Criminal Punishment: Your Questions, Answered

Understanding and evaluating the United States criminal justice system can be complex. You may be motivated to better comprehend theories of crime and punishment because you or someone close to you has survived or been impacted by a crime or, conversely, been involved in a criminal act. 

You may also be curious to know more due to recent conversations around policing and incarceration, particularly the historic and systemic racial bias associated with both, which have become more prominent after the 2020 murder of George Floyd. Regardless of your intentions, it can be helpful to better understand some of the theories behind crime and punishment in our society. 

The five forms of criminal punishment

In the United States, most criminal punishments are informed by one of the five punishment theories listed below. It is important to note that some specific punishments may fall into more than one category. While the intent of each of the five forms of punishment is different, the result (prison, fines, etc.) may sometimes be the same.

Deterrence

Using criminal punishment as a deterrence method is motivated not by the pursuit of justice but by the desire to prevent future crime. Deterrence methods of punishment can lead to harsh and sometimes disproportionate punishments for crimes. 

Deterrence theory is split into two practices: specific deterrence and general deterrence. Specific deterrence focuses on the person who has committed the crime and on punishing them so that they won’t commit the same crime again in the future. General deterrence focuses on society as a whole, hoping to make examples of criminal offenders so that people associate committing crimes with unpleasant punishments and are deterred from criminal behavior. 

An example of a punishment practice motivated by deterrence is a hefty fine or a lengthy prison sentence for a relatively low-level crime. One of the most famous examples of deterrence practices is the mandatory minimum sentencing guidelines for drug offenders enacted during the Reagan administration.

Advocates of deterrence theory counter the argument that if the criminal justice system is responsible for reducing crime in society, any punishment for a convicted criminal is justified in the service of that goal. 

Incapacitation

In practice, punishment methods inspired by incapacitation often look identical to those related to deterrence. The two approaches are distinct, however, because of the motivation behind the punishment. With deterrence, the idea is to create a punishment so distasteful that no one would want to commit a crime associated with it. With incapacitation, the punishment prevents a person from being able to commit the same crime again.

Incapacitation operates by restricting or eliminating a person’s freedom, movements, or abilities, and it is based on the belief that it is both possible and necessary to impede future criminal acts from past offenders. Examples of incapacitation include house arrest, incarceration, the death penalty, electronic monitoring, curfews, or specific punishments related to certain crimes. One relatively well-known lower-level example of incapacitation is revoking a person’s driver’s license after they have been found guilty of driving while under the influence. 

Incapacitation is one of the more popular methods of addressing crime, though research has found it may be more effective at preventing specific kinds of crime, such as property crime, than crime as a whole. Incarceration has been criticized for impeding people’s freedom based not on the crime committed but on the assumption that they will commit the same crime again in the future. The use of incapacitation as justification for punishment has also contributed to the rise of mass incarceration in the United States, which disproportionately impacts people of color.

Retribution

While deterrence theory and incapacitation theory pursue reducing and eliminating crime at any cost, retributive theory prioritizes a specific kind of justice, often described as an “eye for an eye” mentality. Retribution is predicated on the belief that breaking the law is both a choice and a crime against society, and negative behaviors should be addressed using negative consequences that result in a similar or worse punishment proportional to the impact of the crime. One clear example of retribution is the use of the death penalty for people convicted of murder.

The use of retributive punishment can raise some ethical concerns. The idea of punishment that is proportional to the crime may sound positive in theory, but how does one determine if a punishment is actually just? And who makes the decision? 

Legal scholars and criminal justice researchers have also argued about whether a criminal act should be viewed as an individual person’s choice, as opposed to taking into account societal factors that may motivate certain people to commit crimes. Additionally, it is unclear if retribution works as either a crime prevention strategy or a means of achieving justice and satisfaction for survivors of crimes.

Rehabilitation

The rehabilitative theory argues the opposite premise of retributive theory: crime is not a result of individual choices but rather a complicated mixture of situational pressure, societal issues, and health conditions, including mental health conditions.

The rehabilitation approach to punishment argues that, if given the right tools, no one would willingly choose to commit crimes and that systemic problems lead some people to believe crime is their only option. Essentially, crime is a reflection of societal failure, not individual failure. With that emphasis in mind, rehabilitation seeks to reform offenders instead of punishing them.

Examples of programs intended to rehabilitate criminal offenders include mandatory participation in educational and vocational programs, residential stays in treatment centers for substance use and mental health conditions, skills training, and counseling. Critics of rehabilitation argue that the approach does not assign enough individual responsibility for criminal acts, instead placing all the blame on societal structures. 

Restorative justice/reparations

Retribution is not the only criminal punishment theory that emphasizes justice. Restorative justice also supports the pursuit of justice for crimes but argues that true justice is not achieved by punishing someone for what they have done but by repairing the wrongs they have committed against another person. 

Restorative justice can also include making reparations to a community as a whole if the crime did not have specific individual survivors of impacted persons. Examples of restorative justice can include compensating a person for their loss, attending survivor-offender mediation, or sitting in on a healing, peacemaking, or sentencing circle overseen by community members. 

One concern associated with restorative justice programs is that the punishment processes often occur outside the traditional legal system, meaning they may deny the offender their constitutional right to due process. 

Reparations procedures may also pressure survivors to promote the appearance of forgiving their offenders, especially in public settings. The forgiveness component of restorative justice may be particularly concerning in domestic or interpersonal violence situations. Forgiveness from survivors in these settings may help perpetuate the cycle of abuse.

Finding support for experiences related to crime and punishment

Navigating the criminal justice system, as either a survivor of a crime or because you or someone you loved has been accused of a crime, can be a stressful experience. It may be beneficial to seek additional mental health support as you process your feelings around crime and punishment. Online therapy can be a helpful option, especially for people encountering legal fines and lawyer fees, as it is typically less expensive than traditional in-person therapy. 

Scientific research has demonstrated that there may be no difference in efficacy between therapy accessed online and therapy accessed in an in-person setting. One study examining inmates in a correctional facility found that an online therapy program increased access to mental health treatment and lowered barriers to care, including costs.

If you are encountering mental health difficulties due to involvement in the criminal justice system, attending online therapy through a service such as BetterHelp could benefit you.