Punishment

1. Punishment

2. Recap • Core values of liberalism • Liberalism is a political philosophy that emphasizes individual rights and freedom. Core values of liberalism include: [1] individualism, [2] human rights, [3] freedom, [4] rule of law, and [5] tolerance. 2

3. Recap • Natural rights • English philosopher John Locke argued that we have a right to life, a right to liberty and a right to property simply because we are human beings. In his view, these ‘natural rights’ have existed before any law or government. 3

4. Recap • The social contract • According to Locke, government is created to protect individual rights and interest. The social contract is an agreement among members of society to establish a government to protect their lives, liberty, and property. 4

5. Recap • The harm principle • According to John Stuart Mill, if an action causes no harm to other people, government should allow individuals to do it. The only justification for society or government to limit individual freedom (through regulation or punishment, for example) is to prevent harm to other people. 5

6. In this lecture… • Why punish? • Retributivism(報復主義) • Utilitarianism (功利主義) • Capital punishment (死刑) • Life without parole (無期徒刑) 6

7. Why punish? • Punishment (懲罰) can be defined as doing something bad to someone who has done something wrong. • If, as the saying goes, ‘two wrongs do not make a right’, then why should people be punished for their crimes? 7

8. Why punish? • Punishing people usually involves harming them in some way, either by causing them pain or by taking away their freedom, property, or lives. Harming people in these ways is ordinarily not morally justified.

9. Why punish? • What is it about crime that makes punishment an appropriate response(適當的回應) to it? • For most people, what makes crime punishable is the wrong done to others (i.e. the victim).Punishment is not justified unlesssome ‘wrong’ has been committed.

10. Why punish? • There are four main justifications for punishment: 1. retribution (報復) 2. deterrence (阻嚇) 3. maintenance of law and order (維持治安) 4. rehabilitation (改過自新) 10

11. Why punish? • Traditionally, punishment is seen as retribution (報復、報應、抵償) for the wrong that has been done. • Those who have committed crimes, such as stealing from other people or assaulting (襲擊)other people, deserve (值得)to be treated badly in return.

12. Why punish? • Joe is a mechanic(機械技工). One night he was on his way home after work. It was late at night and the streets were quiet. Suddenly he saw an old man lying unconscious (失去知覺)on the pavement. There was no one else around. Joe saw a car parked on the side of the road, so he broke the lock of the car’s door and drove the old man to the hospital.

13. Why punish? • Does Joe deserve to be punished for stealing someone’s car? Why or why not?

14. Why punish? • Utilitarians, as we shall see, tend to believe that the guilty (罪犯) should be punished only if the punishment would bring good consequences, for example, if it serves some deterrent purpose (阻嚇作用).

15. Why punish? • Others suggest that law and order (治安) cannot be maintained unless everyone agrees to obey the law. The legal system (法律制度), according to this view, isestablished to protect people’s rights by punishing law breakers.

16. Why punish? • Yet another purpose of punishment is rehabilitation (改過自新): punishment aims to bring wrongdoers (犯錯的人)to understand and to repent(悔悟) their crimes, and thus to reform (改造) their future conduct.

17. Retributivism • Retributivism (報復主義) isthe belief that punishment is the appropriate response (合適的回應) to wrongdoing (錯誤行為). • Wrongdoers deserve (值得) punishment, the innocent (無辜者) do not, and justice requires that each person gets his or her desert (應得、報應).

18. Retributivism • Punishment for wrongdoing is ‘deserved’ simply because it restores the balance of justice (維護公義). If someone harms other people, justice requires that he or she be harmed also. • Punishment serves as retribution (報應) for the crime – it ‘balances the scales (天秤) of justice.’

19. Retributivism • At the heart of retributivism is the idea of ‘just desert’ (公平的果報) i.e. only the guilty deserves punishments, and the punishment they deserve must be proportionate (合乎比例的) to the seriousness of their crimes.

20. Retributivism • From the standpoint of retributivism, punishment is ‘deserved’ (罪有應得) not because it will rehabilitate (改造) or deter (阻嚇), but because wrong has been done and there must be a ‘fitting’ (i.e. appropriateand proportionate) response to it.

21. Retributivism • Immanuel Kant, who supportedretributivism, claimed that we have a moral duty to punish the person who has committed a crime. • It is unjust (不公義)if the guilty are not punished, because they donot get what they deserve.

22. Retributivism • What determines the right kind (類) and amount (量) of punishment? The retributivist answer is that crime and punishment must be equivalent(對等). • As the ancient saying has it, ‘An eye for an eye, a tooth for a tooth’ (以眼還眼，以牙還牙).

23. Retributivism • The principle that there must be some sort of equivalence between crime and punishment is called lex talionisor ‘the law of retaliation’ (報復原理). • The death penalty (死刑) is the best example of applying the principle of lex talionis to cases of murder.

24. Retributivism • In theory, the kind and amount of punishment must be more or less the same as the kind and amount of harm caused by the crime. In practice, however, the exercise of lex talionis faces serious problems. • How, for example, do we punish rapists (強姦 犯)? Should we rape them?

25. Retributivism • In modern criminal justice, the old principle ‘an eye for an eye’ has been replaced by a new principle: ‘let the punishment fit the crime’. • Imprisonment(監禁) has become a unified (統一的) form of punishment. The jail term (刑期) is based on a modified (改良的)form of lex talionis, i.e. the more serious the crime, the longer the prison term.

26. Retributivism • The trouble, however, is that judgments about what is a fitting punishment for a crime may vary (有差異) between judges – sentences(裁決、判罰) are sometimes criticized as too harsh (嚴厲)or too lenient(寬鬆). • Judgments also vary between cultures; e.g. adultery (通姦) is punishable by death in some societies, but is not even a crime in others.

27. Utilitarianism • Jeremy Bentham, the great utilitarian thinker, claimed that all punishment in itself is bad because punishment always involves treating people badly, whether by taking their freedom (imprisonment), their property (fines 罰款), or even their lives (capital punishment 死刑).

28. Utilitarianism • For Bentham and his followers, retribution cannot be justified because it tends to increase, not decrease, the amount of suffering in society. • Punishment can only be justified if the benefits outweigh(多於) its costs; for example, if it serves as an effective means (有效的手段) of reducing future crime (i.e. deterrence).

29. Utilitarianism • Another important purpose of punishment, according to utilitarianism, is reform or rehabilitation (改過自新). • Punishment can serve to reform or educate criminals, thus bringing them to repent (悔改) their crimes.

30. Utilitarianism • Utilitarians are concerned about the harmful effects of crime on society and how to reduce or minimize (減至最少) them. • They argue that punishment leaves unchanged the social causes of crime,such as poverty (貧窮) and unemployment (失業). As such, punishment may not be effective in reducing crime.

31. Utilitarianism • If the goal is to reduce crime, there are solutions available other than punishment. • For example, if people commit crimes because they are ill-educated (低學歷的) or unemployed, provision of educational opportunity or job training seems to be a much better alternative.

32. Utilitarianism • These utilitarian ideas have now become the mainstream (主流) in criminal justice. • Prisons, once mere places for confinement (囚禁), have been redesigned (重新設計) as centers of rehabilitation. Inmates(囚犯) are there not to be ‘punish’ but to be ‘corrected’.

33. Utilitarianism • Do you think that utilitarianism provides a more reasonable account of punishment than retributivism?

34. Capital punishment • Do you support capital punishment (死刑)?Suppose a friend of yours has been raped and brutally (殘酷地) murdered. Do you wish the murderer to be sentenced to death?

35. Capital punishment • According to Amnesty International’s (國際特赦組織) latest data, 98 countries (such as Australia, and the U.K.) have abolished (廢除) the death penalty; while 58 countries actively use it (such as China, Iran 伊朗, Iraq伊拉克and Saudi Arabia沙特阿拉伯).

36. Capital punishment • Retribution and deterrence have for so long been used as defenses of capital punishment. • Some people think that criminals who have committed serious crimes deserve it on grounds of retribution. Others believe that murderers should be executed in order to discourage others from becoming murderers.

37. Capital punishment • Supporters of capital punishment believe that the death penalty is an expression of society’s moral outrage (憤慨). • The execution of the murderer is seen as the ultimate proof of the value society placeson the life of the murderer’s victim.

38. Capital punishment • Family members of the victim often look forward to the deaths of the murderersand find solace (安慰) in the murderer’s execution(處決). Punishment by the state (國家) is essentially a substitute(代替) for personal vengeance(復仇).

39. Capital punishment • Advocates (支持者) of capital punishment may argue that murderers who are not executed are likely to kill again once they get out of prison. • However, despite this widespread public belief, the evidence suggests that murderers released from prison are unlikely to kill again.

40. Capital punishment • Despite the enormous publicity (宣傳) given to serial killers(連環殺手) by the media, such people are actually very rare(稀有). One reason they get as much attention as they do is that they are very unusual.

41. Capital punishment • Another argument for the death penalty is deterrence, i.e. the need to deter or discourageserious crimes such as murder. • But there is no actual evidence that countries that keep the death penalty have lower murder rates than those that do not.

42. Capital punishment • Most murders cannot be deterred by any penalty, including death. Most murder cases are so-called ‘crimes of passion’ (一時衝動), committed in moments of intense rage (極度惱怒), frustration (失意), hatred (憎恨), or fear(恐懼), when the killers are not thinking clearly of the consequences of what they do.

43. Capital punishment • One of the arguments against the death penalty is that the right to life (生存權) is an inalienable (不可被剝奪的) human right. • For this reason, the state or government should never use its power to execute (處決)a citizen, under any circumstances.

44. Capital punishment • There is also the possibility that innocent people are sometimes wrongly executed. • This possibility alone is frightening enough to convince (說服)some people that capital punishment should be abolished (廢除).

45. Capital punishment • One of the justifications for punishment is that it educates or rehabilitates the criminal. • However, the very possibility of rehabilitation is ruled out (被排除) by capital punishment. The death penalty, unlike other punishments, does not give people a chance to correct mistakes.

46. Capital punishment • Yet another argument against the death penalty is that the death sentence (裁決) falls unequally on different groups within society. • The death penalty is imposed primarily on poor and lower class defendants (被告) because they cannot afford good lawyers.

47. Capital punishment • Is capital punishment morally justified? If our legal system wants to show society that killing is wrong, what kind of message is it sending by doing exactly what it defines as wrong? 47

48. Capital punishment • Do you think that people who committed murder deserve to be punished by death? Or do you think that the death penalty should be abolished?

49. Life without parole • If you think that capital punishment should be abolished, you also need to consider what to do instead. Is there an equally effective alternative to protect society from dangerous criminals?

50. Life without parole • Polls (意見調查) indicate that if there were no death penalty, the alternative the public would most prefer would be sentences of life imprisonment(終身監禁) without possibility of parole(假釋).