I’ve often wondered about the theory of criminal punishment. How long should sentences be? For which crimes and external circumstances should people be let off, for which should there be alternative punishments, like civic work, or a fine instead of jail time. I’ve a few ideas, but here are some thought cases:
Someone steals an expensive handbag from a clothing store. What should the punishment be for (a) a ghetto black with no job, (b) a middle-class, college sophomore (c) a famous actress? Should it be the same for all? Is jail the best punishment — it costs money, and doesn’t help the criminal or the store. If jail, how long is appropriate? Should the length of stay correspond to the cost of the bag? If the punishment is money or civic service, how should the fine vary with the wealth of the thief, or if the person is a repeat offender? Many countries have corporal punishment — why or why not?
My sense is that sentences should be shorter for less-expensive items, and longer for more expensive. My sense is that a fine or civic service is appropriate for most first offenses, and while jail seems necessary for serious crimes, if only to keep criminals off the streets, the sentences should be reasonably short and include rehabilitation. I suspect that long sentences don’t help the criminal or society. I suspect that victimless crimes, e.g. prostitution or drug sales should have very short sentences or non-jail punishments, and I’m not quite sure what to do if the thief reforms in prison or appears to.
Regarding prostitution perhaps it should be policed by the clergy, that’s why they get tax breaks. And why is sex between consenting adults punished as prostitution if money changes hands but not otherwise, or if the only pay is dinner? Why should the professional offender (the prostitute) pay more than the casual (the john). Why is drug use punished more than alcohol. Many drug and alcohol users live happy productive lives. To the extent that these crimes should be punished, it seems to me that fines, community service, or corporal punishment might be appropriate — I can not see prison healing a moral failing or reforming a victimless criminal.
And then there is rape. As a crime, the definition of rape has a long slippery slope, but the punishment does not. It isn’t quite clear where consensual become criminal, but the punishment is strict and undivided. We treat some cases as extreme crimes and others are let completely free. We have cases where the sex-criminal man or woman marries his or her underage partner, but is still guilty of statutory rape, and is then listed forever as a sex-criminal.
Children under 21 can not drink alcohol in the US, but they can in many other countries, and in some countries even older people can not drink at all. Is Saudi Arabia a very productive country; is Germany falling apart because of young drinkers? It seems not, so why is 21 the drinking age when you can choose to marry or join the army at 18. Soldiers are allowed to drink earlier than non-soldiers, but young marrieds are not afforded the same benefit. I don’t see why. The punishment for underage drinking varies too, as does the punishment for underage driving.
The Bible has some enlightened ideas on punishment, prescribing the use of fines of double or four or five times the value going to the victim (the thief pays 4 times for a stolen sheep, 5 times for a stolen cow, for example), but in other cases, it’s positively draconian prescribing death for homosexuality, violating the sabbath or for taking God’s name in vain. A seducer has to marry his seducee, but can not divorce her (assuming she agrees) but what if it’s an unhappy marriage? There is no room for judicial leniency in the bible, but there is in traditional applications; I’m not sure that’s not an improvement.
Robert E. Buxbaum, May 30, 2014. I’ve been wondering about the theory of appropriate punishment for at least 35 years. Are we protecting society, extracting vengeance, helping the criminal or doing some vague combination. My sense is we’re just bumbling blindly, and sorry to say, I have no answers.