Punishment

One justification for punishing offenders is that it prevents future crime. This can be done through:

• Deterrence: Punishing the individual discourages them from future offending. 'Making an example' of them may also serve as a deterrent to the public at large.
• Rehabilitation: is the idea that punishment can be used to reform or change offenders so they no longer offend. Rehabilitation policies include prividing education and training for prisoners so they are able to 'earn an honest living' on release, and anger management courses for violent offenders.
  
• Incapacitation: is the use of punishment to remove the offender's capacity to offend again. Policies in different societies have included imprisonment, execution, the cutting off of the hands. Incapactitation has proved increasingly popular with politicians, with the American '3 strikes and you're out' policy (where committing even a minor third offence can lead to lengthy prison time) and the view that 'prison works' because it removes offenders from society.

This justification is an instrumental one - punishment is a means to an end, manely crime reduction.

Retribution

Retribution means 'paying back'. It is a justification for punishing crimes that have already been committed rather tha preventing future crimes. It is based on the idea that offenders deserve to be punished. This is an expressive view of punishment-expresses society's outrage.

Durkheim argues that the function of punishment is to uphold social solidarity and reinforce shared values. Punishment is primarily expressive - it expresses society's emotions of moral outrage at the offence. Through rituals of order, such as public trial and punishment, society's shared values are reaffirmed and it's members come to feel a sense of moral unity.

Two Types of Justice

Retributive Justice: In traditional society, there is little specialisation, and solidarity between individuals is based on their similarity to one another. This produces a strong collective conscience, which when offended, responds with vegeful passion to repress the wrongdoer. Punishment is severe and cruel, and its motivation is purely expressive.

Restitutive Justice: In modern society, there is extensive specialisation, and solidarity is based on the resulting interdependence between individuals. Crime damages this interdependence so it is necessary to repair the damage, for example through compensation. He calls it restitutive justice because it aims to make a restitution - to restore things to how they were before the offence. Its motivation is INSTRUMENTAL, to restore society's equilibrium.

Foucault has two different forms of punishment, which he sees as examples of sovereign power and disciplinary power.

Sovereign Power was typical of the period before the 19th century, when the monarch had power over people and their bodies. Inflicting punishment on the body was the means of asserting control. Punishment was a spectacle, such as public execution.

Disciplinary Power becomes dominant from the 19th century. In this form of control, a new system of discipline seeks to govern not just the body, but the mind. It does so through surveillance.

Foucault illustrates disciplinary power with the PANOPTICON. The panopticon was a design for a prison in which all prisoners' cells are visible to the guards from a central watchtower, but the guards are not visible to the prisoners. Therefore the prisoners don't know if they are being watched or not. As a result they have to behave at all times as if they were being watched, so the surveillance turns into self-surveillance and discipline becomes self-discipline.

Foucault has been criticised:

• The shift from corporal punishment to imprisonment is less clear than he suggests. 
  
• Unlike Durkheim, he neglects the expressive aspects of punishments
• He exaggerates the extent of control.
  

• Liberal Democracies that do not have the death penalty, imprisonment is the most severe form of punishment. However, it has not proved an effective method of rehabilitation as 2/3 of prisoners commit further crimes on release.
• New Labour believe that prisons should not be just for severe offenders but also as a deterrent for persistent petty offenders.
• The prison population has increased to a record size. Between 1993-2005 the number of prisoners in England and Wales grew about 70% to 77,000 people.
• One consequence has been overcrowding added to existing problems of poor sanitation, barely edible food, clothing shortages and lack of educational and work opportunities.
• In England and Wales, 139 out of every 100,000 people are in prison. However, Russia and USA have much higher prison population.
• Prison population is largely male, young and poorly education, with only 5% female. Black and ethnic minorities are over-represented.

• David Garland believes that the USA and to a lesser extent the UK, is moving into an era of mass incarceration.
• From the 1970's, the numbers of prisoners began to rise rapidly and there are now 1.5million state and federal prisoners, plus 700,000 in local jails. A further 5 million are under the supervision of the criminal justice system - in total, over 3% of the adult population.
• In 2001, for every 100,000 black males, 3,535 were in prison as against 462 for white males.
• Garland argues that the reason for mass incaraceration is the growing politicisation of crime control.
• For most of the last century there was a consensus, which Garland calls 'penal welfarism' - the idea that punishment should reintergrate offenders into society.
• However, since the 1970's, there has been a move towards a new consensus based on more punitive and exclusionary 'tough on crime' policies and this had led to rising numbers in prison

Transcarceration

• There is also a trend towards transcarceration - the idea that individuals become locking into a cycle of control, shifting between different carceral agencies during their lives. For example could be brought up in care, then to a young offenders institution, then to an adult prison.