By Dr. Bruce Bayley
Introduction
In the first segment of this three part series, this article examines some of the research surrounding the primary reason we incarcerate those who violate our laws – punishment. Please keep in mind that these reviews are not position pieces, but simply an overview of the current research that addresses each topic. We are not supporting one ideal over another, but instead hope to continue the dialogue on the central issues that relate to the fundamental question: Why do we incarcerate?
Punishment
As a general rule, society wants criminals to pay for their crimes and make sure that they don’t commit them again. This is accomplished by incarcerating criminals in hopes that this punishment will satisfy those demands. In a 2006 study, Greg Pogarsky contended that, theoretically, potential offenders considered three aspects of punishment when deciding whether to offend. These are “perceived certainty, severity, and celerity of the potential sanctions.” Perceived certainty is the chance that the individual offender believes exists, high or low, in being apprehended for the offense.
Severity relates to the potential level of penalty that could be inflicted upon the offender. Celerity is the immediacy of the sanction from the point of the criminal action. This review will look at using incarceration as a punishment and what that action really means. This is best accomplished by examining the punishment subcategories of accountability and deterrence.
The idea of holding criminals accountable for the crimes that they commit directly relates to the harm that criminals have done to society. Each criminal has a “debt to society” that needs to be paid back. This concept, however, raises many questions. How are criminals held accountable for paying their societal debt? Is locking up criminals and denying them freedoms enough? Are the prescribed punishments sufficient to pay for the crimes? Do the punishments actually hold those convicted accountable for their crimes?
A 2006 UCLA Law Review article by Donald Braman evaluated this problem and came to the conclusion that offenders should be held accountable in more meaningful and productive ways than simply locking them up. Braman spoke directly with relatives of incarcerated offenders. He found that many family members voiced the same opinion about prisoners not being held accountable for their crimes and not using their time effectively in prison. A case in point is the deep frustration expressed by the ex-wife of a convict incarcerated for drug charges. She related resentment about the collateral damage his offense left behind and the lack of accountability he is required to show in prison.
Out here, I have to pay the bills, I have to raise the kids on my own, I have to go to work. He doesn’t help with any of that. He doesn’t even have to get drug treatment…They need to make all these guys participate [in programs] not just [the] people who want it.
This attitude reflects a belief that while the severity and celerity of punishment imposed upon convicts is acceptable to most, the accountability for their crimes is lacking. Mandatory rehabilitation programs, an issue more fully examined in a future segment, could address the concerns expressed by family members.
As the concepts of responsibility and accountability gained favor over the past decade, researchers have proposed that the purpose and roles of prisons have eroded from one of treatment and rehabilitation to simply the warehousing of dangerous elements. Recently, British researcher Mary Bosworth wrote that “the future behaviour of offenders is of no particular concern for penal administrators. Instead, the choice of rehabilitation or reform has become the individual prisoner’s sole responsibility. The prison is merely expected to provide the arena for such personal decisions while warehousing inmates securely.”
But this practice does not hold convicts accountable for their crimes. It simply removes them from society for various lengths of time. The attitude of warehousing prisoners aligns with those who contend that punishment is based upon the need to deter current convicts and society in general from committing future crimes, i.e. deterrence.
The punishment aspect that receives the most scrutiny and research dollars is deterrence.
Basically, there are two types of deterrence: specific and general. Specific deterrence relates to the belief that harsh sanctions are effective in preventing criminals from committing crimes. General deterrence refers to the idea that those same sanctions provide incentive for others to not commit crimes. In a 2002 case, Atkins v. Virginia, the U.S. Supreme Court, while examining the issue of whether execution of mentally retarded convicts violates the “cruel and unusual punishment” prohibition of the Eighth Amendment, identified the two most important social purposes of the death penalty as retribution and deterrence.
Retribution has been defined as “punishment that is considered to be morally right and fully deserved.” In the 18th century, Immanuel Kant believed that retribution was the “reason for punishing criminal offenders” and to “rebalance the moral scale.” The idea of retribution is aimed at the perpetrator, not at the victim, reflecting the Old Testament concept of “eye for eye, tooth for tooth, hand for hand, foot for foot.”
Advocates of deterrence follow the reasoning that punishment is only useful if it serves to deter convicted offenders from further crime and deterring members of society from committing crimes in the first place. The principle of deterrence as a reason for punishment is a subject that has been examined, argued, and debated for decades.
Despite all of this examination, the true nature and effectiveness of deterrence are still undecided and polarizing among researchers and the legal community alike. In a 2008 study, Carlsmith suggests that there is a chasm between the actual and stated motives for punishment. While the general public supports laws based on deterrence, it then rejects the consequences of deterrence when applied.
Some conditions placed on released convicts are intended to deter the convict’s return to incarceration. Pogarsky looked at how offenders on an Intensive Supervision Program perceived the risks and costs of violating ISP. These subjects clearly understood the severity of the potential consequences. However, Pogarsky found that the likelihood of further criminal action was not diminished, but that deterrent effects were actually enhanced. In other words, the released convicts’ understandings of the penalties, including the distinct possibility of returning to prison, were clear.
This understanding, however, did not translate into a lower rate of recidivism. For those who re-offended, the perceived certainty and severity of punishment, while understood, was not enough to deter their criminal actions. This seems to be in conflict with research conducted within the last decade that has shown a strong correlation between support for the death penalty and an associated belief in its deterrent effects, even among prison inmates themselves.
Bruce Jacobs argues that prior to examining deterrence as a whole, the distinction between deterrence and deterrability must be understood. In a 2010 article, Jacob states, “If deterrence describes the perceptual process by which would-be offenders calculate risks and rewards prior to offending, then deterrability refers to the offender’s capacity and/or willingness to perform this calculation. The distinction between deterrence and deterrability is critical to understanding criminality from a utilitarian perspective.”
Conclusion
Punishment of convicted offenders relates to the two major categories of accountability and deterrence. Accountability concerns itself with insuring that convicted offenders are held responsible for their offences in terms of facing and dealing with the effects of the crime. This relates not only to their victims, but also to themselves. Deterrence, on the other hand addresses the twofold concept of specific and general deterrence.
One is a retrospective handling of the crime itself, while the other, a look ahead toward the elimination of recurring crime by the offender and society. In either case, the elusive concept of punishment is a fluid area of research and as such, no theory is accepted universally. In the end, how we address the actions of those who violate our laws reflects society’s varying and ever changing attitudes. The one consistent element, however, in this ever changing debate is the need for and establishment of punishment.
