Transcript Prof Tony Ward - Victoria University of Wellington

Punishment and Correctional
Practice: Ethical and Clinical
Implications
Tony Ward
PhD, DipClinPsyc
Victoria University of Wellington
[email protected]
Key Papers
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Connolly, M & Ward, T. (2008). Morals, human rights, and practice
in the human services. London, UK: Jessica Kingsley.
Ward, T. & Birgden, A. (2007). Human rights and correctional clinical
practice. Aggression and Violent Behavior, 12, 628-643.
Ward, T., Gannon, T., & Birgden, A. (2007). Human rights and the
treatment of sex offenders. Sexual Abuse: A Journal of Research
and Treatment, 19, 195-216 .
Ward, T. & Langlands, R. (in press). Human dignity and vulnerable
agency: An ethical framework for forensic practice. Aggression and
Violent Behavior.
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Ward, T & Moreton, G. (2008). Moral Repair with Offenders: Ethical
Issues Arising From Victimization Experiences. Sexual Abuse: A
Journal of Research and Treatment, 20, 305-322.
Outline
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1/ Definition of punishment.
2/ Problem of punishment and its relevance for
correctional practitioners.
3/ Justifications of punishment and their practice
implications: Consequential, retributive, and
communicative theories.
4/ Conclusions.
Definition of Punishment
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Punishment is the intentional imposition of a
burden on an individual following his or her
violation of important social norms, or putting it
more powerfully, for acts of wrongdoing
(Bennett, 2008; Kleinig, 2008).
Specifically, punishment in the CJS has 5
necessary elements (Boonin, 2008): It is
authorized, intentional, reprobative (censure),
retributive (following a wrongful act) harm.
Distinction between intended and foreseen
harm.
Problem of Punishment
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Issue of justifying punishment arises due
to the fact that harms inflicted on
offenders may cause them significant
suffering and set back their core interests
(includes families, friends etc).
The deliberate infliction of suffering is
ordinarily considered to be morally wrong
and thus requires explicit justification.
Problem of Punishment
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Punishment & its justification ethically relevant
(inescapable!) for practitioners:
 (a) issues internal to role: prof norms and tasks.
 (b) issues external to role: abusive institutions.
Two distinct but overlapping normative frameworks
evident in the Correctional System that reflect:
 (a) State’s response to crime (ethical + prudential)
 (b) Rehabilitation/treatment programs (prudential +
ethical).
Problem of Punishment
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Treatment work with offenders occurs within context of
punishment and response to crime which constrains and
penetrates practice arena.
This can create problem of boundary blurring between
punishment and therapy: some elements of programs
fall within definition of punishment or may collapse into
punishment (e.g., “cognitive restructuring’!).
Thus practitioners may unclear exactly what task they
are engaged in: punishment versus treatment.
Two traditional ways justifying punishment,
consequentialism and retributivism (Bennett, 2008;
Kleinig, 2008).
Justification of Punishment:
Consequentialist Theories
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Consequentialist theories seek to punish people because
of what are seen as the positive consequences of the
practice such as reduced crime rates, rehabilitation,
deterrence, or the incapacitation of offenders.
Major problem with forward looking theories of this type
is that it is logically possible to countenance the
punishment of innocent persons if the overall effect is
viewed as desirable.
Also, offenders used means rather than regarded as
ends in themselves: i.e. fellow members of the moral
community.
Subverts offender moral agency!
Practice Implications of
Consequentialist Theories of
Punishment
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Emphasis on deterrence, prevention, or incapacitation
likely to create a practice environment where pressure to
detect and manage risk variables; technically focused.
Focus is squarely on estimating degree to which
individuals constitute a threat to the community and
then setting out to reduce or minimize their risk factors
in the most cost efficient manner.
Individuals are viewed as bearers of risk, potential
agents of harm, or hazards resulting in less attention to
therapeutic relationship and offenders personal goals
and aspirations.
Practice Implications of
Consequentialist Theories of
Punishment
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Security concerns and the rights of victims and the
community are likely to trump those of offenders.
Intense security inside prisons and less concern with
providing offender programs.
Strict parole etc monitoring emphasized.
Therapeutic work more concentrated on reduction of risk
factors and likely to be porous boundary between ethical
and prudential values evident in programs (e.g., civil
commitment, ESO, geog restrictions, com notif ).
Individual offender focus and neglect of community’s
obligation to offenders re reintegration.
Justification of Punishment:
Retributive Theories
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Retributive theories are backward looking and
based on notion of just deserts (annulling
advantages of crime, vindication of victims,
expression of anger etc).
Primary aim of punishment is to hold offenders
accountable for crimes by inflicting burdens that
are roughly equal in harm to those inflicted on
their victims.
No explicit attempt to reduce rates of future
offending or rehabilitate offenders.
Justification of Punishment:
Retributive Theories
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Offenders thought to have a right to punishment
because of their status as fellow moral agents.
Problems with retributive approaches revolve around
issue of deciding what constitutes equal harm and how
to avoid becoming overly vindictive and therefore failing
to respect (recognize) the dignity of offenders.
Both traditional approaches have severe flaws and
therefore communicative and restorative theories have
been proposed as alternative justifications of
punishment or responses(!) to crime (Bennett, 2008;
Boonin, 2008, Duff, 2001; Walgrave, 2008).
Practice Implications of
Retributive Theories of
Punishment
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Less attention given to question of how to intervene
therapeutically in offenders’ lives and more on holding
them accountable; responsibility focused.
Stress on vindicating victims right to be heard and
expressing anger to offender via harsh sentences.
Less interest in consequences of imprisonment for
offender and future crimes and therefore less attention
to treatment or general programs.
Greater likelihood of unsupportive post release social
environment for offenders; pressure groups, #media.
Practice Implications of
Retributive Theories of
Punishment
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Less opportunity for offender redemption and lack of
concern for restorative practices.
Harsher conditions of imprisonment and less access to
recreational and educative resources.
Offender viewed as more deviant and tendency to locate
sources of offending in entrenched individual pathology
and character flaws.
Pressure for moral education programs and remolding of
personality of offenders.
Downgrading of value of psychological and therapeutic
perspectives generally.
Justification of Punishment:
Communicative Theories
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Communicative justifications of punishment have basis
in liberal communitarian view of political and moral
public institutions (Duff, 2001).
Offenders viewed as members of normative community
(“one of us”) and therefore are bound and protected by
community’s public values: autonomy, freedom, privacy
and pluralism.
Takes crimes seriously as wrongs but does not seek to
exclude offenders from community politically, materially,
or normatively (human rights- Ward & Birgden, 2007).
Seeks to induce repentance, reform, and reconciliation
through imposition of sanctions. Does not morally
educate in coercive sense but seeks to persuade.
Has both consequential and retributive elements.
Practice Implications of
Communicative Theories of
Punishment
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Generally greater attention to rights of all stakeholders including
offenders by virtue of equal moral status of each; relationship focus.
Distinction between recognition respect versus appraisal respect
means holding offenders accountable does not diminish inherent
dignity: easier to view offender positively and establish stronger
practice relationship.
Crime seen as community responsibility rather than simply individual
and therefore greater attention to social and economic inequalities
related to crime.
Secular repentance takes seriously moral agency of offenders and
the importance of them grasping harm inflicted on victims and
community- importance of offender empathy, emotional responsivity
and personal responsibility.
Practice Implications of
Communicative Theories of
Punishment
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Reform element points to necessity of offender becoming
motivated to change self and behavior for ethical as well
as prudential reasons.
Creates some tension between practitioners twin roles
as treatment providers and facilitators of moral change.
Reconciliation element indicates need for strong
community support and social scaffolding in reintegration
practices.
Stress on promoting better lives for offenders alongside
safer ones for members of the community.
Desistence and multidisciplinary orientation.
Conclusions
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Correctional practitioners work in a context
heavily influenced and constrained by
punishment policies and practices: Unique
ethical challenges.
The implications of punishment theories
effectively help to constitute the norms
regulating professional activities and thus partly
determine what is good practice (e.g., risk
evaluation, restorative interventions).
Different justifications of punishment have
varying implications for practice.
Conclusions
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Be that as it may, correctional practitioners
ought to be clear about the tasks they are
involved in and to what degree they are ethical ,
prudential - or a combination of both - in nature.
Importantly, they need to critically reflect on the
theory of punishment that underpins their work
in the correctional context.
Offenders are subject to State sanctioned
intended harms and we do them a grave
injustice if the justifications for these imposed
burdens are carelessly arrived at and
thoughtlessly delivered.