Why Do We Punish Crime? The Five Sentencing Philosophies

There are five main reasons we punish people who break the law, called sentencing philosophies: retribution, incapacitation, rehabilitation, deterrence, and restoration. Ask different people why we punish, and you will hear different ones, often depending on where they sit.

The Five Sentencing Philosophies

Five Sentencing Philosophies

These ideas are not just theory. They come from common sense and everyday life, and different people tend to lean toward different ones. Three examples make the point.

The TV viewer

Think of someone who loves cop shows like Law & Order: SVU or Blue Bloods. They watch the crime or its aftermath. They see the bad guy lie and do whatever it takes to avoid capture. They watch the trial, knowing who did it but worrying that a clever defense lawyer might fool the jury.

When the verdict comes and the "bad guy" goes to prison, their sense of right and wrong feels vindicated. They enjoy the "just deserts" of the punishment.

That feeling reflects retribution (punishment because it is deserved) and incapacitation (keeping the person away from the public).

The law professor

Now think of a progressive law professor who has studied and taught law for years and written scholarly articles on it. They know people are complex, not simply "good" or "bad," and that the reasons behind a crime may shape what punishment fits it.

The professor may believe a person can be rehabilitated, meaning changed into a law-abiding citizen. They may also see that we do not merely punish one person. We make an example of them to deter others who might be tempted to break the law, by showing that crime has consequences.

The victim

Finally, think of a theft victim. Someone broke into their car, took their wallet, and used their credit cards to buy all kinds of goods. The victim does not care much about the thief, as long as the thief is caught. Most of all, they want to get on with their life and get back to where they were before the crime.

That victim wants restoration: being made whole again.

So these philosophies come from our own daily experience, and there is no single reason to punish. We punish for retribution (pure punishment), to incapacitate (remove from society), to rehabilitate (change into a law-abiding person), to deter (show that crime has consequences), and to restore (make the victim whole).

In federal court, judges must weigh several of these goals under 18 U.S.C. § 3553(a)(2). A good sentencing argument speaks to each of them, showing the judge how a particular sentence would protect the public, account for the harm, and still give the person a real chance to change.

Could These Ideas Build a Better Prison?

One newer idea in criminal justice circles is to use these philosophies to design better prisons, and even lower the prison population over time. The starting point is that no two people in prison are alike. Some are ready to change; others may be beyond reach. So why put both kinds of people in the same prison? If people were separated, within a prison or into different prisons, based on the philosophy that fits them best, sentences might lead to better results.

Under this idea, people would be grouped by how likely they are to change. Those ready for rehabilitation would be housed together so they can support each other. People who keep reoffending and need to be kept from the public would go to higher-security prisons.

The approach comes from a "Perfect Prison System" article by C.J. Oakes. It has not been tried on a large scale, but the original article called it a worthy cause. It seems natural that people with the potential to change, housed together, would help each other make those changes. Supporters argue that mixing the two groups lets people with hardened habits pull those trying to change down to the lowest common denominator.

With prison populations so high, the original article argued that a "Perfect Prison" approach could help those who can be helped and reduce recidivism (reoffending).

The federal system has moved partly in this direction. Under the First Step Act of 2018, the Bureau of Prisons (BOP) scores each person's risk of reoffending and offers programs that can earn time credits toward earlier release to prerelease custody or supervised release (18 U.S.C. § 3632).

Facing a federal sentence? Book a consultation to talk it through with Brandon Sample.