Imprisonment as Punishment and the Problem of Recidivism: The Intersection of Philosophy and Law

Abstract

<p>In this thesis, I seek to impugn retributivism in all its forms; and argue that rejecting retributivism does not automatically render one a utilitarian, and I instead argue for what I call a purposive approach. The major concern with retributivism is that the very base of the theory necessary to make it complete – a nuanced exposition as to how certain crimes are to be ranked and the valuation involved in the process – is missing, which therefore renders the theory susceptible to gaps which are then filled by popular retributivism and penal populism and consequently are exposed in law and policy.</p> <p>Retributivism is not necessarily akin to over-punitiveness; however, a criticism is that an opponent of the theory like myself can never argue that it tends to lead to over-punitiveness, because a retributivist will always self-constrain the theory so that an offender never gets more punishment than they deserve, which therefore means that the punishment is never over-punitive. However, in failing to consider other factors in quantifying the amount of punishment to be imposed, retributive theories may lead to more serious punishments than other theories, such as the alternative theory put forward in this thesis which focuses on crime prevention.</p> <p>Moreover, the argument that we ought to impose deserved punishments on offenders does not automatically follow from the argument that offenders deserve to be punished. A criminal justice theory should be concerned with the purpose of the criminal law, and I argue that the purpose of the criminal law is to achieve crime prevention. Accordingly, punishment as a whole system which involves inflicting harm on offenders can at best be justified by reason of it being the best possible way to ensure crime prevention. It follows that individual acts of punishment can only be imposed insofar as they achieve the purpose of crime prevention, and not because they are deserved.</p> <p>Crime prevention is not to be understood as being tough on crime, or penal populism. I suggest the converse in this thesis, which I say we can conclude by viewing the statistics on recidivism in New South Wales. Whilst imprisonment, it will be argued, is a very harsh punishment, and indeed the most serious punishment available in New South Wales, over half of offenders who have served a term of imprisonment will return to serve another term of imprisonment. </p> <p>I do not draw a causal connection between retributivism and recidivism, but I argue that retributivism cannot give us what is necessary to tackle recidivism and re-offending for it is not concerned with crime prevention.</p> <p>I will apply this theory to the law and policy in New South Wales, with the aim of showing why recidivism might be a problem, and what options are available to deal with it. Recidivism is thought of in this thesis as a problem for the criminal justice system, and not the offenders themselves. </p>