In claiming the name of justice, criminal law seeks to ensure that people are not abused, confined, or defrauded. To do this, it imposes a limited equality of prohibition and protection.
It is not enough to prevent crimes, however; the law must also punish those who commit them. To do so, it must be able to make judgments about the character of perpetrators.
1. Punishment
The purpose of punishment is to deter criminal behavior. It can be categorized as either specific or general deterrence. Specific deterrence involves punishing an individual defendant so that others are less likely to commit the crime he or she committed. For example, if an offender is sentenced to life in prison for murder, that should deter other people from committing the same crime because they would be more fearful of being punished in the same way. General deterrence is based on the idea that if people learn about the punishment that an offender received for a particular crime, they will be less likely to commit that crime.
The fact that society can punish its offenders reduces the need for retaliatory street justice, blood feuds, and vigilantism. In addition, some justifications for punishment argue that criminal law serves certain social functions, including group cohesion, rules clarification, and social change.
However, many critics point out that punishment often fails to accomplish its intended goals. For example, studies have shown that incarceration rates have not decreased since the 1970s, and the prison population has grown. Furthermore, incarceration often affects individuals negatively in other ways, such as losing jobs or fracturing families.
Moreover, some justifications for punishment fail to take into account the fact that criminal laws often disproportionately punish individuals in the name of deterrence and incapacitation. For example, Black men are 6 to 8 times more likely to be imprisoned than white men. Additionally, prisoners with mental illness or substance use disorders are also disproportionately incarcerated.
There is also the issue of morality and the fact that imposing criminal law judgments on others violates their moral agency. It is wrong to criminalize conduct simply because it hurts or inconveniences another person. Moreover, it is usually not possible for the state to enforce criminal law in a way that does not involve gross invasions of liberty and requires the state to forcibly assert its monopoly on force.
Nevertheless, some find it important for criminal law to exist because of its general justifications in values that are neither relational nor essentially public. These values include the prevention of harm and the prevention of moral wrongdoing. Some writers argue that the value of preventing harm and moral wrongdoing justifies criminal law, even though there are wrongless harms and harmless wrongs. Furthermore, some argue that these values cannot be achieved through punishment alone, and therefore criminal law must have a range of other tools to achieve its goals. These other tools include restitution, restorative justice, and civil remedies.
2. Deterrence
Deterrence is an important part of criminal law because it aims to discourage people from breaking the law in the future. It can be broken down into two main types: specific and general deterrence. Specific deterrence focuses on punishing individual offenders so that they learn not to commit crimes again. It is believed that when a criminal sees a punishment, they will realize the unpleasant consequences of their actions and thus become less likely to commit crimes in the future.
However, this only works if the punishment is visible to the offender and has the right level of severity to discourage them from acting illegally in the first place. The speed at which the punishment is delivered also has an impact on its effectiveness. The speed at which the penalty is imposed has received less research than its severity, but it is thought that criminals will be more deterred if they know that their crime is likely to be caught quickly rather than if they are convicted and punished after a long period of time.
Some people also believe that deterrence through fear reaches out to the wider public and aims to prevent harms that are not directly caused by a defendant or wrongdoing that is not morally reprehensible. The effectiveness of this method depends on whether the majority of society believes that there is a value in harm and wrongdoing being prevented.
There is often concern that criminalizing an action can remove this value from the world by diverting scarce resources away from other priorities. Furthermore, it can lead to wrongdoing being driven underground, and penal institutions can house victims who are unseen or who are left to suffer unseen abuse and victimization in their own communities.
There is, therefore, a risk that criminal law may be creating a class of criminals where there were none before. Despite its importance to society, there are many reasons why the use of punishment should be balanced with other approaches, such as prevention and rehabilitation. In particular, it should be used sparingly where there is evidence that it does not have a deterrent effect. This is because the effectiveness of deterrence is dependent on three key things: free will, some degree of rationality, and hedonism (the desire for pleasurable activities more than harmful ones). If these are missing, then criminal justice systems could encourage people to break the law. This would contradict the general justification of criminal laws, which is that they should prevent harm and wrongdoing. However, this is not to suggest that the role of deterrence is insignificant: it can still be an important tool in reducing crime.
3. Accountability
The value of accountability is one reason that criminal law is not just any old tool. It is, rather, a ‘great moral machine, stamping stigmata on its products, painfully rubbing in moral judgments on the people who entered at one end as suspects and emerged at the other end as condemned prisoners.’ Criminal laws seek to establish that an individual committed a crime when they acted in ways that satisfy criminal law elements: actus reus, mens rea, and causation. Culpability is typically defined as a combination of an intentional act or omission (actus reus) and the person’s mental state at the time of the act or omission (mens rea). Crimes must also be accompanied by a bad result, such as injury to another, loss, or property damage (causation). Accountability requires criminal proceedings that give people a chance to provide explanations of what they did and why. It aims to mitigate the capture of justice institutions by political and economic spoilers, enabling corruption, impunity, and unequal treatment of citizens. Accountability may also be a means of reducing vindictiveness and violent conflict between those wronged, helping ensure that public officials do not abuse their power or commit crimes, and preventing the repetition of past crimes in future conflicts by ensuring that people face consequences for their actions.
Those who defend the value of accountability often argue that we have a duty to hold people to account even when they have no standing to be punished. For example, Alisha and Chika both have a right to expect that others will call them to account for their behavior. Criminal proceedings invite both of them to provide such an account and put them under pressure to do so. Whether or not culpability or punishment is justified in these cases depends on their answers and the extent to which they meet secondary duties that arise from their behavior.
There are, however, reasons to be cautious about this claim. For one, there are many instances in which a criminal law’s preventive function would be undermined by its disciplinary powers. There is frequently an alternative to criminalizing conduct that generates these secondary duties without giving lawmakers standing to criminalize it: for instance, enforcement of the rule against child prostitution might necessitate huge invasions of privacy and require the law to take sides in conflicts that the parties themselves could better resolve.
In addition, there are many cases in which the harm caused by a criminal act outweighs its potential preventive value. This is particularly true where the harmful effect cannot be prevented by other means, and the harm is both significant and imminent. It is, therefore, important to understand the limits of criminal law’s preventive functions and to consider alternatives that do not impose such harsh costs on individuals and society as a whole.