REHABILITATION: A QUALIFIED DEFENCE

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KANT’S PARADIGMATIC RETRIBUTIVE THEORY OF PUNISHMENT

Kant defends retributivism by arguing that a retributivist claim is required by a general theory of political obligation, which is more plausible than any alternative theory (Kant 1965: 34) . He presents a theory of punishment that rests on the general view that political obligation is to be analysed contractually in terms of reciprocity. If the law is to remain just, it is imperative that those who obey it will not be taken advantage of by those who do not. It is important that no one profit by his criminal wrongdoing. Stated differently, it is important that no one benefits from not bearing the burden of self-restraint. The objective of criminal punishment, he maintains, is the proper balance between benefit and obedience.

THE MORAL STATUS OF INNOCENT PERSONS, CRIMINALS, AND FORMER CRIMINALS

For the purpose of my argument, I need to distinguish between « innocent persons, » « criminals, » and « former criminals » to be able to argue that some persons may be used as means to an end, such as a socially desirable end, for instance. I define « innocent persons » as persons not yet having been found guilty of an offence, « criminals » as having been found guilty and presently being punished, and « former criminals » as persons who have already been punished for crimes for which they were found guilty.

DO CRIMINALS WILL THEIR PUNISHMENT?

Retributivists such as Kant and Hegel, to name two, often maintain that criminals have a « right » to be punished. How is this to be understood? Kant’s position was laid out in 2. 3, namely that criminals lay down universal imperatives by their actions, so they will that the same be done to them as they do to others. If they kill, they express through their actions that they are to be killed too; if they steal, they express through their actions that their property is to be appropriated, etc. Hegel maintains that criminals will their punishment by their own free will on the following grounds: Given the universalisability of rules, the violation of rights has been proclaimed by criminals as their own rights. 4 Their crimes are the negation of rights. Punishment is the negation of this negation, and consequently a re-affirmation of right (Hegel 1965: 244) .

THE LIMITS OF PUNISHMENT

If the ends justification those ends, of punishment (punishment is the same ends simultaneously serve as its justified because it pursues determining the limits of punishment), it follows that it is unjustified when those ends cannot be attained by punishing, or when they cannot be realised rationally and economically, or when an alternative, less harmful method is available for attaining the same ends. 106 Punishment ought never to be inefficacious, unprofitable or unnecessary (Bentham 1996: 159). For Bentham, punishment is groundless when there is no utilitarian reason for applying it, i.e. when there is no harm to be prevented. It is also groundless when the action in question generally causes harm, but in the case in question has not done so because the persons to whom it was done voluntarily consented to it. Punishment is when the action was necessary to secure a prevent a greater evil (Bentham 1996: 188).

THE MEASURE OF PUNISHMENT

For the utilitarian, the measure of punishment is established by finding a balance between the good consequences achieved by 108 punishment and the evil thereby inflicted. main elements: This entails three (1) Punishment must be severe enough to serve as an appropriate deterrent. In order to do so, the pain of punishment must outweigh the benefits attained through the crime. The lower limit of punishment is thereby established, a limit below which crime would become inefficient because it would no longer deter adequately. 1 In order to do so, punishment must increase in proportion to the temptation to commit the crime (Bentham 1996: 167) .

CONTENTS :

• SUMMARY
• KEY TERMS
• ACKNOWLEDGEMENTS
• 1 . THE PROBLEM OF JUSTIFYING PUNISHMENT
  • 1 . 1 Introduction
  • 1 . 2 Defining the Term « Civilised »
  • 1 . 3 The Problem of Punishment
  • 1 . 4 Other Reasons Why Punishment Is Philosophically Relevant
  • 1 . 5 Punishment and a Conception of Crime
  • 1 . 6 The Objectives of this Thesis
  • 1 . 7 Characteristics of a Theory Justifying Punishment
  • 1 . 8 The Necessary and Sufficient Conditions
• 2 . RETRIBUTIVISM AND ITS LIMITS
  • 2.1 Introduction
  • 2.2 The Main Elements of Retributivism Briefly Described
  • 2.3 Kant’s Paradigmatic Retributive Theory of Punishment
  • 2.4 The Moral Status of Innocent Persons Criminals and Former Criminals
  • 2.5 Do Criminals Will Their Punishment?
    • 2.5.1 Hegel and Freedom of the Will
    • 2.5.2 Hegel’s Objective Justification of Punishment
    • 2.5.3 Hegel’s Subjective Justification of Punishment
    • 2.5.4 Rejecting Both of Hegel’s Justifications
• 3 . DEFENDING RETRIBUTIVISM
  • 3.1 Introduction
  • 3.2 Anger and Indignation and Punishment
    • 3.2.1 What Are Emotions?
    • 3.2.2 Emotions and Moral Deliberation
    • 3.2.3 Emotions and Crime
    • 3.2.4 Anger and Indignation and Guilt
    • 3.2.5 Punishment Should Be Well-Regulated
  • 3.3 Retributivism and Legal Positivism
  • 3.4 The Limits of Retributive Justification
  • 3.5 Summary and Perspective
• 4 . UTILITARIANISM
  • 4.1 Introduction
  • 4.2 Utilitarianism’s Defence of Punishment
    • 4.2.1 The Principle of Utility
    • 4.2.2 The Objectives of Punishment
    • 4.2.3 The Limits of Punishment
    • 4.2.4 The Measure of Punishment
    • 4.2.5 The Properties of Punishment
  • 4.3 Evaluating the Utilitarian Approach to Punishment
    • 4.3.1 The Utilitarian Approach and Empirical Findings
    • 4.3.2 Why Utilitarianism Endorses Some Suffering
    • 4.3.3 Utilitarianism and Justice
    • 4.3.4 Utilitarianism and Punishing the Innocent
• 5. DEFENDING DETERRENCE
  • 5.1 Introduction
  • 5.2 Particular Deterrence as a Form of Self-Defence
  • 5.3 General Deterrence as Weak Retribution
  • 5.4 Using Criminals as Means Towards General Deterrence
  • 5.5 The Measure of Justified Force
  • 5.6 Implications of Deterrence Theory
  • 5.7 Social Limits of Deterrence
  • 5.8 Summary and Perspective
• 6 . REHABILITATION: A QUALIFIED DEFENCE
  • 6.1 Introduction
  • 6.2 A Paradigmatic Appeal for the Rehabilitation of Offenders
  • 6.3 Differences between the Punitive and Rehabilitative Approaches
  • 6.4 The Connections between Crime Illness and Treatment
    • 6.4.1 Why Crime is Not Necessarily Caused by an Illness
    • 6.4.2 Treating Criminals
• 6.5 Preventive Detention
• 6.5.1 Harm and the Moral Justification of Quarantine
• 6.5.2 Harm and Justified Preventive Detention
• 6.5.3 Accuracy Requirements
• 6.5.4 Predictive Techniques
• 6.5.5 Duration and Extent of Preventive Detention
• 6.6 Treating the Innocent
• 7. DEFENDING PATERNALISM
• 8. RESTITUTION: UNDOING THE HARM
• 9. THE NECESSARY AND SUFFICIENT CONDITIONS
• 10. CONCLUSION AND PRACTICAL APPLICABILITY
• BIBLIOGRAPHY

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PUNISHMENT AND THERAPY: A PROGRESSIVE SYNTHESIS