Pollock ethics 8e_ch11
Published on: Mar 4, 2016
Transcripts - Pollock ethics 8e_ch11
The Ethics of Punishment
Lecture slides prepared by Lisa J. Taylor
Elements of Punishment
• Two people involved, the punisher and the one being
• The punisher inflicts harm on the one being punished.
• The punisher is authorized by law to inflict the
• The one being punished has been judged to be in
violation of a criminal law.
• The inflicted harm is meted out specifically as
punishment for that violation of criminal law.
In correctional terminology, treatment is anything
used to induce behavioral change.
The goals of treatment are:
• elimination of dysfunctional or deviant behavior
• encouragement of productive, normal behavior
• Protection of individual liberty
• Minimal intrusion in criminals’ lives
• Justification of each intrusion
• Crime should be prevented according to the
requirements of justice
The social contract provides the rationale for
punishment and corrections.
•We avoid social chaos by giving the state the power to
•The state is limited in the amount of control it can exert
•For consistency with the social contract, the state
should exert its power only to protect.
•Any further interventions with civil liberties are
Can treatment and punishment occur simultaneously?
Can a punishment system in which “just” punishment is
relative and changes with time be ethical or moral?
Treatment programs created in the last hundred
years assume that offenders’ criminal activity can be
• treating psychological problems such as sociopathic or
• addressing social problems such as alcoholism or
• resolving more practical problems, such as chronic
unemployment, with vocational training and job
Retribution: How Much
Bentham: Criminal offenses deserve punishment that balances the
pleasure or profit of the offense
Neoclassicists: Characteristics of the offender should influence
the punishment decision
In today’s correctional climate:
• Determinate sentencing focuses on the seriousness of the
• Indeterminate sentencing tailors the sentence to the individual
Retributivists: Balance is restored when offenders have suffered
as much as their victims
The Justice Model of punishment:
• Promotes a degree of predictability and equality in sentencing
• Reverts to earlier retributive goals of punishment
• Restricts the state’s use of treatment as a release criterion
The Just Deserts Model of punishment:
• Bases punishment on “commensurate deserts”
• Incorporates incapacitation
• Equally punishes offenders who commit similar crimes
Assumes that something should be done
to the offender to prevent future criminal
Preventive methods include:
• Preventing a particular offender from deciding to
commit another offense
• Teaching through punishment
• Prevent others in general from deciding to engage
in wrongful behavior
• Teaching by example
Holding an offender until there is no risk of
Because incapacitation is predictive:
• We might release an offender who commits further
• We might not release an offender who would not
commit further crimes.
Three Strikes Laws
• Are these laws justified under retribution,
deterrence, or incapacitation?
• Supreme Court holdings of Lockyer v.
Andrade and Ewing v. California.
• Three Strikes Laws are statutes enacted
by states in the U.S that mandates state
courts to impose life sentences on
persons convicted of three or more
serious criminal offenses.
• Usually, only felony crimes qualify as
serious offenses and typically the
defendant is given the possibility of
parole with their life sentence.
• Three Strikes Laws became very popular
in the 1990s.
• Twenty-four states have some form of
habitual offender laws.
• The name comes from baseball, where a
batter is permitted two strikes before
striking out on the third.
• Treatment is considered beneficial for both society and the
• The control over the individual is just as great as with
• Courts define treatment as “that which constitutes accepted
and standard practice and which could reasonably result in a
• Much of the treatment in the correctional environment is either
implicitly or directly coerced.
• No single program works for all offenders.
Ethical Justifications for
Utilitarianism: treatment, incapacitation,
deterrence (we punish to benefit the majority)
Ethical formalism: retribution (we punish because
the offender deserves it)
Ethics of care: restorative justice (we punish only
if it is necessary to meet the needs of all
• The American criminal justice system has adopted prison
as a standard form of punishment.
• Imprisonment does not carry the physical pains of flogging
• Imprisonment is painful because it involves:
o separation from loved ones,
o deprivation of freedom, and
o an assault on one's self-esteem.
• Prisons are extremely expensive.
• $1.27 billion
o Ohio Department of Corrections
total prison budget
• $1.32 billion
o Total state cost of prisons
o Average annual cost per inmate
in the State
Cruel and Unusual
Unusual (by frequency): Punishments that are rarely used
Evolving standards of decency: Punishments acceptable in
the past (flogging) may not be acceptable today.
Shock the conscience: A punishment is cruel and unusual if
it shocks the public conscience.
Excessive or disproportionate: Any punishment that is
disproportionately administered or excessive to its purpose is
Unnecessary: The purpose of punishment is to deter crime;
only an amount necessary to do so should be administered.
• California is one of several states that
mandate chemical or surgical castration
for repeat sexual offenders before being
released from prison.
• Texas was the first state to offer castration
to repeat offenders on a voluntary basis.
• Repeat offenders in other states, including
Illinois, Ohio and Arkansas, have either
requested or received the surgery as a
way to bargain for a reduced sentence.
• Surgical castration is the most severe and
• Not everyone — including leading medical
experts — is even convinced that
castration is effective.
In May of 2010, the US Supreme Court
ruled that sentencing a juvenile to life
imprisonment without parole is
considered cruel and unusual
punishment when the crime is not
murder. Until the Graham v. Florida
ruling, judges around the country could
sentence anyone under the age of 18 to
life in prison for crimes such as
aggravated robbery, rape, and murder.
Did the Supreme Court make the right
Stigmatizing shaming rejects the individual and
may have negative effects.
Reintegrative shaming rejects only the person's
behavior, thus creating a healthier relationship
between the individual and his or her community.
• Daniel Mirales and his wife Eloise stole from a
crime victims fund. She was a 16 year employee
of the District Attorney's office.
• Both Mirales’ must walk back and forth holding a
sign that reads, “I am a thief. I stole $250,000
from the Harris County crime victim's fund."
• They must do this for 5 hours every weekend for
6 years. Additionally, they must spend some
time in jail and/or prison.
• They must post a sign in front of their home that
says, "The occupants of this residence, Daniel
and Eloise Mirales, are convicted thieves."
• They also have to do 400 and 600 hours of
community service: pick up trash, clean graffiti,
or wire homes for Habitat Humanity.
• They also must pay $232K in restitution.
• Prison authorities have long segregated the most
notorious prisoners into special units.
• Today, some states have constructed the most
secure facilities, referred to as supermax prisons.
• Supermax conditions are extremely harsh, including
individual separation of all inmates around the clock
and limited recreational activity.
• Challenges due to conditions, procedures, and who
is sent there (non-violent, mentally ill).
Private prisons are built by a private
corporation, then leased to the state or
actually run by the corporation, which bills
the state for the service.
What ethical issues do you think arise
with the privatization of prisons?
• A General Accounting Office study found that private and
public institutions cost about the same
• Private corrections tend to pay lower salaries than state
• Officers often transfer to state corrections departments
after they are trained
• Turnover is high in both private and state corrections
Where is incentive to rehabilitate?
Evaluating Private Corrections
1966: 44 percent
late 1990s: 75–80 percent
2008: 63 percent
Who is in favour?
Ethical formalism: proportional harm
Religion: “an eye for an eye”
Does failure to apply capital punishment
fairly invalidate its use?
The U.S. Supreme Court has ruled against
• the mentally ill
• the mentally handicapped
• juveniles (under 18)
• “Fast track” death appeals (OK)
• Lethal injection (OK)
• Execution for rapists (Not OK)
• Most offenders are under some form of
community supervision (probation or parole,
halfway houses, work release centers,
intermediate sanctions, or community-based
correctional facilities (CBCF’s).
• Community supervision poses different ethical
challenges than institutional corrections.
Common across all ethics codes:
• Respect for and protection of individual rights
• Service to the public
• Importance and sanctity of the law
• Prohibition against exploiting professional authority
for personal gain
Formal Ethics for
• May consider inmates, superiors, and society in
general as “the enemy.”
• Accepts use of force as a routine job element.
• Shows a tendency to redefine job roles to meet
minimum requirements only.
• Shows a willingness to use deceit to cover up
wrongdoing by staff.
• Male guards at an Alabama women's
prison have allegedly engaged in the
widespread sexual abuse of female
inmates for years.
• The Justice Department was asked to
investigate alleged incidents occurring
between 2009 and 2011 at the Tutwiler
Prison for Women in Wetumpka,
• Joe A. Martinez, 48, was indicted by a
federal grand jury and accused of
sexually abusing two female inmates
in 2008 and 2010 at the Federal
Correctional Institution in Phoenix,
• Cynicism towards clients.
• Lethargy from heavy caseloads and
• Individualism: an officer running his/her
caseload in the manner he/she sees fit.