Question

The IRS policy statement states that imposing penalties, when warranted, enhances voluntary compliance. Back in 2000, I worked with a professor writing a book on the motivations that go into designing a punishment. According to Professor Nicholas Kittrie of American University Law School, there are various non-exclusive motivations behind any sanction: (1) punishment, (2) deterrence, (3) retribution (aka "just deserts"), (4) incapacitation (physical prevention of repeating the offense), (5) rehabilitation, and (6) victim rehabilitation.

What motivations do you think underlie the non-criminal penalties and the criminal penalties?

Answer 1

Punishment

it is society's solution to the injuries it suffers through crime. Fines, incarceration and, in some cases, certain acts of restitution are the most common forms of punishment meted out to criminal offenders by society through the criminal law system in this country. This is in contrast to tort and civil law, in which compensation for damages is paid out by one individual or organization to another.

Tremendous energies are poured into the legislative and judicial offices of this country to determine what punishment is appropriate for which crime. The criminal law strives ceaselessly for a balance between too much and too little: punishing citizens too harshly for their actions can cause more harm too society than the offense being punished, while being too lenient with punishment weakens the criminal law's effectiveness and can erode its very purpose. Criminal law and procedure seek what is neither excessive nor insufficient, but in fact the just and equal punishment for the crime.

Punishment is perhaps the most characteristic feature of the criminal law. So, an understanding of the purposes of punishment, and what society hopes to achieve by punishing is necessary for those seeking to understand the criminal law. Criminology traditionally identifies four purposes of punishment. These are,

to restrain and remove from society;

to inflict retribution for the damage done to society;

to rehabilitate criminal offenders; and,

to deter the individual and others in general from further crime.

Deterrence is the use of punishment as a threat which is considered as a means to prevent people from offending or to reduce the probability and/or level of offending.

The concept of deterrence has two key assumptions: the first is that specific punishments imposed on offenders could prevent the offender from committing further crimes; the second is that fear of punishment could prevent others from committing similar crimes.^[1]

·         Deterrence is often contrasted with retributivism, which holds that punishment is a necessary consequence of a crime which the offender deserves and its severity should be calculated based on the gravity of the wrong done. Rehabilitation is another different approach which attempts to reform the offender rather than using punishment. Rehabilitation means to restore and repair the harm suffered by the victim. This should acknowledge that the pervasive effect of torture means the victim’s life – including their dignity, health and self-sufficiency – might never fully recover.

Incapacitation

Purposes of Criminal Law: Incapacitation It is a reductivist (or “forward looking”) justification for punishment. Reductivism is underpinned by the theory of moral reasoning known as utilitarianism, which maintains that an act is defensible and reasonable if its overall consequences are beneficial to the greatest number of people. Thus, the pain or suffering imposed on an offender through punishment is justified if it reduces or prevents the further harm that would have been caused to the rest of society by the future crimes of that offender. The concern here is with the victim, or potential victim. The rights of the offender merit little consideration. Incapacitation has long been a significant strategy of punishment. For example, in Britain during the 18th and 19th centuries, convicted offenders were often transported to Australia and the Americas. In the 21st century, the physical removal of offenders from society remains the primary method of incapacitation in most contemporary penal systems. This usually takes the form of imprisonment, although other methods of incapacitation are in operation. The most severe and permanent form of incapacitation is capital punishment. Capital punnishment is often justified through the concept of deterrence, but whether the death sentence actually deters potential offenders is highly contested. What is indisputable is that once put to death an individual

Purposes of Criminal Law: Incapacitation

Retribution

It is criminal liability it is punishment for a crime, especially punishment which is carried out by someone other than the official authorities.

Retribution may refer to punishment.

punishment inflicted on someone as vengeance for a wrong or criminal act.