The Six Functions of Punishment

1. Retribution — Justice, Desert; Vengeance; Revenge?

Retribution is the most contentious function of punishment. The criminal gets what he deserves. Having caused harm and suffering to others, he should in turn suffer. It’s only fair. There is a sense in which punishment restores a kind of moral balance in the world. Some argue that retribition should play no part in our judicial system today. It satisfies only the lowest, atavistic human instinct—the desire for revenge—and is at the heart of the vendetta mentality (‘an eye for an eye...’ etc) which only serves to escalate conflict and violence and in itself achieves nothing constructive.

2. Deterrence — Awareness of the pain attendant on offending discourages offending and re-offending

The function of deterrence can only be served if offenders fear being caught, there is a strong probability of being caught, and the punishment is unpleasant enough to deter. Hence deterrence only works if society has an effective police force.

3. Reform — Changing the perpetrator’s behaviour

Reform is generally held to be the most important function of punishment by those who regard themselves as socially progressive as it has the most constructive outcome. Ideally, we want the criminal to change his attitudes and behaviour and become a responsible citizen and not re-offend. The question is: do the forms of punishments our courts currently impose, prison in particular, succeed in reforming perpetrators? And is there a conflict between reform and punishment?

4. Restitution — Restorative justice; Giving the perpetrator the opportunity to put things right and providing some satisfaction for the victim

Restorative justice is very much in vogue these days. The idea is to bring victim and perpetrator together, face-to-face, in order for an apology to be made, and in some cases to put things right by providing a service to the victim. It is not suitable for all crimes though. For instance a woman who has been raped is unlikely to want to be brought face to face with her attacker. But if the perpetrator is guilty of say vandalism, as well as apologising to the victim s/he might offer to repair the victim’s property. While it is possible that a third party might offer reparations on behalf of the guilty person that would not fulfil the function of restorative justice since its purpose is to change the perpetrator and to help the victim feel less powerless and victimised.

5. Incapacitation — Physically preventing re-offending

Protection of society is achieved by simply incapacitating the perpetrator so that they are unable to commit further crimes even if they want to. Capital punishment is obviously the most effective way of incapacitating a criminal—and the most lasting! Normally, though, temporary imprisonment is the common form of incapacitation in western democracies and, in theory, can be tied in with reform of the perpetrator.

6. Expressive — Society expresses condemnation of the offence

A very important function of punishment, and one that is often overlooked, is societal condemnation, disapproval, or ‘signalling’. By setting the tariff of punishment for, say rape, too low, society is in effect saying that this crime is less serious than, say, burglary. By increasing the sentence a rapist gets in a court, the law is signalling to society in general the relative seriousness of this offence. If the tariff for an offence is set too low people feel that justice has not been done and the victim’s suffering has not been acknowledged adequately.

Features of a Just and Fair Punishment

The three features of a fair punishment is that it should be:

1. Proportionate

An important aspect of punishment, less to do with justification than the ‘fairness’ of the sentence, is ‘proportionality’. It is generally accepted that the type punishment should be appropriate to the crime and that it should not be unduly harsh for minor crimes. This is critical if the law is to be accepted as valid by the society at large.

2. Timely

For punishment to work as a disincentive or have a reforming effect, it must be exercised close in time to the actual offence or the psychological and social effectiveness of the punishment is reduced.

3. Understood

The perpetrator of the crime must know what the nature of the offence is and why they are being punished. To punish someone for an unknown crime would be both unjust and pointless and would fail both its deterrent and reformative effects as the perpetrator would not know how to avoid committing the crime in future.