The issue of punishment is one of the most complex and controversial in criminal science. Its value is determined by the fact that law is realized, above all, by means of threat and sanctions. To avoid criminal actions, any act should be prohibited by law on pain of punishment, and this pain is not something abstract. Pain is not a phantom frightening the one who infringes the law, but a real effect of such an infringement, a real punishment, a manifestation of the special legal relationship that exists between the government and the infringer of the legislator’s decrees. This paper investigates the issue of punishment as a part of social compact theory.
The Essence of Punishment
When someone exceeds the limits of his individual freedom and violates public order, then the state resists such violation. This resistance is called punishment. Punishment is an external constraint, following violation of the rules. The motive of all human actions is gaining pleasure or inflicting pain; hence punishment of the offender may deprive him of some good or inflict pain. Crime and punishment are closely related. Punishment is a natural reaction of the state to the crime. If a socially dangerous act does not result in punishment, it cannot be considered a crime. To conclude, punishment is a mandatory feature of the concept of crime.
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Punishment is a last resort used by the state, when other less restrictive measures are ineffective. The state does not punish everything that is punishable; it executes a punitive authority not to waste its limited powers. It never punishes for the sake of punishment. The external character of the state suggests achieving certain goals. These goals are to intimidate and to rehabilitate offenders. These goals can be achieved through either the threat of punishment, or by executing it. Justice should never be violated. The extent of punishment should not exceed the extent of crime. According to the Eighth Amendment, “excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted” (The Eighth Amendment, 1791). It means that every punishment imposed by the government must be proportionate to the offense committed by the offender. Otherwise, protection of law would require consistent application of the most severe penalties, violation of human dignity and turning people into simple instruments. In his Bill for Proportioning Crimes and Punishments Thomas Jefferson stated that “cruel and sanguinary laws defeat their own purpose by engaging the benevolence of mankind to withold prosecutions” (Jefferson, 1778). On the other hand, the criminal policy advises utilizing the less severe type of punishment when it is sufficient to achieve the above mentioned goals. In this case inevitability is the priority. According to Cesare Beccaria:
The certainty of a punishment, even if it be moderate, will always make a stronger impression than the fear of another which is more terrible but combined with the hope of impunity; even the least evils, when they are certain, always terrify men’s minds. (Beccaria, 1764)
The goal of intimidation, relating to a criminal, agrees with the goal of correction, for the legislator does not care if anyone decides not to break the law in future because he fears punishment, or because he is morally reborn. The state, as an external agency, cannot break into a purely spiritual area, like the sphere of thought, faith and motivation.
The above mentioned substance of punishment and its objectives suggest two main characteristics of punishment: usefulness and validity. The first concerns the application of penalties, and the second defines its limits. As to the usefulness, punishment should be exemplary and corrective. Punishment should be inflicted upon the public interest. The threat of punishment and its execution should keep people from committing a crime. In this case publicity is most effective. Punishment—in respect of type and means of its performance—must promote the moral and legal correction of a criminal, but should never humiliate him and motivate hatred and resentment against the laws. To be just, punishment must be fair, personal, appropriate, equal to all, and it must have the possibility of compensation in case of a judicial mistake (death penalty, for example, cannot be compensated).
Punishment as Part of Social Compact
The very concept of the social compact was formed during the Enlightenment as an alternative to divine origin of unrestricted power. The central idea of the theory of social compact is the idea of natural law, civil society and people’s sovereignty. According to this idea, the nation is the source and owner of all authority, and the state is formed by the will of free and independent individuals as an institution to protect their natural rights (life, liberty and property), which is not feasible in the natural state, but only in a civil one.
English philosopher Thomas Hobbes (1588-1679) was the founder of this theory. According to his ideas, all men by nature have the same abilities and qualities. In addition, they all tend to seek for maximum realization of their selfish interests, not restricted by their desires. For this reason, a natural original state of human society is “bellum omnium contra omnes” – war of all against all – which is a chaotic violent confrontation of individuals to each other (see Hobbes, 1909-14). However, according to Hobbes, men are endowed by nature with the ability and the desire to find a way out of disadvantage. They are driven by a healthy instinct for self-preservation, fear of death, and common sense or natural reason. All this together leads them to understand the need to overcome the natural state.
To this end, individuals enter into an agreement on the establishment of social state, which would preserve and protect the rights of each individual and thus would limit the natural liberty. The state that emerges in this manner is the guarantor of the rights of every citizen. It has a coercive character and requires absolute obedience. Created by contract between citizens, the state alienates a cumulative power of individuals and uses it for the common good. Now, individuals are denied the right and opportunity to resist the decisions of the sovereign power. Instead, they get the security and peaceful existence under the protection of the law. It means that they agree to obey certain laws and rules under the pain of punishment.
Jean-Jacques Rousseau’s book On the Social Contract combined the principle of the social contract with the concept of social consensus. He believed that by the social contract people voluntarily submit themselves to the will of the collective, which does not imply a complete submission, because each individual is a carrier of self-interest. A common will is the law in the sense that it reflects the common element in the private interests of the citizens and represents collective satisfaction of individual interest, which is possible only in the society. This theory has become the driving force of the American and European democracies, as it contained protection of personality and minority.
In the conditions of social compact community sanctions for violation of the contract have a special moral significance. A citizen keeps himself in the state of freedom, when a sanction is included into his calculations. When he violates the social compact, he is ready to be punished. In the case where sanctions are missing or not applicable (can be avoided), this citizen drops out of the freedom of compact. h\He just follows his desires, exercises his idea of good, without regard to the social compact. The penalty for violation returns him to the compact and freedom. Therefore, the inevitability of punishment for violation of the compact is very important. Society forces the citizen to freedom. This is the demand to rise from isolation, impersonality and captivity of instincts to communication, personality and freedom, which are inseparable.
The Issue of Punishment in the U.S.A
Today, there is much debate around the issue, which approach to the system of punishment is preferable – punitive, proactive, or rehabilitative. All of these approaches have drawbacks as well as advantages. The theory of punishment as a retribution is supported by many American theorists. Attention is paid to the fact that punishment is the result of a violation of criminal norm and is correlated, primarily, with the harm that crime caused. In this case society punishes the offender in order to get revenge. A commensurate punishment of the perpetrator, according to supporters of the concept, helps restore the attitude of the population, and suppresses crime activity. It is also a matter of respect for the law and it prevents acts of vigilante justice. According to Jerome Hall (2005), who also supports this concept, other theories, which consider crime prevention and law enforcement as the first goals of punishment, are nothing, but useless slogans.
Most supporters of the concept of punishment as a correction – psychologists, psychiatrists and other experts - explain the causes of crime by solely biological factors. Proponents of this theory acknowledge the possibility of corrective measures regardless of guilt, taking into account such criteria as “dangerous condition” of the individual. The idea of correction and reintegration into society is actively used by other authors in support of their ideas.
The concept of punishment as a deterrence (general prevention) is a theoretical framework that has been grounded comparatively recently. According to it, the inevitable suffering of the criminal should keep others from committing crimes (the idea mentioned by Beccaria). A general preventive impact of the threat of punishment is not objected by any researcher (Matravers, 2000).
The theory of general prevention is closely related to the theory of special prevention (special or particular deterrence), which focuses on individual deterrence. According to this concept, the punishment itself and the system of serving the sentence must prevent citizens from committing crimes in the future. This is made possible because the offender who has experienced the discomfort of penalty will not want it in future.
It seems that in this situation the most preferred one is a comprehensive approach to the development of the theory of punishment, based on mutual integration. The Model Penal Code, which is a recommendation (published in 1962 and widely used by American states to draw up their own codes), contains the aims of the provisions governing the imposition of sentences. The first on is the prevention of crime. The second is the promotion of correction and social rehabilitation of offenders. The main problem is that the territory of each state has its own criminal law, and only under certain circumstances (conflict of jurisdictions of two or more states, forgery of government securities, piracy and violation of other federal interests) federal criminal law is used. Due to this variety, different penalties may be imposed to an offender in different states. Moreover, the same measure against a person who has committed a crime in some states is considered as a criminal measure and in others as an administrative one. For example, removal from office or prohibition to engage in certain activities under California Penal Code is a criminal punishment, while in accordance with New York Penal Law this is a measure of civil law.
Increasingly important in recent years is the so-called restorative or restitutionary justice, when the penalty acts as a correction (Abel & Marsh, 1984). This is caused by the general weakening of a preventive effect of modern criminal law and a significant increase in criminal activity. The idea of restorative justice is to seek the alternative methods of prevention and fight against crime. This kind of justice has several advantages. First, the offender will preserve his dignity of being a citizen. Second, it will improve the situation with overcrowded prisons. Third, it is cheaper. However, there is no alternative to imprisonment today.
Nowadays, there is an opinion that the United States abuses its ability to deny citizens of their liberty. Taking into consideration the above stated facts, this issue seems clear. First of all, the citizens of the USA all belong to the social compact, known as the Constitution of the United States. This document protects the rights of all citizens. According to the theory of social compact, when a citizen abuses the rights of another citizen, or violates social laws in another manner, this citizen is punished by the state, which exists to protect all citizens. As it was stated, according to the constitution, the principle of justice is based on the statement that the extent of punishment should not exceed the extent of crime. Thus, even the most terrible punishment—the death penalty—is applied only in exceptional cases, connected with death of a victim, and only in 33 states. Today, the federal government retains the death penalty for only one non-murder offense—treason—because an act of treason can destroy a country. In 2011, according to Death Penalty Information Center, there were 43 executions across the country. Compared with 12,996 registered murders in 2010 (according to The Guardian) this number proves that the US is far from abusing its ability to apply capital punishment. Equally, the USA does not abuse its ability to deny citizens of their liberty. As it was stated above, the tendency prevails to use the alternative ways of correction and rehabilitation. Institutionalisation is applied mostly in the cases when the offender presents a threat to the society and must be isolated. However, nearly all serious crimes present a threat, and prisons are overcrowded. But, as it was mentioned already, there is no alternative to prisons, since other ways will infringe either the rights of a criminal (in case of a more severe punishment) or the rights of law-abiding citizens (in case of no punishment).
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