Classical Criminology Theory

The status= of retribution as a subject of criminology theory testing is similar to the original position of the deterrence theory prior to empirical testing - deb= ate and discussion on philosophical and moral grounds. The study data that are available involve use of public opinion surveys to assess the role of retribution in = the death penalty. This section on retribution will discuss the philosophical and criminological theory applications of the retribution theory, while the public opinion view will = be reflected in the later section so titled.&= nbsp;

Dolinko (1= 991) classifies the “retributivist as a person who explains either the rational justification of punishment, or its moral justification, or both, = by appealing to the notion that criminals deserve punishment rather than to the consequentialist notion that punishing offenders yields better results than= not punishing them” (p. 541-42). He continues in his classification by denoting two types of retributivists - the bold who “asserts both that lawbreakers deserve punishment and that this ... constitutes a good or sufficient reason for the state to inflict punishment on them” or the modest which “invol= ves doing to wrongdoers things that we ordinarily think of as violating people’s rights ... is morally permissible because it is what wrongdo= ers deserve” (p. 542-43). <= /p>

According = to Tunick (1992), retributivists argue that society must “punish those w= ho do wrong, even if it diminishes social utility, because justice demands tha= t we punish” (p. 68). Tunick considers explanations and rationalizations for retribution: revenge, condemnation, and just deserts. Retribution is not s= olely the basest emotion of revenge, but Hegel notes that in “rational mode= rn states revenge is too contingent and arbitrary and subjective to serve just= ice or right” (p. 88). Hege= l sees revenge as subjective; “it derives from feelings of anger and resentm= ent within an individual” (p. 88), while Burns describes punishment as “an expression of anger,” not from “within the hurt victim but within society” and is expressed by a “righteous anger, an anger ‘somehow connected with justice’ ” (p. 88).

The second= version of retribution establishes that society does not punish to “deter, incapacitate, reform, or satisfy a private desire for vengeance; rather, punishment is justified as an expression of society’s condemnation of= the offensive act” (Tunick, p. 90). Feinberg argues:

“punishment is a conv= entional device for the expression of attitudes of resentment and indignation, and of judgments of disapproval and reprobation, on the part either of the punishi= ng authority himself or of those ‘in whose name’ the punishment is inflicted. Punishment, in short, has a symbolic significance largely missing from other kinds of penalties” (p. 91-2).

The ration= ale that retribution is just deserts for the convicted is best exemplified by von Hirsch, who explains “[w]hile deterrence accounts for why punishment = is socially useful, desert is necessary to explain why that utility may justly= be pursued at the offender’s expense” (Tunick, p. 102). “In the just deserts theory, desert and deterrence are both essential features of punishment. That someone deserves punishment d= oes not imply that we must punish him, only that we have reason to do so. Because there are moral reasons no= t to punish, deterrence is needed to ‘tip the scales back in favor of penal sanction’ ” (p. 102).

Public Opinion

Ellsworth = and Gross in a 1994 article, found that general public opinion findings about attitudes toward the death penalty are important and they gave two reasons = why this is so. First, “the= legal status of the death penalty in the United States depends on popular support, actual and perceived” (p. 91, reprinted in Bedau, 1997)= ^{^[iii]}. The necessity of public support was evident in the 1972 Furman v. Georgia U.S. Supreme Court ruling, whe= re the Court held, “the legality of capital punishment depends on its acceptability under contemporary standards” (Ellsworth and Gross, p. 91). The use of public opinio= n was further evidenced by the finding that at the time of the Furman ruli= ng, which abolished the death penalty, public opinion was evenly split over sup= port for the death penalty, but at the time of the Gregg decision, which reinstated the death penalty, public opinion was overwhelmingly in favor of= the death penalty. Whether this is evidence of public opinion coercing a body - the U.S. Supreme Court - that should not be subject to such influence, or simply a matter of democracy in action is debatable.

Second, “general opinions about the death penalty are subjectively important = to many, perhaps most, people in this society” (p. 92). Ellsworth and Gross hypothesized t= hat people do not necessarily have opinions on the death penalty, but are choos= ing sides in the argument. Attitu= des about the death penalty are a mixture of self-identification and societal influence.

According = to Ellsworth and Gross, prior to 1970, researchers did not ask why peop= le supported the death penalty, only if they supported it. Deterrence and retribution have be= en among the more common rationales for public opinion support of the death penalty. The belief in the deterrent capacity of the death penalty remained around 60% for the time pe= riod 1972-1991, yet in that time, survey results revealed that the public would still support the death penalty if it “does not lower the murder rate,” (p. 96) with results showing 72%, 73%, and 69% agreeing with t= hat statement in polls. Therefore= , the lure of the deterrent effect of the death penalty has been weakened in the public eye.

Retribution questions, however, are more likely to be phrased differently and measured differently than deterrence questions.&nbs= p; Ellsworth and Gross found that retribution question phrasing can be “in terms of a principled belief in justice, a merciless passion of revenge, or anywhere in between”

(p. 97). As evidence of retribution surpass= ing deterrence in its effect, retribution (“a life for a life”) has been a more popular rationale for the death penalty than deterrence since 1= 981 (p. 97).

Perhaps th= e most relevant form of public opinion is the capital jury. The jurors in these cases, as well= as all other cases in civil and criminal law, are members of the community and= the general public. In capital ca= ses, their opinions about the use and effectiveness of the death penalty should = be of the most interest to those who would study the public perception of the death penalty. The Capital Ju= ry Project, initiated in 1990, attempts to understand the context of the jury’s decisions in death penalty trials. Through post-trial questioning of = the jurors about their thoughts throughout the trial, the Project hopes to determine the inner workings and decision-making of the jury.

The inter= views cover the entire experience of the juror, from the jury selection phase thr= ough the juror’s emotional reactions after the trial ended. The interviews are audiotaped and = range in length from two to eight hours. The interview data are being entered into a computer for quantitative analysis, and the audiotapes are providing rich material for qualitative analysis (Bedau, p. 336).

Once the f= inal findings of the Capital Jury Project have been published, the implications = for public opinion research are boundless and of tremendous significance.

The U.S. Supreme Court a= nd the Death Penalty

In the U.S. Supreme Court decision, Furman v. Georgia (1972), the death penalty = was found unconstitutional due to lack of standards in its administration. The Court held that death penalty legislation must be rational, and must meet rational ends of punishment, wh= ich are incapacitation, deterrence, rehabilitation, and retribution. Justice Marshall rejected retribution as a rationale, but accepted deterrence. Justice Powell held that retributi= on was permissible, but an unworthy rationale (Beschle, 1997). In deciding such a momentous case,= the Court notes the tremendous weight and implication of their decision, “= ;[D]eath is truly an awesome punishment. The calculated killing of a human being by the State involves, by its very natu= re, a denial of the executed person’s humanity” (Bedau, p. 191 - ta= ken from Furman v. Georgia [1972]).&nbs= p; The Court continues to lash out at the death penalty and concludes w= ith the following: “The punishment of death is inconsistent with ... four principles: Death is an unusually severe and degrading punishment; there is= a strong possibility that it is inflicted arbitrarily; its rejection by contemporary society is virtually total; and there is no reason to believe = that it serves any penal purpose more effectively than the less severe punishmen= t of imprisonment” (p. 194-5 - taken from Furman v. Georgia).

Richard Ro= sen (1990) offers an interpretation of the influences that led to the CourtR= 17;s decision in Furman. He believes that the justices were “neither concerned with the individual cases before them nor with the particular idiosyncracies of the state procedures that produced the specific death penalties. Instead, their conce= rns were more global, and their opinions reflected a condemnation of the nation= wide system for imposing the death penalty” (p. 5-6).

In Greg= g v. Georgia (1976), the death penalty is reinstated and the states’ d= eath penalty legislation are given guidance by the Court: a two stage trial (guilt-finding and sentencing) was mandated and aggravating circumstances m= ust decide which cases are death penalty-eligible cases, by these circumstances being listed in the statutes for capital murder. “The death penalty is said to serve two principal social purposes: retribution and deterrence of capital crimes by prospective offenders. In part, capital punishment is a reflection of society’s moral outrage at particularly offensive conduct” (Bedau, p. 200 - taken from Gregg = v. Georgia [1976]). The Court continues,

[R]etribu= tion is no longer the dominant objective of the criminal law, but neither is it a forbidden objective nor one inconsistent with our respect for the dignity of men. Indeed, the decision that capital punishment may be the appropriate sanction in extreme cases is an expression of the community’s belief = that certain crimes are themselves so grievous an affront to humanity that the o= nly adequate response may be the penalty of death

(p. 200 -= taken from Gregg v. Georgia).

The Court = notes that the debate over the deterrent effects of the death penalty is inconclu= sive and allows for that debate to continue in the state legislatures.

Summary and Discussion

The classi= cal criminologists, Beccaria and Bentham, had a marked effect on the ideas and philosophy of the time in which they were writing, and continue to exert an influence today. Whether thro= ugh the idea of deterrence, which commands a lesser prominence in criminology theory than it once enjoyed, to the notion of retribution, which is seeing a resurgence in its prominence, the classical school of theory is as important today as it was over two centuries ago.