Criminal law involves punishing offenders and protecting the public. It has five main objectives: retribution, deterrence, incapacitation and restoration.
Governing bodies define crimes and classify them by severity, with felonies and misdemeanors having two major categories each with different penalties. Crimes generally involve an illegal act or failure to act, harm and blameworthiness.
Punishment is the infliction of pain or loss, warranted by law, upon a person who has committed a crime or misdemeanor. It may be imposed by courts in the form of fines, corporal punishment (such as whipping and forced labour), mutilation of the body and imprisonment. It also includes deferred punishments such as probation or community service.
Criminal punishments can be based on several different justifications, and they can vary widely between societies. Some retributive justifications include the belief that punishment must be proportional to the gravity of the offense. This is often referred to as the “eye for an eye” principle.
Other retributive justifications focus on the moral obligation of society to punish criminal offenders, particularly when they cause harm to other citizens. This reflects the social solidarity that exists in traditional societies, and it aims to morally unite people with their fellow citizens.
Incapacitation is another justification for criminal punishment, and it aims to remove the offender’s ability to commit future crimes by restricting his or her freedom. This is achieved by incarceration, as well as by other measures such as deprivation of office, forfeitures and other financial penalties.
Lastly, some justifications for criminal punishment focus on its educational functions. For example, retributive theorists believe that the enactment and implementation of criminal law teaches citizens about the values and principles that society espouses, thus reinforcing and strengthening these values in the citizenry.
The purpose of deterrence is to discourage individuals from breaking the law. The most powerful deterrent would be a system that guaranteed with certainty that any individual who committed a crime would be caught, prosecuted, and punished, and would not receive any benefit from his or her transgressions. This utopian goal is probably unobtainable, and the evidence on deterrence is too complex to permit simple sweeping statements affirming its existence or denying it.
Two utilitarian philosophers of the 18th century, Cesare Beccaria and Jeremy Bentham, created the concept of deterrence as both an explanation for and a method of reducing crime. They believed that society was a victim of crime, not just a victim of aggrieved individuals, and that punishment should be used to protect society as a whole. This shifted the role of punishment from retribution and restitution to prevention.
The deterrence concepts of specific and general deterrence have been a key part of criminal justice for decades. The theory behind both is that people will be less likely to commit crimes if they believe that they are more likely to be caught and punished than others. This is often equated with severity of punishment, but research has shown that the certainty of being caught plays a more important role than the actual severity of the penalty.
One of the goals of rehabilitation is moral improvement. Offenders are supposed to become more capable of identifying and enforcing their justice-related moral duties in a way that is compatible with the demands of rational agency. But existing views that defend moral improvement as a legitimate aim of criminal justice do not agree on what moral improvements are (the nature of moral improvement) and, for that matter, on what kinds of moral improvements rehabilitation may legitimately aim at (the scope of moral improvement).
The rehabilitative approach to criminal law acknowledges that offenders often commit crimes because of a variety of factors that are beyond their control. These factors include their social surroundings, socioeconomic status, psychological development, and biological makeup. Thus, if these underlying causes are addressed, crime may be prevented. This is the basis of rehabilitation programs that seek to alter an offender’s behavior and help them stay out of prison after release.
These rehabilitation programs can be combined with incapacitation or incarceration, and they also serve as an alternative to harsher punishments like life imprisonment. This has led to the proliferation of prisons and jails that offer rehabilitative services to inmates. This approach lightens the load of correctional facilities and reduces recidivism, which in turn reduces incarceration costs for both offenders and society as a whole.
Restorative justice is an alternative to the adversarial legal process that aims to restore the dignity of victims, offenders and communities by collectively identifying harms, needs and obligations. It focuses on victim satisfaction, offender responsibilities and community support in order to build partnerships that promote forgiveness and reconciliation. Restorative Justice can be a process that occurs pre-charge, pre-trial or during or after the offender has appeared in Court and is used by all parties affected by crime.
In a restorative justice setting, a victim, offenders and other participants gather for face-to-face meetings with a trained facilitator who helps everyone express their needs, feelings and questions related to the criminal act in question. Victims get the opportunity to speak in detail about how the crime has impacted them and receive answers to their questions, while offenders are given the opportunity to express remorse, take responsibility for the crime and commit to specific actions that will address the harm.
In the meeting, victims decide how they would like their offender to repair the harm and this can include money (restitution), service work that is both general and crime-specific, education that will prevent recidivism, and expression of remorse. Restorative Justice has been shown to be a more effective and more humane approach to dealing with crimes than the traditional legal system.