From moral theory to penal attitudes and back: a theoretically integrated modeling approach

Abstract

From a moral standpoint, we would expect the practice of punishment to reflect a solid and commonly shared legitimizing framework. Several moral legal theories explicitly aim to provide such frameworks. Based on the theories of Retributivism, Utilitarianism, and Restorative Justice, this article first sets out to develop a theoretically integrated model of penal attitudes and then explores the extent to which Dutch judges' attitudes to punishment fit the model. Results indicate that penal attitudes can be measured in a meaningful way that is consistent with an integrated approach to moral theory. The general structure of penal attitudes among Dutch judges suggests a streamlined and pragmatic approach to legal punishment that is identifiably founded on the separate concepts central to moral theories of punishment. While Restorative Justice is frequently presented as an alternative paradigm, results show it to be smoothly incorporated within the streamlined approach.

Capital? child rape : does public opinion support the use of the death penalty on child rapists?

“…Retributive reasoning considers the past, namely the crime committed, in order to satisfy the justification for punishment (Bronsteen, 2009;Keijser, et al, 2002;Keller et al, 2010). Retributivists consider punishment as an end, opposing utilitarians who view punishment as a means to an end (Cotton, 2000;Skinner, 2012).…”

“…Instead, punishment is justified in order to right a wrong and reset the moral balance in the community (Carlsmith, 2006;Keller et al, 2010;Skinner, 2012). When an offender commits a crime, he or she disrupts the balance in society by tipping the universe in his or her own favor at the cost of the victim's, as a result moral balance must be restored not only to the victim but to the community (Keijser, et al, 2002). This balance is restored through punishment and justice is reached by the offender receiving his just desserts (Skinner, 2012).…”

“…This balance is restored through punishment and justice is reached by the offender receiving his just desserts (Skinner, 2012). Retribution calls for punishment because the offender has committed a transgression and there is a moral compulsion to punish those who transgress (Keijser, et al, 2002). Strelan and Van Prooijen (2013) conducted a study yielding results showing that when an offender is punished for their crime, the victim is more likely to forgive.…”

“…In stark contrast to retribution, utilitarianism is future oriented, considering only the result of punishment and how it will affect the punished and the community as a unit (Bronsteen, 2009;Keijser et al, 2002;Keller et al, 2010). For a utilitarian, punishment must serve as a means to an end unlike a retributivist who would consider punishment an end in and of itself (Cotton, 2000;Skinner, 2012).…”

“…Utilitarianism stipulates that punishment of the guilty should only be carried out in order to serve the greater good of the community at large, meaning that the community's benefit must outweigh the suffering of the punished. Utility is the ultimate goal, therefore punishment as deterrence, incapacitation and/or rehabilitation is not only acceptable but required when it will result 21 in greater good (Bronsteen, 2009, Keijser, et al, 2002. Utilitarians, however, have no use for morality on its own; instead morality is only consequential when it simultaneously falls in line with utility (Bronsteen, 2009).…”