| 单词 | punishment |
| 释义 | punishment There are various different theories about the nature and purposes of punishment, and these can have quite different implications for sentencing and for penal policy in general. The provisions of the English legal system reflect four main approaches to the issue of punishment, based on ideas of retribution, deterrence, incapacitation, and rehabilitation. The theory of retribution holds that a criminal merits his just punishment because he has done something morally or socially evil. In some forms, the theory implies that the punishment should be proportionate to the harm done, rather than to the moral guilt of the criminal. Ultimately, the retributive view holds that punishment is a requirement of natural law that does not require further justification in terms of outcomes or results (e.g. its effects on the offender or on society at large). However, most modern defences of retribution would emphasize its role in reinforcing the moral values of society and expressing the public’s outrage at certain crimes. The main challenge to the idea of retribution for its own sake comes from the utilitarian view that all punishment is evil, in so far as it adversely affects human happiness, and can therefore only be justified in so far as it prevents greater unhappiness or harm (see utilitarianism). This is the basis of the theory of deterrence, in which the punishment is aimed at deterring the criminal from repeating his offences (specific deterrence) or deterring others from committing similar acts (general deterrence). (See classical school of criminology). Utilitarian theory can also be used to justify the incapacitation of offenders in the public interest. Most obviously, custodial sentences may be required to protect the public from further harm, particularly when the crimes involve violence. This principle has influenced modern approaches to the sentencing of dangerous offenders and repeat offenders and lies behind the practice of electronic tagging. Utilitarian thinking also holds that, where possible, sentences should be designed to assist in the rehabilitation or reform of the criminal. Sentences may therefore involve an element of training or education and may sometimes include a requirement for medical or psychological treatment (e.g. in cases of drug addiction or certain behavioural problems). The idea of rehabilitation is generally accepted in relation to young offenders, and is also reflected in the system of parole, under which the length of a period of detention may be made dependent on the offender’s good or bad behaviour (see spent conviction). Legislators and judges have to bear in mind all these concepts in laying down and applying sentences. For example, the extent to which crimes should be punished without proof of intention or recklessness (e.g. crimes of negligence and strict liability) depends on which theory of punishment one adopts. Parliament has created a large number of so-called regulatory offences (e.g. road traffic offences and offences relating to production of food), which usually do not involve moral guilt and are often punished despite the absence of mens rea. It is also a matter of considerable controversy whether or not the criminal law should punish morally objectionable conduct that does not obviously harm anyone (e.g. corruption of public morals). The European Convention on Human Rights (signed 1950) forbids the use of “inhuman or degrading” punishment; this prohibition is now part of UK law as a consequence of the Human Rights Act 1998 (see degrading treatment or punishment; inhuman treatment or punishment). Similarly, the prohibition on the use of arbitrary punishment, as set out in Article 7 of the Convention, is now incorporated into the Human Rights Act. This provision makes unlawful the use of criminal penalties that are not sufficiently prescribed by law or were not in place at the time of the alleged offence. |
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