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Beccaria – “On Crimes And Punishments”

November 4, 2018 By Margit

Cesare Beccaria is seen by many people as the “father of criminology.” Here is a brief summary of his ideas and famous essay “On Crimes and Punishments,” both in video and text format.

Table of Contents

Discussions about Crime and Punishment

Cesare Beccaria is seen by many people as the “father of criminology” for his ideas about crime, punishment, and criminal justice procedures. He was an Italian born as an aristocrat in the year 1738 in Milan. At that time European thought about crime and punishment was still very much dominated by the old idea that crime was sin and that it was caused by the devil and by demons. And in part to punish the devil and the demons that were causing crime, very harsh punishments were used. At the time when Beccaria came along, the era of Enlightenment was in full swing, and scientists were starting to challenge the old views, but the people who had political power were not ready to leave those old ideas behind yet.

Beccaria didn’t start out as an intellectual. In fact, he wasn’t considered to be above average or interested really when it came to science or philosophy. But after he completed his law studies at the University of Pavia, he started to surround himself with a group of young men who were interested in all kinds of philosophical issues and social problems. And the intellectual discussions that Beccaria was able to have with these people led him to question many of the practices that were common in his time, including the way in which offenders were being punished for their crimes.

Publication of Beccaria’s “On Crimes and Punishments”

Beccaria’s famous work, “On Crimes and Punishments,” was published in 1764, when he was 26 years old. His essay called out the barbaric and arbitrary ways in which the criminal justice system operated. Sentences were very harsh, torture was common, there was a lot of corruption, there were secret accusations and secret trials, and there was a lot of arbitrariness in the way in which sentences were imposed. There was no such thing as equality before the law. And powerful people of high status were treated very differently from people who were poor and who did not have a lot of status.

Beccaria’s ideas clashed dramatically with these practices. And I’ll go through some of the central principles that his work is based on.

Only the Law Can Prescribe Punishment

According to Beccaria, only the law can prescribe punishment. It is up to the legislator to define crime and to prescribe which punishment should be imposed. It is not up to a magistrate or a judge to impose a penalty if the legislator has not prescribed it. And neither is it up to a judge to change what the law says about how a crime should be punished. The judge should do exactly what the law says.

The Law Applies Equally to All People

In addition, Beccaria said that the law applies equally to all people. And so punishment should be the same for all people, regardless of their power and status.

Making the Law and Law Enforcement Public

Beccaria also believed in the power of making the law and law enforcement public. More specifically, laws should be published so that people actually know about them, and trials should be public, too. Only then can onlookers judge if the trial is fair.

Beccaria: Punishments Should be Proportional, Certain, and Swift

Regarding severe punishment, Beccaria said that if severe punishments do not prevent crime, they should not be used. Instead, punishments should be proportional to the harm that the crime has caused. According to Beccaria, the aim of punishment is not to cause pain to the offender, but to prevent them from doing it again and to prevent other people from committing crime. In order to be able to do that, Beccaria believed that punishment should be certain and swift. He believed that if offenders were sure that they would be punished and if punishment would come as quickly as possible after the offense, that this would have the largest chance of preventing crime.

Beccaria Argued Against the Death Penalty

As another controversial issue, Beccaria argued against the death penalty. In his view, the state does not have the right to repay violence with more violence. And in addition to that, Beccaria believed that the death penalty was useless. The death penalty is momentary, it is not lasting and therefore the death penalty cannot be very successful in preventing crimes. Instead, lasting punishments, such as life imprisonment, would be more successful in preventing crimes, because potential offenders will find this a much more miserable condition than the death penalty.

No Right To Torture

Similarly, according to Cesare Beccaria, the state does not have the right to torture. Because no one is guilty until he or she is found guilty, no one has the right to punish a person by torturing him or her. Plus, people who are under torture will want the torture to stop and might therefore make false claims, including that they committed a crime they did not commit. So torture is also ineffective.

The Power of Education

Instead of torture and severe penalties, Beccaria believed that education is the most certain method of preventing crime.

Beccaria: Controversy and Success

Beccaria’s ideas are hardly controversial today, but they caused a lot of controversy at the time, because they were an attack on the entire criminal justice system. Beccaria initially published his essay anonymously, because he didn’t necessarily consider it to be a great idea to publish such radical ideas. And this idea was partly confirmed when the book was put on the black list of the Catholic Church for a full 200 years.

But even though his ideas were controversial back then, his essay became an immediate success. In fact, Cesare Beccaria’s ideas became the basis for all modern criminal justice systems and there is some evidence that his essay influenced the American and French revolutions which happened not long after the publication of the essay. His ideas were not original, because others had also proposed them, but Beccaria was the first one to present them in a consistent way. Many people were ready for the changes that he proposed, which is why his essay was such a success.

Beccaria ends his essay with what can be seen as a kind of summary of his view:

“So that any punishment be not an act of violence of one or of many against another, it is essential that it be public, prompt, necessary, minimal in severity as possible under given circumstances, proportional to the crime, and prescribed by the laws.”

You can find Cesare Beccaria’s full essay “On Crimes and Punishments” here .

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Fairness in the criminal justice system.

Thursday, September 28, 2017

By Richard Berk

Sébastien Thibault

Everyone wants the criminal justice system to be fair. Whatever one’s values, political affiliations, or ideology, an unfair criminal justice system is a faulty criminal justice system. Why then is there so much controversy about fairness?

One important reason is lack of clarity about what fairness means. Even when clear conceptions of fairness are provided, there can be several different kinds that are in conflict. For example, men are vastly overrepresented in prisons compared to women. On its face, this is an instance of unfairness in outcome. The chances a judge will sentence a man to prison are far greater than the chances a judge will sentence a woman to prison. One reason is that men are far more likely to be convicted of violent crimes for which a long prison sentence is expected.

The overrepresentation of men in prison could be easily remedied. One could decide to treat men and women differently. One could stipulate that violent crimes committed by men were less serious than violent crimes committed by women and that, therefore, incarceration was less appropriate. This would increase fairness in outcome while decreasing fairness in treatment.  

Would such a tradeoff be accepted? A lot would depend on why men are more far more likely than women to be are arrested for, charged with, and convicted of violent crimes. If in fact men were no more likely than women to commit violent crimes to begin with, and if the overrepresentation of men among those arrested for, charged with, and convicted of violent crimes derived from a bias again men, the tradeoff might be accepted. But that just moves concerns about fairness upstream, where the same two tradeoffs would need to be addressed at each stage. At some point, fairness upstream would need to be examined in settings and institutions well before an arrest for a violent crime occurs. For example, why are boys more likely to be disciplined in school?

At each stage, there would be a need for data and a proper analysis so that facts could be accumulated. Are men in a given jurisdiction more likely than women to be stopped and questioned by police? If so, why is that? And might some of the reasons have a legitimate law enforcement rationale? Facts matter. Do men constitute the majority of arrests in intimate partner violence? If so, why? And might some of the reasons have a legitimate law enforcement rationale? Again, facts matter.

The same sorts of issues can arise for reasons other than gender: race, ethnicity, age, and immigrant status. What can be done? At one extreme are calls for fundamental change from top to bottom in the criminal justice system. Even if such changes could be clearly detailed and even if they were desirable, any practical plan would take many years to implement. In the meantime, many thousands of individuals, men and women, would be incarcerated. At the other extreme, are calls for staying the course. Unfairness that may exist is rare and aberrant, not a systematic feature of the criminal justice system. And, nothing is perfect.

There is a middle path. First, there needs to be far greater clarity about what fairness means in the criminal justice system and a recognition that there are several different kinds. There will be tradeoffs—you can’t have it all. Because men are in fact far more likely to commit violent crimes, equality of outcomes cannot be obtained without inequality of treatment. 

Second, data must be routinely collected and competently analyzed to properly address fairness in the criminal justice system. Rather than shutting down or grossly underfunding such efforts, these efforts should be expanded. One famous illustration is the elimination, two decades ago, of research on firearms conducted by the Centers for Disease Control. Recent examples include the decision by Attorney General Sessions to dissolve the National Commission on Forensic Science, which could address such matters as racial bias in the testimony of expert witnesses. President Trump’s FY’18 budget request calls for substantial reductions for the Bureau of Justice Statistics and the Bureau of Labor Statistics. 

Third, one must be prepared to accept modest reforms implemented over time that at best improve current practice. The yardstick is not perfection. The yardstick is current practice—can we do better? For example, can improvements be introduced in risk assessments used to inform parole release decisions that would enhance fairness? 

Finally, any such reforms must be evaluated with proper data and a proper data analysis. Good intentions and anecdotal claims of success will not suffice. D.A.R.E., Boot Camps, and Scared Straight are examples of programs with anecdotal, but not measurable, success. The road to criminal justice reform is littered with interventions that in retrospect did not work. 

Richard Berk is Professor and Chair of the Department of Criminology and Professor of Statistics at the Wharton School of Business.

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The Ethics of Punishment and Rehabilitation: Part II

By: Dr. Betsy Matthews, coordinator of the EKU Online Corrections and Juvenile Justice Program

What Constitutes Fair Punishment? Is Incarceration the Answer?

In the  first part of this series  on the ethics of punishment and rehabilitation, the four major rationales for punishment in the United States were explored, which included:

• Retribution — the idea that those who cause harm deserve harm in return
• Deterrence — establishing a cost for criminal behavior so that criminals and others watching are less likely to engage
• Rehabilitation — addressing the psychological, social, or economic factors that contribute to criminal behavior to prevent it from happening again
• Incapacitation — separating criminals from society so that they can do no more harm

According to the retributive ideology, justice is served when offenders are made to suffer pain that is proportional to the harm the victim suffered as the result of the crime. In this theory of retribution, justice is about achieving balance; when a judge is applying the retributive ideology, he decides what type of sentence equates to the pain caused by the crime. Is one year sufficient for a repeat DUI offender who caused no direct harm to anyone? Or does his endangerment of citizens’ lives require that more pain be inflicted through a longer term of imprisonment? What about the offender who caused someone’s death? Surely this greater harm would be matched with a more severe sentence.

Offender Backgrounds

But what about the offenders’ backgrounds and their likelihood of subsequent crime? Shouldn’t that be factored into the equation? Not according to retributive justice, which says the aims of punishment are to right the wrong rather than to control or prevent crime.  Because the purpose of punishment does not extend beyond addressing the particular harm caused by a particular crime, decisions are present- and offense-focused. That is, what’s been done in the past, or is likely in the future is not considered. The nature of the offense is the determining factor in the administration of punishment.

The retributive ideology hinges on the belief that crimes can be easily ranked according to their severity. Our penal codes, in fact, categorize and rank crimes according to severity, and then set forth a range of punishments appropriate for each ranking. The more severe the crime the more harsh the allotted punishment. But is there agreement on how we rank crimes? For example, which is more serious, embezzlement of $15,000 or robbery of $15,000? And who gets to decide?

How To Quantify Harm

Another problem with determining fair punishment has to do with how we quantify harm. Loss of life and monetary losses are easily measured, but what about emotional harm, or perceived loss of safety? Then, who decides how much pain, or punishment, a particular crime is worth? Does a theft of $2,500 equal five years in prison? As you can see, under the retributive ideology, fair punishment may be an impossible goal.

Now let’s take a look at the utilitarian strategies, which include deterrence, rehabilitation, and incapacitation. According to the utilitarian ideology, justice is served when the punishment prevents or reduces crime. Deterrence-based strategies use punishment to make people themselves, and others watching, realize the costs attached to criminal behavior and decide not to engage in crime again. Rehabilitative strategies involve programming to address psychological, social, or economic factors that contributed to their criminal behavior and reduce their likelihood of engaging in future crime. Incapacitative strategies physically restrict people’s movements and freedom, by separating them from society so that they can do no more harm.

Retribution

The retribution approach to justice doesn’t consider the past behavior or the future likelihood of crime, but utilitarian justice does. If past behavior and other factors increase the likelihood of the offender engaging in crime, harsher punishments are justified to maximize the pain and keep an offender in prison. One complication of utilitarian justice is uncertainty regarding the amount of punishment that it takes to deter or rehabilitate people. At what point does punishment become disproportionate or unfair? And does the need to match the sentence to the individual offender undermine our ability to deliver blind justice? The disproportionate incarceration of poor minorities would suggest this approach needs a closer look.

Our current system of punishment is rooted in the concept of deterrence. More and longer sentences have contributed to mass incarceration in the United States that is believed to have contributed to only a slight reduction in crime. Is the cost of incarceration worth it? And more importantly, is justice being served? For most corrections and juvenile justice professionals, this is where the rubber meets the road. Ethical decision-making requires us to think about our definition of justice, and the type of punishment that will get us there. 

This piece is part of a series on the ethics of punishment and rehabilitation. In the next article, we will take a closer look at rehabilitation.

Read Part III >

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INTRODUCTION

• Published: March 2008
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John Gardner

CRIME AND PUNISHMENT

What good comes of criminal punishment? How does it help to make the world a better place? Criminal punishment, and more generally the criminal justice system that makes it possible, requires a huge investment of money, time, and energy. It has high costs and many casualties. If the system is to be justified, there must be compensating benefits. We had better know what they are and establish whether they are sufficient. That simple thought permeates Punishment and Responsibility , and animates the book's most widely remembered essay, ‘Prolegomenon to the Principles of Punishment’ (Chapter I). 1

Put like this, you may say, Hart's thought is not only simple but uncontroversial. Any action or practice that has costs—and which does not?—needs to pay its way in countervailing benefits or else it cannot be defended. The tricky question is: What counts as a countervailing benefit? Hart thinks that a reduction in future wrongdoing 2 qualifies as a countervailing benefit of criminal punishment (p 8 and passim ). The law's punitive measures may contribute to this reduction in various ways: by deterrence, by public education, by incapacitation, by rehabilitation, and so on. But however it is brought about, the relevant benefit, thinks Hart, lies in the tally of future wrongs that will, thanks to the system, never be committed. The job of showing how much benefit there is in the system then shifts largely to empirical researchers who are in a position to tally the uncommitted wrongs that can credibly be attributed to the punitive measures in question. This explains Hart's emphasis on statistics concerning the effects of the death penalty in ‘Murder and the Principles of Punishment’ (Chapter 3). 3 The death penalty for murder, thinks Hart, can be justified only if ( inter alia ) thanks to its use a sufficient number of murders, or at any rate a sufficient number of sufficiently grave wrongs, go uncommitted.

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1.5 The Purposes of Punishment

Learning objective.

• Ascertain the effects of specific and general deterrence, incapacitation, rehabilitation, retribution, and restitution.

Punishment has five recognized purposes: deterrence , incapacitation , rehabilitation , retribution , and restitution .

Specific and General Deterrence

Deterrence prevents future crime by frightening the defendant or the public . The two types of deterrence are specific and general deterrence . Specific deterrence applies to an individual defendant . When the government punishes an individual defendant, he or she is theoretically less likely to commit another crime because of fear of another similar or worse punishment. General deterrence applies to the public at large. When the public learns of an individual defendant’s punishment, the public is theoretically less likely to commit a crime because of fear of the punishment the defendant experienced. When the public learns, for example, that an individual defendant was severely punished by a sentence of life in prison or the death penalty, this knowledge can inspire a deep fear of criminal prosecution.

Incapacitation

Incapacitation prevents future crime by removing the defendant from society. Examples of incapacitation are incarceration, house arrest, or execution pursuant to the death penalty.

Rehabilitation

Rehabilitation prevents future crime by altering a defendant’s behavior. Examples of rehabilitation include educational and vocational programs, treatment center placement, and counseling. The court can combine rehabilitation with incarceration or with probation or parole. In some states, for example, nonviolent drug offenders must participate in rehabilitation in combination with probation, rather than submitting to incarceration (Ariz. Rev. Stat., 2010). This lightens the load of jails and prisons while lowering recidivism , which means reoffending.

Retribution

Retribution prevents future crime by removing the desire for personal avengement (in the form of assault, battery, and criminal homicide, for example) against the defendant. When victims or society discover that the defendant has been adequately punished for a crime, they achieve a certain satisfaction that our criminal procedure is working effectively, which enhances faith in law enforcement and our government.

Restitution

Restitution prevents future crime by punishing the defendant financially . Restitution is when the court orders the criminal defendant to pay the victim for any harm and resembles a civil litigation damages award. Restitution can be for physical injuries, loss of property or money, and rarely, emotional distress. It can also be a fine that covers some of the costs of the criminal prosecution and punishment.

Figure 1.4 Different Punishments and Their Purpose

Key Takeaways

• Specific deterrence prevents crime by frightening an individual defendant with punishment. General deterrence prevents crime by frightening the public with the punishment of an individual defendant.
• Incapacitation prevents crime by removing a defendant from society.
• Rehabilitation prevents crime by altering a defendant’s behavior.
• Retribution prevents crime by giving victims or society a feeling of avengement.
• Restitution prevents crime by punishing the defendant financially.

Answer the following questions. Check your answers using the answer key at the end of the chapter.

• What is one difference between criminal victims’ restitution and civil damages?
• Read Campbell v. State , 5 S.W.3d 693 (1999). Why did the defendant in this case claim that the restitution award was too high? Did the Texas Court of Criminal Appeals agree with the defendant’s claim? The case is available at this link: http://scholar.google.com/scholar_case?case=11316909200521760089&hl=en&as_sdt=2&as_vis=1&oi=scholarr .

Ariz. Rev. Stat. §13-901.01, accessed February 15, 2010, http://law.justia.com/arizona/codes/title13/00901-01.html .

Criminal Law Copyright © 2015 by University of Minnesota is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International License , except where otherwise noted.

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student opinion

Should the Death Penalty Be Abolished?

In its last six months, the United States government has put 13 prisoners to death. Do you think capital punishment should end?

By Nicole Daniels

Students in U.S. high schools can get free digital access to The New York Times until Sept. 1, 2021.

In July, the United States carried out its first federal execution in 17 years. Since then, the Trump administration has executed 13 inmates, more than three times as many as the federal government had in the previous six decades.

The death penalty has been abolished in 22 states and 106 countries, yet it is still legal at the federal level in the United States. Does your state or country allow the death penalty?

Do you believe governments should be allowed to execute people who have been convicted of crimes? Is it ever justified, such as for the most heinous crimes? Or are you universally opposed to capital punishment?

In “ ‘Expedited Spree of Executions’ Faced Little Supreme Court Scrutiny ,” Adam Liptak writes about the recent federal executions:

In 2015, a few months before he died, Justice Antonin Scalia said he w o uld not be surprised if the Supreme Court did away with the death penalty. These days, after President Trump’s appointment of three justices, liberal members of the court have lost all hope of abolishing capital punishment. In the face of an extraordinary run of federal executions over the past six months, they have been left to wonder whether the court is prepared to play any role in capital cases beyond hastening executions. Until July, there had been no federal executions in 17 years . Since then, the Trump administration has executed 13 inmates, more than three times as many as the federal government had put to death in the previous six decades.

The article goes on to explain that Justice Stephen G. Breyer issued a dissent on Friday as the Supreme Court cleared the way for the last execution of the Trump era, complaining that it had not sufficiently resolved legal questions that inmates had asked. The article continues:

If Justice Breyer sounded rueful, it was because he had just a few years ago held out hope that the court would reconsider the constitutionality of capital punishment. He had set out his arguments in a major dissent in 2015 , one that must have been on Justice Scalia’s mind when he made his comments a few months later. Justice Breyer wrote in that 46-page dissent that he considered it “highly likely that the death penalty violates the Eighth Amendment,” which bars cruel and unusual punishments. He said that death row exonerations were frequent, that death sentences were imposed arbitrarily and that the capital justice system was marred by racial discrimination. Justice Breyer added that there was little reason to think that the death penalty deterred crime and that long delays between sentences and executions might themselves violate the Eighth Amendment. Most of the country did not use the death penalty, he said, and the United States was an international outlier in embracing it. Justice Ginsburg, who died in September, had joined the dissent. The two other liberals — Justices Sotomayor and Elena Kagan — were undoubtedly sympathetic. And Justice Anthony M. Kennedy, who held the decisive vote in many closely divided cases until his retirement in 2018, had written the majority opinions in several 5-to-4 decisions that imposed limits on the death penalty, including ones barring the execution of juvenile offenders and people convicted of crimes other than murder .

In the July Opinion essay “ The Death Penalty Can Ensure ‘Justice Is Being Done,’ ” Jeffrey A. Rosen, then acting deputy attorney general, makes a legal case for capital punishment:

The death penalty is a difficult issue for many Americans on moral, religious and policy grounds. But as a legal issue, it is straightforward. The United States Constitution expressly contemplates “capital” crimes, and Congress has authorized the death penalty for serious federal offenses since President George Washington signed the Crimes Act of 1790. The American people have repeatedly ratified that decision, including through the Federal Death Penalty Act of 1994 signed by President Bill Clinton, the federal execution of Timothy McVeigh under President George W. Bush and the decision by President Barack Obama’s Justice Department to seek the death penalty against the Boston Marathon bomber and Dylann Roof.

Students, read the entire article , then tell us:

Do you support the use of capital punishment? Or do you think it should be abolished? Why?

Do you think the death penalty serves a necessary purpose, like deterring crime, providing relief for victims’ families or imparting justice? Or is capital punishment “cruel and unusual” and therefore prohibited by the Constitution? Is it morally wrong?

Are there alternatives to the death penalty that you think would be more appropriate? For example, is life in prison without the possibility of parole a sufficient sentence? Or is that still too harsh? What about restorative justice , an approach that “considers harm done and strives for agreement from all concerned — the victims, the offender and the community — on making amends”? What other ideas do you have?

Vast racial disparities in the administration of the death penalty have been found. For example, Black people are overrepresented on death row, and a recent study found that “defendants convicted of killing white victims were executed at a rate 17 times greater than those convicted of killing Black victims.” Does this information change or reinforce your opinion of capital punishment? How so?

The Federal Death Penalty Act prohibits the government from executing an inmate who is mentally disabled; however, in the recent executions of Corey Johnson , Alfred Bourgeois and Lisa Montgomery , their defense teams, families and others argued that they had intellectual disabilities. What role do you think disability or trauma history should play in how someone is punished, or rehabilitated, after committing a crime?

How concerned should we be about wrongfully convicted people being executed? The Innocence Project has proved the innocence of 18 people on death row who were exonerated by DNA testing. Do you have worries about the fair application of the death penalty, or about the possibility of the criminal justice system executing an innocent person?

About Student Opinion

• Find all of our Student Opinion questions in this column . • Have an idea for a Student Opinion question? Tell us about it . • Learn more about how to use our free daily writing prompts for remote learning .

Students 13 and older in the United States and the United Kingdom, and 16 and older elsewhere, are invited to comment. All comments are moderated by the Learning Network staff, but please keep in mind that once your comment is accepted, it will be made public.

Nicole Daniels joined The Learning Network as a staff editor in 2019 after working in museum education, curriculum writing and bilingual education. More about Nicole Daniels

Arguments for and Against the Death Penalty

Click the buttons below to view arguments and testimony on each topic.

The death penalty deters future murders.

Society has always used punishment to discourage would-be criminals from unlawful action. Since society has the highest interest in preventing murder, it should use the strongest punishment available to deter murder, and that is the death penalty. If murderers are sentenced to death and executed, potential murderers will think twice before killing for fear of losing their own life.

For years, criminologists analyzed murder rates to see if they fluctuated with the likelihood of convicted murderers being executed, but the results were inconclusive. Then in 1973 Isaac Ehrlich employed a new kind of analysis which produced results showing that for every inmate who was executed, 7 lives were spared because others were deterred from committing murder. Similar results have been produced by disciples of Ehrlich in follow-up studies.

Moreover, even if some studies regarding deterrence are inconclusive, that is only because the death penalty is rarely used and takes years before an execution is actually carried out. Punishments which are swift and sure are the best deterrent. The fact that some states or countries which do not use the death penalty have lower murder rates than jurisdictions which do is not evidence of the failure of deterrence. States with high murder rates would have even higher rates if they did not use the death penalty.

Ernest van den Haag, a Professor of Jurisprudence at Fordham University who has studied the question of deterrence closely, wrote: “Even though statistical demonstrations are not conclusive, and perhaps cannot be, capital punishment is likely to deter more than other punishments because people fear death more than anything else. They fear most death deliberately inflicted by law and scheduled by the courts. Whatever people fear most is likely to deter most. Hence, the threat of the death penalty may deter some murderers who otherwise might not have been deterred. And surely the death penalty is the only penalty that could deter prisoners already serving a life sentence and tempted to kill a guard, or offenders about to be arrested and facing a life sentence. Perhaps they will not be deterred. But they would certainly not be deterred by anything else. We owe all the protection we can give to law enforcers exposed to special risks.”

Finally, the death penalty certainly “deters” the murderer who is executed. Strictly speaking, this is a form of incapacitation, similar to the way a robber put in prison is prevented from robbing on the streets. Vicious murderers must be killed to prevent them from murdering again, either in prison, or in society if they should get out. Both as a deterrent and as a form of permanent incapacitation, the death penalty helps to prevent future crime.

Those who believe that deterrence justifies the execution of certain offenders bear the burden of proving that the death penalty is a deterrent. The overwhelming conclusion from years of deterrence studies is that the death penalty is, at best, no more of a deterrent than a sentence of life in prison. The Ehrlich studies have been widely discredited. In fact, some criminologists, such as William Bowers of Northeastern University, maintain that the death penalty has the opposite effect: that is, society is brutalized by the use of the death penalty, and this increases the likelihood of more murder. Even most supporters of the death penalty now place little or no weight on deterrence as a serious justification for its continued use.

States in the United States that do not employ the death penalty generally have lower murder rates than states that do. The same is true when the U.S. is compared to countries similar to it. The U.S., with the death penalty, has a higher murder rate than the countries of Europe or Canada, which do not use the death penalty.

The death penalty is not a deterrent because most people who commit murders either do not expect to be caught or do not carefully weigh the differences between a possible execution and life in prison before they act. Frequently, murders are committed in moments of passion or anger, or by criminals who are substance abusers and acted impulsively. As someone who presided over many of Texas’s executions, former Texas Attorney General Jim Mattox has remarked, “It is my own experience that those executed in Texas were not deterred by the existence of the death penalty law. I think in most cases you’ll find that the murder was committed under severe drug and alcohol abuse.”

There is no conclusive proof that the death penalty acts as a better deterrent than the threat of life imprisonment. A 2012 report released by the prestigious National Research Council of the National Academies and based on a review of more than three decades of research, concluded that studies claiming a deterrent effect on murder rates from the death penalty are fundamentally flawed. A survey of the former and present presidents of the country’s top academic criminological societies found that 84% of these experts rejected the notion that research had demonstrated any deterrent effect from the death penalty .

Once in prison, those serving life sentences often settle into a routine and are less of a threat to commit violence than other prisoners. Moreover, most states now have a sentence of life without parole. Prisoners who are given this sentence will never be released. Thus, the safety of society can be assured without using the death penalty.

Ernest van den Haag Professor of Jurisprudence and Public Policy, Fordham University. Excerpts from ” The Ultimate Punishment: A Defense,” (Harvard Law Review Association, 1986)

“Execution of those who have committed heinous murders may deter only one murder per year. If it does, it seems quite warranted. It is also the only fitting retribution for murder I can think of.”

“Most abolitionists acknowledge that they would continue to favor abolition even if the death penalty were shown to deter more murders than alternatives could deter. Abolitionists appear to value the life of a convicted murderer or, at least, his non-execution, more highly than they value the lives of the innocent victims who might be spared by deterring prospective murderers.

Deterrence is not altogether decisive for me either. I would favor retention of the death penalty as retribution even if it were shown that the threat of execution could not deter prospective murderers not already deterred by the threat of imprisonment. Still, I believe the death penalty, because of its finality, is more feared than imprisonment, and deters some prospective murderers not deterred by the thought of imprisonment. Sparing the lives of even a few prospective victims by deterring their murderers is more important than preserving the lives of convicted murderers because of the possibility, or even the probability, that executing them would not deter others. Whereas the life of the victims who might be saved are valuable, that of the murderer has only negative value, because of his crime. Surely the criminal law is meant to protect the lives of potential victims in preference to those of actual murderers.”

“We threaten punishments in order to deter crime. We impose them not only to make the threats credible but also as retribution (justice) for the crimes that were not deterred. Threats and punishments are necessary to deter and deterrence is a sufficient practical justification for them. Retribution is an independent moral justification. Although penalties can be unwise, repulsive, or inappropriate, and those punished can be pitiable, in a sense the infliction of legal punishment on a guilty person cannot be unjust. By committing the crime, the criminal volunteered to assume the risk of receiving a legal punishment that he could have avoided by not committing the crime. The punishment he suffers is the punishment he voluntarily risked suffering and, therefore, it is no more unjust to him than any other event for which one knowingly volunteers to assume the risk. Thus, the death penalty cannot be unjust to the guilty criminal.”

Full text can be found at PBS.org .

Hugo Adam Bedau (deceased) Austin Fletcher Professor of Philosophy, Tufts University Excerpts from “The Case Against The Death Penalty” (Copyright 1997, American Civil Liberties Union)

“Persons who commit murder and other crimes of personal violence either may or may not premeditate their crimes.

When crime is planned, the criminal ordinarily concentrates on escaping detection, arrest, and conviction. The threat of even the severest punishment will not discourage those who expect to escape detection and arrest. It is impossible to imagine how the threat of any punishment could prevent a crime that is not premeditated….

Most capital crimes are committed in the heat of the moment. Most capital crimes are committed during moments of great emotional stress or under the influence of drugs or alcohol, when logical thinking has been suspended. In such cases, violence is inflicted by persons heedless of the consequences to themselves as well as to others….

If, however, severe punishment can deter crime, then long-term imprisonment is severe enough to deter any rational person from committing a violent crime.

The vast preponderance of the evidence shows that the death penalty is no more effective than imprisonment in deterring murder and that it may even be an incitement to criminal violence. Death-penalty states as a group do not have lower rates of criminal homicide than non-death-penalty states….

On-duty police officers do not suffer a higher rate of criminal assault and homicide in abolitionist states than they do in death-penalty states. Between l973 and l984, for example, lethal assaults against police were not significantly more, or less, frequent in abolitionist states than in death-penalty states. There is ‘no support for the view that the death penalty provides a more effective deterrent to police homicides than alternative sanctions. Not for a single year was evidence found that police are safer in jurisdictions that provide for capital punishment.’ (Bailey and Peterson, Criminology (1987))

Prisoners and prison personnel do not suffer a higher rate of criminal assault and homicide from life-term prisoners in abolition states than they do in death-penalty states. Between 1992 and 1995, 176 inmates were murdered by other prisoners; the vast majority (84%) were killed in death penalty jurisdictions. During the same period about 2% of all assaults on prison staff were committed by inmates in abolition jurisdictions. Evidently, the threat of the death penalty ‘does not even exert an incremental deterrent effect over the threat of a lesser punishment in the abolitionist states.’ (Wolfson, in Bedau, ed., The Death Penalty in America, 3rd ed. (1982))

Actual experience thus establishes beyond a reasonable doubt that the death penalty does not deter murder. No comparable body of evidence contradicts that conclusion.”

Click here for the full text from the ACLU website.

Retribution

A just society requires the taking of a life for a life.

When someone takes a life, the balance of justice is disturbed. Unless that balance is restored, society succumbs to a rule of violence. Only the taking of the murderer’s life restores the balance and allows society to show convincingly that murder is an intolerable crime which will be punished in kind.

Retribution has its basis in religious values, which have historically maintained that it is proper to take an “eye for an eye” and a life for a life.

Although the victim and the victim’s family cannot be restored to the status which preceded the murder, at least an execution brings closure to the murderer’s crime (and closure to the ordeal for the victim’s family) and ensures that the murderer will create no more victims.

For the most cruel and heinous crimes, the ones for which the death penalty is applied, offenders deserve the worst punishment under our system of law, and that is the death penalty. Any lesser punishment would undermine the value society places on protecting lives.

Robert Macy, District Attorney of Oklahoma City, described his concept of the need for retribution in one case: “In 1991, a young mother was rendered helpless and made to watch as her baby was executed. The mother was then mutilated and killed. The killer should not lie in some prison with three meals a day, clean sheets, cable TV, family visits and endless appeals. For justice to prevail, some killers just need to die.”

Retribution is another word for revenge. Although our first instinct may be to inflict immediate pain on someone who wrongs us, the standards of a mature society demand a more measured response.

The emotional impulse for revenge is not a sufficient justification for invoking a system of capital punishment, with all its accompanying problems and risks. Our laws and criminal justice system should lead us to higher principles that demonstrate a complete respect for life, even the life of a murderer. Encouraging our basest motives of revenge, which ends in another killing, extends the chain of violence. Allowing executions sanctions killing as a form of ‘pay-back.’

Many victims’ families denounce the use of the death penalty. Using an execution to try to right the wrong of their loss is an affront to them and only causes more pain. For example, Bud Welch’s daughter, Julie, was killed in the Oklahoma City bombing in 1995. Although his first reaction was to wish that those who committed this terrible crime be killed, he ultimately realized that such killing “is simply vengeance; and it was vengeance that killed Julie…. Vengeance is a strong and natural emotion. But it has no place in our justice system.”

The notion of an eye for an eye, or a life for a life, is a simplistic one which our society has never endorsed. We do not allow torturing the torturer, or raping the rapist. Taking the life of a murderer is a similarly disproportionate punishment, especially in light of the fact that the U.S. executes only a small percentage of those convicted of murder, and these defendants are typically not the worst offenders but merely the ones with the fewest resources to defend themselves.

Louis P. Pojman Author and Professor of Philosophy, U.S. Military Academy. Excerpt from “The Death Penalty: For and Against,” (Rowman & Littlefield Publishers, Inc., 1998)

“[Opponents of the capital punishment often put forth the following argument:] Perhaps the murderer deserves to die, but what authority does the state have to execute him or her? Both the Old and New Testament says, “’Vengeance is mine, I will repay,’ says the Lord” (Prov. 25:21 and Romans 12:19). You need special authority to justify taking the life of a human being.

The objector fails to note that the New Testament passage continues with a support of the right of the state to execute criminals in the name of God: “Let every person be subjected to the governing authorities. For there is no authority except from God, and those that exist have been instituted by God. Therefore he who resists what God has appointed, and those who resist will incur judgment…. If you do wrong, be afraid, for [the authority] does not bear the sword in vain; he is the servant of God to execute his wrath on the wrongdoer” (Romans 13: 1-4). So, according to the Bible, the authority to punish, which presumably includes the death penalty, comes from God.

But we need not appeal to a religious justification for capital punishment. We can site the state’s role in dispensing justice. Just as the state has the authority (and duty) to act justly in allocating scarce resources, in meeting minimal needs of its (deserving) citizens, in defending its citizens from violence and crime, and in not waging unjust wars; so too does it have the authority, flowing from its mission to promote justice and the good of its people, to punish the criminal. If the criminal, as one who has forfeited a right to life, deserves to be executed, especially if it will likely deter would-be murderers, the state has a duty to execute those convicted of first-degree murder.”

National Council of Synagogues and the Bishops’ Committee for Ecumenical and Interreligious Affairs of the National Conference of Catholic Bishops Excerpts from “To End the Death Penalty: A Report of the National Jewish/Catholic Consultation” (December, 1999)

“Some would argue that the death penalty is needed as a means of retributive justice, to balance out the crime with the punishment. This reflects a natural concern of society, and especially of victims and their families. Yet we believe that we are called to seek a higher road even while punishing the guilty, for example through long and in some cases life-long incarceration, so that the healing of all can ultimately take place.

Some would argue that the death penalty will teach society at large the seriousness of crime. Yet we say that teaching people to respond to violence with violence will, again, only breed more violence.

The strongest argument of all [in favor of the death penalty] is the deep pain and grief of the families of victims, and their quite natural desire to see punishment meted out to those who have plunged them into such agony. Yet it is the clear teaching of our traditions that this pain and suffering cannot be healed simply through the retribution of capital punishment or by vengeance. It is a difficult and long process of healing which comes about through personal growth and God’s grace. We agree that much more must be done by the religious community and by society at large to solace and care for the grieving families of the victims of violent crime.

Recent statements of the Reform and Conservative movements in Judaism, and of the U.S. Catholic Conference sum up well the increasingly strong convictions shared by Jews and Catholics…:

‘Respect for all human life and opposition to the violence in our society are at the root of our long-standing opposition (as bishops) to the death penalty. We see the death penalty as perpetuating a cycle of violence and promoting a sense of vengeance in our culture. As we said in Confronting the Culture of Violence: ‘We cannot teach that killing is wrong by killing.’ We oppose capital punishment not just for what it does to those guilty of horrible crimes, but for what it does to all of us as a society. Increasing reliance on the death penalty diminishes all of us and is a sign of growing disrespect for human life. We cannot overcome crime by simply executing criminals, nor can we restore the lives of the innocent by ending the lives of those convicted of their murders. The death penalty offers the tragic illusion that we can defend life by taking life.’1

We affirm that we came to these conclusions because of our shared understanding of the sanctity of human life. We have committed ourselves to work together, and each within our own communities, toward ending the death penalty.” Endnote 1. Statement of the Administrative Committee of the United States Catholic Conference, March 24, 1999.

The risk of executing the innocent precludes the use of the death penalty.

The death penalty alone imposes an irrevocable sentence. Once an inmate is executed, nothing can be done to make amends if a mistake has been made. There is considerable evidence that many mistakes have been made in sentencing people to death. Since 1973, over 180 people have been released from death row after evidence of their innocence emerged. During the same period of time, over 1,500 people have been executed. Thus, for every 8.3 people executed, we have found one person on death row who never should have been convicted. These statistics represent an intolerable risk of executing the innocent. If an automobile manufacturer operated with similar failure rates, it would be run out of business.

Our capital punishment system is unreliable. A study by Columbia University Law School found that two thirds of all capital trials contained serious errors. When the cases were retried, over 80% of the defendants were not sentenced to death and 7% were completely acquitted.

Many of the releases of innocent defendants from death row came about as a result of factors outside of the justice system. Recently, journalism students in Illinois were assigned to investigate the case of a man who was scheduled to be executed, after the system of appeals had rejected his legal claims. The students discovered that one witness had lied at the original trial, and they were able to find another man, who confessed to the crime on videotape and was later convicted of the murder. The innocent man who was released was very fortunate, but he was spared because of the informal efforts of concerned citizens, not because of the justice system.

In other cases, DNA testing has exonerated death row inmates. Here, too, the justice system had concluded that these defendants were guilty and deserving of the death penalty. DNA testing became available only in the early 1990s, due to advancements in science. If this testing had not been discovered until ten years later, many of these inmates would have been executed. And if DNA testing had been applied to earlier cases where inmates were executed in the 1970s and 80s, the odds are high that it would have proven that some of them were innocent as well.

Society takes many risks in which innocent lives can be lost. We build bridges, knowing that statistically some workers will be killed during construction; we take great precautions to reduce the number of unintended fatalities. But wrongful executions are a preventable risk. By substituting a sentence of life without parole, we meet society’s needs of punishment and protection without running the risk of an erroneous and irrevocable punishment.

There is no proof that any innocent person has actually been executed since increased safeguards and appeals were added to our death penalty system in the 1970s. Even if such executions have occurred, they are very rare. Imprisoning innocent people is also wrong, but we cannot empty the prisons because of that minimal risk. If improvements are needed in the system of representation, or in the use of scientific evidence such as DNA testing, then those reforms should be instituted. However, the need for reform is not a reason to abolish the death penalty.

Besides, many of the claims of innocence by those who have been released from death row are actually based on legal technicalities. Just because someone’s conviction is overturned years later and the prosecutor decides not to retry him, does not mean he is actually innocent.

If it can be shown that someone is innocent, surely a governor would grant clemency and spare the person. Hypothetical claims of innocence are usually just delaying tactics to put off the execution as long as possible. Given our thorough system of appeals through numerous state and federal courts, the execution of an innocent individual today is almost impossible. Even the theoretical execution of an innocent person can be justified because the death penalty saves lives by deterring other killings.

Gerald Kogan, Former Florida Supreme Court Chief Justice Excerpts from a speech given in Orlando, Florida, October 23, 1999 “[T]here is no question in my mind, and I can tell you this having seen the dynamics of our criminal justice system over the many years that I have been associated with it, [as] prosecutor, defense attorney, trial judge and Supreme Court Justice, that convinces me that we certainly have, in the past, executed those people who either didn’t fit the criteria for execution in the State of Florida or who, in fact, were, factually, not guilty of the crime for which they have been executed.

“And you can make these statements when you understand the dynamics of the criminal justice system, when you understand how the State makes deals with more culpable defendants in a capital case, offers them light sentences in exchange for their testimony against another participant or, in some cases, in fact, gives them immunity from prosecution so that they can secure their testimony; the use of jailhouse confessions, like people who say, ‘I was in the cell with so-and-so and they confessed to me,’ or using those particular confessions, the validity of which there has been great doubt. And yet, you see the uneven application of the death penalty where, in many instances, those that are the most culpable escape death and those that are the least culpable are victims of the death penalty. These things begin to weigh very heavily upon you. And under our system, this is the system we have. And that is, we are human beings administering an imperfect system.”

“And how about those people who are still sitting on death row today, who may be factually innocent but cannot prove their particular case very simply because there is no DNA evidence in their case that can be used to exonerate them? Of course, in most cases, you’re not going to have that kind of DNA evidence, so there is no way and there is no hope for them to be saved from what may be one of the biggest mistakes that our society can make.”

The entire speech by Justice Kogan is available here.

Paul G. Cassell Associate Professor of Law, University of Utah, College of Law, and former law clerk to Chief Justice Warren E. Burger. Statement before the Committee on the Judiciary, United States House of Representatives, Subcommittee on Civil and Constitutional Rights Concerning Claims of Innocence in Capital Cases (July 23, 1993)

“Given the fallibility of human judgments, the possibility exists that the use of capital punishment may result in the execution of an innocent person. The Senate Judiciary Committee has previously found this risk to be ‘minimal,’ a view shared by numerous scholars. As Justice Powell has noted commenting on the numerous state capital cases that have come before the Supreme Court, the ‘unprecedented safeguards’ already inherent in capital sentencing statutes ‘ensure a degree of care in the imposition of the sentence of death that can only be described as unique.’”

“Our present system of capital punishment limits the ultimate penalty to certain specifically-defined crimes and even then, permit the penalty of death only when the jury finds that the aggravating circumstances in the case outweigh all mitigating circumstances. The system further provides judicial review of capital cases. Finally, before capital sentences are carried out, the governor or other executive official will review the sentence to insure that it is a just one, a determination that undoubtedly considers the evidence of the condemned defendant’s guilt. Once all of those decisionmakers have agreed that a death sentence is appropriate, innocent lives would be lost from failure to impose the sentence.”

“Capital sentences, when carried out, save innocent lives by permanently incapacitating murderers. Some persons who commit capital homicide will slay other innocent persons if given the opportunity to do so. The death penalty is the most effective means of preventing such killers from repeating their crimes. The next most serious penalty, life imprisonment without possibility of parole, prevents murderers from committing some crimes but does not prevent them from murdering in prison.”

“The mistaken release of guilty murderers should be of far greater concern than the speculative and heretofore nonexistent risk of the mistaken execution of an innocent person.”

Full text can be found here.

Arbitrariness & Discrimination

The death penalty is applied unfairly and should not be used.

In practice, the death penalty does not single out the worst offenders. Rather, it selects an arbitrary group based on such irrational factors as the quality of the defense counsel, the county in which the crime was committed, or the race of the defendant or victim.

Almost all defendants facing the death penalty cannot afford their own attorney. Hence, they are dependent on the quality of the lawyers assigned by the state, many of whom lack experience in capital cases or are so underpaid that they fail to investigate the case properly. A poorly represented defendant is much more likely to be convicted and given a death sentence.

With respect to race, studies have repeatedly shown that a death sentence is far more likely where a white person is murdered than where a Black person is murdered. The death penalty is racially divisive because it appears to count white lives as more valuable than Black lives. Since the death penalty was reinstated in 1976, 296 Black defendants have been executed for the murder of a white victim, while only 31 white defendants have been executed for the murder of a Black victim. Such racial disparities have existed over the history of the death penalty and appear to be largely intractable.

It is arbitrary when someone in one county or state receives the death penalty, but someone who commits a comparable crime in another county or state is given a life sentence. Prosecutors have enormous discretion about when to seek the death penalty and when to settle for a plea bargain. Often those who can only afford a minimal defense are selected for the death penalty. Until race and other arbitrary factors, like economics and geography, can be eliminated as a determinant of who lives and who dies, the death penalty must not be used.

Discretion has always been an essential part of our system of justice. No one expects the prosecutor to pursue every possible offense or punishment, nor do we expect the same sentence to be imposed just because two crimes appear similar. Each crime is unique, both because the circumstances of each victim are different and because each defendant is different. The U.S. Supreme Court has held that a mandatory death penalty which applied to everyone convicted of first degree murder would be unconstitutional. Hence, we must give prosecutors and juries some discretion.

In fact, more white people are executed in this country than black people. And even if blacks are disproportionately represented on death row, proportionately blacks commit more murders than whites. Moreover, the Supreme Court has rejected the use of statistical studies which claim racial bias as the sole reason for overturning a death sentence.

Even if the death penalty punishes some while sparing others, it does not follow that everyone should be spared. The guilty should still be punished appropriately, even if some do escape proper punishment unfairly. The death penalty should apply to killers of black people as well as to killers of whites. High paid, skillful lawyers should not be able to get some defendants off on technicalities. The existence of some systemic problems is no reason to abandon the whole death penalty system.

Reverend Jesse L. Jackson, Sr. President and Chief Executive Officer, Rainbow/PUSH Coalition, Inc. Excerpt from “Legal Lynching: Racism, Injustice & the Death Penalty,” (Marlowe & Company, 1996)

“Who receives the death penalty has less to do with the violence of the crime than with the color of the criminal’s skin, or more often, the color of the victim’s skin. Murder — always tragic — seems to be a more heinous and despicable crime in some states than in others. Women who kill and who are killed are judged by different standards than are men who are murderers and victims.

The death penalty is essentially an arbitrary punishment. There are no objective rules or guidelines for when a prosecutor should seek the death penalty, when a jury should recommend it, and when a judge should give it. This lack of objective, measurable standards ensures that the application of the death penalty will be discriminatory against racial, gender, and ethnic groups.

The majority of Americans who support the death penalty believe, or wish to believe, that legitimate factors such as the violence and cruelty with which the crime was committed, a defendant’s culpability or history of violence, and the number of victims involved determine who is sentenced to life in prison and who receives the ultimate punishment. The numbers, however, tell a different story. They confirm the terrible truth that bias and discrimination warp our nation’s judicial system at the very time it matters most — in matters of life and death. The factors that determine who will live and who will die — race, sex, and geography — are the very same ones that blind justice was meant to ignore. This prejudicial distribution should be a moral outrage to every American.”

Justice Lewis Powell United States Supreme Court Justice excerpts from McCleskey v. Kemp, 481 U.S. 279 (1987) (footnotes and citations omitted)

(Mr. McCleskey, a black man, was convicted and sentenced to death in 1978 for killing a white police officer while robbing a store. Mr. McCleskey appealed his conviction and death sentence, claiming racial discrimination in the application of Georgia’s death penalty. He presented statistical analysis showing a pattern of sentencing disparities based primarily on the race of the victim. The analysis indicated that black defendants who killed white victims had the greatest likelihood of receiving the death penalty. Writing the majority opinion for the Supreme Court, Justice Powell held that statistical studies on race by themselves were an insufficient basis for overturning the death penalty.)

“[T]he claim that [t]his sentence rests on the irrelevant factor of race easily could be extended to apply to claims based on unexplained discrepancies that correlate to membership in other minority groups, and even to gender. Similarly, since [this] claim relates to the race of his victim, other claims could apply with equally logical force to statistical disparities that correlate with the race or sex of other actors in the criminal justice system, such as defense attorneys or judges. Also, there is no logical reason that such a claim need be limited to racial or sexual bias. If arbitrary and capricious punishment is the touchstone under the Eighth Amendment, such a claim could — at least in theory — be based upon any arbitrary variable, such as the defendant’s facial characteristics, or the physical attractiveness of the defendant or the victim, that some statistical study indicates may be influential in jury decision making. As these examples illustrate, there is no limiting principle to the type of challenge brought by McCleskey. The Constitution does not require that a State eliminate any demonstrable disparity that correlates with a potentially irrelevant factor in order to operate a criminal justice system that includes capital punishment. As we have stated specifically in the context of capital punishment, the Constitution does not ‘plac[e] totally unrealistic conditions on its use.’ (Gregg v. Georgia)”

The entire decision can be found here.

Is prison an effective form of punishment?

ULaw Criminology Lecturer Angela Charles completed her BA undergraduate degree in History and Criminology, followed by an MSc in Criminology and Criminal Justice. She is currently completing a PhD which explores the experiences of Black women in UK prisons through an intersectional lens. Her studies focus on the unique impact race and gender has on black female prisoners. Angela has worked within the criminal justice sector in a Secure Training Centre, the National Probation Service, and Youth Justice. Today Angela answers the question – is prison an effective form of punishment?

By Cara Fielder . Published 27 May 2021. Last updated 25 July 2022.

How do we assess the effectiveness of prisons?

Reform is arguably one of the most important reasons why prisons are vital. The gov.uk website talks about providing the right services and opportunities that support rehabilitation to prevent a return to crime. Some of the areas they mention are:

• Improving prisoners’ mental health and tackling substance misuse
• Improving prisoners progress in maths and English
• Increasing the numbers of offenders in employment and accommodation after release.

I would add that offenders should also be supported in learning about money and finance, improving their confidence, developing their understanding of supportive relationships, dealing with issues that may arise or previous traumas. Reform is about equipping someone with the tools to successfully navigate life’s difficulties without resorting to crime.

Life after prison is the final theme on the website and this is the support needed by prisoners once they are released. This includes working with probation services. They highlight the need for services that support prisoners from the transition ‘through the gate’. The main factors being employment and accommodation. When looking at the statistics for prisons achieving their target for accommodation on the first night following release, this is only 17.3%. When we look at employment targets within the first 6 weeks of release, this was at 4%, which is very low. These statistics raise concerns as to whether prison is successful in rehabilitation. Or is it merely a punishment that puts people’s lives on hold?

Real life examples of the prison being effective and ineffective

One woman I interviewed explained that none of the education options in the prison were suitable. She already had a degree, so did not need the English and maths classes that were provided. To her, the prison just wanted to tick a box to show people in prison were engaging in some form of education rather than helping black women progress and gain educational skills that were tailored to an individual’s needs and current level of education .

However, another Black woman said that being in prison had forced her to take level 1 and 2 English and Maths. She had been putting it off when she was in society but being in prison allowed her to take the time to do it. She passed and felt that she would have better prospects leaving the prison than when she came in. Additionally, she had been trained on how to clean up chemical spills and learnt all about the control of substances hazardous to health (COSSH). Again, she learnt new skills that she felt she would be able to use in the outside world.

Relationships

Many women stated that they could speak to their loved ones regularly on the phone, which allowed them stay connected. However, some of the women complained about how costly phone calls were. Also, transport to the prison was an expense that many women’s families could not afford. Therefore, in some cases, relationships with families were put on hold.

One woman talked about her drug recovery and explained how supportive her drug worker had been. They helped her through her recovery and were a source of support and consistency during her prison experience. Even when she moved onto another wing, she mentioned how this staff member still came to check on her. She believes if she had not come to prison, she would still be addicted to drugs. In this case, imprisonment was effective and helped her to rehabilitate.

Another example came from a woman who said that her prison experience allowed her to improve herself, deal with previous traumas, and come up with ways to deal with this. She used the prison experience to identify what things triggered previous traumas and how to deal with this, as well as living in the moment. In this sense, sometimes prison can be used as a period of reflection and self-improvement.

The final example I want to give comes from several women that highlighted the systemic racism they felt was occurring in the prison. The women stated that many of the officers stereotyped them as aggressive, loud troublemakers because of their race. This had a knock-on effect because it affected how long it took for women to get moved from a closed prison to an open prison, be released for day visits, to work and see family. It also meant that they felt like they could not be themselves. For these women, prison was not effective because they were dealing with the disadvantage of being black and female. They had fewer opportunities for employment progression and they had few supportive relationships with staff. When we think about examples like this, we must determine how effective the prison would be for these women. It would be a punishment but would it help rehabilitate them or leave them bitter, angry, frustrated and no better off than before they entered the prison?

Criminological arguments for prisons

One argument for prison is that it is an effective deterrent. Prison can be seen as a tough type of punishment because it takes away your freedom, potential support networks and in many ways, it strips away your identity. The thought of prison is enough for some people to not even contemplate committing a criminal act.

Prison sentences are also a message to the wider public that this is what will happen if you commit a crime. Prison advocates would say this is a message to wider society about what is right and wrong and what will happen if you commit a crime. 

Additionally, prison advocates argue that prison is such a difficult time for people that the experience should then deter them from committing any further offences. However, we know that is not the case because many individuals who have committed an offence and go to prison then commit further offences. This makes us question, is prison a) effective and b) enough of a deterrence?

Another argument for prison is that by putting people in prison, we protect the public by ensuring these individuals cannot commit any further offences. Additionally, prison sentences provide a sense of justice to the victims affected by the crime and the public.

Criminological arguments against prisons

The first argument would be that prisons do not work. Those advocating for prison reform highlight reoffending statistics as an example of the ineffectiveness of prisons.

The adult reoffending rate for the October to December 2018 cohort was 27.5%.

Almost 101,000 proven re-offences were committed over the one-year follow-up period by around 25,000 adults. Those that reoffended committed on average 3.97 re-offences. [Source – Home Office – Proven reoffending statistics for England and Wales, published October 2020].

Research shows that long prison sentences have little impact on crime. Time in prison can actually make someone more likely to commit crime — by further exposing them to all sorts of criminal elements. Prisons are also costly, using up funds that could go to other government programs that are more effective at fighting crime.

Additionally, there are arguments that prison does not rehabilitate prisoners. While there are some opportunities in prison, this does not always meet the needs of the prisoners and does not help them on their release due to the views people in society have about imprisonment and criminal records. On release, three-fifths of prisoners have no “identified employment or education or training outcome”. If prison punishes people through the experience itself but then does not offer those individuals the opportunity to improve and change their lives once they are released, can we realistically expect people to be rehabilitated and not return to crime?

Some believe that the whole prison system is an oppressive institution governed by the powerful that cages the marginalised and powerless. They would argue that prison further damages people because it causes further trauma, exposes them to further violence, reinforces disadvantage and creates further crime and social harm. The prison also does very little to tackle the underlying causes of crime in communities. However, some have argued that by reducing the prison population, we are still widening the net and criminalising people, as community sentences and alternatives to custody would be increased rather than looking at some of the structural inequalities that may lead to crime and criminal behaviour.

Others argue that prison mainly holds those that are from lower socio-economic backgrounds and ethnic minorities, punishing poverty and disadvantage while protecting the crimes of the powerful. For example, where are the imprisoned individuals from corporations that cause widespread harm, such as those that need to be held accountable for the Grenfell Tower fire, multi-million corporations and so on?

There are many arguments for abolishing prison, and then there are arguments that recognise prison cannot be abolished completely but needs reforming.

The United Nations Office on Drugs and Crime highlights some of the reasons why prisons need to be reformed. These are:

• Human rights, as prison is a deprivation of the basic right to liberty.
• Imprisonment disproportionately affects individuals and families living in poverty. From the potential loss of income from an individual going to prison, lawyer costs, costs to visit and communicate with that individual, the lack of employment opportunities when released, the marginalisation and so on.
• Public health consequences – It is argued that many prisoners have poor health and existing health problems when entering the prison. These problems are exacerbated due to; overcrowding, poor nutrition, lack of exercise and fresh air. Then there are also the infection rates, self-harm and poor mental health. The argument is that staff will be vulnerable to some of these diseases, and so will the public once these individuals are released.
• Detrimental social impact – Imprisonment disrupts relationships and weakens social cohesion.
• Costs – The cost of each prisoner for their upkeep, but also the social, economic and health costs mentioned previously, which are long-term.

The Howard League for Penal Reform says on their website:

“The prison system is like a river.

The wider it gets, the faster it flows – and the harder it becomes to swim against the tide. Rather than being guided to safer shores, those in the middle are swept into deeper currents of crime, violence and despair. What began as a trickle turns into a torrent, with problems in prisons spilling into the towns and cities around them.”

In conclusion, when we think about the prison, and imprisonment as a punishment and reform option, there is a lot to consider. We need to assess the overall effectiveness of prisons and the need for justice against the harm imprisonment can have on an individual. We must consider the long-term impact the prison has on an individual, not just mentally, but also considering the impact it will have on their life chances and their ability to reintegrate into society.

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Race and Punishment: Racial Perceptions of Crime and Support for Punitive Policies

Coming on the heels of the tragic events in Ferguson, Missouri, this report demonstrates that the consequences of white Americans’ strong association of crime with blacks and Latinos extend far beyond policing.

Related to: Racial Justice

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Executive Summary

The American criminal justice system is at a critical juncture. In recent years, federal policymakers have called for reforms, following the lead of states that have reduced prison populations without compromising public safety. Nationwide prison counts have fallen every year since 2010, and the racial gap in imprisonment rates has also begun to narrow. Yet the recent tragic events in Ferguson, Missouri – where the killing of an unarmed African American teenager has sparked outrage – highlight the ongoing relevance of race in the criminal justice system.

To guide and give greater momentum to recent calls for reform, this report examines a key driving force of criminal justice outcomes: racial perceptions of crime. A complex set of factors contributes to the severity and selectivity of punishment in the United States, including public concern about crime and racial differences in crime rates. This report synthesizes two decades of research establishing that skewed racial perceptions of crime – particularly, white Americans’ strong associations of crime with racial minorities – have bolstered harsh and biased criminal justice policies. This report concludes that:

White Americans are more punitive than people of color.

Whites are more punitive than blacks and Hispanics even though they experience less crime. For example, while the majority of whites supported the death penalty for someone convicted of murder in 2013, half of Hispanics and a majority of blacks opposed this punishment. Compared to blacks, whites are also more likely to support “three strikes and you’re out” laws, to describe the courts as not harsh enough, and to endorse trying youth as adults. And yet, blacks and Hispanics are far more likely than whites to be victims of violent and property crimes.

Whites misjudge how much crime is committed by African Americans and Latinos.

White Americans overestimate the proportion of crime committed by people of color, and associate people of color with criminality. For example, white respondents in a 2010 survey overestimated the actual share of burglaries, illegal drug sales, and juvenile crime committed by African Americans by 20-30%. In addition, implicit bias research has uncovered widespread and deep-seated tendencies among whites – including criminal justice practitioners – to associate blacks and Latinos with criminality.

Whites who more strongly associate crime with racial minorities are more supportive of punitive policies.

White Americans who associate crime with blacks and Latinos are more likely to support punitive policies – including capital punishment and mandatory minimum sentencing – than whites with weaker racial associations of crime. This relationship exists even after controlling for other relevant factors such as racial prejudice, conservatism, and crime salience.

Media crime coverage fuels racial perceptions of crime.

Many media outlets reinforce the public’s racial misconceptions about crime by presenting African Americans and Latinos differently than whites – both quantitatively and qualitatively. Television news programs and newspapers over-represent racial minorities as crime suspects and whites as crime victims. Black and Latino suspects are also more likely than whites to be presented in a non-individualized and threatening way – unnamed and in police custody.

Policymakers’ actions and statements amplify the public’s racial associations of crime.

Whether acting on their own implicit biases or bowing to political exigency, policymakers have fused crime and race in their policy initiatives and statements. They have crafted harsh sentencing laws that impact all Americans and disproportionately incarcerate people of color. Through public statements, some have stoked the public’s heightened concern about crime and exaggerated associations of crime with racial minorities.

Criminal justice practitioners also operate with and reinforce racial perceptions of crime.

Disparities in police stops, in prosecutorial charging, and in bail and sentencing decisions reveal that implicit racial bias has penetrated all corners of the criminal justice system. Moreover, policies that are race-neutral on their surface – such as “hot spot” policing and certain risk assessment instruments – have targeted low-income people of color for heightened surveillance and punishment.

Racial perceptions of crime have distorted the criminal justice system.

By increasing support for punitive policies, racial perceptions of crime have made sentencing more severe for all Americans. The United States now has the world’s highest imprisonment rate, with one in nine prisoners serving life sentences. Racial perceptions of crime, combined with other factors, have led to the disparate punishment of people of color. Although blacks and Latinos together comprise just 30% of the general population, they account for 58% of the prison population.

Racial perceptions of crime have undermined public safety.

By increasing the scale of criminal sanctions and disproportionately directing penalties toward people of color, racial perceptions of crime have been counterproductive for public safety. Racial minorities’ perceptions of unfairness in the criminal justice system have dampened cooperation with police work and impeded criminal trials. In 2013, over two-thirds of African Americans saw the criminal justice system as biased against blacks, in contrast to one-quarter of whites. Crime policies that disproportionately target people of color can increase crime rates by concentrating the effects of criminal labeling and collateral consequences on racial minorities and by fostering a sense of legal immunity among whites. Finally, racial perceptions of crime have even led to the deaths of innocent people of color at the hands of fearful civilians and police officers.

The report concludes with recommendations for how the media, researchers, policymakers, and criminal justice professionals can address and mitigate the effects of racial perceptions of crime, and lay the groundwork for more just crime control policies.

Click here to download the full report.

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A denial of personhood: why hate crime legislation is necessary to assure proportionality in punishment.

The term “hate crime” entered the mainstream in the United States during the 1980s, when advocates began to track incidents of bias-motivated violence. Since then, hate crimes have continued to garner significant attention. Advocates and legislators have traditionally justified hate crime law under the “expressive theory,” the idea that the purpose of such laws is to condemn prejudice and express messages of tolerance and equality. In this Comment, I offer a distinct justification for hate crime legislation. Specifically, I argue that, when a perpetrator targets a victim because of perceived immutable characteristics, the hate crime offender denies the victim’s agency and, ultimately, the victim’s personhood. This additional wrong—absent in crimes not motivated by bias—necessitates the heightened criminal penalties that current hate crime laws provide. First, this Comment provides a background on the development of hate crime legislation and the difficulties involved in reporting hate crimes. In Part I, I explain the importance of proportionality in assessing criminal culpability and determining appropriate punishments. In Part II, I explain how existing hate crime laws operate. In Part III, I articulate how a hate crime offender denies the agency, and ultimately the personhood, of the victim. In Part IV, I explain why proportionality in punishment requires heightened penalties for hate crime offenders because of their denial of the victim’s agency, and ultimately the denial of the victim’s personhood. Finally, in Part V, I explain why this distinct justification for hate crime legislation is relevant; in short, it recognizes bias-motivated offenses that a purely expressive approach often overlooks.

Crime and Punishment

Juveniles being charged as adults is not necessarily a good idea

IF BAIL ORDERS don’t become public then sometimes the chances of an accused staying free can be greater. Like in the case of the 17-year-old who killed two people in Pune while driving drunk without a licence in a Porsche. The optics of this concat­enation of damning conditions would be enough to incite public anger. The Juvenile Justice Board that gave bail didn’t do him any favours either when among the conditions was writing a 300-word essay and paying a visit to the RTO to understand its functions— a lot like school projects that teenagers driving Porsches never get around to doing. It is especially the essay that seems to have touched a raw nerve because the word keeps popping up in all the outraged online posts and media discussions. Journaling does have its uses but when it comes to mak­ing amends for the death of two people, it is a poor substitute. The case also exposes the undercurrent feeling that in India people with privilege can get away with anything so long as there exists some loophole in the law that the system never seems to offer the poor or powerless. As it turned out, his bail was cancelled following the wide­spread publicity of the case fuelled by the bail conditions.

Remember the Nirbhaya case where the rapist-murderers were hung except for one who is now free because he was just short of 18 when the crime was committed and hence could only be tried as a juvenile. He only served three years imprisonment. Those who are not adults don’t get the same punishment as adults precisely because it is thought they don’t understand the consequences of actions as adults do. Every modern society adheres to this principle. Adulthood comes with greater rights and consequences. That is why those below 18 are also not allowed to drink or drive, and so the father who gave him the car and the pub that served him the alcohol are all now being prosecuted. What then should be the appropriate punishment for juveniles on the border?

After the Nirbhaya case, the law has been tweaked so that in excep­tions, they can be treated as adults. In the present case, too, in the face of the publicity and anger, that is what will probably happen. But it is a tricky path to tread on. There is good argument for lowering the age of being considered a juvenile from below 18 to below 15 or 14, but to make it an act of discretion dependent on the crime goes against the rationale of why juveniles aren’t considered adults. Can a human being be both an adult and a juvenile at the same time depending on what the rest of society thinks of him? Also, once discretion becomes an element in any system, then the probability of its abuse becomes greater. What will stop poor and powerless 17-year-olds, for instance, from being treated as adults even when they aren’t accused of hei­nous crimes?

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• Donald Trump

What Happens if Trump Is Convicted? Your Questions, Answered

A s the Manhattan criminal trial of former President Donald Trump heads into the final stretch, a jury will soon deliver a verdict that could raise a series of unprecedented legal and political questions if Trump is convicted.

The presumptive Republican nominee is currently facing trial on 34 felony counts over allegations that he falsified business records to conceal a $130,000 hush-money payment to adult film actress Stormy Daniels before the 2016 election. He’s the first former President in the U.S. ever to be indicted, and while he faces three other criminal cases, the New York case will render the first verdict and may be the only case that gets to trial before the election.

Trump’s former fixer Michael Cohen testified during the trial that Trump personally approved the hush-money reimbursement plan central to the criminal allegations, but questions remain about Cohen’s credibility given his history of lying and committing crimes.

Prosecutors will need to prove to jurors beyond a reasonable doubt that Trump not only falsified or caused business records to be entered falsely, but that he did so with the intent to commit or conceal another crime related to violating federal and state election laws.

Judge Juan Merchan said that he expects closing arguments on May 28. After the lawyers summarize their cases, the judge will read jury instructions and the jurors will deliberate. If the jurors can’t reach an agreement, the judge would declare a mistrial.

Whether declared guilty or not guilty, Trump has already laid the groundwork for his response and is poised to leverage either outcome to advance his narrative of victimhood and political persecution. But campaigning under the shadow of a criminal conviction is uncharted territory for presidential politics, and the legal issues only become more acute if he wins the presidency in November.

Here’s what would happen if Trump is convicted in the New York case.

Can Trump still run for President?

Yes. A felony conviction will not disqualify Trump from continuing his presidential campaign, even if he were jailed.

That’s because under the Constitution, all natural born citizens who are at least 35 years old and have been a resident of the U.S. for 14 years can run for President. “There is no constitutional bar on a felon running for office,” Richard Hasen, an election law professor at UCLA Law School, told TIME after Trump’s first indictment. “And given that the U.S. Constitution sets presidential qualifications, it is not clear that states could add to them, such as by barring felons from running for office.”

At least two candidates with criminal convictions have run for President in the past, albeit unsuccessfully. About 100 years ago, Eugene Debs ran for President while in a federal prison in Atlanta as the nominee of the Socialist Party, and got close to a million votes without ever hitting the campaign trail. Another convicted presidential candidate, Lyndon LaRouche, ran for President in every election between 1976 and 2004—including one campaign from prison in which he got over 26,000 votes.

Will Trump go to jail?

Trump could potentially face imprisonment if he’s convicted, though most first-time offenders in non-violent cases are sentenced to probation and fines instead. The decision ultimately lies with Judge Merchan, who is not required to imprison Trump if he’s convicted by a jury. 

The 34 charges Trump faces are all considered class E felonies in New York, the lowest tier of felony charges in the state, which carry a maximum sentence of four years each. It’s expected that the judge would impose a concurrent sentence so that Trump would serve all prison time simultaneously—four years maximum—if he goes that route.

But given Trump’s age, 77, lack of a prior conviction, the fact that he’s the first former President to ever be criminally tried, and that he may become President again, legal experts say there’s no guarantee that a conviction would result in jail time. Instead, it’s more likely that Trump is sentenced to pay a fine and serve a form of supervision time if he’s found guilty, perhaps reporting regularly to a civil servant at the city’s Probation Department. Under a probation sentence, he could be jailed immediately for committing any additional crimes.

Convicted felons sentenced for less than a year are generally sent to New York City’s Rikers Island, where Trump’s former chief financial officer Allen Weisselberg is currently serving his sentence for crimes related to his work for Trump. Sentences beyond a year would generally be served in one of New York’s 44 state prisons.

Unlike his other criminal cases, if Trump is convicted in this trial and elected President again, he would not be able to try to pardon himself. Falsifying business records is a state crime and only the New York governor, a Democrat, could pardon him. (Even in the federal cases, it’s an untested legal question whether he could pardon himself .)

Can Trump appeal? How long will an appeal take?

If Trump is convicted, he will almost certainly appeal the verdict—a process that could take months or longer to play out. He would likely first take the case to the Appellate Division in Manhattan, and ultimately seek review from the state’s highest court, the Court of Appeals in Albany, which has already ruled against Trump’s multiple requests to delay the trial.

The lengthy appeals process would be unlikely to wrap up before Election Day.

Can Trump still vote?

To be determined.

For Trump to lose his voting rights, he would need to be incarcerated at the time of the November election, a scenario that is technically possible but unlikely given his anticipated appeal of any guilty verdict.

While the Constitution does not explicitly address whether convicted felons have the right to vote, several states impose limitations on felons’ voting privileges. In Florida, where Trump lives and has voted since 2020, a felon's eligibility to vote depends on the laws of the state where the conviction occurred—in this instance, New York, which only revokes a felon's voting rights while they are incarcerated. 

Therefore, if Trump receives a probationary sentence and resides in the community, he would maintain his eligibility to vote. Likewise, if his appeal of a jail sentence were to extend beyond the election, he would be able to vote.

What does this mean for Trump’s other cases?

While a conviction in the hush-money trial would not directly impact Trump’s other criminal cases, it could influence his strategy and alter the public perception of him and his legal troubles.

For instance, a guilty verdict could bolster the prosecution's case in the eyes of the public and legal observers, potentially influencing jury perceptions and trial dynamics in the remaining cases. A conviction in the hush-money case also could impact Trump's willingness to negotiate plea deals or settlement agreements in his other criminal cases.

Prosecutors may also try to use a conviction to undermine Trump's credibility in future trials, and the judges may take the conviction into consideration when determining sentencing.

In addition to the hush-money case, Trump is facing 40 felony counts in Florida for allegedly hoarding classified documents and obstructing the government’s efforts to retrieve them, four counts in Washington related to his alleged efforts to overturn the 2020 election, and 13 felony counts in Georgia in connection to his alleged attempts to overturn the 2020 election result in that state.

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Write to Nik Popli at [email protected]