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PunishingSanctioning to achieve prevention or retribution

In some cases – in particular when norms were violated intentionally – punishment may be needed as part of a solution. Sanctions vindicate the victim, exact retribution, and reinforce societal norms around what behaviour is morally acceptable and what is not. Punishment can be achieved through fines, incarceration, public shaming or social exclusion.

Punishment is inflicting harm on people intentionally, which should generally be avoided. Sanctions like incarceration may also cause a chain of effects that are harmful to society and the individual, including loss of work opportunities and effects on family relationships. Therefore, from a human-centred perspective punishment should only be applied if there are no other ways to achieve its objectives, which may include incapacitation, prevention, reinforcement of societal norms or retribution. When applied, it should be proportional and informed by evidence-based tools such as risk and needs assessments and mechanisms for monitoring the extent to which it is achieving its intended objectives.

Why is this a fundamental dispute resolution practice?

The formal legal system typically provides sanctions in the forms of forced sale of assets, bankruptcy proceedings, fines, and prison sentences. These sanctions are costly to apply. In an ideal situation, the threat of these sanctions would be sufficient to influence the parties to a crime or conflict to comply, so that they rarely have to be applied. Sanctions may also be forfeited in exchange for contributions to truth-finding and healing, for example in a transitional justice context. Granting amnesty or immunity to defendants who cooperate with a truth and reconciliation (or other restorative justice process) is one way of doing this. Therefore, it is the possibility of punishment more than punishment itself that is essential to conflict resolution.

With that said, punitive sanctions may be more important in places where there is little to no respect for the law. In these environments, the compliance rate may be so low it is necessary to impose many costly sanctions in order to make threats of enforcement credible. Punishment in the form of incarceration may also be necessary to incapacitate an individual who poses an immediate threat to public safety.

What are the active ingredients of punishing?

Relying primarily on the threat of sanctions to facilitate conflict resolution.

To avoid net widening and counter-productive exclusion from the community and sources of social support, punitive sanctions should be in proportion to risk.

When necessary, punishment should be non-discretionary (unbiased) and promote active (rather than passive) accountability.

What are people actually doing to make this happen?

Parties

Parties who have been wronged or violated are exploring whether their desire for punishment might be satisfied by other forms of accountability (sometimes called reparative sanctions) - such as an apology, restitution, reparations, or truth-telling - which are less likely than punitive sanctions to perpetuate societal harm.

Parties

Mediators and facilitators

Mediators and facilitators are making use of the threat of punishment (rather than punishment itself) to help parties reach agreements that holistically address the causes and consequences of harm. They are also helping victims of crime or conflict to explore to what extent their justice goals are purely retributive and to what extent they might also be restorative.

Mediators and facilitators

Judges

Judges are making use of evidence-based technological tools to inform their decision-making and decrease the likelihood of biased or disproportionate sentencing. They are implementing a wide range of accountability mechanisms and applying punitive sanctions selectively rather than by default.

Judges

Innovators

Innovators are introducing community-based alternatives to traditional punishment, such as restorative justice programs, which promote accountability without inflicting further harm. They are also developing technological tools, such as ability-to-pay calculators and risk and needs assessments, which help ensure that sanctions are proportionate and do not cause undue harm.

Innovators

What indicators can be used to monitor this practice?

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Effectiveness at achieving desired outcomes

Such as deterrence, recidivism, reinforcement of societal norms, incapacitation, or retribution

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Impartiality

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Proportionality

To the harm caused by the crime

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Subsidiarity

Achieving these outcomes by other means that are less harmful

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Due process/equal protection of the law

What makes punishing difficult?

Behavioral barriers

Proportional application of punishment as a last resort to achieve certain objectives may be problematic. Although evidence that punishment prevents undesirable behaviour tends to be weak, social norms in a community may strongly suggest that crimes need to be punished on principle. This may even go against the needs of victims who may or may not feel a need for retribution for the wrongs they suffered from.

Whether or not certain kinds of perpetrators are deserving of punishment – such as children or the mentally-ill – further complicates its use. It is unclear whether these groups can be considered responsible for the harm they cause, or whether they have the mental capacity to understand that any punishment they receive is intended to condemn their behaviour and prevent future digressions.

Who – if anyone – should have the right to punish others, and in what ways, is another source of controversy. Community members who do not feel that the state is fulfilling its duty to punish norm violations or administer sanctions fairly may resort to vigilante justice, which may result in biased, disproportionate, or inhumane punishment. This can also happen in the form of trial by media or public “cancellations,” where people or organisations are blacklisted without a proper investigation of what happened and what needs to be achieved. Punishment administered by the state may suffer from these flaws as well, and has contributed to well-known societal problems like prison overcrowding, increased recidivism, and the exclusion of victims from their own justice processes in countries around the world.

Cost barriers

As previously mentioned, punitive sanctions – prison sentences in particular – tend to be very costly for society. The costs of incarceration are not only those required to support and house individuals in a secure setting for the duration of their time in prison, but also the opportunity costs of not rehabilitating perpetrators so that they can become productive members of society.

Seemingly less severe sanctions, such as fines and fees for minor offenses, can also have debilitating effects on individuals’ ability to contribute productively if they are administered without reference to ability to pay. In countries like the US, the inability to pay can result in escalating sanctions such as driver’s license revocation or incarceration, both of which may prevent an individual from working or caring for their children.

More Resources

Retributive Justice, Stanford Encyclopedia of Philosophy (2020).
Dena Gromet and John Darley, Retributive and restorative Justice: Importance of crime severity and shared identity in people’s justice responses, Australian Journal of Psychology (2009).
John Darley and Thane Pittman, The Psychology of Compensatory and Retributive Justice, Personality and Social Psychology Review (2003).

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PunishingSanctioning to achieve prevention or retribution

Why is this a fundamental dispute resolution practice?

What are the active ingredients of punishing?

Relying primarily on the threat of sanctions to facilitate conflict resolution.

To avoid net widening and counter-productive exclusion from the community and sources of social support, punitive sanctions should be in proportion to risk.

When necessary, punishment should be non-discretionary (unbiased) and promote active (rather than passive) accountability.

What are people actually doing to make this happen?

What indicators can be used to monitor this practice?

What makes punishing difficult?

Behavioral barriers

Cost barriers

More Resources

Justice Dashboard

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