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Theories of Punishment

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Andrew Dawson, the self-proclaimed and ironically named ‘Angel of Mercy’, was handed a life sentence in 1982 after brutally stabbing to death a 91-year-old man in his flat. Within weeks of his release in 2010 he had murdered two more people. This time the sentencing judge, Mrs Justice Dobbs, declared, “life will mean life”. Is he being punished out of retribution, deserved for his offense? Is his sentence a deterrent to others? Is he being punished out of necessity, to make sure he cannot reoffend again? Or is it that through punishment we aim to reform Andrew Dawson? These are the questions that underpin my response. First, however, I must define ‘punishment’ and ‘criminal’.

The Stanford Encyclopaedia of Philosophy says that legal punishment is “intended to be both burdensome and reprobative”. I would add that punishment could also be intended to reform a criminal; in ‘restorative justice’, offenders meet their victims to understand the harm they have caused. Secondly, for clarity, I would define a criminal as someone found guilty of a crime by a court.

One of the most popular reasons for punishing criminals is ‘retributivism’. Here, a criminal should pay for what they did wrong through a proportionate and deserved form of justice or revenge – or ‘just deserts’. This is a deontological argument that someone who does evil has a duty or a right to be punished; they must suffer for what they did. This idea is closely linked to lex talonis – ‘an eye for an eye’. Indeed, retribution and incapacitation were the main factors behind the punishment of Andrew Dawson. Clearly his life sentence did not imply rehabilitation. This preference for retributivism can also be found among the general public.

There is a deep-seated intuitive belief among humans that we are “hardwired to react punitively to crime” and that humans with such hardwiring are “evolutionarily” favoured by “natural selection”; we punish criminals due to a psychologically ingrained imperative. Not only do we attach such importance to punishment because we instinctively believe it to be the most appropriate form of action, but also because we have an innate desire to punish others to make us feel better about ourselves. Our self-righteous moral condemnation of others acts as a self-vindication of our own morality.

Another reason why we favour retributivism as a theory of justice is that we see punishment as an “inherently retributive practice”. Indeed for both Kant and Hegel, punishment is equal to retribution; when we punish criminals we automatically and unconsciously equate that punishment to retribution. This subliminal reasoning perhaps stems from our childhood, where retributive punishment is the norm for doing wrong. Retributive punishment may also be preferred as it can “gratify the public desire for vengeance”. Similarly a retributive punishment removes the need for a victim to seek revenge outside the law and signals respect and care for the victim, acting as a tool of closure and pacification.

However, retributivism is flawed, which can explain why we do not rely upon it alone. The idea of proportionate repayment is vague and subjective; it does not “provide a non-arbitrary starting point or end point of severity”. This, combined with the emotional appeal of inflicting punishment, can lead to unjust, overly harsh sentences. Therefore, to be justified, these punishments need to serve a further purpose.

It is often said that punishment can act as a deterrent to further crime. Deterrence works in two ways: to deter the same person (‘specific deterrence’), and to discourage other potential criminals (‘general deterrence’); in both cases from fear of punishment. Deterrence acts as a symbolic confirmation of society’s rules, so that people “may be deterred from doing wrong”; we punish people for the “sake of prevention”. Repeated confirmation of society’s rules can educate through internalisation of these repeated ethical values. This utilitarian justification is an example of a forward-looking rationale, as opposed to the retrospective reason for retribution.

Deterrence is used to validate society’s imposition of punishment on others by aiming to construct a safer society. At a surface-level, deterrence seems a compelling reason for punishing criminals: reducing crime is obviously a desirable aim. However, there is very little empirical evidence to show that deterrence is effective, as shown by the case of Andrew Dawson. This is partly because crime is often opportunistic and does not involve a rational consideration of the risks and the benefits. Additionally, in order to have a greater deterrent effect, there is pressure to increase sentences, which can risk injustice. Furthermore, deterrence is, arguably, deeply immoral, as we are instrumentalising the criminal. Kant under his belief that punishment is a categorical imperative (an unconditional moral obligation), believes that we must treat “persons as persons and, accordingly, ought to treat them as ends, not means”. Punishing people as a means of deterring others is immoral and has the effect of “degrading criminals and plunging them further into crime”.  This is the opposite of deterrence.

A less degrading motivation for punishing criminals is rehabilitation. This is using punishment to reform an offender, to make them a law-abiding citizen. Through offering the criminal the chance to rehabilitate himself, we avoid treating him as a means but rather, as Hegel would say, as a “rational being”. Through our expression of condemnation and his punishment the criminal can undergo moral education and reform. Rehabilitation can be a beneficial punishment as the criminal can reform and become a productive and harmless member of society. There are two driving factors behind the use of rehabilitation. The first stems from utilitarianism; society benefits from a productive and lawful citizen. Secondly, the individual can reorientate himself and make amends. Furthermore, rehabilitation offers an opportunity for reformation; and we can repress our guilt over exerting God-like power and determination over criminals’ lives. However, rehabilitation is expensive and “allocates scarce societal resources away from other, more deserving groups”. Punishment cannot be justified solely by rehabilitation.

Another justification for punishment is incapacitation: preventing a criminal from perpetrating further harm towards society. This is broadly compatible with the idea that we should punish offenders out of necessity, that the punishment is necessary for the greater good of society. Cicero said “the safety of the people shall be the highest law”. This is a compelling argument. The greatest justification for our act of passing judgement and punishing others is that we are compelled to do it. Cesare Beccaria, the Italian criminologist, stated “the purpose of punishment, therefore, is none other than to prevent the criminal from doing fresh harm to fellow citizens”. Under this, incapacitation may be seen as the greatest justification for punishing criminals. Furthermore, we must punish criminals out of necessity in order to create respect for the law. “An individual is more likely to voluntarily comply with legal codes when he or she perceives that the system treats people fairly”. If some criminals escape conviction whilst others receive overly harsh sentences, people are less likely to obey the law. That is why it is so important that justifications such as deterrence and retributivism do not lead to unfair judgements. However, punishing people to incapacitate can be extreme, such as cutting off the hand of a thief as in Sharia Law (5:38-9).

One of the most revealing answers for why we punish people is contained within the title question itself. If we think laterally, we can invert it to ‘what happens if we do not punish criminals?’ Herein lies the most compelling reason as to why I think we punish criminals. We punish criminals out of necessity; if we did not then we would risk immorality and anarchy. However, I believe we also punish criminals from a psychological necessity that favours retributivism. As a society we believe that people must be punished. Retributive punishment is an entrenched belief, stemming from evolution and lessons learned in childhood: it is as simple as cause and effect. Why do we punish criminals? It is the only thing we know to do.

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Legal Reform: Social Norms and Technology

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In the same way that photoreceptors in your eye respond to light, law responds to the stimulus of social pressure and technological advances. Take smoking as a first example. Rising drastically during the First and Second World War, the number of adults smoking cigarettes by 1949 amounted to approximately 81% of the male population and 39% of the female population. In the mid-20th century, smoking was seen as a social norm, with many advertisements oblivious to the health detriments caused by smoking. Notable slogans claimed fabricated benefits: “for digestion’s sake”, “a feeling of well-being”, and “throat protection against cough irritation”.

It was not until a 1950 report published in the British Medical Journal that evidential research was found, linking smoking with the formation of lung cancer. This was the first of a chain of research that changed the way both doctors and the public viewed smoking, resulting in social pressure for legal reform, in which the government was forced to respond to. In 1965, a ban on television cigarette advertisement was implemented, progressing to a complete advertisement ban in 2005 and most significantly an end to smoking in public was enforced in July 2007. More recently, the debate over cannabis legislation is a hot topic for future debate, with 26 US states currently legalising marijuana in some form. As scientific research progresses in this field of study, perhaps society’s attitudes towards cannabis may change, prompting further legal reform.

New crimes were necessary as computing became more prominent towards the end of the 20th century. The Computer Misuse Act 1990 served as a response to the rise in cyber-crime, most significantly hacking. Further legislation brought in targeted identity fraud and harassment over the web, encompassing cyber-bullying although it has no specific mention. Moreover, the development of cars and their sudden surge in frequency led to more common traffic accidents. Subsequently, laws were implemented to make driving on the roads a safer experience, with drink driving, mobile phone usage, and speeding all becoming new additions to criminal law in the UK.

To conclude, law has successfully evolved in line with social norms and technological developments in order to protect society and respond to pressure from reformist groups. It is vital that the law regularly adapts to modernisation, to prevent a backwards legal system and to protected the welfare of the majority.

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Recent Case of Charlie Gard – Who Knows Best?

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doctors vs judges

The recent Charlie Gard case that has flooded international news is characteristic of the intricate, global controversy: who has the right over life?

Infant Charlie Gard was born with an extremely rare genetic defect known as MDDS, which irreversibly deteriorated his condition to severe brain damage, immobility, deafness and ventilation by artificial means alone. Established under The Children Act 1989, institutional authorities (hospitals, governments) were assigned with giving the final decision on whether a young patient could live, designed to safeguard parents from protecting their own needs rather than what was best for their child.

Whilst Charlie’s parents wanted their precious child to live, all courts of appellate jurisdiction, along with the doctors at Great Ormond Street Hospital, at which Charlie was kept on the life support, thought it was in Charlie’s best interests to end his life rather than allow his quality of life to be irrevocably poor.

So, who should we trust to give the final say about a child’s well-being? Should families, who have given birth to the child, their possession, be given the legal responsibility to overrule the state in their decision? Of course, this brings moral implications, such that the parents would not want to say goodbye to their child and therefore not act in his/her’s best interests.

Let’s now bring in another scenario, whereby the patient is of adult age. Tony Bland sustained detrimental injuries from the Hillsborough Disaster in 1989, which left him in a permanent vegetative state (PVS) until his death in 1993. It was eventually ruled in the House of Lords that the Artificial Nutrition and Hydration (ANH), that was prolonging him living, should end to allow Bland to “die in dignity” (Court order). This case differs from the Charlie Gard case as both the parents and the doctors thought withdrawing ANH was in Tony’s best interests.

Despite differences, the Bland case elucidates the complexity involved in euthanasia cases in the UK. Was it morally right for the state to prevent Gard’s parents from allowing experimental treatment to be made in the hope of keeping their son alive, despite his physical and mental state? Was it morally right for the court to give consent to the withdrawal of ANH and allow Tony to die? How would the result differ if it was unsure how long he would be in a vegetative state for?

Let us assess one last scenario. Terminally ill man Noel Conway, aged 67, launched a legal challenge for his own right to die. He was diagnosed with motor neurone disease, which has meant his ability to move, dress, eat and even breathe has irrevocably diminished. Noel condemned Section 2(1) of the Suicide Act 1961, which prohibited assisted suicide (voluntary euthanasia) under UK law, outlining his deteriorating quality of life and the prospect of “unimaginable suffering”. As he strongly remarks, “Current law means that I will have no control of how my life ends”.

We are once again asking ourselves where ultimate authority lies in determining the end of one’s life. This global complexity should never be looked on lightly and all cases of similar note should be looked at distinctly and intricately.

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After Taiwan, What’s Next For Asia?

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LGBT rights in Asia

T​aiwan has long been home to Asia’s most spirited LGBT communities, with the hashtag #TaiwanGayMarriageLegalization attracting over 11 million views on China’s Weibo. The country ​has recently joined the United States, Canada and 18 others to rule in favor towards ​constitutional protection of same-sex marriage. But the question of what it symbolises in Asia remains unresolved.

If the law functions to balance the need for stability with the demand for progress, Taiwan’s ​announcement from May acts as a positive testament. The decision favoring constitutional protection confirms growing momentum in the country, where child adoption by unmarried same-sex couples is becoming increasingly popular. Yet until the legislation was passed, only one individual can be recognised as a legal guardian. A condensed look reveals that legalising marriage is bound to cultural and political acceptance more deeply than economic concerns. It implies that the parliament has two years to amend laws regarding same-sex marriages. If not, couples will be permitted to register under the current framework. Both mothers or fathers of the adopted child could be entitled to equal welfare and property benefits.

Around the world, controversies surrounding alternative ideas from LGBT to the businesses of Uber and AirBnB have demonstrated the difficulty of balance. Taiwan’s ruling is undoubtedly a landmark for changing attitudes in Asia, but what does it signify for the rest of the hemisphere, where responses to minority cultural views remain conservative? Although attitudes to homosexuality were relatively liberal during the imperial times in mainland China, the ​Communist revolution in 1949 led to more cautious attitudes. Despite having it removed from the list of “mental disorders” in 2001, the stigma remains. Naturally, responses from China have been two-folded. Some are excited by the milestone, but others remain disheartened to the possibility of achieving legislative change. While many were still rejoicing shortly after the Taiwanese ruling, China’s most iconic lesbian socialising platform ‘Rela’ was shut down without explanation.

Likewise, although LGBT is not prohibited in the South Korean constitution, many remain closeted due to pressure from cultural traditions. But this is understandable, when some of the largest mobile corporations in the country have agreed to ​remove homosexual dating apps on the market, and a presidential candidate openly attacks gay soldiers for “weakening the country’s military.” Whether the rest of Asia could follow Taiwan’s footsteps as the social forerunner is still open to question, and it is certainly unjustified to generalise one of the largest and most diverse continents with a handful of examples. But one can be certain that ​LGBT continues to grow as an influential social dynamic in many Asian societies. ​Although t​he tug of war between traditional cultural views and changing public opinion will persist, ​Taiwan’s ruling could induce a chain effect in the long term.

When asking the youth “what do you dream of the world,” perhaps many would speak of tolerance. Such an abstract idea will undoubtedly carry a fluid definition, but obscurity is both its limitation and its beauty. The road to constitutional desegregation in the United states during in the 20th century was a difficult journey back and forth, and the same will go for LGBT in our time. But acceptance, before any legislative change is the first step that can go a long way. Regardless of whether one is in support of Taiwan’s ruling, it is an optimistic sign that ​societies are increasingly being warmed to the rights of gender and sexuality minorities through activism. It signifies not only acceptance of LGBT, but acceptance of cultural differences and their rights to equality before the law.

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