The Fundamental Dilemma Of The Criminal Justice System

The fundamental dilemma of the Criminal justice system is the question; “What is the purpose of punishment?” British philosopher, economist, jurist, and social reformer Jeremy Bentham once said; “All punishment is mischief: all punishment in itself is evil”[1]. What is the purpose of punishing offenders?  Why do we have prisons? These are surprisingly difficult questions; however the following reasons may be put forward;


1.      RETRIBUTION: Retribution is something done or given to somebody as punishment or vengeance for something he or she has done.  The purpose of retribution is to restore the moral balance of society. Because a criminal has caused innocent victims to suffer, proponents of retribution believe it is morally necessary that the offender suffers in turn. It is important to note that punishment as retribution is not a means of reducing crime. Retribution is the oldest of the five rationales for punishment “An eye for an eye”. Over the past two centuries, it however lost substantial popularity. As modern societies sought ways to reduce crime, simple retribution came to be seen as bloody-minded and barbaric. But perceived increases in crime may have eroded people’s faith in the efficacy of crime-control measures and led to a resurgence of retributive thinking.

2.      DETERRENCE: The logic of deterrence rests squarely on the classical theory of criminality discussed earlier. If potential offenders think carefully and rationally about the risks and benefits of their actions and decide to violate the law only if the positives outweigh the negatives, then strengthening the penalties will reduce the crime rate[2]. The process of deciding whether the benefits of the crime outweigh the possible punishment of being caught is often referred to as moral calculus.

Specific deterrence is punishment of a particular individual intended to keep him or her from violating the law in the future. General deterrence shows people who have yet to commit crimes what is done to offenders in the hope that they will decide to not break the law. According to the deterrence theory, five conditions must be met for a sanction to effectively promote deterrence. First, punishment must be certain. It should also be swift, public (so that general deterrence can operate), and perceived as just. Finally, punishment should be severe enough to outweigh the rewards of the crime.[3]

The Yoruba people of the South-western part of Nigeria for instance, placed emphasis on deterrence philosophy. An adage says “elese kan ko ni lo lalai jiya”, meaning “no offender shall go unpunished”[4]. Hence, emphasis is placed on crime detection and punishment. While heinous crimes attract death penalty, social crimes generally attract corporal punishment like flogging, whipping, tying, banishment, castration or emasculation, etc[5]

Does deterrence work? This question has aroused passionate debate. Supporters point to research that shows criminals generally avoid victimizing individuals they know to be armed, which implies that, they are rational enough to avoid crime if the price tag is high enough.[6] Opponents of this view, point to the United States which has severe criminal penalties yet a very high crime rate[7]. They argue that this shows that deterrence theorists overestimate the rationality of criminals.[8]



3.      REHABILITATION: The growth of positivism in the social sciences led directly to the concept of rehabilitation. If the decision to commit crime is caused by some combination of logical, psychological and sociological variables, then therapeutic intervention should be able to “cure” the criminal. This optimistic philosophy has played an important role in criminal justice for most of the past two centuries, as is suggested by the use of words like; “reformatory” and “correctional institution”

         Critics charge that the fact that between 60 to 75 percent of all offenders commit new crimes within three years after they are released from correctional institutions proves that efforts at rehabilitation are usually futile.[9] Some go further claiming that the very idea of rehabilitation excuses criminals from full responsibility for their acts.[10]

Do prisons as they are now run rehabilitate? As differential association theory suggests, if prisoners associate primarily with other unreformed offenders, then the only thing they are likely to learn is how to become better criminals. Could prisons rehabilitate? Perhaps, We do know that inmates who participate in well-constructed vocational and educational programs are substantially less likely to return to prison.[11]

The existence of the death penalty in any society raises one underlying question. Have we established our judicial system out of a desire to rehabilitate or out of a desire of retribution? We cannot rehabilitate a person by killing him or her. Although the criminal justice system attempts to mete out punishment that fits the crime, it is however, strange that a Nation would denounce murder by committing the exact same act. It is said that “an eye for an eye would make the whole world blind”. Supporters of the death penalty like Bruce Fein say; “The death penalty honours human dignity by treating the defendant as a free moral actor able to control his own destiny for good or for ill. It does not treat him as an animal with no moral sense”. While Brennan J. sees; “Death as… an unusually severe punishment, unusual in its pain, in its finality and in its enormity… The fatal constitutional infirmity of the punishment of death is that it ‘treats members of the human race as non-humans, objects to be toyed with and discarded”[12].

4.      INCAPACITATION/PROTECTION:  In the 1970s, many observers began to doubt whether prisons could either deter or rehabilitate, some sceptics began to argue that “nothing works”.[13] But prisons can at least perform the function of incapacitation. We can keep the most dangerous criminals locked away where they cannot hurt anyone except, of course, each other. Criminologist, James Q. Wilson[14] wrote “Wicked people exist, nothing avails except set them apart from innocent people”. When we take criminals off the streets, they will not be able to commit further crimes (at least not on the streets), and society is protected. However, only a few of the most violent criminals are off the streets forever. The average time spent in a state prison is 2 years and 3 months. Many social scientists argue that during those months, the criminals are in “crime school”, with seasoned professionals teaching them how to commit more and better crimes[15].





[1] An Introduction to the Principles of Morals and Legislation

[2] Gibbs 1975

[3] Klepper & Nagin 1989, Paternoster 1989, Sherman & Berk, 1984

[4] Balogun, 2009:45

[5] Ajisafe, 1946:35

[6] Greenberg & Kessler, 1982; Hook 1989, Pontell 1984

[7] Savelsberg 1994

[8] Aday 1989, Chambliss 1994, Pepinsky & Quinney, 1993

[9] Wilson 1983

[10] Methvin 1997

[11] Keller & Sbarbaro 1994

[12] Gregg v. Georgia.

[13] Martinson, 1974

[14] 1983

[15] Califano 1998

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