Theory Of Punishment Research Articles

The Survival of Retributivism in our Modern Knowledge-based World

The article discusses the development of theories of punishment in modern, more and more knowledge-based society. Are any changes foreseeable in how we rationalise expending scarce public resources on inflicting grievances on those fellow members of our society who have behaved in a manner not approved by general society? Adherents to retributivism strive to justify criminal punishment by simply referring to the punishment as the consequence that the criminal plainly deserves and stating that there is no need to present any utilitarian justifications for applying punishments. There is already mounting evidence from research suggesting that certain objective circumstances cause predisposition of certain persons to commit crimes, and some research suggests that there are several treatments that may in some cases be more suitable in place of criminal punishments. The paper presents an attempt to appraise whether these novel approaches leave any room for retributivist ideas. The article suggests that the more the science is able to understand why certain persons commit criminal offences and is able to find opportunities to treat these conditions, the less need there will be to think of punishments as just deserts, as what simply must be applied, without looking for any other utilitarian justification.

니체의 형벌론에서 본 상벌점제

니체의 형벌론에서 본 상벌점제

Organized Smuggling of Goods in the Criminal Law of Iran and Turkey

Smuggling of goods, known as one of the most obvious instances of economic crimes, has done irreversible harms to the economic systems of countries through placing obstacles in the way of productive investment, undermining healthy competitions in business, and finally forming and expanding underground and hidden economies. Creating the areas of money laundering and committing transnationally organized crimes, smuggling jeopardizes the economic and political security of countries seriously. On the other hand, committing smuggling crimes in groups has led to the expansion and intensification of such actions and made it quite difficult for the criminal justice systems to identify and deal with them. Organized crimes, which are among more evolved forms of group crimes, influence different areas of society because such crimes are compulsorily accompanied by the prevalence of bureaucratic and financial corruption. In addition, such crimes have negative impacts on the cultures of societies. Based on the proportionality of crimes, punishments, and distributive justice and the theory of punishment, criminal policy makers, therefore, have considered the quality of committing smuggling crime, such as organization, in order to effectively deal with this phenomenon in different countries. They have also showed differentiating and strict reactions to this type of crime. The aim of the current study was to investigate the theoretical concepts and foundations of organized smuggling of goods in Iran and Turkey. It was also intended to study the legal approaches adopted by these countries to this type of crime along with the similarities and differences of their legal systems.

Condiciones de las teorías de la pena que permiten la prevención de conductas punibles en marco del posconflicto armado en Colombia

El presente artículo, resultado de una investigación socio jurídica, pretende definir de forma clara las teorías de la pena, como finalidades propias del derecho penal, frente a un tema que convoca toda la atención por parte de la sociedad colombiana, como es el caso del posconflicto armado interno, el cual pone fin a más de 50 años de conflicto entre el Estado Colombiano y la guerrilla de las FARC. Es por esto que la investigación adapta diferentes temas y cuestiona acerca de las finalidades de las funciones de la pena, como medidas preventivas para que no exista la repetición de las conductas punibles, propias de la guerra. Así se desarrolla el escrito, que compone una fase propositiva, una de discusión y las respectivas conclusiones sobre el tema.

How Does a Loving God Punish? On the Unification of God's Love and Punitive Wrath

AbstractThere are two influential and opposing theological paradigms concerning the relationship between God's love and punitive wrath. According to the first paradigm, which is here labelled the ‘divergent account’, God may sometimes punish an individual in a manner that is opposed to his love. Alternatively, there is the ‘unitary account’, according to which God's punitive wrath is an expression of love that seeks the creature's good. In the present article, an argument for the unitary account is provided, and a fresh way of understanding God's punishment therein is considered. The article proceeds as follows. In the first section, a dominant motivation for the divergent account is distilled through an examination of the writings of Emil Brunner. This motivation is then rejected and the unitary account is defended in the next section, in light of the New Testament ethic of love. In the third section, the work of Gregory of Nyssa and the contemporary philosopher R.A. Duff is utilized to develop a communicative theory of God's punishment, which illuminates and fortifies the unitary account. In the final section, the unitary account, together with the communicative theory of divine punishment, is applied to the doctrine of hell.

Do Theories of Punishment Necessarily Deliver a Binary System of Verdicts? An Exploratory Essay

Scholars writing on theories of punishment generally try to answer two main questions: what human behaviour should be punished and why? Only cursorily do they concern themselves with the question as to how confident in the occurrence of criminal behaviour we must be prior to punishing—i.e., the question of the criminal standard of proof. Theories of punishment are ultimately theories about choices of action—in particular, about how to treat individuals. If this is correct, it seems that they should not overlook one of the fundamental variables governing human decision-making: the uncertainty about the facts relevant to our acting. Now, the question as to whether existing theories of punishment require a standard of proof as high as ‘proof beyond a reasonable doubt’ is gaining increasing attention in the scholarship. However, scholars working on theories of punishment give little attention to a particular way in which human decision-making handles the problem of uncertainty. In our everyday lives, we often decide in a many-valued, rather than a binary, fashion. Instead of having a single evidential threshold, the satisfaction of which determines whether we act or stay put, we tend to adjust our actions to our degree of confidence in certain states of affairs. In other words, we decide based on a ladder of evidential thresholds: the features of our actions vary according to the evidential threshold that we have satisfied. Notably, criminal trials do not follow this structure and theorists generally take this departure for granted. Why shouldn’t trials work as ‘ex post facto bets,’ whereby the response that the state is willing to ‘wager’ correlates with the fact finder’s confidence in the defendant’s guilt? The paper explores this question; in particular, it assesses whether the main theories of punishment (consequentialist, retributive, and communicative) necessarily deliver a binary system of verdicts. The work is part of a long-term research project on the comparison between the binary and the many-valued models of the system of criminal verdicts.

From Bibles to Biomarkers: The Future of the DSM and Forensic Psychiatric Diagnosis

There is great anticipation for the RDoC’s neurobiological approach to mental illness to replace the DSM and make everything from research funding to insurance coverage more fair. Whether or not the legal applications of this new system will indeed be an improvement on the DSM depends greatly on how it is used, and what the normative commitments are in that particular legal domain. While the DSM provides one important and useful perspective on what counts as mentally disordered, ultimately for the law this is not a question that science or data can answer. Societies, comprised of people, must grapple with a normative account of when to treat, when to pardon, and when to punish. The DSM cannot decide these questions for us, tempting as it may be to defer to its diagnostic criteria. That we expect it to reveals a deep insecurity about the legal system’s ability to defend its methods and theories of punishment.

Retributivism and Criminal Procedure

Retributivist theories of punishment are in tension with due process. Some retributivists adopt a simple view that punishment of the deserving is normatively justified. However, this Simple Retributivism licenses unjust and illegitimate rules of criminal procedure. A more refined version of retributivism, on which a person’s punishment is justified only if she deserves to be punished for the offense with which she is charged and her desert bases cause her to be liable to punishment, avoids the troubling implications of Simple Retributivism. Refined Retributivism also entails specific principles for implementing criminal law—that is, a distinctively Retributivist Criminal Procedure. On this Retributivist Criminal Procedure, procedural mechanisms must establish that there are good reasons to believe that an offender deserves to be punished for an offense, and these reasons must cause the offender’s liability to punishment. Yet Refined Retributivism is also difficult to reconcile with due process. Although Retributivist Criminal Procedure has some salutary implications, it also calls for abolishing core aspects of the U.S. system of criminal justice and features that are essential to any legitimate criminal justice system. Thus, retributivism (whether Simple or Refined) does not provide the basis for a just criminal procedure.

The Role of Victims in Punishment Theories

The Role of Victims in Punishment Theories

Respect and Resistance in Punishment Theory

As convicted criminals go, Socrates could hardly have been more accommodating. When his wealthy friend Crito offered to help him escape on the eve of his execution, Socrates firmly declined.1 After he had failed in his defense against the charges of corrupting Athenian youth, and had suggested to no avail an alternative penalty (free meals for life, at public expense), Socrates decided to accept his death sentence without further resistance. Indeed, he was so helpful as to carry out the execution himself: when the jailer arrived with a cup of hemlock, Socrates solicited advice on the most efficacious way to ingest the poison, then obligingly drank to the last drop. At the other extreme in his attitude toward punishment?though perhaps equally suicidal?was Clyde Barrow, the more violent half of the Bonnie and Clyde criminal team that wreaked havoc across the United States in the early 1930s.3 Barrow famously vowed that he would never be taken alive; he promised to resist every effort to apprehend him and, if injured and unable to escape, to take his own life before allowing lawmen to capture him. Barrow escaped from jail once, and killed a number of law enforcement officers on

CRIMINALIZATION WITHOUT PUNISHMENT

ABSTRACTWhat is the relationship between a theory of permissible criminalization and a theory of permissible state punishment? One answer runs as follows: to identify the conditions under which it is permissible to criminalize, we must first identify the conditions under which it is permissible for the state to punish. The latter set of conditions doubles as part of the former set. Call this the punishment thesis. It is a thesis with some prominent advocates, but explicit defenses are hard to find. In this paper, I ask how such a defense might proceed. Section I clarifies the punishment thesis itself. Sections II–IV consider a number of arguments in its favor. My contention is that none of these arguments succeeds. Unless a better argument can be found, we should reject the punishment thesis.

Sprawiedliwość w sędziowskim wymiarze kary

Punishment and justice in the judge’s sentencing decisionsThe article starts with the general presentation of the sociological perspective on the question of justice in the motives of a criminal judge’s sentencing decisions. The question of justice is also analysed in relation to the legitimation of the criminal law and the various theories of punishment, retributive, consequentialist, and mixed. Punishment is analysed as a social and legal institution and as a social process in its various organisational forms. The rationalisation of punishment as a social and legal institution is analysed in relation to the question of human rights, and the question of its effectiveness in social control as a tool in the protective function of the criminal law. The problem of justice is also analysed from a subjective point of view as a question of the just judge. It is not only analysed here as an ethical question, but also as a problem of the methodology of the work of the judge, and a question of organisation of the sentencing process. The article presents the results of research sociological reports concerning the question of the motives of judges’ sentencing in the criminal courts. The article presents the basics of the methodology and results of research in that respect which was carried out in the 1930s B.Wróblewski, W. Świda, 60s and 70s T. Kaczmarek, W. Świda, and the 1980s T. Kaczmarek, J. Giezek and the team, and the latest research carried out by the authors in 2012–2015 J. Królikowska, J. Utrat-Milecki. The authors explain here the general outline of the method of culturally integrated social and legal studies, which they used in their sociological and anthropological research on the criminal justice offi cers judges, prosecutors and probation officers, and which is also the theoretical background of the present article. Finally, the authors present the broader culturally integrated definition of punishment, so as to help to identify the main research questions in socio-legal studies of punishment considered both as a socio-legal institution and a social and legal process which can be identified in different organisational forms.

Uwagi o zasadach wymiaru kary w polskich kodeksach karnych

Remarks on the principles of imposing penalties in Polish criminal codesThis paper covers issues related to the principles of imposing penalties. Apart from their considerable practical significance, these directives are closely related to the theory and philosophy of punishment. The purpose of these comments is a simple indication of the assumptions underlying the principles of imposing penalties, including the way of their evolution in Polish criminal law since 1932. The choice of theme is justified by the importance, the true wealth of problems that occur here and the theoretical but also research interests of Professor Tomasz Kaczmarek. The author wants to emphasize that the evolution of the principles of imposing penalties from the first statutory regulations runs properly. A clear tendency in the Polish legislature was consolidation and expansion of these directives, which remain compatible with the new less repressive criminal and sanctions policy. The Penal Code currently in force provided also appropriate lower limits of penalties.

O znaczeniu fundamentalnych zasad karania w polityce karnej — uwagi na tle przyczyn i skutków „masowego uwięzienia” w Stanach Zjednoczonych

The importance of the fundamental principles of punishment in criminal policy — remarks against a background of causes and results of “mass incarceration” in the United StatesIn the last century, in the United States, there was a significant change in the paradigms of punishment. In the 1970s the ideology of rehabilitation collapsed and reforms, which aimed at restoring justice in punishment and reduction of the prison population, were initiated. In the next decade, the movement aiming at liberal reforms lost the social and political support and was replaced with the repressive criminal policy. At the same time, a rapid increase in the prison population started which has been referred to in the criminological literature as the phenomenon of mass incarceration. After four decades of continuous growth in the number of persons deprived of their liberty there is no doubt that the social and financial consequences of a repressive system of punishment proved to be dramatic. For this reason, issues concerning the restoration of justice and rationality in punishment have again been discussed in the United States.Many European countries also experienced the “punitive turn” in the criminal policy at the end of the 20th century, although its scale was incomparable with what happened in the United States. It does not mean, however, that American discussions on the philosophy of punishment and criminal policy are irrelevant for Europe. Multidimensional negative effects of the American policy of mass incarceration indicate the dangers resulting from ignoring the basic principles of punishment that protect against abuses of the state’s power to punish. Additionally, they encourage a serious discussion about the integration of punishment theories with the empirical knowledge on the results of sentencing and sentence enforcement.

Why Would Two-Level Consequentialists Punish Only the Guilty?

The most commonly encountered and most serious objection against consequentialist theories of punishment is that they could sometimes endorse punishing innocent people. Two-level consequentialists can resist this objection. Because of how deterrence works, a system of social protection would clearly need to be careful, most of the time, to pick out only the guilty for punishment. What about exceptional cases? Any institution empowered to secretly frame innocent people would pose a grave danger to democracy, a danger that could prove lethal under only moderately unusual conditions. Meanwhile, individual consequentialists working within the criminal justice system should fear that their own views could be distorted by confirmation bias and other cognitive errors. These officials should normally trust any moderately well-functioning adversarial trial process more than they trust their own judgment of who needs to be punished. They should use extra-legal discretion only in cases where both their confidence and the stakes are extremely high; and in cases where the stakes are extremely high, the consequentialist answer is no longer counter-intuitive.

CORRELATION BETWEEN THEORY OF CRIMINAL LIABILITY AND CRIMINAL PUNISHMENT TOWARD CORPORATION IN INDONESIA CRIMINAL JUSTICE PRACTICE

The question of the correlation between theory of criminal liability and criminal punishment on criminal acts committed corporation is important to investigate in order to provide justification for the criminal prosecution of corporations. How a mistake should be constructed from a corporation associated with the theory of corporate criminal liability. As a consequence of the improper condition on the corporate views of whether the corporation has made a criminal offense can be avoided as part of discretion in running the business. If these obligations are not met, the corporation can be condemned for committing crime. The practice of criminal justice to the determination of criminal liability for corporations is not fully in accordance with the theory of corporate criminal liability. In fact, the court decision does not yet reflect a consistent correlation between the theory of criminal liability and criminal punishment on criminal acts of the corporation.Keywords: criminal liability, corporate, criminal justice.

Is it “impossible to will to be punished?” Exploring a consensual way out of the Kantian dilemma

In the Metaphysics of Morals Kant wrote that “it is impossible to will to be punished”. The main goal of the present paper is to challenge this idea. In contemporary literature, a similar challenge was attempted by assigning a pivotal role to the notion of ‘consent’. Therefore, focused on these antecedents, what I will try to do in this paper is to determine whether the notion of consent is capable of playing any role whatsoever in a justificatory theory of punishment.

Punishment and solidarity? An experimental test of the educative-moralizing effects of legal sanctions

Both scholars and legal practitioners have long theorized that a central function of criminal punishments is to reinforce moral values and, in so doing, symbolically reaffirm the vitality of the shared beliefs that underpin social trust and bonding—or what Durkheim refers to as “mechanical solidarity”. Crime, according to this theoretical scholarship, is a symbol of disconsensus and possesses the potential to trigger a demoralization cascade. Punishment counteracts the demoralizing effect of crime by demonstrating that a consensus remains about the moral boundaries in society and that legal authorities continue to have the motivation and resources necessary to enforce this consensus. Versions of this denunciatory or expressive theory of punishment can be found in the criminological, sociological, and legal literatures. All varieties of the theory share a common feature: to date, they have largely escaped empirical scrutiny. The current study tests this theoretical tradition’s foundational hypotheses using data from a randomized factorial survey experiment conducted with a sample of 5042 Americans. The findings provide no support for expressive theories of punishment. However, the evidence does show that punishment may play an important role in reducing the emotional impact of crime on citizens. Specifically, when the offender is caught and punished it appears to diminish the aversive emotional reactions (e.g., anger) caused by learning that a crime was committed in the first place. Our study suggests that, although punishing crimes may not influence individuals’ social or moral beliefs, it might serve another important function by attenuating potentially criminogenic emotional reactions to crime, such as anger. The sanctioning effect, then, shares similarities with conventional coping mechanisms described in general strain theory.

An Integrated Theory of Lethal Punishment: Social Geometry, Status Relationships, and the Dehumanization Process

Punishment exists universally as a form of social control, spanning a continuum from the physically inconsequential to lethality. What explains observable variations in punishment, or lethal punishment as a form of social control? This paper builds upon Black’s pure sociology framework and Milner’s theory of status relations to argue that lethal punishment occurs mainly under conditions of marginalization, disruptions of the previous social geometries, and social polarization that characterize interpersonal encounters or inter-group relationships. These conditions facilitate the status degradation processes that lead to the dehumanization of the “other.” By the same token, such conditions do not often prevail in familial settings and hence lethal punishments are far less common than the lethality associated with other forms of moralistic violence and state-sanctioned punishments.

Libertarian Punishment Theory and Unjust Enrichment

What is the proper punishment from the perspective of the libertarian philosophy? More specifically, in what way, if at all, may a thief benefit from his robbery? The present essay attempts to wrestle with these challenging questions.