Modern Penology

Philosophical justification
One way of explaining the theory of justification is to say that a justified belief is
one that we are "within our rights" in holding. The rights in question are neither political
nor moral, however, but intellectual.
In some way, each of us is responsible for what we believe. Beliefs are not
typically formed completely at random, and thus we have an intellectual responsibility,
or obligation, to try to believe what is true and to avoid believing what is false. An
intellectually responsible act is within one's intellectual rights in believing something;
performing it, one is justified in one's belief.
Thus, justification is a normative notion. The standard definition is that a concept
is normative if it is a concept regarding or depending on the norms, or obligations and
permissions (very broadly construed), involved in human conduct. It is generally
accepted that the concept of justification is normative, because it is defined as a
concept regarding the norms of belief.
1

Different theories of justification require different amounts and types of evidence
before a belief can be considered justified. Interestingly, theories of justification
generally include other aspects of epistemology, such as knowledge.
The main theories of justification include:
Coherentism - Beliefs are justified if they cohere with other beliefs a person
holds, each belief is justified if it coheres with the overall system of beliefs.
Externalism - Outside sources of knowledge can be used to justify a belief.
Foundationalism - Self-evident basic beliefs justify other non-basic beliefs.

1
Robert J. Fogelin, Pyrrhonian Reflections on Knowledge and Justification, Oxford University Press, 1994
Foundherentism - A combination of foundationalism and coherentism, proposed
by Susan Haack.
Infinitism - Beliefs are justified by infinite chains of reasons.
Internalism - The believer must be able to justify a belief through internal
knowledge.
2

Utilitarianism
The description ideal utilitarianism was first used by Hastings Rashdall in The
Theory of Good and Evil (1907) but is more often associated with G. E. Moore. In Ethics
(1912), Moore rejected a purely hedonistic utilitarianism and argued that there is a
range of values that might be maximized. Moores strategy was to show that it is
intuitively implausible that pleasure is the sole measure of what is good. He says that
such an assumption involves our saying, for instance, that a world in which absolutely
nothing except pleasure existedno knowledge, no love, no enjoyment of beauty, no
moral qualitiesmust yet be intrinsically betterbetter worth creatingprovided only
the total quantity of pleasure in it were the least bit greater, than one in which all these
things existed as well as pleasure.
3

It involves our saying that, even if the total quantity of pleasure in each was
exactly equal, yet the fact that all the beings in the one possessed in addition
knowledge of many different kinds and a full appreciation of all that was beautiful or

2
David Miller, "Critical Rationalism: A Restatement and Defense, Open Court Publishing, 1994
3
Donner, Wendy (1991). The Liberal Self: John Stuart Mill's Moral and Political Philosophy, Ithaca, NY:
Cornell University Press.
worthy of love in their world, whereas none of the beings in the other possessed any of
these things, would give us no reason whatever for preferring the former to the latter.
4

Moore admits that it is impossible to prove the case either way but believed that it
was intuitively obvious that even if the amount of pleasure stayed the same a world that
contained such things as beauty and love would be a better world. He adds that if
anybody took the contrary view then I think it is self-evident that he would be wrong.
In the mid-twentieth century a number of philosophers focused on the place of
rules in utilitarian thinking. It was already accepted that it is necessary to use rules to
help you choose the right action because the problems of calculating the consequences
on each and every occasion would almost certainly result in you frequently choosing
something less than the best course of action. Paley had justified the use of rules and
Mill says that it is truly a whimsical supposition that, if mankind were agreed in
considering utility to be the test of morality, they would remain without any agreement
as to what is useful, and would take no measures for having their notions on the subject
taught to the young, and enforced by law and opinion to consider the rules of morality
as improvable, is one thing; to pass over the intermediate generalisations entirely, and
endeavour to test each individual action directly by the first principle. The proposition
that happiness is the end and aim of morality. It does not mean that no road ought to be
laid down to that goal. Nobody argues that the art of navigation is not founded on
astronomy, because sailors cannot wait to calculate the Nautical Almanack.
5
Being
rational creatures, they go to sea with it ready calculated; and all rational creatures go

4
Darwall, Stephen (1995). Hume and the Invention of Utilitarianism, University Park, PA: Penn State
University Press.
5
Driver, Julia (2004). Pleasure as the Standard of Virtue in Hume's Moral Philosophy. Pacific
Philosophical Quarterly., 85: 173-194.
out upon the sea of life with their minds made up on the common questions of right and
wrong.
However, rule utilitarianism proposes a more central role for rules that was
thought to rescue the theory from some of its more devastating criticisms, particularly
problems to do with justice and promise keeping. Throughout the 1950s and 1960s
articles were published both for and against the new form of utilitarianism and through
this debate the theory we now call rule utilitarianism was created. In an introduction to
an anthology of these articles the editor was able to say, The development of this
theory was a dialectical process of formulation, criticism, reply and reformulation; the
record of this process well illustrates the co-operative development of a philosophical
theory.
6

Smart and McCloskey initially used the terms 'extreme' and 'restricted'
utilitarianism but eventually everyone settled on the terms 'act' and 'rule' utilitarianism.
The essential difference is in what determines whether or not an action is the right
action. Act utilitarianism maintains that an action is right if it maximises utility; rule
utilitarianism maintains that an action is right if it conforms to a rule that maximises
utility.
7

In 1953, Urmson published an influential article arguing that Mill justified rules on
utilitarian principles. From then on, articles have debated this interpretation of Mill. In all
probability, it was not a distinction that Mill was particularly trying to make and so the
evidence in his writing is inevitably mixed. A collection of Mills writing published in 1977
includes a letter in which he says, I agree with you that the right way of testing actions

6
Gay, John (1731). A Dissertation Concerning the Fundamental Principle and Immediate Criterion of
Virtue in Frances King's An Essay on the Origin of Evil, London.
7
Ibid.
by their consequences, is to test them by the natural consequences of the particular
action, and not by those which would follow if everyone did the same. But, for the most
part, the consideration of what would happen if everyone did the same, is the only
means we have of discovering the tendency of the act in the particular case.
8

This seems to tip the balance in favour of saying that Mill is best classified as an
act utilitarian. Some school level textbooks and at least one UK examination board
make a further distinction between strong and weak rule utilitarianism. However, it is not
clear that this distinction is made in the academic literature. It has been argued that rule
utilitarianism collapses into act utilitarianism, because for any given rule, in the case
where breaking the rule produces more utility, the rule can be refined by the addition of
a sub-rule that handles cases like the exception. This process holds for all cases of
exceptions, and so the rules have as many sub-rules as there are exceptional cases,
which, in the end, makes an agent seek out whatever outcome produces the maximum
utility.
9

Retributivism
A just sentence is a proportionate sentence. That is, a sentence that is
appropriate to the offense, taking into account a multitude of discrete factors, including a
persons life circumstances. A good judge does not have a linear sentencing
philosophy. Judges sentence people, not robots, and every case presents with its own
unique facts and circumstances.

8
Gill, Michael (2006). The British Moralists on Human Nature and the Birth of Secular Ethics (New York:
Cambridge University Press).
9
Hruschka, Joachim (1991). The Greatest Happiness Principle and Other Early German Anticipations of
Utilitarian Theory, Utilitas, 3: 165-77.
Life circumstances are relevant but should not tip the scales of justice so unevenly that
the resulting sentence would seem too many as unjust.
A sentence should achieve proportionality. And striking the right balance
depends oftentimes on competing sentencing philosophies: utilitarianism and
retributivism. A utilitarian approach would tend to limit a persons life circumstances as a
sentencing factor. The paramount concerns under this sentencing philosophy would be
meting out a sentence that protects society and achieves general deterrence even if it is
done at the expense of the offender. On the other hand, a retributivist is typically more
concerned about a persons background since a central tenet is the offenders moral
culpability and responsibility. These are complex issues that have confounded
philosophers and jurists for thousands of years.
10

Within these two competing philosophies exist several sentencing theories, which
are not necessarily compatible with each other. This includes the publics and the
victims demand for retribution (just deserts), incapacitation (if appropriate),
deterrence, both specific and general, and rehabilitation. In weighing and evaluating
these goals a relevant part of the sentencing calculus should include a persons life
circumstances regardless of where he or she may fall on the socioeconomic scale.
However, it should not be at the expense of proportionality especially when the crime is
particularly serious. Unfortunately, the voices of victims, as well as the impact a

10
Adam Roberts, ed. The Strategy of Civilian Defence: Non-violent Resistance to Aggression, Faber,
London, 1967. (Also published as Civilian Resistance as a National Defense, Stackpole Books,
Harrisburg, USA, 1968; and, with a new Introduction on "Czechoslovakia and Civilian Defence", as
Civilian Resistance as a National Defence, Penguin Books, Harmondsworth, UK, and Baltimore, USA,
1969.
particular crime may have had on the publics legitimate need to feel secure sometimes
gets lost in the debate.
11

A judge should strive to achieve balance in a sentence. This balance should
include consideration of the above-mentioned sentencing concepts. A person's life
circumstances are relevant but as a general rule should not tip the scales of justice so
unevenly that the resulting sentence would seem to many as unjust. An unjust
sentence, at either extreme, fuels the cynicism and mistrust many have for our criminal
justice system.
12

Social Defense
Menzies Lyth used the term social defence system in her classical paper from
1959, referring to a hypothetical construction which described certain features of the
(nursing) organisation as an existing social institution. What characterises the social
defence system, as she describes it, is that it aims to help an individual to avoid the
experience of anxiety, guilt, doubt or uncertainty. She made it clear, however, that she
did not think the (nursing) organisation as an institution carried out this defence.
Defence can only be carried out by individuals. Behaviour is however the connection
between the individuals mental defence and the institution, she said.
Social defence occurs when a group of people unconsciously collude to protect
themselves against anxiety and tension at their work place, often at the expense of
carrying out their real task. In other words, the social defence system is all about how
organisations can protect against mental pain. The psychoanalyst John Steiner (1985)

11
Heinz Vetschera, Soziale Verteidigung, Ziviler Widerstand, Immerwhrende Neutralitt, Wilhelm
Braumller, Vienna, 1978.
12
Gene Sharp, Social Power and Political Freedom, Porter Sargent, Boston, 1980, pp. 195-261. ISBN 0-
87558-093-9 (paperback); and Civilian-based Defence: A Post-military Weapons System, Princeton
University Press, 1990.
describes a function which he calls turning a blind eye. The social defence system can
be about turning a blind eye to difficult emotions, topics or relations. The result is an
undermining of necessary activities and genuine emotions.
A social defence system, then, has its origin in anxiety, which one envisages as
projected and given an independent existence in the social structure and culture of the
organisation. The social defence system develops slowly and gradually becomes a part
of the external reality (the schools structure and culture) which old and new teachers
alike must adhere to.
13

The term "social defence" is used to describe non-military action by a society or
social group, particularly in a context of a sustained campaign against outside attack or
dictatorial rule - or preparations for such a campaign in the event of external attack or
usurpation. There are various near-synonyms, including "non-violent defence", "civilian
defence", "civilian-based defence", and "defence by civil resistance". Whatever term is
used, this approach involves preparations for and use of a range of actions - which can
be variously called nonviolent resistance and civil resistance - for national defence
against invasion, coup d'tat and other threats.
14

Deterrence
The deterrence hypothesis remains a key intellectual foundation for Western
criminal law and criminal justice systems. Today, the idea that sanctions deter criminals
has influenced penal sanctions in death penalty cases and other areas of criminal
sentencing. Adherents of the deterrence theory have consistently favored policies such

13
Bain, A. (1998). Social Defenses Against Organizational Learning. Human Relations, 51(3), 413-429.
14
Gene Sharp, Social Power and Political Freedom, Porter Sargent, Boston, 1980, pp. 195-261. ISBN 0-
87558-093-9 (paperback); and Civilian-based Defence: A Post-military Weapons System, Princeton
University Press, 1990.
as three strikes laws, establishment of more prisons, increased penalties, longer
sentencing severity, certainty of conviction and sentencing, and the hiring of more police
officers. Together, these policies would control and reduce the recidivism (a return to
the life of crime) of offenders who have been convicted, and curtail the participation in
crime by future offenders. Yet, despite the merits of the deterrence argument, and until
1968 when criminologists started again to test the deterrence hypothesis, empirical
measurement of the theory have been scant. Prior to the 1960s, studies focused only
on the philosophical ideas of the deterrence doctrine, its humanitarian orientation, and
its implications for punishment.
15

One popular research endeavor that actually tested the deterrence theory in
1968 concluded that homicide might be deterred by both certainty and severity of
punishment. In research conducted in 1969, criminologist Charles Tittle found support
for the theory and concluded that that the certainty of imprisonment deters crime but
that severity can only deter crime when certainty of punishment is reasonably
guaranteed. Other studies in the 1970s have also challenged the validity of the earlier
empirical findings, arguing instead that variations in police record keeping could account
for the results on certainty.
16

When it comes to celerity of punishment, prior and current studies have generally
avoided its inclusion in deterrence measurement. Most important, much of the empirical
analysis of the deterrence value has been focused on whether capital punishment
deters potential offenders from engaging in homicide acts. Collectively, the empirical

15
Jacoby, J. E. (Ed.). (1994). Classics of criminology. Prospect Heights, IL: Waveland.
16
Nagin, D. S. (1998). Criminal deterrence research at the outset of the twenty-first century. In M. Tonry
(Ed.), Crime and justice: A review of research (pp. 142). Chicago: University of Chicago Press.
results of the death penalty studies have concluded that the death penalty does not
deter murder.
17

Reductivism
Probation
The origins of what is today known as probation can be traced to early English
practices, and experienced a gradual development until the 19th century. During the
1880s, significant contributions were made by several other countries. In the 1870s, it
began to receive acceptance in the USA. However, essentially it developed from the
beginning of the twentieth century, although for various reasons and in varying degrees
throughout Europe and North America.
Probation has its origins in two distinct traditions, common and civil law, but its
historical development was also influenced by the development of the juvenile justice
system, positivism in criminology and ideologies of control outside of the criminal
justice system. In the historical perspective, probations evolution reflects tensions
between care, control and custody, discretion and individualism versus legalism, and
rehabilitation/reintegration as opposed to repression.
18

From the 1800s to the present day, probation officers have tried in various ways
to reform, remake, remould and restructure the lives of offenders into good, honest, law
abiding citizens. It was after the Second World War, however, that the majority of strides
were made that led to the development of the complex and modern probation service
structures that now exist. It was a time of great optimism in the efficacy of social work

17
Nagin, D. S. (1998). Criminal deterrence research at the outset of the twenty-first century. In M. Tonry
(Ed.), Crime and justice: A review of research (pp. 142). Chicago: University of Chicago Press.
18
International Penal Law.Allen, H.E., Carlson, E.W. and Parks, E.C. (1979) Critical Issues in Adult
Probation. gton, D.C.: U.S. Government Printing Office.
with offenders to achieve the perfectibility of man and probation officers in the 1960s
were part of a criminal justice system which was moving towards the rehabilitative ideal.
(Whitehead 1990: 6) Casework was the social work method by which the rehabilitation
of offenders was attempted. In later years, probation officers resorted to other
techniques, including group work, community work, task-centred work, family therapy,
behavioural contracts, transactional analysis, reality therapy, behaviour modification and
social skills, to name a few.
19

Social and psychological research on punishment
The psychological analysis of punishment focuses on the question why people
tend to punish behavior that violates legal or informal norms of society. The diversity of
needs and calls for sanctions is dependent upon specific features of the offense and the
offender, on features of the person who intends to punish, as well as on the interaction
of both, that is the interplay of situational and personal variables. Furthermore, this
dynamic is influenced by the cultural context in which it is embedded.
20

With respect to judicial decisions, the influence of case specific features can also
be investigated by analyzing sentencing decisions. Although this has the advantage that
real decisions are analyzed, this method has to face the problem of controlling the
variability in the cases that different judges and jurors have to decide on. Of the variety
of features that have been investigated using the vignette technique, the following have
reliably often been shown to influence the assigned punishment: First, aspects of
intentionality and controllability of the offensive behavior influence the attribution of

19
Beha, J., Carlson, K., and Rosenblum, R. (1977) Sentencing to Community Service. Washington, DC:
National Institute of Law Enforcement and Criminal Justice, U.S. Department of Justice.
20
Carlsmith, Kevin M., J. M. Darley, and P. H. Robinson. (2002). "Why Do We Punish? Deterrence and
Just Deserts as Motives for Punishment." Journal of Personality and Social Psychology 83: 284-299.
blame, and are thus related to the harshness of punishment. Second, demands for
punishment increase with the severity of damage done to the victim, and are higher for
perpetrators who have prior criminal records. These and the general pattern of results
indicate that lay people in general do take legal criteria into account. However,
psychological research has also revealed that aspects such as gender, race,
attractiveness of the persons involved, or harshness of the sentence demanded by the
prosecutor, which should be irrelevant from a legal point of view, can influence the
judgmental process. This is true especially if people are not sufficiently motivated, or
unable to process available information in a systematic and rational way, or if they are
unaware of possible biasing influences, such as mood or implicitly activated
stereotypes. A further variable that is of psychological interest is the similarity between
offender and judging person. From the psychoanalytically based scapegoat hypothesis,
it can be derived that similarity should increase the harshness of punishment. However,
empirical research suggests that similarity leads to more lenient reactions (similarity-
leniency hypotheses), a bias that is compatible with the social psychological notion of
ingroup-favoritism.
21

Cultural significance of punishment in a society
Kants test of justifiable coercion (TJC) is a carefully worded criterion that, as
indicated above, amounts to something substantially short of retributivism. A hindering
of a hindrance to freedom may be a necessary condition for punishment, but not a
sufficient one. The effect of asserting the conjunction of premises is the substantial

21
Vidmar, Neil. (2001). "Retribution and Revenge." In Handbook of Justice Research in Law, edited by
Joseph Sanders and V. Lee Hamilton. New York: Kluwer, 31-63.
undercutting of the normative force that could be exercised on behalf of the moral
asymmetry between the criminal and the victim.
22

The arguments that punishment is not a curtailment of freedom vary across
justificatory approaches. Fundamentally, though, these arguments rely on a conception
of freedom that corresponds broadly to the Kantian notion of freely-willed autonomous
choice, and draw their conclusion from the claim that the criminal freely wills her
punishment. The central importance of the criminals being an end makes establishing
that claim a moral prerequisite for the compliance of the practice of punishment with
moral law: as rational beings, they [human beings] ought always at the same time to be
rated as ends that is, only as beings who must themselves be able to share in the end
of the same action (Kant 1964, p. 97).
The requirement that criminals be able to share in the end of punishment, and,
correspondingly, that punishment be willed freely by the criminal, must, however, be
understood correctly. Its substance is not that any individual will is a constraint, but
rather that only that will which is itself universalizable is: every will... is restricted to the
condition... that it be subjected to no purpose which is not possible by a law which could
arise from the will of the passive subject itself (Kant 1996, p. 108). Requiring that the
criminal will her punishment freely, thereby acting as a rational co-legislator in the
kingdom of ends and not as a criminal, ensures that the relevant decision is made by
the criminal not on behalf of her will qua criminal but rather on behalf of her will qua co-
legislator. The fact that the appropriate criterion for this decision (universal moral law) is

22
Kant, Immanuel. 1949. Critique of Practical Reason. In Kant, Critique of Practical Reason and Other
Writings in Moral Philosophy. Trans. L. W. Beck. University of Chicago Press.
public and known makes the criminals decision itself public and open to criticism,
preventing the possibility of her abuse of first-person authority.
23

Case study one (1) Profile of an offender
Objectives of Probation
Two kinds of objective are identified: an organizational objective concerned with
efficiency, and a functional objective concerned with the effectiveness of the service.
Increasing responsibilities in respect of social enquiry work, parole, after-care and
prison welfare have been absorbed remarkably smoothly during the 1960s, and even
the inevitable administrative changes have been less disruptive than might have been
anticipated. Any discussion about the 'effectiveness' of the probation service highlights
the need to clarify its purposes and its functions. It is argued that, although most officers
would accept that their primary function is and has traditionally been that of exercising
oversight over the offender on behalf of the court and the community, there are
unmistakeable signs that pressure will be brought to bear on the probation service to
adopt a more treatment-orientated approach. The switch to such a correctional role is
bound to disturb the organizational objectives of the service, and raise questions about
the place of casework theory in the training and supervision of probation officers.
24

Trends and Issues in Probation
The pressure from the external environment obviously only tells one part of the
story. The responses of the probation and parole agencies to these pressures (and
others) comprise the strategic trends in probation and parole. These are efforts
designed to both cope with a large and often unmanageable workload and to improve

23
Hill, Thomas E. 2000. Kant on Punishment: A Coherent Mix of Deterrence and Retribution? In Hill,
Respect, Pluralism, and Justice: Kantian Perspectives. Oxford University Press, 173-99.
24
http://bjsw.oxfordjournals.org/content/2/3/313.abstract
the quality and effectiveness of services. The trends are strategic in that they are not
case-based or a response to the challenges of one program, but redefine the missions
and organizational culture of probation and parole. The six strategic trends are:
collaboration and partnerships, results driven management, re-emergence of
rehabilitation, specialization, technology and community justice.
25

All of the trends clearly point to a continuing central role for probation and parole
in the criminal and juvenile justice systems. The consequences of these efforts are also
clear. Improved performance of probation and parole will lead to less crime and
increased safety. Investment in increased capacity and capability to deliver effective
probation and parole services will provide a valuable return in justice and safety for the
community.

25
Crowe, Ann. Intervening in Family Violence: A Resource Manual for Community Corrections
Professionals. Lexington, KY: American Probation and Parole Association, 1995.