Recently, I attended a lecture by a doctor of philosophy who had some strong criticisms of the criminal-justice system and how it handles punishment. It was certainly thought-provoking. So many of us judges are caught up in the day-to-day decisions of the job that we do not get to think about the theory behind our decisions.
So why do we punish people for criminal offenses?
There are five primary theories of punishment: rehabilitation, specific deterrence, general deterrence, retribution and public safety. Each has its place, and hopefully all five can work together to achieve something we would call justice.
Rehabilitation is the idea that punishment should be corrective and change underlying behaviors. As judges, we try to tailor conditions of probation to address chemical dependency, mental health and education. Sometimes there is particular programming, such as for domestic abuse, that can work toward changing a person’s thinking. The goal is to fix underlying problems so the person does not reoffend.
Specific deterrence is punishment designed to discourage the individual offender from repeating the conduct. An “attention getter” of a sentence can convince the person they never want to do that again.
For example, offenses like DWI and assault are what we call “enhanceable,” meaning the level of offense gets more serious for subsequent violations. A person getting a misdemeanor conviction for assault fills out an advisory acknowledging that the next violation would likely be a gross misdemeanor, and after that a felony. This can be a motivator to change behavior.
General deterrence is for the public as a whole. When a particular punishment is handed down, it is supposed to convince others that it’s not worth the risk to engage in similar conduct.
For example, law enforcement often runs prostitution sting operations on the internet. The consequences of a conviction and sentence can serve as a deterrent to others who might be tempted to engage in the same behaviors.
Retribution is punishment for punishment’s sake. If that sounds harsh, ask yourself what you would want to happen to a person who injured you or a close friend or family member. It is entirely natural that you might want that person to be punished so they feel some pain for their actions that caused you pain.
This is why crime victims have an opportunity to submit impact statements to a court before sentencing. It is also why crime victims can request restitution.
Finally, there is public safety, or the idea that we have to punish some people with incarceration because they pose a danger to individuals or society as a whole. Our sentencing guidelines take this into account.
Sometimes based on the severity of the crime and sometimes based on the criminal history of the offender, the guidelines call for a presumptive prison sentence rather than probation.
There are no hard and fast rules on how to apply these theories to individual cases. As judges, we have to take all of this into account and come up with sentences that are fair and just.
With all due respect to the philosophy professor, I think we do that pretty well.
Dale Harris is a Sixth Judicial District judge in the St. Louis County Courthouse in Duluth.