The criminal justice system in the United States of America is experiencing a level of scrutiny unlike at any other time in its history. One must ask: How much crime is there? Why does violent crime occur more in some places, while property crimes or white-collar crimes take place in other areas? Has the social contract between police and the community been irreparably damaged by the outcomes of alleged (and actual) claims of excessive uses of force against marginalized members of the community? Are recommendations to defund the police the answer? Why aren’t crimes more quickly addressed by prosecutors and the courts, leaving victims feeling disenfranchised and, in fact, re-victimized?

Attempting to address the above questions, today’s criminologists are rightly pragmatic in trying to make sense of what is happening in the criminal justice arena. This pragmatic approach looks for explanations which are social justice-based, rooted in policy, and grounded in science.

It is at this so-called “fork in the road” that we need to differentiate between criminology and criminal justice, because, while related, the two are not the same, and can even evolve to contradict over time. The focus and intent of criminology is on explaining crime.

When conducting studies on criminal justice, criminologists are chiefly interested in two particular areas: what effects society may have played on how and why the crime was committed, and the official reaction to the perpetrators and criminal event. In earlier years, studies of crime and their causation were conducted on more of a theoretical construct. While supported by facts and often empirical studies, the explanations derived in a criminological study tend not to have immediate (or at least not readily adoptable) policy implications (Brown et al., 2007). Yet, the same authors a little over a decade later, announced the need for politicians to refer to more criminologist analysis when developing legislation, promulgating rules, or creating policy. In doing so, there is less of a gap between the knowledge of crime possessed by criminologists, and the creation of public policy to reduce criminal activity (Brown et al., 2024). Criminal justice studies tend to be more analytics-based and descriptive, lending themselves to being used to suggest courses of action or course correction for the practitioners of criminal justice at the police, courts, and corrections levels. The distinction between criminology and the related criminal justice fields tend to be through emphasis, rather than a decision for them to be mutually exclusive. To fully understand and explain crime, criminologists should be familiar with crime patterns, local “hot spots,” and emerging trends on criminal behavior. When responding to crime and offenders, criminologists depend upon theories and concepts that are proven to be effective.

Contemporary criminologists organize knowledge of criminal justice by referencing its three broad components: police, courts, and corrections (Bernard & Engel, 2001). In this chapter the comprehensive criminal justice-based approach is taken, with each component being viewed in terms of four specific goals of punishment: (1) deterrence, (2) incapacitation, (3) retribution, and (4) rehabilitation. These four punishment goals will be defined and discussed in greater detail in Chapter 9.

Deterrence

Deterrence uses punitive sanctions to “send a message” to persons intended to dissuade them from committing criminal acts in the future. The concept of deterrence rests upon the notion that the fear of punishment will cause potential offenders to refrain from committing crimes. This proposition seems simple and straightforward: don’t most people wish to stay within the law simply in order to avoid punishment? This notion is reinforced by a study conducted by Ronald V. Clarke in 1996, where 16.4 million cars traveling on a rural Illinois highway with a posted (but lightly enforced) speed limit of 65 mph were covertly evaluated for their speed by radar. The vast majority did indeed travel at the posted speed, with a very small minority traveling faster or slower. What did we learn? One conclusion would be that deterrence works even when the chances of being caught are slight. One could also conclude that most people do not need a threat of deterrence in order to do the right thing. Yet others might believe that the Illinois state legislature did the right thing by posting a reasonable, acceptable speed limit on its highway. Or, shall we conclude that deterrence does not work precisely on that small group of people who are prone to nonconformity (Decker, 1972)?

Finally, the threat of punishment as a form of deterrence must be realistic. To measure the effectiveness of deterrence, the Criminal Law Education Research Center at New York University conducted and published a study in 1969 involving the use of thin metal “slugs” to feed traffic meters instead of using proper coins. In three separate but similar locations within New York City, signs of differing types were placed on meters. One sign issued a warning to users that a $50 fine would be issued for those caught using slugs in parking meters. On the second sign the verbiage was the same, but a $250 fine was threatened. In the final area, where newly-installed coin meters with viewing windows showing whether a coin, slug, or some other object had been inserted, the use of metal slugs decreased significantly (Barry, 1969).

Research on deterrence is inconclusive, due to the limited opportunities for making controlled studies, and because some crimes, and some criminals, are more easily deterred than others. Deterrence assumes rational choice, and the ability to exercise rational choice. Supporters of deterrence-based strategies believe that criminals weigh the relative benefits and risks of engaging in criminal conduct–the so-called “risks/rewards”–and should then choose not to engage because they believe there is a stronger chance of getting caught, or the punishments will be significant. Finally, not all people are rational decision-makers. The proponents of deterrence may not take into account mental illness and crimes committed by juveniles. Before one can subscribe to the deterrence philosophy, the issues surrounding rational decision-making need to be considered and reconciled.

Incapacitation

Incapacitation models rely on the restriction of an individual’s freedom and liberties they would normally have as a member of society. In some criminal justice goal models, incapacitation precedes deterrence, because of the understanding that incapacitation can only happen as an attempt to prevent crimes from being committed in the future. Incapacitation in its truest form cannot correct crimes that have already been committed, and thus it takes a forward-looking perspective. Instead, the objectives of a goal of incapacitation might include one of many alternatives. Humans are social beings, and when they are punished by removing them from society through incarceration, a form of punishment has taken place.

Certainly, serving jail time or an extended sentence in prison removes the criminal from the community, thus accomplishing incapacitation. Institutionalizing as a method of incapacitation is an obvious example; technology has afforded us similar opportunities to remove the person (temporarily) through the use of GPS-ankle bracelets for home-based sentences; ignition interlock devices (which are breath analysis instruments placed on vehicles by court order to prohibit their movement) on those who have been convicted of motor vehicle-related crimes involving impairment; and tracking of the convicted criminal through probation, parole, GPS tracking, and appearance at day reporting centers.

On the social control aspect of the incapacitation continuum are “grounding” a child who misbehaves. In situations requiring more severe forms of incapacitation, there may be court-ordered examples of criminal preclusion such as status crimes of runaway youth, or not obeying a parent or guardian the court has put in charge of the youth. In the case of sexual predation, a form of chemical castration may be ordered which includes injections of a hormone that prevents the male offender from being able to perform sexually.

Finally, in the most egregious or heinous crimes, capital punishment may be considered. Capital punishment is authorized in 27 states, by the federal government and by the U.S. military (Death Penalty Information Center, 2023). Other states have chosen to abolish capital punishment as an option, or exchange in its place a life sentence in prison without the possibility of parole. Yet other states have re-established the use of capital punishment after having earlier abolished it. Finally, two states (of which Washington is one) have declared capital punishment as unconstitutional. Regardless of location and stance, capital punishment is a continued topic of fervent debate on a national scale as a form of punishment or total incapacitation.

Retribution

Retribution was, historically, the earliest form of instituting punitive accountability against anyone or anything that had caused them harm. It didn’t matter if it were a person, an animal, an ill-performing tool, or a tree in the forest–if it was perceived you were wronged, a swift and harsh response was appropriate. This is considered uncontrolled revenge, and in early times, knew no limits. Thankfully, such angry responses gave way to a more measured, appropriate response when a law was broken or someone was wronged. Early Mosaic laws enacted limitations on revenge by establishing that punishments should be comparable with the crimes committed or the civil wrongs against a person (Skeel & Longman, 2013). This notion of “an eye for an eye,” leveled response led to the creation of lex talionis (“retaliation law”), endorsing and introducing the concept of retribution into criminal justice.

As the United States of America grew during the nineteenth and early twentieth centuries, questions arose as to how to effectively administer punishment for crimes committed. Up to this point, all punishments were prescribed by legislative sentencing guidelines, leaving the judge little room for discretion in sentencing. As you will see, discretion–the exercise of making ethical, reasonable and legal choices- occurs at every level in the criminal justice system–police, corrections, attorneys, and judges, to name a few. Every crime carried a specific, fixed punishment; the number of times someone may have broken the law, or the potentially-mitigating reasons for why they broke the law, didn’t matter–the punishment would be meted out in full. Legislators did consider the gravity of the crimes, and attempted to scale the punishment to fit crimes by order of their seriousness to society. This meant that the punishment for committing murder would be more severe than for robbing a bank, and the punishment for bank robbery would be more severe than for taking without permission your neighbor’s vegetables from their garden.

Entering the twentieth century, the future of the United States of America seemed unlimited. Great strides had occurred in the sciences, particularly in the fields of medicine and psychology, and mechanization leading to the development of labor-saving devices, home improvements, and transportation were occurring on nearly a daily basis. With this anticipation of great things to come, attitudes began to change. Anything seemed to be possible, and in some circles, folks began to discuss the wisdom of the current methods of punishment of criminals (Adler et al., 1998).

Some in the conversation believed that the retributive idea of punishment now in practice was inherently flawed, not taking into consideration the strength of the human spirit. These advocates for change believed that criminals might be candidates for conversion into law-abiding citizens through a combination of patience, a better understanding of their background and life experiences leading up to their criminal acts, and by providing training opportunities that lead to learning a new trade or skill. The idea of punishment under the classical retribution practices was based upon the assumption that everyone who violated the same provision of the law did so with the same motivation, were alike in their personalities and backgrounds, and should therefore be punished the same way. When viewed by behavioral scientists, they were quick to point out the differences between offenders who have committed the same crime. The offenders are not completely alike, for differences including, but not limited to, mental capacity, intelligence, depravity, and their potential for future rehabilitation.

Restorative Justice

It was dissatisfaction with retribution that led to the concept of rehabilitation. Proponents of the goal of rehabilitation, as the name suggests, seek to improve the mental condition of the criminal through providing opportunities, treatment, etc. so that one day there is a chance to reintegrate the convicted person as a productive member of society. In the restorative justice model, convicted parties are screened in order to provide the most appropriate opportunities for them to learn and achieve law-abiding life in the future (Schmalleger, 2006). Through education, job skills and vocational training, counseling and mentoring, and a host of other services, the individual who has committed a crime is now given the opportunity for a new life in the future.

Even though correctional systems have experimented with rehabilitation to varying degrees, the efforts were often mixed and perfunctory at best. Sentences imposed by judges often reflected this view, even though researchers have pushed back citing the rehabilitative efforts as a failure. This is why, despite the concerns about the effectiveness of rehabilitation as a viable part of the correctional process, most states have adopted sentencing policies promoted by the Model Penal Code, try to abide by their principles, and pursue the restorative justice approach where it appears to be in the community’s/state’s best interest to do so (Reitz & Klingele, 2019).

Attributions

1. Figure 3.3: Untitled by succo is released under Pixabay License
2. Figure 3.4: Radar Enforced [explored] by risingthermals is released under CC BY-NC 2.0
3. Figure 3.5: image released under the Pexels License
4. Figure 3.6: Penal Colony by Nicholas Malara, for WA Open ProfTech, © SBCTC, CC BY 4.0
5. Figure 3.7: Restorative Justice by Nicholas Malara, for WA Open ProfTech, © SBCTC, CC BY 4.0