Consequentialist theory of punishment

This essay is going to concentrate on the second type of modified consequentialism: Societal Defence. The underlying problems produced by the consequentialist theory of punishment have proven short-lived within the modified theories of consequentialism. The pure consequentialist theory provides four main concepts in which it acts to punish an individual who has committed a crime. The concepts cover incapacitation, deterrence, reform and rehabilitation. According to the modified consequentialist theory, “punishment is used as a deterrent upon the individual’s use of threats or physical force in defence of her/himself or others”1.

Farrell’s describes this idea that “punishment is essentially a matter of self-defense”2. The discussion in the section concentrates on the fact that threats of harm is used as a deterrent, and the possible consequences of severe ‘punishment’ are inevitable if it is disregarded. Relating back to the question, we can see that even though there are problems within the pure consequentialist theory of punishment. The modified theories have not ascertained the extent of the problems, which it needs to be adhered to.

Presently we can see that the pure theory has the main concepts (as seen above) that it uses in order to punish an individual. By using these forms of punishment it has not been able to proportion the severity of crime in relation to the crime itself. By deterring future crimes it was not able to sustain the original concept of why it was formed. Its original aim which was to deter future crimes had a minimal effect as some forms of punishment were failing.

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Rehabilitation is a form used that has raised many criticism as to its effectiveness.

Martinson’s view clearly demonstrates this, “with a few isolated exceptions, the rehabilitative efforts that have been reported so far had no appreciable effect on recidivism”3. There has been little change in criminals re-offending again as the rehabilitation process does not seem to operate as it should in minimising re-offending behaviour. Originally established to ‘cure’ the individual and reinstate them back into society. It has been scrutinised as it only concentrates on the individual and does not consider external factors like their background and social standing.

Punishment should be in the form of ‘inflicting’ the individual not helping the individual to overcome his unmoral sub-standard in society. This in turn did not give adequate punishment to offenders who deserved proportionate sentencing. An offender does not merely require to be adjusted to conform back into society, but also needs to have appropriate sentences given to them which they deserve. The rehabilitation process has proven to be unsuccessful time and time again, and in return crime rates have increased instead of declining4.

The pure theory has no doubted failed to uphold its purpose in preventing offenders from committing crimes. This seems to be one of its biggest downfalls in relation to the prevention of crime. The consequentialist approach does try to intervene on this issue by adjusting its approach in concentrating punishment solely on the offender, by redirecting ‘pain’ to fall on the offender. It still does not completely remove the issue of being proportionate to the crime committed. Farrell’s concentrates on deterring the individual defensively and not by using them as an example to society.

Originally deterrence was a means to prevent offenders from re-offending, but by the offenders being ‘guinea pigs’ their sentence was not proportionate to their offence. The public is perceived not to commit a crime if the sentence is extremely harsh, as explained by Clarkson: “The punishment of the offender is aimed at the public at large in the hope that the example and threat of punishment will deter them from crime”5 From this we can see that individuals are being treated unfairly as they receive disproportionate sentences for the crime they have committed.

This theory of deterrence has shown to be unsuccessful as it does not justify the sentences essentially being handed out. Individuals in this sense are normal citizens who up-hold the law and abide by it. The offenders are criminal’s intent on causing harm and disturbing the peace. Farrell tries to modify this theory by raising the issue of self-defence in relation to deterring an offender. In order to deter an offender, threats of harm has to be posed at them. Before the offender can commit an offence aimed at the individual there has to be communication of a threat, of what will occur if that offender continues his offensive act.

The state is removed from this notion of deterrence and the ‘weight’ is shifted to the individual. The individual has to communicate an effective threat or warning to the offender if they are seen to possibly commit an offence upon them. For the threat to be perceived to be valid the individual must act on his threat, otherwise the credibility of the threat proves to be invalid. In other words the proposed victim threatens the attacker, as the attacker ignores the threat the victim must carry out the original threat made and impose it on the attacker.

This theory differs greatly from the pure consequentialist theory of punishment as it is the individual who acts in self-defence before an offence upon them, and not the state in relation to an offence that has occurred after-wards. Farrell’s consideration of deterrence in this matter means that it acts more justifiably. Compared with the original deterrence concept, where there was no proportionality in relation to the crime committed and sentence received. The offender according to Farrell, essentially knows the outcome of his actions and can perceive the threat fully.

By knowing what they will receive in committing the particular act, means that distributive justice is more apparent in this context. He shows us this by saying: “self-defense is typically a matter of the distribution (or redistribution) of harm, or of the probability of harm, and hence that the justification of self-defense must at some level involve, even if only implicitly, an appeal to considerations of distributive justice”6 This theory evidently makes the offender aware of the out-come and unlike the pure theory gives them a proportionate punishment.

Another issue which this theory aims to rectify is that it tries to ‘place the burden of evil’ on the offender. This new concept provides the offender to rethink his actions much more clearly. Crimes usually happen without any coherent thought. This provides the offender to be controlled in a way as he is made much more aware that there is a definite retaliation measure in force if they proceed with the offence. Before it was a matter for the criminal to be apprehended, as they would think that there is a chance they will not get caught.

This on the other hand provides a definite course of action by the individual, making it clear that retaliation will take place by providing the threat. According to Farrell this places the burden of evil on the perpetrator making it less desirable to commit the offence. Ultimately Farrell does this by ensuring appropriate proportionality is sustained throughout the handing out of threats used. Maintaining a thorough degree of proportionality was the main problem in the pure theory of consequentialist punishment.

Farrell sees to this by maintaining a balance of the threat used to keep the offender from committing the offence. He does this with the use of ‘limits’, in that a certain level of threat is used in proportion to the offence about to being occurred. He says: “limit depends entirely on the contingent features of each case: as long as one does not threaten in order to deter the relevant harm, one has not threatened too much”7 By this he means that in order to deter someone from committing a certain offence a certain degree of threat should be used in proportion to it.

One cannot threaten someone who is about to steal for example with death as it will not be appropriate or proportionate. A justification of enforcing that threat also needs to be paid attention to as a threat not undertaken will lead the offender in thinking that the proposed victim is merely trying to ‘call his bluff’. Not enforcing a threat can mean continuous re-offending by the perpetrator who will just ignore all threats made and continue with their offence. An enforcement of a threat needs to be justified in the first instance, as a threat to take someone’s life if they try and kill you is a threat none the less.

A failed attempt by the offender would mean carrying out the threat and the problem arisen here is if it is justified to carry out the threat. This poses a problem within this theory as self-defence would mean literally that, which you should defend yourself. By using a threat to deter an offender, in stating for example that you will kill him if he tries to kill you. This would mean that if the offender tries to kill you but fails, is it justifiable to proceed with your original threat of killing that individual.

Here lies the problem of how far self-defence can proceed, in order to protect oneself, one may have to kill to preserve their life. Explained more coherently by Montague he provides: “Aggressor is the only one who can prevent himself from being killed by victim, and he can do so only by killing victim; and aggressor can kill victim without killing anyone else”8 Here the explanation is that the victim can fight back but the aggressor has no right in the first instance to cause harm to the victim.

Thus going back to Farrell’s theory that in order for threats to prevail one must see to it that they uphold their threat and complete it. Farrell’s concept of an automated retaliation device only goes so far in causing as much harm as was intended by the offender to cause. This itself causes problems as to the extent of exercising an individuals power. It is impossible to assess limits imposed on an offender given to by an individual. The law cannot control the extent of harm that is going to be caused by the individual to the offender.

If the individual carries on his threat in retaliation to an attack and kills, the question of whether or not he/she is liable to that particular offence arises. We can see that even though the pure consequentialist theory of punishment has its fair share of problems, theorists still find it hard to overcome this. By showing that rehabilitation has proven cumbersome in that it has failed to prevent offenders from re-offending. It has nonetheless tried to reform the individual without proving successful. Offenders are re-offending without taking heed to the fact that it is a form of punishment that should be taken more seriously.

More external factors should be taken into account when trying to rehabilitate the offender as it is the person’s social background as well as themselves that need to be paid attention to. From the deterrence point of view we have noted flaws in that system also. By handing out severe sentences there has been an increase in crime. As offenders tend to effectively weaken the system by taking advantage of the fact that others are handed out disproportionate sentences and they are not. There is an increase of what seems to be inhumane in relation to this.

Rights of offenders are being infringed as they are not being treated fairly. Even though crime has been committed and sentencing has been passed it is not proportionate to their overall crime. Theorists have tried to overcome this issue by suggesting that alternative methods of deterrence should be used but this still does not address the complete issues and flaws within the system. By using forms of threats it is difficult to ascertain the level needed in proportion to deter an offender from offending. Farrell has tried to overcome the issue of deterrence.

He has not done this successfully as more problems have arisen within his own theory. The problem of the amount of threat or warning that a person needs to convey cannot be justified fully, as the person also needs to carry out their threat. The use of a automated retaliation device theory in itself was trying to cover the problem of proportionate punishment. Farrell did accomplish this to the extent that there needed to be a proportion of punishment in relation to a crime committed. Punishing the offender no more than was necessary according to the crime, meant that proportionality was restored.

This increased the other then problems of justifying the distribution of harm, which was a threat initially, meant that a person had to see it through. To conclude we can see that theories of consequentialism have failed to overcome the enduring problems created by the pure consequentialist theory of punishment. The problems of pure consequentialist theory have been in some aspects been able to be resolved by theorists. This has not meant that all of the theory has been resolved, there has now been an addition of more problems within the new theories themselves.

The enforceability of deterring attackers and using a much more enhanced way of self-defence has meant that there could be a thin line between criminals and citizens. In that someone’s perception of an attack will be different for each individual. Some individuals will essentially take an offender (who in the future) attacking them, may perceive an assault to be one that requires the person to be put to death. In this example there is no real way to assess the amount of punishment which is sufficient to deter an attacker through the use of a threat.