In the US, the appointment of new Chief Justices comes with a plethora of changes to the structure and operations of the Supreme Court. Criminal justice procedures are among the most affected by the changes. The cases of Earl Warren and William Rehnquist courts are notable examples of the clash between liberal and conservative approaches to criminal law procedures. The pull and push between the need to attain a balance between the elevation of human rights and retention of the power of law enforcement capacity to prosecute crime in the modern criminal justice system (Green & Hodnefield, 2015). However, understanding the two sides of the debate requires the deconstruction of the pejorative connotations of the term conservative through identification and definition of its common contemporary features and divisions in the American context. Perspectives to criminal justice procedures strongly define approaches to punishment. From an ethical point of view, punishment is the infliction of pain on a person, a process that must be justified (Ezorsky, 2015). The conservative approach to the criminal justice system largely defines deterrence, incapacitation and retribution punishment philosophies.
Punishment Philosophies
In some circumstances, an offender may be undeserving of the legal punishment because they are not morally responsible for the offense or the punishment meted to them is excessive. An offender is not morally responsible if the punishment is delivered retroactively of vicariously, or if there is a valid reason for the commitment of the offense (Ezorsky, 2015). However, the criminal justice system delivers punishments for a number of reasons. Deterrence is intended to frighten individuals or the public. The philosophical approach has two sorts: specific and general deterrence. The specific deterrent punishment is meted to an individual and is driven by the theoretical assumption that they become less likely to commit another crime for fear of a similar punishment. General deterrence punishment is founded on the assumption that punishing an individual may deter the public at large for similar reasons. Critics of deterrent punishment raise fundamental questions on the ability of legal and extralegal sanctions to reduce deviance and achieve conformity. The relationship between sanctions, such as capital punishment, and human behavior must be demonstrated for deterrence to work (Ezorsky, 2015).
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The utilitarian basis for punishment is the reduction of mischief and evil that may be detrimental to the happiness of the community (Ezorsky, 2015). The main role of the criminal justice system is to augment the happiness. Incapacitation advances the ideology by removing the convicted individual from the society. The punishment is implemented through incarceration, house arrest, or execution in case of a death penalty. Criticism of incapacitation as a conservative approach to punishment stems from the adverse conditions of the punishment itself. Prisons have been at the center of the debate on human rights abuse because some have deplorable conditions that formerly were intended to act as deterrents to the inhabitants.
Retribution is a punishment approach sought to influence public perceptions and trust in the law enforcement and criminal justice system. Perceptions that the justice system is working are influenced by evidence of convicted defendants receiving punishment equal to their crimes. The victims and the society get satisfaction from learning that the defendant has been duly punished. Such a state of the mind removes the desire for personal vengeance against the accused. The Mosaic Laws in the Old Testament emphasize the idea of “an eye for an eye”. Retribution punishment addresses concerns of potential crime by people with beliefs in such a system by eliminating their motive to exact vengeance. Retribution works based on the classical idea that punishment must be seen to fit the crime.
Effectiveness of Punishment Philosophies in Decreasing Crime
The mandatory minimums, increasing patrol, 3 strike, and behavior change laws are theoretically linked to a reduction in crime. Mandatory minimum encapsulates the punishment philosophies of deterrence and incapacitation by locking up offenders and threatening longer jail terms and stiffer penalties. The 3-strike law, which sends repeat offenders to prison for 25 years to life for non-violent crime is considered overly punitive. Increasing patrol and behavior change are largely a deterrent. However, the policies have contributed little to the reduction of crime in the US. Reports of increasing crime rate in different neighborhoods and growing prison populations dominate mainstream media and academic circles. Despite the consequences of excessively punitive laws and deterrence measures being felt around the country, increasing time in prison has been shown to be inefficient in ensuring sustainable public safety. Longer sentences have been shown to have minimal benefits for future crime. Critics of the overly punitive laws advocate for reduction and minimum and maximum jail terms. In conclusion, it is evident that the implementation of philosophies of punishment in the criminal justice system has failed to yield desired results. Therefore, the need for a rethink of strategy is imperative to change the discourse.
References
Ezorsky, G. (Ed.). (2015). Philosophical perspectives on punishment . Albany, NY: Suny Press.
Green, T. A., & Hodnefield, M. C. (2015). Reflections on freedom and criminal responsibility in late twentieth century American legal thought. Am. J. Legal Hist. , 55 , 1.
