for everyone convicted of the same offense, and their rhetoric implied that this would somehow maximize both fairness and crime prevention. The just deserts perspective emphasizes punishment in proportion to the amount of harm done and the rated culpability of the criminal actor. The just desert model of sentencing is based on a philosophy of retribution. Founded on the Principle of Commensurate Deserts, the just desert model holds that punishment should be proportional to the seriousness of an offender’s criminal conduct. This principle is defined by the harm done and the level of culpability attributed to the offender. These principles, in certain important respects, recall the arguments of the classical criminologist Cesare Beccaria (1738-94) for due process in the criminal justice system and are based on a similar understanding of the social contract, which is supposed to apply equally and fairly to everyone. Retributive punishment is thereby regarded as ensuring that offenders do not profit from their wrongdoing. Yet as critics have argued, the fundamental flaw in this line of thinking is that it is applicable only if social relations are just and equal, otherwise there is no equilibrium to restore. In reality, offenders tend to be already socially disadvantaged, so that punishment actually increases inequality rather reducing it (Cavadino and Dignan 42). Sometimes just desert can be negative in the sense of unwanted, as well as something regarded as a good. The fact that the Nazi war criminals did what they did means they deserve punishment: We have a good reason to send them to jail, on the basis of just desert. Other considerations, for example, the fact that nobody will be deterred or that the criminal is old and harmless, may weigh against punishment, and we may even decide not to pursue the case for that reason. But, again, that does not mean that deserving to be punished is irrelevant, just that we’ve decided for other reasons to ignore desert in this case. But again: A principle’s being outweighed is not the same as its having no importance. Expressing both equality and entitlements, our social moral code pulls in different directions. How, then, are we to determine when one principle is more important? Unless we are moral relativists, the mere fact that equality and entitlements are both part of our moral code does not in itself justify a person’s reliance on them, any more than the fact that our moral code once condemned racial mixing while condoning sexual discrimination and slavery should convince us that those principles are justified. Because we know that the rules that define acceptable behavior are continually changing, and sometimes changing for the better, we must allow for the replacement of inferior principles with more reasonable guidelines. There is perhaps a stronger moral argument for the use of the just desert rooted in death penalty (Reiman, 1988). By deliberately causing the death of another, the murderer incurs a moral debt: the loss of his or her own life is earned as a just desert. By taking another person’s life, the offender has treated their victim as having lesser worth than they afford to themself, as presumably they would not willingly accept the same act to be inflicted against themself. Capital punishment for those who commit murder restores an equilibrium. The wrongdoer experiences suffering to the same extent that they inflicted upon another. The ‘golden rule’ of ‘doing unto others what one would want others to do unto one’ is restored, as the punishment impresses upon the offender that their worth is equal to that of their victim. It also has a symbolic value by reaffirming publicly the moral commitment to the ‘golden rule’ as a societal value. On these grounds, Rawlings (1999) defends just desert in principle. He opposes it in practice, however, as in the United States, imposition of the death penalty is discriminatory. To take just one example: the odds of a black person being sentenced to death for the murder of a white victim are far higher than the corresponding odds when a white person murders a black victim. Restorative justice is not without its critics, who point out that there are few safeguards to protect the most vulnerable groups from the pious moralizing of reintegrative shaming. This absence of accountability compounds the lack of protection for the offender in terms of appeals to legal process and due rights. Fundamental issues remain over whether just desert challenges social control or casts the net of social control deeper into the community. References Cavadino, M. and Dignan, J. (2002). The Penal System: An Introduction, 3rd edn, London: Sage. Rawlings, P. (1999). Crime and Power: A History of Criminal Justice, 1688-1998, Harlow: Longman. Reiman, J. (1988). ‘The Justice of the Death Penalty in an Unjust World’, in K. Haas and J. A. Inciardi (eds) Challenging Capital Punishment: Legal and Social Science Approaches, Newbury Park, CA: Sage.