29. What are the theories for criminal punishment?
Numerous theories or philosophies exist for imposing some form of sanction upon criminal conduct, including:
• Retribution – Retribution theory states that an individual should suffer or incur some harm for her conduct.
• Deterrence – Deterrence theory states that imposing sanctions on conduct will prohibit that type of conduct. Individual deterrence says that imposing sanctions will prevent an individual from undertaking that conduct. General deterrence focuses on the signaling effect that punishing a criminal has on the population. Those who are aware of the sanctions inflicted upon an individual will be less likely to undertake that conduct.
• Incapacitation – Incapacitation theory says that society should be protected against individuals who commit a crime for a specific period of time.
• Rehabilitation – This theory states that an individual receives sanctions with the purpose of allowing the individual time to mentally process her actions. This may include training to help the individual understand the wrongfulness of the conduct and, hopefully, reform and refrain from committing further criminal conduct.
• Restoration – This theory states that the victim deserves to be made whole (or as close as possible) from the criminal activity. The cost of making the victim whole should be borne by the criminal. This may include providing the victim with the sanctity of mind that this type of conduct will not happen again.
Legislators and judicial figures do not have to state their reasoning when passing criminal statutes or handing down criminal sentences.
• Discussion: Which, if any, of these philosophical justifications for criminal punishment convince you? Why or why not?
• Practice Question: The Oregon legislature is revisiting the state statutes concerning penalties for specific crimes. The legislature has asked you to testify as an expert regarding theories of criminal punishment. In a concise paragraph, provide an explanation of the primary theories supporting punishment for criminal infractions.