Criminal law is a set of rules created by state and federal legislatures that defines which behaviors are criminal. It is distinct from civil law, which sets limits on government power.
A key feature of liberal conceptions of criminal law is its guarantee of maximum equal liberty for all. This underlies a commitment to such fundamental freedoms as religion, association, and speech.
Deterrence in criminal law aims to discourage future crime by making the costs of crime outweigh the benefits. This is a rational choice theory of punishment, inspired by philosophers Hobbes, Beccaria and Bentham. It has three key elements: severity, certainty and celerity. Severity refers to the seriousness of a crime; certainty refers to the likelihood of being caught; and celerity refers to how quickly the punishment will be applied.
The classical deterrence theory asserts that individuals will be less likely to commit a crime if they believe it will be punished certainly, severely and swiftly. In practice, however, criminology distinguishes between specific and general deterrence. The former refers to the aim of punishing an individual, whereas the latter focuses on spreading awareness of penalties throughout the community so that they discourage others from committing similar offences.
Effective deterrence must have both of these facets to be successful. Unfortunately, studies have shown that increasing the severity of punishments – such as length of prison sentences – does little to deter criminals. Instead, more effective approaches like focusing police efforts on high-crime areas and publicizing the consequences of crimes have been shown to be more effective at deterring criminals. It is also believed that more severe punishments do not chasten those who are convicted and can actually increase recidivism rates.
Punishment in criminal law is society’s solution to the injuries that it suffers through crime. Fines, incarceration and even certain acts of restitution are the punishments that can be meted out on offenders in this context. Criminal laws are passed by individual states and the federal government and define what types of conduct will be punishable. This is in contrast to civil law which focuses explicitly on disputes between individuals like a lawsuit where one person pays another for damages they caused.
Crime damages the social fabric that binds people together and punishment is designed to repair it. Different societies have a variety of justifications for administering criminal punishment. Two of the main ones are retributive justice and restorative justice. Retributive justice is more common in traditional societies where there is a strong sense of solidarity and similarity among people. This justifies the severity of some of the punishments that can be seen in this context.
Restorative justice, on the other hand, is more prevalent in modern society. This justifies the restoration and rehabilitation of victims through punishments such as community service. It is believed that criminal punishment deters future crimes by reducing the taste for them in the mind of offenders. As a consequence, the number of crimes should drop and public safety will improve. Interestingly, studies have shown that punishment rates tend to correlate with social divisions with political implications such as minority presence and economic inequality (Jacobs and Carmichael 3). In this context it would seem reasonable to expect that areas where whites are the majority will punish offenders more severely.
Retribution is an important element of criminal law in that it seeks to punish wrongdoers and to deter future crime. Retribution can be achieved by compensating victims and penalizing offenders, but it also sends a message to those thinking about committing crimes that the punishment they will face is likely to be harsh.
The idea that it is right to make criminals suffer because they have gained an unfair advantage over the rest of society leads some to argue that the state has a right to enforce public vengeance. This notion, however, confuses retributivism with vengeance (see the distinction between retributivist and deontological conceptions of deserved punishment). It also fails to provide a sufficiently strong normative constraint on our ability to punish.
Despite the fact that retribution may seem to be the only rational motivation for criminal laws, there is a good argument to limit it to the extent that it sustains significant social injustices such as distributive inequalities and the denial of civil and political rights to socially disempowered groups (see Duff 2002). In some instances, the state should be able to prevent the punishment of its citizens by taking their property, but this is not an adequate justification for imprisonment or other forms of penal treatment.
Attempts to limit retributivism by applying the principle of proportionality may fail, however. This is because the subjective experience of hard treatment should be considered, even though it may not influence our overall assessment of whether a particular punishment is appropriate (see, for example, Kolber 2007).
When a crime occurs, victims and offenders have a variety of justice needs that the traditional criminal justice system often fails to address. Victims need to be able to express the harm they’ve suffered, offenders need to understand the human consequences of their actions and be held accountable for them, and communities need to have the opportunity to participate in repairing the damage caused by crime.
The conventional criminal justice system tends to dehumanize victims by making them “witnesses” rather than active participants in the trial process, and offenders are viewed as mere violators of a set of rules. Restorative justice seeks to break down this reductive model by encouraging everyone affected by a crime to have a direct, face-to-face conversation about how it has impacted them. In these conversations, victims are able to ask questions, seek answers and receive compensation from offenders through restitution.
Offenders are encouraged to share their feelings and explain their circumstances and life histories in these conversations, and they’re given an opportunity to take responsibility and make amends for the harm they’ve caused. The goal is to restore the balance of power between the parties, with victims and offenders having a stronger voice in the conversation than the state does. This approach to criminal justice is a powerful alternative to both retributive justice and rehabilitative justice.