29/02/2016 06:40 GMT | Updated 27/02/2017 05:12 GMT

Is Harsh Punishment for Crime Always Right?

Punishment for wrongdoing must always be justified. It is the infliction of harm on another person, done deliberately, in response to an illegal action. Morality dictates that to punish someone, either physically or by removing their liberty, must be justified in order to distinguish the actions from for example, torture. The state has the power to punish those who break the law, but the parameters of what is acceptable punishment, and who indeed should be punished, are difficult to lay out. Legal philosophers have varying opinions.

There are two main schools of thought regarding the justification of punishment; the utilitarian, and the retributive. The utilitarian view dictates that punishment is justified if the result of that punishment is to the betterment of society, or indeed of the person being punished. John Stuart Mill believed goodness was happiness, and evil was unhappiness. The greatest happiness should thus be afforded to the greatest number of people, to truly live in a moral world. The utilitarian approach to punishment fits because crimes are almost universally seen as bad for society. Punishment for those crimes should then bring happiness to a larger group of people than not punishing.

Utilitarians see reducing crime as a goal; it is a major consequence of their thinking. Deterrence, incapacitation, and rehabilitation are all ways of seemingly reducing crime. Punishment having the potential power to rehabilitate criminals is seen by many as justification. The offender has committed an immoral action, and needs to be able to expunge that guilt to rejoin society as a moral citizen. The question has the two ideas appearing as opposites- punishment to absolve guilt on the one hand, set against punishment to suffer for guilty behaviour on the other. This polarisation isn't helpful, particularly when you believe that offenders are still part of society. Do they need justifying on different terms? Punishment can be beneficial for society, but it can also help the offender too. Punishment certainly should have a purpose, and retributivism sometimes loses sight of the fact that revenge and suffering cannot be the only reasons for punishment.

In the book Non- Moral vs Moral Guilt and Bad Conscience, there is a discussion on the nature of guilt for wrongdoing. The author states that "bad conscience and guilt are moralised when they are blamed on putatively innate corruptions of human nature". Guilt is thus undischargeable, as it is part of human nature. Being able to "expunge" moral guilt as the question states might be difficult, and is not necessarily a justification for punishment- not when it cannot be confidently said that guilt is easy to be rid of.

Guilt "motivates the agent to respect his self-legislated, life- enhancing standards" according to Nietzsche. Real guilt is caused "not by punishment, but by own experience of failing to respect obligations put on oneself" So it is caused by the feeling of responsibility, and then failing in that responsibility. And as people often feel guilt when they technically have none, the author writes that there is a "deep- seated need to feel power over our own lives". The acceptance of guilt, by accepting a punishment, is a way of "attributing efficacy". Once someone is allowed to feel guilt, it is a sign that morality has returned. A psychopath can feel no guilt, cannot empathise, and it is easy to see how the absence of these emotions can lead to criminal behaviour. The "morality of moral emotions lies in the fact that they stimulate pro- social behaviour".

A consequentialist would argue that punishment must have a goal to be justified- such as reducing crime. The other school of thought comes from retributivism. The punishment here is an end in itself, as a response to the wrongdoing. Kenworthey Bilz, in What's Wrong with Harmless Theories of Punishment, states that punishment "answers wrongdoing, giving a voice to society's norms and moral edicts." The article aims to demonstrate that the separation of consequentialist and retributive theories is unhelpful.

First, it would be prudent to discuss retributive theories further. Kant was a proponent of retributive theory. The Encyclopaedia of Philosophy sums up Kant's view succinctly: "If a wrongful act is committed, then the person who has committed it has upset the balance of the scale of justice. He has inflicted suffering on another, and therefore rendered himself deserving of suffering. So in order to balance the scale of justice, it is necessary to inflict the deserved suffering on him." Kant believes punishment is a just retaliation to wrongdoing. If the old adage "the punishment should fit the crime" is to be adhered to, such retributive views would see harsher penalties for committing crimes than we see now. Murder in the UK would warrant the death penalty. Retributive punishment is considered an expression of justified anger by the victim due to the violation of trust demanded by society.

A difference arises between the utilitarian view that punishment is justified for the greater good, and the retributive view that punishment can only be for criminal/immoral behaviour. A utilitarian would have no qualms in persecuting an individual who was innocent, if the result was to overall decrease crime. This is why deterrent- level punishments are attached to crimes, whether the offender deserves a harsh punishment or not. The idea is that people will see the harsh sentence, and be put off the behaviour that led to it. Lots of studies doubt the effects of deterrence. It would also be immoral to punish an individual who is innocent.

Whilst Kant would not agree that punishing innocents is justified, his theory has its problems. The idea that punishment is solely for wrongdoing and needs no wider purpose is problematic.

Gertrude Ezorsky argues that we should test the Kantian position and other retributive positions that resemble it "by imagining a world in which punishing criminals has no further effects worth achieving". In this world, punishment does not deter or rehabilitate. For whatever reason, incapacitation is impossible. In addition, victims receive no satisfaction from the punishment of those who have harmed them. In this world, a Kantian would be committed to the position that punishments still ought to be inflicted upon wrongdoers.

Trying to decide which theory justifies punishment more is complicated, and Hart ties together aspects of both theories. The utilitarian view that punishment must serve a wider purpose in reducing crime can be added to the retributive view that only guilty should be punished. Hart believes the social consequences of punishment are important, as well as the need to remain just by ensuring innocent people are not wrongly punished.

Whether punishment is justified more by what society feels it is owed or by the rights of the offender being punished being allowed to morally acquit themselves and gain a "clean slate" assumes that punishment is justified at all. Seemingly, the person being punished should be the primary concern regarding the punishment, and the punishment should certainly do more than just make the offender feel bad. That does not serve a societal purpose. In The Case Against Punishment: Retribution, Crime Prevention and the Law, Deirdre Golash argues that "punishment which produces harm to offenders may also be wrong for those who are guilty". The utilitarian view could produce harm in its dogged pursuit of prevention. What good is a society that causes harm while trying to prevent it?

Golash is also dismissive of retributive theories. She suggests that criminal wrongs cannot be undone, and doing additional harm to the offender only compounds certain social ills that may be highly correlated with the offender's need for criminal fulfilment.

The Moral Good Theory lends itself to the idea that punishment can be justified by what is owed to the offender. This theory seeks to "restore the moral identity of the offender" for a variety of reasons. A proper punishment should reform and educate the offender by " providing him with the moral reasons for conforming his conduct to the law. The author also states that "Retributive theories require punishment irrespective of any socially desirable goals it brings about. Retributive theories often are criticized for being primitive, barbaric, or a mere rationalization for vengeance." In this respect, society's right that offenders suffer is not as important as justifying to the offender his punishment.

The utilitarian defence of punishment that focuses on its potential deterrent properties can be contrasted with the Moral Good Theory. Deterrence stops an inclination to commit crime, whereas the MGT "focuses on the reasons the offender has in choosing not to commit the crime. When the reasons are moral reasons, the goal of the moral good theory of punishment is achieved." It may be in society's interest that people suffer for the crimes, but it is not in society's interests when people do not learn from their mistakes. Seeing the error of criminal ways is integral to a person assimilating into society after prison. The rehabilitative aspects of MGT mean perhaps that the likelihood of making the same mistakes is diminished.

The MGT justifies punishment by what it does for the offender, rather than for bringing about societal goals. Given that the offender is the one taking the punishment, it is right that account of how it may benefit him or her is taken.

Attempts to give an offender the chance to "expunge moral guilt" could be said to be consequentialist, in that the aim is surely to ensure the offender does not commit crimes again. The more merciful nature of allowing a person to pay penance for a crime likely endears more offenders to the justice system that retributive aims. "Consequentialism is forward- looking and outcome- oriented". Retributivism is "backward- looking and desert- oriented". At the very least, not taking into account the utilitarian view of innocents being punished in the name of the "greater good", helping to expunge moral guilt is the more progressive idea. Suffering for sufferings sake is pointless, and not befitting of a civilised justice system or society. Retributive attitudes towards punishment cost society greatly. Prisons are overflowing, and cost millions upon millions of pounds to run. Reoffending rates in this country have long stood at two thirds. Where attempts to rehabilitate in Sweden, for example, have seen only one third of people reoffending, the problem is greater here precisely because of the lack of rehabilitation, which is in no small part due to a general retributive attitude towards crime and punishment in this country. Punishment merely so that society gets what it feels it is owed is not much of a justification. Adding a proportionality caveat- that the punishment should fit the crime- does little to dent the view that retributive theories have an element of vengeance about them.

A strong argument which supports punishment for retributive ends is that victims of wrongdoing deserve justice. It is true that wrongdoing deserves some form of punishment, if "justice should be seen to be done". Yet what separates a state or justice system from the wrongdoers? Compassion and morality. A punishment that exists simply for the suffering of the wrongdoer does not have much societal benefit. Victims of crime are likely to attest that revenge feels good initially, but ultimately does little to assuage feelings caused by the crime done to them.

If punishment must be justified, and it must, it should be done so on the basis that morality is being restored. It is morally right and beneficial to society that people cannot get away with wrongdoing. To ensure people do not want to do wrong, weight must be given to making sure the punishment is justified on the grounds that the offender benefits to. Since deterrence did not stop them committing a crime in the first place, what would? A more moral and liberal system of punishment, surely?