Although punishment has been a crucial feature of every developed legal system, widespread disagreement exists over the moral principles that can justify its imposition. One fundamental question is why (and whether) the social institution of punishment is warranted. A second question concerns the necessary conditions for criminal liability and punishment in particular cases. A third relates to the form and severity of punishment that is appropriate for particular offenses and offenders. Debates about punishment are important in their own right, but they also raise more general problems about the proper standards for evaluating social practices.
The main part of this theoretical overview of the subject of legal punishment concentrates on these issues of justification. That discussion is preceded by an analysis of the concept of punishment and is followed by a brief account of how theories for justifying punishment can relate to decisions about the substantive criminal law and criminal procedures.
The concept of punishment
Punishment is not an exclusive province of the law. Parents punish their children, and members of private associations punish their wayward fellows. Like most concepts, "punishment" has no rigid boundaries. One useful way to understand its central aspects and uncertain borderlines is to identify the features of typical instances of punishment, and to inquire how far their absence would lead one to say that something other than punishment is taking place.
Typical and atypical instances. In typical cases of punishment, persons who possess authority impose designedly unpleasant consequences upon, and express their condemnation of, other persons who are capable of choice and who have breached established standards of behavior.
Responsible agents. Punishment is a practice that is performed by, and directed at, agents who are responsible in some sense. God and humans can punish; hurricanes cannot. People, but not faulty television sets, are fit subjects of punishment. A higher level of capacity is required to impose punishment than is minimally necessary to make one subject to it. To be subject to it, one need have only sufficient mental control over one's actions to refrain from disfavored behavior, a degree of control that quite small children and some animals possess. To punish, one must be able consciously to inflict harmful consequences because of a wrong that has been committed.
Unpleasant consequences. Punishment involves designedly harmful consequences that most people would wish to avoid. Medical treatment and other forms of therapy may also be painful, but their unpleasantness is an unfortunate contingent fact; pleasing or painless substitutes, if available, would be preferred. Unpleasantness is, on the other hand, part of the basic nature of punishment; if the response to those who break rules was to give them something they wanted, such as more money, one would not consider the response to be punishment, even if the aim were to reduce future violations.
Condemnation. The unpleasant consequences of punishment are usually preceded by a judgment of condemnation; the subject of punishment is explicitly blamed for committing a wrong. The close link between punishment and condemnation is attenuated in some instances. When a teacher punishes an entire class because one child has been naughty, he may not be condemning the other members of the class. The teacher's choice of collective punishment will reflect his belief either that the group as a whole is capable of constraining the actions of its members or that one student will hesitate to be the source of mischief for his classmates; but the teacher need not suppose that all the other members of the class are actually partly responsible for the particular naughty act. A similar analysis applies to vicarious punishment. Punishing one person for the sins of another may serve a purpose even if the victim of punishment is not condemned for the specific wrong.
For certain violations of law, condemnation may be wholly absent, except in the most formal sense. Some actions may be deemed antisocial and worth discouraging by unpleasant consequences even if no one really blames the persons who perform them. This is perhaps exemplified by the attitude American society now takes toward most parking violations. For a different reason, a reflective judgment of condemnation may be absent when very young children are punished. Parents may evince anger and impose simple penalties in the belief that this is the most effective way to teach acceptable behavior. They may thus treat their children as blameworthy, even though they doubt that the children are experienced enough actually to merit blame for performing the offending actions.
Condemnation is not in itself usually considered punishment. If members of a society regarded a formal condemnation as extremely shameful, one might think of that as a possible punishment in itself rather than merely a complement of more substantial consequences; this discussion will adopt the common assumption that punishment involves more than condemnation.
Authority. Punishment is imposed by people who have authority to do so—authority conferred by legal rule, associational standard, or social morality. A father can punish his own small children, but he cannot punish a neighbor's child unless the neighbor has given him power to do that. Only public officials can punish a thief for breaking the law. Authority may be conceived in a somewhat extended sense, whereby one can speak of a person's being punished by the community when his offensive behavior is met by the negative informal reactions of its members.
Standards. Punishment ordinarily follows some breach of established rules of behavior; the notion that people should have fair warning as to what behavior is punishable, and to what degree, is now an established principle of most legal systems. Yet, especially in informal family settings, people may be punished for doing things that they should have realized were wrong, even though they were not warned in advance about that specific sort of behavior. Even then, one can usually point to some relevant, more general standard that the children have been taught, such as taking care of family property, not harming brothers and sisters, and not disturbing parents. Many legal systems also contain some standards of misbehavior that are quite open-ended. Much more extraordinary is punishment of persons for actions they had no reason to suppose were wrong at the time they committed them.
Misperceptions. The assumption thus far has been that those who impose punishment, and the community at large, perceive circumstances as they really are. However, people may be woefully mistaken about critical facts. An innocent person may be punished because he is thought guilty, or all epileptics may be punished in the belief that having that disease evidences extreme moral fault. Misperceptions may also occur because of conscious manipulations by those aware of the actual facts. If officials successfully persuade others that a woman they know to be innocent is guilty, her condemnation and imprisonment will, in the public perception, constitute genuine punishment. Whether the knowledgeable officials should regard this as an instance of (unjust) punishment or something else is debatable. The crucial inquiry, in any event, is not whether what follows such deviations from the bases for imposing punishment can accurately be called punishment, but whether deviations of this sort can ever be morally justified, a matter analyzed below.
Legal punishment and the criminal law. Parts of the civil law authorize punitive consequences, but in advanced legal systems, legal punishment is linked to the criminal law. That law consists of prohibitions of antisocial behavior backed by serious sanctions. Not every criminal conviction is necessarily followed by punishment—alternative dispositions are often possible—but a set of mandatory rules that did not provide for punishing of violators would not be part of the criminal law. The meaning and possible justifications of legal punishment are, therefore, very closely related to the meaning and possible justifications of the criminal law.
Moral justifications and legal punishment
Since punishment involves pain or deprivation that people wish to avoid, its intentional imposition by the state requires justification. The difficulties of justification cannot be avoided by the view that punishment is an inevitable adjunct of a system of criminal law. If criminal law is defined to include punishment, the central question remains whether society should have a system of mandatory rules enforced by penalties. Relatively small associations of like-minded people may be able to operate with rules that are not backed by sanctions, and a choice by the larger society against authorizing legal punishment is at least theoretically possible. Moreover, actual infliction of penalties is not inextricably tied to authorization. A father who has threatened punishment if two daughters do not stop fighting must decide whether to follow through if the fight continues. Congruence between threat and actual performance on the scene does constitute one good reason for punishing. Future threats will be taken less seriously if past threats are not fulfilled, and parents usually wish to avoid the impression that they will not do what they say. Nevertheless, because he now sees that the punishment threatened is too severe, or understands better the children's reasons for fighting, the father may fail to carry out his threat.
In the broader society also, threatened punishments are not always inflicted on persons who have unquestionably committed crimes. The police or prosecutor may decide not to proceed, a jury may acquit in the face of unmistakable evidence of guilt, or a judge may decide after conviction not to impose punishment. A judge with legal authority to make such a decision must determine if punishment is appropriate; even if punishment is legally required to be imposed, the countervailing reasons may be so powerful that the court will not do so.
If actual punishment never or very rarely followed threatened punishment, the threat would lose significance. Thus, punishment in some cases is a practical necessity for any system in which threats of punishment are to be taken seriously; and to that extent, the justification of punishment is inseparable from the justification of threats of punishment.
The dominant approaches to justification are retributive and utilitarian. Briefly stated, a retributivist claims that punishment is justified because people deserve it; a utilitarian believes that justification lies in the useful purposes that punishment serves (the latter approach is sometimes also referred to as "consequentialist," or "instrumentalist"). Many actual theories of punishment do not fit unambiguously and exclusively into one of these two categories. Satisfying both retributive and utilitarian criteria may be thought necessary to warrant punishment; or utilitarian criteria may be thought crucial for one question (for example, whether there should be a system of punishment) and retributive criteria for another (for example, who should be punished); or the use of retributive sorts of approaches may be thought appropriate on utilitarian grounds. Beginning from rather straightforward versions of retributive and utilitarian theory, the analysis proceeds to positions that are more complex.
Retributive justification. Why should wrongdoers be punished? Most people might respond simply that they deserve it or that they should suffer in return for the harm they have done. Such feelings are deeply ingrained, at least in many cultures, and are often supported by notions of divine punishment for those who disobey God's laws. A simple retributivist justification provides a philosophical account corresponding to these feelings: someone who has violated the rights of others should be penalized, and punishment restores the moral order that has been breached by the original wrongful act. The idea is strikingly captured by Immanuel Kant's claim that an island society about to disband should still execute its last murderer. Society not only has a right to punish a person who deserves punishment, but it has a duty to do so. In Kant's view, a failure to punish those who deserve it leaves guilt upon the society; according to G. W. F. Hegel, punishment honors the criminal as a rational being and gives him what it is his right to have. In simple retributivist theory, practices of punishment are justified because society should render harm to wrongdoers; only those who are guilty of wrongdoing should be punished; and the severity of punishment should be proportional to the degree of wrongdoing, an approach crudely reflected in the idea of "an eye for an eye, a tooth for a tooth."
Close examination of this theory dispels much of its apparent simplicity, reveals some of the tensions between its implications and the practices of actual societies, and exposes its vulnerability to powerful objections. Taken as claiming an intimate connection between moral guilt and justified legal punishment, the retributive theory raises troubling questions about the proper purposes of a state and about any human attempts to equate reward and punishment to moral deserts.
Moral guilt and social judgment. One fundamental question is whether people are ever morally guilty in the way that basic retributive theory seems to suppose. If all our acts are consequences of preceding causes over which we ultimately have had no control, causes that were set in motion before we were born—if, in other words, philosophical determinism is true—then the thief or murderer is, in the last analysis, more a victim of misfortune than a villain on the cosmic stage. Although he may be evil in some sense and able to control his actions, his character has been formed by forces outside himself, and that ultimately determines the choices he makes. From this perspective, assertions that a vicious person should be punished simply because he deserves to be seem as anomalous as assertions that a vicious dog should be punished simply because he deserves to be. Unless one wishes to take the paradoxical position, analogous to certain religious doctrines of predestination, that people are guilty for qualities and acts they cannot help, the simple retributive theory is incompatible with determinism. It requires some notion of free will that attributes to humans responsibility for doing wrong in a way that is not attributed to other animals.
Acceptance of free will, which is certainly the undergirding for the ordinary sense of morality, does not remove all the obstacles to acceptance of retributivism. One human can rarely judge with confidence the moral guilt of others, and few doubt that among persons who commit similar wrongful acts, vast differences in moral guilt exist. Many of those who commit very serious crimes have suffered extreme psychological or social deprivation, and/or physical or psychological abuse. Moreover, a penalty supposed to redress a moral imbalance should perhaps depend upon an offender's overall moral record and how the good and bad fortunes of his life compare with that record; yet making such an evaluation with any accuracy is even more beyond human capacities than judging the moral guilt attaching to a particular act.
Finally, not all acts that reflect serious moral guilt are the subject of criminal punishment in a liberal society. Personal wrongs that members of families and acquaintances do to one another may be of greater magnitude morally than some petty crimes, even though they do not carry publicly imposed penalties. If the purpose of punishment were truly to redress moral guilt, justifying this variance in treatment would be difficult, but few people believe that a liberal society should make the punishment of all serious moral wrongs its business.
To some, the very idea that pain should be inflicted on a person simply because he has committed an earlier moral wrong may seem indefensible, whether the agent inflicting the pain is human or divine. Even those who believe that a just God would strike some such balance may think that restoring the moral order is not an appropriate human purpose, and is certainly not a proper purpose of the state, limited as the state should be in its capacities to learn about events and to dispose of people's lives.
The retributivist may resist this conclusion and maintain that the infliction of legal penalties for moral transgressions is a legitimate public purpose, one that happens to be outweighed by other values in certain circumstances. The retributivist can argue that the severity of an offense provides at least a rough indication of the magnitude of moral wrong and that a punishment proportioned to the offense, and perhaps tailored to some extent to other factors of moral relevance, can give the offender approximately what he deserves. These responses may save retributive theory from the attack of total irrelevance, but they do not provide a complete justification for practices of legal punishment as they exist or might exist.
Violations of social norms and fairness. A rather different retributive approach is that criminals deserve punishment because they violate norms established by society, the magnitude of the violation being measured by the seriousness with which society treats the offense. In this form, the theory sidesteps the objection that correcting moral wrongs is not the business of the criminal law, and it does not impose upon officials the impossible burden of ascertaining subtle degrees of moral guilt. This version of the theory fits better with existing (and conceivable) practices of criminal punishment, but in doing so, it no longer connects moral guilt so strongly to justifiable punishment and does not resolve the question of why morality demands that society punish those who violate its norms simply for the sake of punishing them.
One answer to this question is that fairness to citizens who make sacrifices by obeying the law requires that violators be punished rather than reap benefits for disregarding legal standards. What is crucial and debatable about this view is the claim that law-abiding members of the community will suffer an actual injustice if the guilty go unpunished. The position is most persuasive in respect to crimes whose commission actually increases the overall burden on those who obey. Given steady revenue needs, a sufficient amount of tax evasion will increase the burdens of those who pay in full. Demanding that the evader pay back taxes does redress an injustice, but whether failure to send him to jail, if that is the only possible penalty, would be unfair to honest taxpayers is less clear. The unjust loss to the honest will not be made up in any event, but the jail term will at least offset the evader's unfair advantage. Some criminal activities, such as speeding and theft, would be engaged in more widely if it were not for the law's prohibition, but their commission does not increase general burdens as directly as does tax evasion. Because the ordinary lawabiding person has foregone some possible gain, the criminal may still be perceived as having attained an unfair advantage that should be offset by punishment. The claim about fairness to lawabiding citizens is least persuasive in respect to criminal activities (such as rape) that very few citizens would wish to undertake, no matter what the law said about them.
For these crimes, as well as others directed at individuals, fairness to victims, rather than (or as well as) fairness to all law-abiding citizens, might be thought to justify punishment. Fairness to victims undoubtedly requires redress of their injuries to whatever extent that can be effected, but whether and to what extent it requires harsh treatment of criminals that does not benefit victims is doubtful.
The general normative question about both fairness arguments above is this: If someone has achieved a comparative advantage over another by an unjust act, does fairness to the person suffering a comparative disadvantage require stripping the offender of his advantage, even when that would do nothing to improve the position of the disadvantaged person? So understood, the fundamental question about the fairness argument is close to the question about the intrinsic value of punishing wrongdoing, although emphasizing a comparative dimension. Many of those who believe that inflicting pain on the morally guilty is not worthwhile for its own sake will also conclude that such pain cannot be supported simply because it nullifies some comparative advantage.
A third fairness argument compares the offender to other, similar offenders. Retributive or just deserts theories of punishment usually seek to promote not only proportionality of punishment relative to culpability, but also uniformity in the treatment of equally culpable offenders. A sentence less severe than that given to other, similar offenders is unfair to those offenders; a more severe sentence is unfair to the defendant. However, since equality norms do not require that offenders receive any particular degree of punishment (or indeed, any punishment at all), such norms are more properly seen as limiting, rather than justifying, the imposition of sanctions.
Utilitarian justification. Utilitarian theories of punishment dominated American jurisprudence during most of the twentieth century. According to Jeremy Bentham's classical utilitarianism, whether an act or social practice is morally desirable depends upon whether it promotes human happiness better than possible alternatives. Since punishment involves pain, it can be justified only if it accomplishes enough good consequences to outweigh this harm. A theory of punishment may make the balance of likely consequences central to justification without asserting, as Bentham did, that all relevant consequences are reducible to happiness and unhappiness. It may even claim that reducing future instances of immoral violations of right is itself an appropriate goal independent of the effect of those violations on the people involved. In modern usage, utilitarianism is often employed to refer broadly to theories that likely consequences determine the morality of action, and this usage is followed here.
The catalogs of beneficial consequences that utilitarians have thought can be realized by punishment have varied, but the following have generally been regarded as most important.
1. General deterrence. Knowledge that punishment will follow crime deters people from committing crimes, thus reducing future violations of right and the unhappiness and insecurity they would cause. The person who has already committed a crime cannot, of course, be deterred from committing that crime, but his punishment may help to deter others. In Bentham's view, general deterrence was very much a matter of affording rational self-interested persons good reasons not to commit crimes. With a properly developed penal code, the benefits to be gained from criminal activity would be outweighed by the harms of punishment, even when those harms were discounted by the probability of avoiding detection. Accordingly, the greater the temptation to commit a particular crime and the smaller the chance of detection, the more severe the penalty should be.
Punishment can also deter in ways more subtle than adding a relevant negative factor for cool calculation. Seeing others punished for certain behavior can create in people a sense of association between punishment and act that may constrain them even when they are sure they will not get caught. Adults, as well as children, may subconsciously fear punishment even though rationally they are confident it will not occur.
2. Norm reinforcement. For young children, the line may be very thin between believing that behavior is wrong and fearing punishment. Adults draw the distinction more plainly, but seeing others punished can still contribute to their sense that actions are wrong, helping them to internalize the norms society has set. Practices of punishment can thus reinforce community norms by affecting the dictates of individual consciences. Serious criminal punishment represents society's strong condemnation of what the offender has done, and performs a significant role in moral education.
A person's feeling of moral obligation to obey rules may depend considerably on his sense that he is treated fairly under them. If others profit with impunity from violations of the law, a lawabiding person may develop a sense of unfairness, wondering if he too should break the law to obtain similar advantages. Punishment helps assure citizens that the laws as administered deal fairly with their interests. Whether or not the law-abiding citizen actually has some individualized moral claim to have wrongdoers punished, punishment will probably contribute to his willing acceptance of legal constraints. Similarly, if an offender sees that other offenders received less severe punishment, his feeling of having been treated unfairly may diminish his respect for and willingness to conform to the law. All of these considerations constitute the utilitarian side of fairness arguments for punishment.
3. Individual deterrence. The actual imposition of punishment creates fear in the offender that if he repeats his act, he will be punished again. Adults are more able than small children to draw conclusions from the punishment of others, but having a harm befall oneself is almost always a sharper lesson than seeing the same harm occur to others. To deter an offender from repeating his actions, a penalty should be severe enough to outweigh in his mind the benefits of the crime. For the utilitarian, more severe punishment of repeat offenders is warranted partly because the first penalty has shown itself ineffective from the standpoint of individual deterrence.
4. Incapacitation and other forms of risk management. Imprisonment temporarily puts the convicted criminal out of general circulation, and the death penalty does so permanently. These punishments physically prevent persons of dangerous disposition from acting upon their destructive tendencies. Less drastic forms of risk management include probationary or parole supervision, and accompanying requirements (for example, random urine tests to detect use of illegal drugs) and prohibitions (use of alcohol or firearms, association with certain persons, contact with the victim, and so on). As with individual deterrence, more severe risk-management measures are warranted for repeat offenders because such offenders are statistically more likely to commit further crimes. However, incapacitation of a high-risk offender may nevertheless fail to prevent further crimes. This would be the case if such an offender were to be immediately replaced by another offender (for example, on a street corner well-suited for selling drugs). It would also be the case if the offender, when released from prison, had become more dangerous than he was before (so that the crimes he commits after release are more numerous or more serious than those which were prevented while he was imprisoned).
5. Reform. Punishment may help to reform the criminal so that his wish to commit crimes will be lessened, and perhaps so that he can be a happier, more useful person. Conviction and simple imposition of a penalty might themselves be thought to contribute to reform if they help an offender become aware that he has acted wrongly. In that case, punishment acts as a form of norm reinforcement operating at the individual rather than the community level; the importance of promoting the offender's awareness of wrongdoing is also cited by those who stress the "communicative" aspects of punishment. However, reform is usually conceived as involving more positive steps to make offenders less antisocial by altering their basic character, improving their skills, or teaching them how to control their crime-producing urges (for example, their tendency to abuse drugs or alcohol, or to commit sex crimes). Various psychological therapies, medications, and even drastic interventions such as psychosurgery, are designed to curb destructive tendencies. Educational and training programs can render legitimate employment a more attractive alternative to criminal endeavors. These may indirectly help enhance self-respect, but their primary purpose is to alter the options that the released convict will face.
6. Vengeance. The utilitarian, in contrast to the retributivist, does not suppose that wrongful acts intrinsically deserve a harsh response, but utilitarians recognize that victims, their families and friends, and some members of the public will feel frustrated if no such response is forthcoming. Satisfying these desires that punishment be imposed is seen as one legitimate aim in punishing the offender. In part, the point is straightforwardly to increase the happiness, or reduce the unhappiness, of those who want the offender punished, but formal punishment can also help increase their sense of respect for the law and deflect unchanneled acts of private vengeance.
7. Community or victim restoration. Another utilitarian sentencing goal that began to receive much greater emphasis toward the end of the twentieth century is to repair the damage that the offense has caused, by requiring the offender to make restitution or perform compensatory service for the victim or the community. Restorative justice goals are also sometimes defined to include acceptance of responsibility or repentance by the offender, forgiveness by the victim, and victim-offender or community-offender reconciliation, for example, by means of mediation or an apology. Since some of these goals and measures may also benefit the offender, and depend heavily on his cooperation, they might not seem sufficiently unpleasant or stigmatizing to qualify as punishment; however, the same could be said for many measures designed to promote reform or manage the offender's risk of re-offending. Indeed, the broadest goals of restorative justice overlap with several previously mentioned punishment goals, in particular, norm reinforcement, risk-management, and reform. Restorative measures can also be seen as a means of deflecting the desires of victims and the public for vengeance, and providing a more constructive outlet for such feelings.
Unlike a basic retributive theory, the utilitarian approach to punishment is compatible with philosophical determinism. Whether or not human acts are completely determined by prior causes, punishment can be an efficacious prior cause. A determinist can support even the "condemnation" component of punishment on utilitarian grounds, believing that condemnation and feelings of guilt are useful instruments in guiding human behavior.
From the utilitarian perspective, the acts for which criminal punishment should be authorized are those with respect to which the good consequences of punishment can outweigh the bad; the persons who should be punished are those whom it is useful to punish; and the severity of punishment should be determined not by some abstract notion of deserts but by marginal usefulness. Each extra ingredient of punishment is warranted only if its added benefits outweigh its added harms and costs. (Of course, in real life such a fine scale cannot be developed, but legislators and those administering punishment should be guided by this principle.) The utilitarian does not start with the premise that penalties of equal severity should go to those with equal blame. For general deterrence, roughly equal penalties for the same offenses may be appropriate, but goals relating to individual offenders may support individuation of treatment, leading, for example, to long confinement for those judged irredeemably antisocial, and to rehabilitation and prompt release for those whose character can be positively transformed (or already has been, at the time of sentencing).
Philosophical objections to utilitarianism. Utilitarian programs for systems of punishment are subject to two kinds of objections: those which challenge basic philosophical premises, and those which claim that different systems would better accomplish social aims. When existing practices are attacked, disentangling the theoretical from the practical complaints often is not simple, but the following discussion tries to separate the two, dealing first with basic attacks on utilitarian theory and indicating what modifications may be needed to accommodate valid criticisms.
The most fundamental objection is to treating the criminal as a means to satisfy social purposes rather than as an end in himself. This objection bears on why, and how, guilty offenders may be punished; but the most damaging aspect of the attack is that utilitarianism admits the possibility of justified punishment of the innocent. The retributivist asserts that such punishment is morally wrong even when it would produce a balance of favorable consequences.
Various responses have been made by utilitarians. One is that since the term punishment implies guilt, the innocent cannot logically be punished. The terminological point is highly doubtful in cases in which innocent people are portrayed as guilty and given harsh treatment on that basis. In any event, even if the point is sound, it merely requires the retributivist to restate his worry, now objecting that utilitarian theory countenances subjecting the innocent to harms that have the appearance of punishment. The utilitarian may answer that his theory will certainly not support any announced practice of punishing the innocent. The purposes of punishment would not be served if people knew a person was innocent, and even to establish a general policy that officials would at their discretion occasionally seek punishment of those they know are innocent would cause serious insecurity.
One version of utilitarianism, called "rule" utilitarianism, makes the standard of moral evaluation the rules that would, if publicly announced, accepted, and applied, produce the best consequences. Under this version, punishment of the innocent may cease to be a problem, since no rule authorizing such punishment should be accepted. Suppose, however, that an official or citizen is sure that surreptitiously promoting the punishment of someone he knows to be innocent will be very useful. The rule-utilitarian account avoids the dilemma, but only by presupposing that proper moral decisions must be defensible in terms of rules that can be publicly announced. "Act" utilitarians, who judge the rightness of a particular action by its own likely consequences, do not have this escape. They might, however, also try to foreclose intentionally punishing the innocent as a practical alternative, pointing to the severe insecurities that would be caused by knowledge of such punishment and the difficulties of maintaining secrecy. Alternatively, they might concede that punishing the innocent would be appropriate if the balance of likely consequences were favorable, arguing that such a conclusion conflicts with moral intuitions only because those are developed to deal with ordinary situations.
Many people will feel that none of these utilitarian responses adequately accounts for the unacceptability of punishing the innocent, which is regarded as inherently wrongful. Similarly, many regard it as intrinsically unfair and morally wrong to impose severe punishment on those who commit minor crimes, however useful that might be; to give widely variant punishments to those who have committed identical offenses with similar degrees of moral guilt; or to count the interests of an offender as having as much intrinsic weight as the interests of a victim or ordinary law-abiding person.
Mixed or hybrid theories. Given these problems with unalloyed utilitarian theory, some mixture of utilitarian and retributive elements provides the most cogent approach to punishment. The basic reasons for having compulsory legal rules backed by sanctions are utilitarian; these reasons should dominate decisions about the sorts of behavior to be made criminal. Moral wrongs should not be subject to legal punishment unless that is socially useful, and behavior that is initially morally indifferent may be covered by the criminal law if doing so serves social goals. Notions of deserts, however, should impose more stringent constraints on the imposition and severity of punishment than pure utilitarianism acknowledges.
Relevance of deserts. Every practical system of punishment must admit the possibility that mistakes will lead to innocent persons being punished, but knowingly to punish an innocent person is to violate an independent moral norm. Wrongdoing alone may not be a sufficient basis to justify punishment, but the wrongful act creates a right of society to punish that does not exist with innocent persons.
Considerations of deserts should also be relevant to the severity of punishment. One possible position is that someone should never be punished more severely than could be justified both by utilitarian objectives and by the degree of his wrongdoing. Under this principle, a person would not receive more punishment than he deserves, even when that might be useful (a concept sometimes referred to as "limiting" retributivism), and he would not receive unproductive punishment, whatever his degree of guilt (a utilitarian principle sometimes referred to as "parsimony"—punishing agents should impose the least severe sanction necessary to achieve all relevant social purposes). The latter principle, however, might be seen as too rigid in some circumstances. One such circumstance involves violent offenders whose mental condition, while not excusing them altogether, does make them less blameworthy, but also renders them more dangerous and less amenable to being deterred or rehabilitated. Perhaps in an exquisitely precise system such offenders would be given a moderate criminal sentence and an extended form of civil commitment, but in the absence of such fine lines, most observers would support a criminal penalty somewhat greater than the offender really deserves. For a different reason, more severe penalties may also be warranted when those who rationally decide to commit certain crimes are very difficult to apprehend. To have a deterrent effect, the penalties may need to be greater than would be justified by the guilt of the individual offender who happens to be caught. If he has been forewarned and has chosen to take the risk, the punishment may not be unfair to him, but it may be out of proportion to the blameworthiness of his action.
In other kinds of situations, retributive concerns may make it justifiable to inflict punishment even when a balance of favorable consequences is not expected. Under an ordinary utilitarian approach, each person's welfare counts equally, but perhaps the welfare of those who intentionally commit crimes should not be given as much weight in some respects as the welfare of law-abiding citizens. The wrongdoers may, by their acts, have forfeited a right to count equally. Suppose, for example, that every one hundred executions of murderers could save seventy innocent lives. Putting aside all other relevant considerations, one might believe that those who are innocent simply have a greater claim to have their lives protected than those who have knowingly taken the lives of others, and thus, one might accept that saving seventy innocent lives is worth taking a hundred guilty ones.
As noted above, a cardinal principle of the utilitarian approach is that useless punishment should be avoided. Applying that principle may lead on occasion to selective or exemplary punishment—that is, choosing one of a number of offenders for the imposition of penalties. Imposing unequal punishments on similar offenders, however, has an element of unfairness about it, and may violate norms of uniformity or equality in the treatment of equally culpable offenders. Although punishing many people well beyond what is necessary is not warranted solely to achieve equality, when the principle of equality and the principle of parsimony (keeping punishment to the minimum necessary) come into conflict, application of the latter principle may appropriately be tempered to some degree to reduce unfairness.
Possible limits on utilitarian aims. Independent moral standards may be thought to limit not only the absolute and comparative severity of punishments, but also the nature of punishments and the utilitarian purposes that can properly be promoted by them. Torture, for example, may be ruled out on moral grounds no matter how effective it could be in particular instances. A similar position on capital punishment is taken by those who think it absolutely wrong for the state intentionally to take the lives of its members. Such a position can be consistently maintained by a thoroughgoing pacifist, but someone who accepts intentional killing in wartime and intentional killing by the police to stop terrible crimes cannot persuasively argue that execution is an unjustified punishment, however useful it is in saving lives, whatever its side effects, and however fairly it may be administered.
Some writers have urged that imposing penalties on people because of predictions of how they will act in the future is unjust. Given the impossibility of knowing whether a particular individual requires individual deterrence, incapacitation, or reformation, they note that punishment grounded on those rationales will lead to some false positives—that is, people punished unnecessarily. The existence of some false positives in itself, however, does not warrant abandoning those utilitarian aims of punishment unless all utilitarian aims, including general deterrence and norm reinforcement, are indefensible. For each of these aims, one person is suffering punishment to protect the welfare of others. No difference in moral principle exists between punishing a person to deter other potential offenders and punishing him because he is a member of a class many of whose members will commit subsequent crimes, so long as the class is fairly defined and genuinely dangerous members cannot be more precisely determined.
A more plausible attack has been made on reformation as a permissible basis for compulsory measures. The contention is that the state should not force changes in people's character and that to do so violates their right to respect as persons. The offender has, however, already violated the rights of others, and his doing so may give the state more authority to tamper with him than it would otherwise have. Insofar as the offender's difficulty is lack of skills, compulsory efforts to remedy the defect do not represent a fundamental impairment of his personality. Compelled therapy or more extreme measures, such as surgical intervention, may do so. Although one cannot rule out on absolute principle every compulsory technique designed to alter an offender's basic character, measures that would change him radically against his will do violate moral limits on what the state can properly do.
Vengeance has been thought by some to be an unacceptable basis for punishment. Taking the view that people ideally would not seek to hurt those who have done harm simply for the sake of hurting them, this view asserts that morally unworthy human desires should not be satisfied even when that will cause happiness. Whether or not the satisfaction of malicious motives should generally count positively in a utilitarian calculus, the response can be that the state legitimately satisfies feelings of vengeance both because these feelings are linked to the maintenance of healthy moral opinion (a claim discussed below) and because such feelings will find socially damaging outlets if disregarded.
Theories and practices of punishment. During the mid-twentieth century, sentencing practices in the United States were largely consonant with utilitarian premises, although also consistent with important retributive limits on severity. General deterrence and more individually focused aims were given weight, in legislative enactments as well as theoretical analyses. Because individuals committing similar offenses have different characteristics and because circumstances of offenses vary, judges were typically given considerable latitude to set initial sentences. Judicial sentences to prison tended to be indefinite (for example, two to six years), so that the time of actual release could be determined according to a parole board's estimation of the offender's progress toward rehabilitation and of his level of dangerousness prior to release.
Reformation as the keystone. One attack on this system came from those who were highly skeptical about the usefulness of condemnation and imprisonment and who placed hope instead in scientific reformation of the individual criminal. Most extreme were proposals to abolish punishment in favor of a medical model that would consider the antisocial individual as an ill person needing treatment. Appearing at first glance more humane than traditional attitudes and practices, the model's emphasis on treatment could give the state open-ended authority to achieve a cure of the antisocial person—however long that might take, however radical the necessary therapy, and whatever his original wrong. Full acceptance of the model might also lead to compulsory treatment of those identified as socially dangerous before they commit harmful acts, a prospect of social intervention that many people perceive as a denial of human dignity and autonomy. Because of the medical model's potential for sweeping intrusion into citizens' lives, and because few people with political power have been willing to give up the possible benefits of condemnation and fear of penalties, proposals for abolition of punishment have never won wide acceptance.
A more moderate reformist position was that within a system of punishment, heavier concentration should be placed on reform, with the length of sentence to depend even more on the rate of rehabilitative progress. The movement to emphasize reform had already influenced American sentencing practices, promoting more flexibility in prison terms than had previously existed and more attention to the quality of programs within prison; but some believed that genuine change had not gone nearly far enough.
Just deserts. During the 1970s there was a sharp reaction against the emphasis on rehabilitation. Despairing over achievement of earlier reformers' goals, critics of existing practices argued that rehabilitation had largely proved a failure, that prison was more likely to harden criminals than to cure them of antisocial tendencies, and that parole boards were almost wholly unable to judge which prisoners were fit to be set loose on society. Flexible sentences, it was said, caused prisoners acute anxiety over their future, encouraged them to feign attitudes and emotions they did not feel, made them prey to the arbitrary dictates of prison officials and parole boards, and engendered in them a sense that the system was unfair in fundamental respects. Critics also contended that in practice, reliance on individual predictions to imprison persons was unjust, since many of those considered dangerous would not commit crimes if released, and since many of those viewed as apt candidates for individual deterrence or reformation are not rendered more law-abiding by confinement. Broad discretion and unequal treatment of similar offenders were challenged because they were intrinsically unfair and because disparities failed to contribute to utilitarian objectives and caused deep resentment among those convicted.
Although not rejecting general deterrence as a proper aim of punishment, proponents of the "just deserts" model urged that sentencing should seek to achieve the goals of proportionality and uniformity: penalties for particular offenses should depend mainly on the severity of the offenses, and those who commit similar offenses should be given equal, or nearly equal, treatment. Terms of imprisonment would be squarely fixed at the time of sentence. In-prison efforts to help convicts should continue, but participation in therapy or job training would no longer be relevant to the timing of release.
In certain respects the just deserts model seems obviously overdrawn. Whatever the uncertainties of individual prediction, confining those whose dangerousness is attested by repeated violent crimes must be acceptable, and the plausibility of rejecting this ground rests on the implicit assumption that some other basis for imprisonment will be available for these persons. (One such alternative in fact began to be used with increasing frequency at the close of the twentieth century: indefinite civil commitment of sexually dangerous persons.) Moreover, making penalties equal for similar offenders would disregard both the significant differences between those who commit the same offense, and the value of avoiding useless punishment (sentencing "parsimony").
Nevertheless, in their positive emphasis on the values of equality and perceived fairness, in their distaste for arbitrary discretion, in their skepticism about rehabilitation induced by the implicit promise of release, and in their realism about the effects of prison life, just deserts theorists and other critics of highly discretionary sentencing systems have made a substantial contribution to thought about punishment. They have also encouraged reforms in many states (in particular, the enactment of sentencing guidelines or other determinate sentencing laws) that have reduced judicial discretion and reduced or eliminated parole board discretion to determine date of release. However, even in those states, such as Minnesota, whose reformed sentencing systems were strongly influenced by the just deserts model, individualized sentencing based on the goals of rehabilitation and risk management continues to play a very substantial role in the design of formal rules and, especially, in actual practice.
Utilitarian bases for retributive perspectives. The modem debate over sentencing practices raises a more general theoretical question: May official decisions based on retributive premises be socially useful? The idea is that since people naturally think in retributive terms, they will be disenchanted and eventually less law-abiding if the law does not recognize that offenders should receive the punishment they "deserve." Although love for one's enemies may be a moral ideal, perhaps most people cannot feel strongly committed to a moral code without also wanting to see those who break that code punished. If the complex psychological and sociological assumptions that underlie this view are accurate, utilitarianism and retributivism may subtly blend. The ultimate philosophical justification offered for punishment would be promotion of human good, a utilitarian justification; but a retributive outlook among citizens would be welcomed and the operating official standard for punishment would be retributive. This apparent paradox is but an example in the context of punishment of an idea that has often been discussed in connection with utilitarian theory—the possibility that human welfare will be best advanced if people subscribe to a more absolutist morality than one which makes the promotion of good consequences the test of an act's rightness.
Justifications for punishment and the criminal law
In a rational system of penal law, a close connection will exist between accepted theories of punishment and both the boundaries of the substantive criminal law and the procedures by which criminal guilt is determined. The justifications obviously touch on sentencing policies and the sorts of activities that should be made criminal ("criminalization" decisions), but they are much more pervasive.
As far as criminal procedure is concerned, a dominant theme is avoidance of conviction of the innocent. The system of determining guilt is thus responsive to a view that such convictions are very bad, a view that is shared by both retributivists and utilitarians. In addition, concern over comparative desert is evidenced by worry about the unfairness of executing those whose behavior has been no worse than that of many others who receive only prison sentences. This worry has led to judicial and legislative reform of procedures for imposing capital punishment and has strengthened support for abolition of that penalty.
Definitions of guilt in the substantive criminal law place great emphasis on intentional, knowing, or reckless wrongdoing, largely eschewing criminal treatment for those who have the misfortune to be the accidental instruments of harm. Again the retributivist and the utilitarian largely unite, the retributivist claiming that punishing those who are not morally culpable is simply wrong and the utilitarian suggesting that such punishment is unproductive. There is, however, a point of significant difference. The retributivist may reject strict liability offenses, and perhaps even criminal liability for negligence (inadvertent, careless wrongdoing), on the basis of absolute principle; the utilitarian will remain open to the argument that in special settings such liability is warranted.
Similarly, justifications and excuses can be related to theories of punishment. For example, a person who acts in necessary self-defense is not morally culpable, nor will punishment serve any significant purpose. Such a person need not be reformed or deterred, others acting in self-defense should not be deterred, and punishment is much too high a price for a slight addition to the deterrence of those not acting in self-defense. Self-defense is made a justification for intentional assault that would otherwise be criminal. The insanity defense excuses those who are not blameworthy; it also reaches roughly to the class of those who are not deterrable by the sanctions criminal punishment can provide. Persons judged insane require incapacitation and need rehabilitation, but both can be accomplished by a mandatory civil commitment.
The conclusion that these and other major features of the substantive law are consonant with each of the two major theories of the justification of punishment should not be too surprising. Theories of justification are often built with existing practices in mind and do not usually stray too far from the reflective moral views of ordinary citizens. The fact that sharply divergent philosophical theories can have closely similar implications across a broad range of actual practices is less a startling coincidence than a product of the existential basis on which those theories are constructed.
See also Capital Punishment: Morality, Politics, and Policy; Comparative Criminal Law and Enforcement: Preliterate Societies; Conviction: Civil Disabilities; Corporal Punishment; Criminalization and Decriminalization; Cruel and Unusual Punishment; Deterrence; Incapacitation; Prisons: Prisoners; Prisons: Prisons for Women; Prisons: Problems and Prospects; Probation and Parole: History, Goals, and Decision-Making; Probation and Parole: Procedural Protection; Probation and Parole: Supervision; Rehabilitation; Restorative Justice; Retributivism; Sentencing: Allocation of Authority; Sentencing: Alternatives; Sentencing: Guidelines; Sentencing: Mandatory and Mandatory Minimum Sentences; Sentencing: Presentence Report; Sentencing: Procedural Protection; Shaming Punishments.
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The term “punishment,“in its psychological sense, is most commonly and appropriately applied to a situation in which a deprivation or unpleasant experience is deliberately imposed by one party upon another because of an actual or supposed misdeed which is knowingly and intentionally committed by the latter. The misdeed may be the violation of a rule, a law, a command, or an expectation and may consist either of an act or of inaction when action is called for. It is generally presumed that both parties to the transaction perceive the “punishment“as unpleasant and the provoking act as a misdeed or at least as punishable. While it is true that innocent persons are sometimes wrongly punished, in principle there can be no such thing as punishment when it is known that there has been no offense. Identical acts may under varying circumstances be perceived as punishment, nonpunishment, or reward by either of the actors involved. The full-fledged punishment situation is thus a complex social relationship in which the perceptions, motives, and intentions of both parties are essential features.
At the sociological level, punishment is characteristically defined in terms of collective perceptions and official definitions. Confusion is likely to follow from the failure to distinguish between the sociological and psychological frames of reference. Thus, from an official point of view, a person who is arrested, tried, and acquitted for an alleged crime has escaped punishment, despite the fact that his reputation may have been destroyed in the process. Punishments which are externally equivalent from the societal standpoint may be very differently perceived by the individuals upon whom they are imposed and may, indeed, not be experienced as punishment at all— as, for example, when an offense is committed to obtain free board and lodging in jail during the cold winter months. Those who regard certain laws as immoral, discriminatory, unjust, or tyrannical often feel that the imposed punishment confers honor and distinction upon them; the question in this case is whether it is the ethical duty of citizens to obey the law or to violate it.
Extrinsic and intrinsic controls. Punishments and rewards are generally thought of as contrived or extrinsic consequences of behavior, in contrast to those which are natural or intrinsic effects of a given type of conduct (Lewin 1931). Burning one’s finger by touching a flame, being avoided because one is a conversational bore, or suffering indigestion after eating inappropriate food are therefore not ordinarily conceived of as punishment. Punishment is usually applied either to induce a person to do something which he does not wish to do or to refrain from doing what he would like to do. A more satisfactory form of control is achieved by causing people to want to do desirable acts and to avoid undesirable ones, not because of contrived rewards and punishments, but rather because of satisfactions and dissatisfactions inherent in the behavior. The efficacy of rewards and punishments as measures of social control is far inferior to that exerted by intrinsic factors. It is much more desirable that a child study mathematics because he finds it interesting and believes that it will be useful than that he do so merely because of parental reward or punishment. Organized society presupposes that most members conform to social norms because they find it intrinsically satisfying to do so.
Unpleasant experiences. In some theoretical systems, the above distinction between extrinsic and intrinsic consequences of behavior is not made (see Hilgard & Marquis 1940). Thus, experimental psychologists working with lower animals sometimes view any unpleasant experience as punishment. The rat subjected to electric shock in a maze may, for example, be said to be “punished.“Sociologists have proposed similar theories. If, for example, interpersonal relationships are conceived, according to the economic model, as exchange relationships in which there are costs and values involved for both parties, punishment may obviously be regarded as a kind of cost. Theories of this sort make it difficult to deal specifically with concepts such as those of responsibility, misdeed, crime, law, guilt, remorse, justice, injustice, conscience, redemption, mercy, and revenge. Indeed, these terms are not ordinarily employed at all by those who use punishment to refer to any unpleasant or painful experience. However, it is generally conceded that conditioning experiments involving “aversive stimulation“of lower animals have only an indirect and peripheral applicability to the human punishment situation, as is indicated by the general tendency to avoid the term “punishment“and to substitute other more neutral and more specific terms.
It is of interest that extensive experimental investigation of the effects of unpleasant experiences upon lower animals, and on human subjects as well, suggests that such experiences are relatively ineffective and unpredictable as a means of behavior control (Hilgard & Marquis 1940). The reasons usually advanced in explanation are that severe pain or punishment tends to elicit strong emotional reactions, such as fear and anxiety, which disrupt behavior patterns and lead to a variety of responses, some of which, especially in human subjects, negate the purposes of punishment. The experimental evidence suggests that the most effective system of rewards and punishments is one in which the former are emphasized and the latter minimized or avoided whenever possible.
Self-punishment and divine punishment. Self-punishment and the concept of divine punishment are special cases. Freudian psychologists emphasize that a sense of guilt for a supposed misdeed or sin causes some persons to feel a “need for punishment“and either to punish themselves or to arrange to have others do it for them. In extreme cases, self-punishment may take the form of suicide. It is frequently associated with mental and emotional disorders. The conception of divine punishment may arise from a belief that everything that happens is an expression of God’s will and that misfortune, disease, suffering, and death are punishment for sin. If the wicked prosper and the virtuous suffer, it is assumed that the balance will be righted in the life to come.
The crime of punishment. The act of punishment in human relations is itself subject to normative control by a wide range of formal and informal rules, the violation of which in some instances transforms the act of punishment into a crime. Parents are generally conceded the right to punish their children for disobedience, but the injury inflicted by a criminal upon his victim for disobedience to his commands is defined as crime, not as punishment. Similarly, excessive parental chastisement of a child may bring formal punishment upon the parent. Critics of current penal practices make frequent use of the phrase “the crime of punishment“(Shaw 1922).
Formal punishment is regarded as that which is administered through the courts, and all other kinds are called informal. Informal punishment is of course extensively used in a wide variety of interpersonal and institutional contexts. It is commonly employed in the rearing and education of the young. All types of associations and establishments, such as educational and military institutions, political, occupational, and other types of associations, tend to have established ways of dealing with recalcitrant members. Expulsion from the group is a common sanction in voluntary associations. Punitive sanctions tend to be emphasized when membership is involuntary or in some degree coerced, and they may be specified in relatively formal sets of rules and regulations, as for example in boarding schools, prisons, and other similar establishments. Our concern here, however, will be with punishment for crime.
Punitive and restitutive sanctions
While “crime“is defined in different ways by different writers, one may say roughly that it is an act which is viewed as a public rather than a private or per sonal wrong and one which is prohibited and made punishable by law. Criminal proceedings, which result in the imposition of punitive or repressive sanctions, are contrasted with civil proceedings; the latter concern themselves with what may be called restitutive sanctions, such as money or property settlements, which have the effect of compensating or assuaging the injured party and restoring normal relations, much as an apology does in simple person-to-person relationships (Hardy 1963). The wrongs dealt with in civil proceedings are said to be private rather than public, torts rather than crimes; hence, the fine in a criminal case is paid to the state, whereas the damages assessed for a tort go to the aggrieved party. No criminal stigma is supposed to attach to civil proceedings.
There are, however, exceptions and ambiguities in the above distinction. Juvenile courts, for example, are said to be civil in nature, but they produce results which are perceived as punitive by those affected and by the public. The same may be said of compulsory civil commitment as sometimes practiced with respect to sexual psychopaths, alcoholics, drug addicts, and the mentally ill or incompetent. This ambiguity arises largely from the difficulty of determining when deprivation of liberty should be viewed as punishment and when not. The offenders and the general public are little impressed by the doctrine that imprisonment is a means of treatment and rehabilitation rather than of punishment and continue to think that criminal courts punish and that prisons are punitive, even when they are called “therapeutic communities“or “hospitals.”
The psychological complexities of the punishment relationship, and the variety of its forms, are most strikingly indicated by the elaborate machinery of justice in modern states and by the multiplicity and complexity of the laws, rules, regulations, and principles which control the imposition of punishment. The machinery begins with the legal definition of the kinds of acts deemed to be “criminal“and the selection of those persons who are regarded as “responsible“and therefore fit subjects for court processing; it ends with the release of the offender and the restoration of civil rights. The rules which guide this process are found in constitutions, statutes, and judicial rulings and regulations. In a general way these rules and principles reflect the basic values of the society pertaining to justice, to the nature of the acts for which punishment is appropriate, and to the kinds of punishment that ought or ought not to be imposed.
The processes of formal punishment in Western civilization have evolved slowly through the centuries and, from a contemporary perspective, appear to have become progressively more complex, refined, humane, discriminating, and flexible. Corporal punishment in all its many manifestations, exile, the death penalty, and all other older kinds of punishment have been largely supplanted by fines and imprisonment. Even where the death penalty is retained, as in most of the states of the United States, it is used less and less. Executions, which were formerly public spectacles and accompanied by torture and mutilation, are now carried out before severely restricted audiences of officials and in what is regarded as the most painless and “humane“manner possible. Torture, which was once popular both as punishment for the guilty and as a means of securing evidence of guilt, is officially outlawed. Officially, punishment for serious crimes today consists overwhelmingly of imprisonment, or loss of liberty. It is true, of course, that the degradation and loss of status associated with conviction for crime may be more painful than the sheer loss of liberty; but this is a factor which the courts cannot control or measure as they do lengths of sentences, and it is not part of the formal punishment.
In the modern nation-state, criminal laws can be promulgated and violations punished only by agencies of the state. Some primitive societies have agencies of central political control, and others do not. None of them, of course, have written legal codes and traditions, and in many it is difficult to identify anything like a court or to distinguish law from custom (Malinowski 1926). If it is held that an offense becomes a crime when it is viewed as a menace to the group as a whole and therefore dealt with by representatives of the group, then it might be said that crime and formal punishment emerge in preliterate society when a central agency (such as a chieftain or a council of elders) adjudicates cases and imposes punitive sanctions.
In primitive societies which do not have central governments capable of exercising coercive control over the subgroups which constitute the society, it would not be logical to speak of either crime or formal punishment. The standard example of this type of society is the Ifugao of Luzon (Hoebel 1954). In Ifugao society the kinship groups are sovereign, and most offenses are handled essen tially as torts or private wrongs to be settled by sanctions of the restitutive type, that is, for example, by payments made to the offended party by the offender or his kinship group.
In many primitive societies, punishment for crime is rationalized in supernatural terms. The offenses may be viewed as affronts to the deities or the ancestral spirits, who will bring disaster to the entire community or tribe if violations are not appropriately dealt with. Death and expulsion from the group are common modes of punishment for the most serious crimes, such as sorcery, witchcraft, sacrilege, and other magico-religious offenses (which do not even exist in most modern nations). Responsibility is often viewed as communicable and collective, with the familial or kinship group held accountable for the actions of its members; criminal guilt may contaminate the offender’s associates, his relatives, and even his possessions. Under primitive codes and those of early history, punishment has sometimes consisted of the complete obliteration of entire communities—including people, buildings, livestock, and even trees (Oppenheimer 1913, p. 121).
In the legal systems of modern nations criminal guilt is said to be, with some exceptions, strictly personal. However, the very concept of personal responsibility has been challenged by some contemporary theories of human behavior and has been diluted by such ideas as that of “diminished responsibility“and by a growing sense of collective responsibility for the environmental conditions that are believed to generate crime. According to this view of responsibility, societies have the criminals they deserve. The rehabilitative view of imprisonment may be an indication that the concept of subjective individual responsibility is losing its authority (Fauconnet 1920) or tending to disappear, and that as it does so formal punishment tends to be transformed into something other than “punishment.”
The various theories which attempt to explain punishment are not consistent with one another. While all of the following theories carry a degree of plausibility, none of them seems to account for more than a part of the problem.
Origins and functions of punishment
A variety of theories concerning the origins of formal punishment have been proposed, such as that it evolves from private vengeance; that it grows out of conquest and the attempts of ruling elites to control subject peoples; that it originates when the state takes over the disciplinary powers of the paterfamilias; that it arises from the attempt of the society to guard itself against supernatural dangers or as a religious duty imposed by the divine will; and finally that it is an outgrowth of an aesthetic sense which conceives it as the logical counterpart of a misdeed (Oppenheimer 1913). The most commonly held view is probably that formal punishment originates as a societal reaction to actions which, in accordance with the value system of the society, are viewed as dangerous or injurious to the society as a whole. Durkheim, for example, conceived of crime as a violation of the collective conscience, which consists of values held in common by the members of society. While punishment may be rationalized in terms of supernatural forces and dangers, the latter were viewed by Durkheim as symbols or projections of societal concerns.
The purposes or functions usually ascribed to formal punishment are deterrence, reformation, revenge, retribution, and protection of society by incapacitation of the offender. Several of these purposes are commonly combined, and none of them is invariably present.
A more systematic and inclusive theory (Durkheim 1893) is that formal punishment for crime is not explained by any or all of the above purposes or functions popularly ascribed to it but that it is essentially a ceremonial reaffirmation of the societal values that are violated and challenged by the crime. Its general function is therefore that of enhancing social solidarity by strengthening the basic social values violated by the offender. From this point of view, the crucial significance of the punishment inflicted on a murderer is that it supports and enhances the general belief in the sanctity of human life, not that it instills fear in the minds of other potential murderers or that it seeks to reform the offender. Punishment of criminals is thus something like the sacrifice of individuals for the common good. This theory accounts for historical changes in punishment in terms of the change from the “mechanical“social solidarity of simple folk societies to the “organic“solidarity of complex societies, which is based on interdependence created by the complex division of labor. In the latter type of social system, punitive sanctions diminish in severity and tend to give way to restitutive ones.
Punitive orientation toward crime
Prosecutors and defense lawyers know that individuals differ considerably in the punitiveness of their attitudes toward crime in general and toward specific types of crimes. General impressions and casual observation suggest that a variety of factors such as per sonality, social status, income, occupation, past experiences, religious affiliation, and many others affect these attitudes. Systematic research concerning the distribution and variation of punitive attitudes is lacking, and the empirical evidence needed to support general theories in this area is therefore inadequate.
Svend Ranulf (1938) has proposed the hypothesis that the punitive orientation toward crime and sin is especially concentrated in the lower middle classes. This orientation is thought to arise from moral indignation based on resentment created by the frustration of belonging in this particular class. Historical examples, sketched in very broad outlines, are used to support the theory, but the author himself concedes that much more detailed evidence is needed to test the hypothesis. Ranulf emphasizes the idea that punishment for crime arises not from the indignation of the victim but rather from that of the public; hence, he is concerned with what he calls the “disinterested“desire to inflict punishment.
A very different type of theory has been proposed by Rusche and Kirchheimer (1939) to account for the historical evolution of penological practices. According to the Marxist-oriented view of these authors, the primary determinant of the social reaction to crime is the state of the labor market. Crime is assumed to be primarily a lower-class phenomenon, while law-making and punishment are regarded as prerogatives of the upper classes who hold political power. When there is an unsatisfied demand for labor, the upper classes impose few and mild punishments; whereas when the labor market is glutted and there is much unemployment, punishment tends to be severe. The authors argue that corporal and capital punishment were supplanted by forced labor because of the state’s need for the latter, that fines were adopted as a revenue measure, and that deportation in the form of penal transportation was a means of providing labor for the colonies.
Other somewhat less systematic theories include the application of Freudian doctrine to formal punishment. From this standpoint, the infliction of punishment is interpreted in terms of personality dynamics, and the punitive orientation is linked with repression and frustration of libidinal urges. The criminal is sometimes viewed as a scapegoat or object of aggression arising from unconscious conflicts within the personality.
Class differentials in punishment
Sociologists (Sutherland & Cressey  I960, p. 300) frequently emphasize class differentials in the punishment process. They note that brutal punishment flourished at a time when there was great social distance between the upper ruling classes and the lower classes, who suffered most of the punishment. With the development of democratic equali-tarian ideals and a broadened base of political power, the social distance between the punisher and the punished diminished, and punishment became milder. It is argued that when the punisher is separated from the offender by a great social gap, he tends to view the latter almost as a lower animal or a foreign enemy. On the other hand, when those inflicting punishment observe that the offender is very much like them, they tend to be more sympathetic and less vengeful.
Deterministic and behavioristic theories
Earlier in this article we have referred to deterministic and behavioristic theories of human behavior which, because they avoid or reject the idea of responsibility, also reject the idea of punishment. For example, the “positive school of criminology,“founded by Cesare Lombroso, insisted that a criminal act should be viewed as a natural event (such as a hurricane) which is brought about by antecedent conditions that make it happen. Free will is excluded, and punishment is regarded as inappropriate and is equated with revenge. Behavioristic theory which eschews “men-talistic“concepts such as those of responsibility, guilt, and intention seems to lead logically to similar results.
Critics of this position (for example, Hall 1947) contend that it is based on erroneous or oversimplified conceptions of human conduct. They argue that formal punishment is not vengeance; that when intelligently applied it can have constructive effects upon both the offender and the society; and that it is in any case a social necessity, as indicated by the universality of the criminal law in all complex societies.
Alfred R. Lindesmith
Beccakia, Cesare Bonesana (1764) 1953 An Essay on Crimes and Punishments. Stanford, Calif.: Academic Reprints. -” First published as Dei delitti e delle pene. A paperback edition was published in 1963 by Bobbs Merrill.
Durkheim, Smile (1893) 1960 The Division of Labor in Society. Glencoe, 111.: Free Press. -* First published as De la division du travail social.
Fauconnet, Paul 1920 La responsabilite: Etude de so-ciologie. Paris: Alcan.
Hall, Jerome (1947)1960 General Principles of Criminal Law. 2d ed. Indianapolis, Ind.: Bobbs-Merrill.
Hardy, M. J. L. 1963 Blood Feuds and the Payment of Blood Money in the Middle East. Beirut: Privately published.
Hentig, Hans Von (1932) 1937 Punishment, Its Origin, Purpose and Psychology. London: Hodge. -“First published as Die Strafe: Ursprung, Zweck, Psychol-ogie.
Hilgard, Ernest R.; and Marquis, Donald G. (1940) 1961 Hilgard and Marquis’ Conditioning and Learning. Revised by Gregory A. Kimble. 2d ed. New York: Appleton. -” First published as Conditioning and Learning.
Hoebel, E. Adamson 1954 The Law of Primitive Man: A Study in Comparative Legal Dynamics. Cambridge, Mass.: Harvard Univ. Press.
Lewin, Kurt (1931)1935 The Psychological Situations of Reward and Punishment. Pages 114-170 in Kurt Lewin, A Dynamic Theory of Personality. New York: McGraw-Hill.
Malinowski, Bronislaw (1926) 1961 Crime and Custom in Savage Society. London: Routledge. -“A paperback edition was published in 1959 by Littlefield.
Oppenheimer, Heinrich 1913 The Rationale of Punishment. Univ. of London Press.
Ranulf, Svend (1938) 1964 Moral Indignation and Middle Class Psychology. New York: Schocken. -* First published in Danish.
Rusche, George; and Kirchheimer, Otto 1939 Punishment and Social Structure. New York: Columbia Univ. Press.
Shaw, George Bernard (1922) 1946 The Crime of Imprisonment. New York: Philosophical Library. -” First published as Imprisonment.
Sutherland, Edwin H.; and Cressey, Donald R. (1924) 1960 Principles of Criminology. 6th ed. New York: Lippincott. -“First published as a textbook under the title Criminology, by Edwin H. Sutherland.
"Punishment." International Encyclopedia of the Social Sciences. 1968. Encyclopedia.com. (July 27, 2016). http://www.encyclopedia.com/doc/1G2-3045001022.html
"Punishment." International Encyclopedia of the Social Sciences. 1968. Retrieved July 27, 2016 from Encyclopedia.com: http://www.encyclopedia.com/doc/1G2-3045001022.html
Punishment is best defined as an authorized agent or institution intentionally inflicting pain on an offender or depriving the offender of something in response to an offense or crime the offender is said to have committed. But definitions, however broad, need to be approached with caution, since it is impossible to perfectly capture the myriad constellations of social practices labeled punishment over time and throughout the world. It is helpful to keep in mind Friedrich Nietzsche's (1844–1900) distinction between the forms of punishment (which have maintained a level of continuity) and the meanings of punishment (which have been numerous over time). Indeed, until Nietzsche, philosophical concern with punishment had been almost completely devoted to delineating the justifications of social sanctions. Although many philosophers, especially since the Enlightenment, have seen the great question as why anyone should be allowed to intentionally inflict harm at all, this need to justify the practice has been relatively recent. The more historically resonant need has not been to legitimate punishment itself but rather to distinguish punishment from revenge and justice from mere retribution.
Vengeance and Punishment
Because the figure of vengeance hovers behind punishment as a threat of lawlessness, some of the most common characteristics of punishment since classical Greece are most easily identified by contrasting them with revenge, as they are in Aeschylus' Oresteia trilogy. First, revenge is personal, an act of private justice taken by individuals for wrongs done to them or to those close to them, usually blood relatives. Punishment thus commits itself to impersonality, where the response to an offense is assumed by an authorized third party, typically the state. Second, revenge is based on a subjective sense of injury, which may arise out of something that is neither a crime nor even a tangible harm at all. Within a culture of honor, for example, a well-timed snub may be felt and treated as seriously as a physical assault. In contrast, punishment must be dispassionate and based on the commission of well-and previously defined crimes. Third, revenge is fueled by the desire for the offender to suffer as the victim has, and because of this element of passion it is impossible to ensure that the revenge will not greatly exceed the initial harm. Punishment must thus be proportionate, balancing the appropriate punishment and the severity of the crime. Fourth, revenge often spirals out of control, leading to blood feuds that implicate members of an extended family and continue for generations. Punishment commits itself to harming only the individual perpetrator of the initial harm. Fifth, revenge is not public nor is the avenger committed to requiting similar harms done to others. Punishment must be a form of public policy, based in a violation of known laws, with consistent enforcement.
Retribution and Consequentialism
The philosophical justifications of punishment have tended to fall into two broad categories: retribution and consequentialism. Arguments based in retribution look backward toward the initial crime itself, justifying punishment as what the criminal deserves for his or her initial act. The earliest retributivist ideal, the lex talionis (literally, "law of the same kind"), is found in numerous ancient Near Eastern law codes, including the Code of Hammurabi (c. 18th century b.c.e.) and exemplified in the Old Testament formula of an "eye for eye, tooth for tooth, hand for hand, foot for foot" (Deut. 19:21; see also Exod. 21:24, Lev. 24:23). The principle of the talionis has often been compared to vengeance, and indeed the emotional satisfaction of the victim plays a large part in retributivist accounts, especially in the symbolic similarity of the punishment to the crime. However, retributive justice is meant to place a strict limitation on the extent of requital, disrupting potential blood feuds and ensuring both proportionality and a conclusion to strife. By offering an image of justice based in rebalancing a harmony that has been upset, retribution assumes the justness of the initial status quo and punishment invites a return to that initial stage.
The second common category of justification is consequentialism, which looks toward the future rather than backward toward the crime. For the consequentialist, retributivism is nothing more than a compromise with revenge, and no punishment can be legitimated without knowing that it will bring forth good effects. The good effects that are considered to derive from punishing the offender vary but have included (a) reducing the amount of crime by removing criminals from public circulation; (b) deterring others from committing crime through example and threat; and (c) reforming and rehabilitating the criminal.
In demanding that punishment have effects beyond harming an offender, the consequentialist theorist must often turn away from the criminal act itself and look toward the criminal or the socioeconomic environment, which leads to charges that consequentialism effaces the evil of the crime. Consequentialist theories are also often troubled by a lack of conformity between the guilt of the punished and the usefulness of the punishment. For example, punishing an innocent person may still serve as a deterrent, whereas punishing a truly remorseful criminal who committed an offence no one witnessed may be superfluous. Because punishment may serve goals that are often extraneous to the law, such as providing socially beneficial labor or edifying examples of redeemed guilt, or generating social cohesion, consequentialism often seems to be an affront to the strict rule of law.
Plato (428–389 b.c.e.) embodies the rehabilitationist aspirations of consequentialism. "The purpose of the penalty is not to cancel the crime—what is once done can never be made undone—but to bring the criminal and all who witness his punishment in the future to complete renunciation of such criminality, or at least to recovery in great part from the dreadful state" (p. 934). For Plato, it was important to redefine dikē (punishment as justice) in a way that clearly distinguishes it from timōria (punishment as vengeance). Punishment is undertaken for the sake of the guilty party, as part of a cure for the injustice that diseases the criminal's psyche. Since criminality harms the offender even more than the victim, and since one would never knowingly harm oneself, criminal acts cannot strictly be understood as voluntary. Plato nevertheless accepted many traditional forms of punishment involving suffering without clearly explaining how suffering is the best way to cure someone of injustice.
A secondary concern in justifying punishment has been the identity of those bodies authorized to punish. The primary solution, at least since early modernity, is for the sovereign state to claim exclusive authority, an assertion exemplified by Thomas Hobbes' Leviathan. However, this claim has always been controversial, for religious organizations have often claimed the authority to punish parishioners for their sins. The medieval Catholic Church was often responsible for lessening the severity of punishments, especially in reducing the number of death sentences, since the Church primarily saw the criminal as a sinner in need of repentance. But this also meant that a number of acts of moral turpitude demanded punishment by religious authorities, regardless of civil law. This drawn-out conflict over penal sovereignty helped precipitated the critiques of the Enlightenment.
The Enlightenment's contribution to both the philosophical justifications of punishment and to concrete penal reforms cannot be underestimated. Voltaire (1694–1778), Charles-Louis Secondat, baron de Montesquieu (1689–1755), Jeremy Bentham (1748–1832), and others challenged both the penal practices of the day and their justifications. These reformers were strongly consequentialist in orientation. "All punishment is mischief," according to Bentham's famous dictum, and could be admitted only on the basis of its future utility. The only just reason for punishment is to protect society lawfully by preventing future crime rather than to seek retribution or display the overwhelming power of the king. They argued that punishment must only result from violations of civil law, not of religious edicts, and that crime must be distinguished from sin. Voltaire condemned punishment for violations of religious ceremony or dogma, sarcastically calling them "local crimes" as opposed to acts universally condemned. They also criticized the lighter punishments meted out to the aristocracy and the arbitrary sentences handed out by judges with overly wide discretion. Violent but irregular punishments were not helpful and, as Montesquieu noted, witnesses to such ceremonies become inured to the sight. To be effective, they argued, punishment must be swift and must not be arbitrary. This requires that legislatures clearly define criminal law rather than allowing judges wide discretion—a point that was central to Bentham's peneology.
Most of these reform proposals are collected in a slim, influential treatise by the Italian jurist Cesare Beccaria (1738–1794), On Crimes and Punishments (1764). Beccaria condemned the secrecy of criminal justice and demanded an end to the use of judicial torture. However, his most famous proposal was to abolish the death penalty. He argued that not only is capital punishment ineffective as a deterrent but that it cannot have been agreed to as part of an original social contract. Thus, while the purpose of punishment may be the protection of the society, there are limits to how far that protection can extend.
Enlightened reformers moved away from corporal punishment, seeking to design a penal system that would make punishment more useful, edifying the prisoner while simultaneously repairing the damage the prisoner had inflicted upon society. Central to these plans were work and imprisonment. Work was a common corrective technique, and many reformers believed the regularity and discipline of labor would lead to the moral rejuvenation of the wrongdoer while serving social needs at the same time. During the late eighteenth and early nineteenth centuries, distinctions between the prison and the work-house were cloudy, and prisons were often structured akin to factories. Other potential penalties could include transportation, sending convicts to work in overseas plantations as indentured servants for the duration of their sentence.
If retributivist theories did not disappear under the weight of the eighteenth century's legal reforms, neither were retributivists unaffected by the Enlightenment's powerful critique of traditional practices and justifications for punishment. Immanuel Kant (1724–1804), the Enlightenment's greatest retributivist, criticizes Beccaria as overly compassionate toward humanity. Punishment must relate only to the crime, he argued, and cannot be concerned with any other extraneous goals, such as reform or deterrence, for such utilitarian goals treat persons as mere things. Yet neither must punishment serve the emotional satisfaction of the injured; punishment must neither be passionate nor unpredictable, neither overly humane nor desirous of revenge. Kant did not justify his full embrace of the lex talionis as a controlled form of revenge but rather as a dispassionate principle of universality and equality. Thus his theory of punishment seeks fairness not only for the victim or for society but for the perpetrator of the crime as well.
For Kant, the lex talionis served not only to justify punishment but also as a guide to proper proportionality. The punishment must resemble the crime itself; not only retribution but similarity is required. For example, murder can only be punished through the death penalty and Kant dismissed Beccaria's critique of capital punishment as mere "sophistry and juristic trickery." Nevertheless, Kant still argued that a mother guilty of killing her illegitimate child should be excused from the death penalty on the grounds that the law has not recognized the birth and thus the mother stands in a "state of nature" in relation to her child. As this example suggest, Kant's theory of punishment is not simply the juridical translation of his moral theory. His complex reworking of the tradition of the talionis continues to have difficulties in separating from the ideal of revenge, yet despite these difficulties—or perhaps because of them—Kant's theory of just punishment featured strongly in the revival or redistribution in the United States and Britain during the 1980s.
Georg Wilhelm Friedrich Hegel (1770–1831), on the other hand, was a retributivist who rejected the lex talionis and considered punishment a right of the criminal. Crime, he argued, is an affront to the very structure of legality and criminals have metaphorically torn the mask of legal personality from both their victims and themselves, revealing the naked contingency of the law. Punishment "annuls" the crime by re-asserting the proper status of both parties as legal subjects. Thus punishment is a right of the criminal as much as of the victim (which does not mean that the criminal desires it). In a reflection of Plato, Hegel viewed punishment as a form of education, in which the criminal is taught how to behave in a manner worthy of his status as a person.
From Justification to Explanation
Implicit in Hegel's theory of punishment is the socially vital role of both the criminal and the act of punishing; far from being an unfortunate aberration, punishment is a constitutive force of social life and proves the law's force. This idea that crime and punishment play a necessary role was emphasized by a number of social thinkers at the beginning in the late nineteenth century. In the late nineteenth century, an alternative set of philosophical and historical speculations arose, which were more interested in explaining and examining the function of punishment within a social system than in justifying or legitimizing any particular set of practices.
This shift in philosophical attention came from multiple and not always reconcilable directions. Three key exemplars are the sociological analysis of Émile Durkheim (1858–1917), the Marxian tradition, and the genealogical method of Nietzsche and Michel Foucault (1926–1984). Despite their differences, these approaches have important similarities. First, these theorists did not see crime and punishment as aberrant, but as having the power to construct a larger social order. Thus, rather than intimately linking crime with punishment, they saw both within the context of a greater social and economic environment. Second, they were skeptical, if not outright dismissive, of the two conventional theories of penal justification. Third, all three showed an interest in the philosophical ramifications of taking seriously the historical changes in penal practices.
In The Division of Labor in Society (1893), Durkheim rejected the contention that punishment must break its ties with either vengeance or the emotional satisfaction it provides. For Durkheim, the social function of punishment is to give effect to the emotional outrage of a society whose norms have been breached by the criminal act. A criminal act is identified as that which shocks the social conscience; criminality functions as a way to clarify the moral boundaries of the social group. Punishment is the reciprocal effect of society's moral outrage, generating and maintaining a solidarity that society cannot readily do without.
Calls for restorative justice are one contemporary manifestation of Durkheim's theory of social solidarity. Rather than in placing either the crime or the criminal at center stage, this theory focuses on the injuries and needs of the victim and of the community as a whole. Offenders must be held accountable to these victims, and part of their penalty may involve direct restitution, apologies to the victims, and community service. The goal is begin a process of restoring the trust and solidarity that is broken by a criminal act, and although restorative justice draws on both retributivism and therapeutic consequentialism, it offers a clear alternative to both theories by concentrating on the social relationships that are harmed in the wake of crime.
Marxist analysis of crime has often emphasized the political economy of penology and sought to strip the practices of punishment from their juridical justifications. Although he wrote infrequently on legal matters, Karl Marx (1818–1883) criticized the failure of penal theory to consider the social factors, especially economic inequality and poverty, that underlay criminal activity. Using this framework, Georg Rusche (1900–1950) and Otto Kirchheimer (1905–1965), in Punishment and Social Structure (1939), examined the development of various forms of punishment in the context of the labor market's fluctuating needs, from the Middle Ages through to the modern day. Imprisonment, for example, functions both as a useful source of cheap labor for the state and, during periods of high unemployment, as a useful way of clearing the streets of potentially dangerous subversives who have little to lose. Less deterministic in the way they linked the economy and penology were the works of British historians and sociologists led by E. P. Thompson (1924–1993), whose Whigs and Hunters: The Origin of the Black Act was published in 1975. In this important work, he used the relationship between capital punishment and property laws to examine how the law in general legitimates economic inequalities and mediates relationships between economic classes.
By looking at the social context of crime, skeptics inside and outside of the Marxist tradition have challenged the unequal distribution of punishment along racial lines, pointing to, for example, the disproportionate number of racial minorities filling prisons in the West and the statistical correlation between the severity of punishments (especially the death penalty) and the race of the victim. Criminologists studying the sociology of deviance have also examined the phenomenon of the "moral panic"—exaggerated responses to perceived outbreaks of deviance or criminal behavior.
In On the Genealogy of Morals (1887), Nietzsche sought to disrupt the ahistorical tendencies of utilitarian histories of punishment that conflated the current function of punishment with its origin, "just as one formerly thought of the hand as invented for the purpose of grasping" (Second Essay, Section 13, p. 79). He offered an alternative origin of penal practices in a primitive economic version of the lex talionis, in which the physical tortures associated with juridical punishment were associated not with a guilty subject but rather only with the pleasure a creditor took in harming a debtor with an outstanding bill.
The genealogical perspective has been most importantly taken up by the French historian Michel Foucault. In Discipline and Punish: The Birth of the Prison (1975), Foucault explains how imprisonment emerged out of a wide array of potential penalties in the late eighteenth and early nineteenth centuries to become almost the sole means of punishing criminals. He describes a shift away from sovereign authority acting publicly against those who transgressed its laws and toward a complex and fractured form of power exercised through the techniques of discipline and centered in the controlled spaces of the prison, away from public sight. In describing this movement, Foucault challenges the Enlightenment's representation of itself. Whereas eighteenth century European penal reformers argued that they sought to humanize punishment by making its exercise equal, consistent, and beneficial to all of society, Foucault argues that they helped bring forth a new economy of power, one that shifted the emphasis away from the crime and onto the "moral" reform of the criminal. Bentham's Panopticon prison design is emblematic of this system of social knowledge gained through surveillance and a careful arrangement of the body in time and space. The prison, in Foucault's eyes, becomes not only the site of disciplinary mechanisms but also a sign of a how the incarceration model of punishment has bled into many other social institutions, including schools and the workplace. Perhaps the most important ramification taken from Foucault's work is a radical reconceptualization of how power operates in society. Rather than modeling power on the tops-down physical coercion of a sovereign, Foucault conceives of power relations as derived from the mutually reinforcing links between social practices such as punishment and systems of scientific knowledge such as penology. Ironically, this radical critique of the therapeutic model occurred at the same time that retributivist arguments favoring greater use of imprisonment gained a new lease on life, indicating a dearth of new justifications for prisons combined with a practical lack of penal alternatives.
No other penal issue has attracted such controversy since the mid-1970s as the death penalty. Abolitionists argue that morally it is inhuman and practically it is ineffective in deterring crime. Abolitionists also argue that it grants the state too much power, and is too often used as a tool of political terror, or used unequally upon minority communities. While some supporters of capital punishment argue from consequentialist principles that the death penalty is a deterrent to crime, most adopt a modern version of the lex talionis. By the end of the twentieth century many Western nations, especially throughout Europe, had banned this practice. The United States, along with many regimes in Africa, Asia, and the Middle East, continues to apply the death penalty. While the practice has been challenged as a violation of individual civil liberties, its popularity in the United States remains strong in the early twenty-first century.
See also Natural Law ; Society ; Virtue Ethics .
Beccaria, Cesare. On Crimes and Punishments. 1764. Reprint, translated by Henry Paolucci. Indianapolis: Bobbs-Merrill, 1963.
Bentham, Jeremy. An Introduction to the Principles of Morals and Legislation. 1789. Reprint, edited by J. H. Burns and H. L. A. Hart. New York: Oxford University Press, 1996.
Ezorsky, Gertrude, ed. Philosophical Perspectives on Punishment. Albany: State University of New York Press, 1972.
Foucault, Michel. Discipline and Punish: The Birth of the Prison. Translated by Alan Sheridan. New York: Vintage, 1977.
Garland, David. Punishment and Modern Society: A Study in Social Theory. Chicago: University of Chicago Press, 1993.
Hart, H. L. A. Punishment and Responsibility: Essays in the Philosophy of Law. New York: Oxford University Press, 1968.
Hegel, G. W. F. Elements of the Philosophy of Right. 1821. Reprint, edited by Allen W. Wood, translated by H. B. Nisbet. New York: Cambridge University Press, 1991.
Kant, Immanuel. The Metaphysics of Morals. 1797. Reprint, translated by Mary Gregor. New York: Cambridge University Press, 1991.
Mackenzie, Mary Margaret. Plato on Punishment. Berkeley: University of California Press, 1981.
Nietzsche, Friedrich. On the Genealogy of Morals. 1887. Reprint, translated by Walter Kaufmann. New York: Vintage, 1967.
Plato. The Laws. Translated by Trevor J. Saunders. New York: Penguin Books, 1970.
Rushe, Georg, and Otto Kirchheimer. Punishment and Social Structure. 1939. Reprint, New York: Russell and Russell, 1967.
Ten, C. L. Crime, Guilt, and Punishment: A Philosophical Introduction. New York: Oxford University Press, 1987.
Tunick, Mark. Punishment: Theory and Practice. Berkeley: University of California Press, 1992.
Douglas C. Dow
Dow, Douglas. "Punishment." New Dictionary of the History of Ideas. 2005. Encyclopedia.com. (July 27, 2016). http://www.encyclopedia.com/doc/1G2-3424300647.html
Dow, Douglas. "Punishment." New Dictionary of the History of Ideas. 2005. Retrieved July 27, 2016 from Encyclopedia.com: http://www.encyclopedia.com/doc/1G2-3424300647.html
The imposition of hardship in response to misconduct.
Punishments authorized in modern U.S. law include community service, monetary fines, forfeiture of property, restitution to victims, confinement in jail or prison, and death.
Some civil sanctions are punitive in nature. The primary aim, though, in most civil cases is to compensate the victim. However, a judge or jury may assess punitive damages against a party in a civil case if that party's conduct was especially wicked. Punitive damages are intended to punish a party or set an example for similar wrongdoers. Though onerous, punitive damages in a civil case do not carry with them the same stigma attached to criminal punishment.
Human transgressions have been punished in various ways throughout history. The standard punishments in ancient Greek and Roman societies were death, slavery, mutilation (corporal punishment), imprisonment, or banishment. Some punishments were especially creative. In ancient Rome, for example, a person who murdered a close relative was enclosed in a sack with a cock, a viper, a dog, and a monkey, and then cast into the sea.
The ancient punishments were brought to England. Until the nineteenth century, the death penalty, or capital punishment, was imposed in England for more than 200 different crimes. Most of these crimes were petty violations, such as pick-pocketing or swindling. A defendant could be hanged, burned at the stake, or beheaded. In some cases the process of death was drawn out. A person found guilty of treason, for example, was placed on a rack and stretched, hanged until not quite dead, then disemboweled, beheaded, and quartered (cut into four pieces).
Until the nineteenth century, corporal punishment in England could consist of whipping, branding, or the cutting off of a body part. Noses, ears, hands, fingers, toes, and feet were all subject to removal for criminal acts. Often the body part sliced off was the part thought responsible for the act. A pickpocket, for example, might have a hand cut off, and a spy might lose an ear, tongue, or eye. Corporal punishment could be inflicted in addition to other punishments, such as banishment, forced labor, or short-term incarceration.
The American colonies adopted and cultivated the traditional punishments of England. The most common punishments were corporal and capital. Petty criminals were often sentenced to a combination of corporal punishment and incarceration in jail for several months. The punishment for more serious crimes was usually death.
Punishment was the most comprehensive and severe in colonies founded on religious principles. In Massachusetts, controlled by the Puritans, a woman who committed adultery could be forced to wear the letter A in public as a punishing reminder of her conduct. Men who committed adultery were put to death, as were those who engaged in bestiality.
The witch trials in Salem, Massachusetts, illustrated the inventiveness of punishment in some of the colonies. In 1692, 19 people were executed after children claimed that several women were practicing witchcraft. One of the alleged witnesses, who refused to participate in the trials, was slowly pressed to death under the weight of heavy rocks.
Theories of Punishment
Governments have several theories to support the use of punishment to maintain order in society.
Theories of punishment can be divided into two general philosophies: utilitarian and retributive. The utilitarian theory of punishment seeks to punish offenders to discourage, or "deter," future wrongdoing. The retributive theory seeks to punish offenders because they deserve to be punished.
Under the utilitarian philosophy, laws should be used to maximize the happiness of society. Because crime and punishment are inconsistent with happiness, they should be kept to a minimum. Utilitarians understand that a crime-free society does not exist, but they endeavor to inflict only as much punishment as is required to prevent future crimes.
The utilitarian theory is "consequentialist" in nature. It recognizes that punishment has consequences for both the offender and society and holds that the total good produced by the punishment should exceed the total evil. In other words, punishment should not be unlimited. One illustration of consequentialism in punishment is the release of a prison inmate suffering from a debilitating illness. If the prisoner's death is imminent, society is not served by his continued confinement because he is no longer capable of committing crimes.
Under the utilitarian philosophy, laws that specify punishment for criminal conduct should be designed to deter future criminal conduct. Deterrence operates on a specific and a general level. General deterrence means that the punishment should prevent other people from committing criminal acts. The punishment serves as an example to the rest of society, and it puts others on notice that criminal behavior will be punished.
Specific deterrence means that the punishment should prevent the same person from committing crimes. Specific deterrence works in two ways. First, an offender may be put in jail or prison to physically prevent her from committing another crime for a specified period. Second, this incapacitation is designed to be so unpleasant that it will discourage the offender from repeating her criminal behavior.
Rehabilitation is another utilitarian rationale for punishment. The goal of rehabilitation is to prevent future crime by giving offenders the ability to succeed within the confines of the law. Rehabilitative measures for criminal offenders usually include treatment for afflictions such as mental illness, chemical dependency, and chronic violent behavior. Rehabilitation also includes the use of educational programs that give offenders the knowledge and skills needed to compete in the job market.
The counterpart to the utilitarian theory of punishment is the retributive theory. Under this theory, offenders are punished for criminal behavior because they deserve punishment. Criminal behavior upsets the peaceful balance of society, and punishment helps to restore the balance.
The retributive theory focuses on the crime itself as the reason for imposing punishment. Where the utilitarian theory looks forward by basing punishment on social benefits, the retributive theory looks backward at the transgression as the basis for punishment.
According to the retributivist, human beings have free will and are capable of making rational decisions. An offender who is insane or otherwise incompetent should not be punished. However, a person who makes a conscious choice to upset the balance of society should be punished.
There are different moral bases for retribution. To many retributivists, punishment is justified as a form of vengeance: wrongdoers should be forced to suffer because they have forced others to suffer. This ancient principle was expressed succinctly in the Old Testament of the Judeo-Christian Bible: "When a man causes a disfigurement in his neighbour … it shall be done to him, fracture for fracture, eye for eye, tooth for tooth…."
To other theorists, retribution against a wrongdoer is justified to protect the legitimate rights of both society and the offender. Society shows its respect for the free will of the wrongdoer through punishment. Punishment shows respect for the wrongdoer because it allows an offender to pay the debt to society and then return to society, theoretically free of guilt and stigma.
A third major rationale for punishment is denunciation. Under the denunciation theory, punishment should be an expression of societal condemnation. The denunciation theory is a hybrid of utilitarianism and retribution. It is utilitarian because the prospect of being publicly denounced serves as a deterrent. Denunciation is likewise retributive because it promotes the idea that offenders deserve to be punished.
The U.S. conception of punishment is a combination of the utilitarian, retributive, and denunciation theories. The most widely accepted rationale for punishment in the United States is retribution. If convicted, the sentence a defendant receives is always, at least in part, a form of retribution.
A sentence may, however, combine utilitarian ideals with retribution. For example, a defendant sentenced to prison for several years is sent there to quench the public's thirst for vengeance. At the same time, educational programs inside the prison reflect the utilitarian goal of rehabilitation.
Our legal system shows its adherence to utilitarian ideals in the creation of systems such as pretrial diversion programs, probation, and parole. These systems seek to limit punishment to the extent necessary to protect society. The utilitarian philosophy is also reflected in the assignment of different punishments for different crimes and in the notion that the amount of punishment a convicted criminal receives should be in proportion to the harm caused by the crime. For example, murder calls for imprisonment or even the death penalty. A simple assault and battery with no serious injuries is usually punished with a short jail sentence or probation and a fine.
Judges generally have the discretion to fashion punishment according to the needs of both society and the defendant. This is an expression of utilitarian tenets. However, judicial discretion in sentencing is limited. In some cases statutes require judges to impose mandatory minimum prison sentences as punishment, and these laws stand as a monument to the retributive theory.
After the colonies won freedom from English control, enlightened social discourse led to the imposition of restraints on punishment. In 1791 the states ratified the eighth amendment to the U.S. Constitution to prohibit excessive bail, excessive fines, and the infliction of cruel and unusual punishments. Because the amendment did not define "cruel and unusual punishment," lawmakers and courts have had to determine what punishments are cruel and unusual. Throughout the nineteenth century, the cruel and unusual punishment Clause was interpreted to prohibit only torture and barbarous punishments.
After the ratification of the Eighth Amendment, corporal punishment was replaced by incarceration in jail or prison. Capital punishment, essentially the ultimate form of corporal punishment, survived into the 1970s, when it was held to be cruel and unusual (furman v. georgia, 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346 ). That decision was overturned four years later in gregg v. georgia, 428 U.S. 153, 96 S. Ct. 2909, 49 L. Ed. 2d 859 (1976), and capital punishment was restored in many juris dictions.
The United States is the only western industrialized country to use the death penalty. Most states authorize the death penalty as a punishment for first-degree murder. Hanging, death by electrocution, and the firing squad are still used, but the most common form of capital punishment is death by lethal injection.
For more than a century after the Eighth Amendment was ratified, lawmakers and courts did not interpret its prohibition of cruel and unusual punishment to include a prohibition of disproportionate punishment. Federal and state lawmakers were free to impose punishment on convicted criminals without concern for whether the punishment fit the crime.
In 1910 the U.S. Supreme Court recognized the proportionality concept in Weems v. United States, 217 U.S. 349, 30 S. Ct. 544, 54 L. Ed. 793. In Weems, Paul A. Weems was convicted of falsifying a single item of a public record and sentenced to hard labor for 12 to 20 years while chained at the wrists and ankles. The Court in Weems examined the nature of the crime, compared Weems's sentence with punishment in other jurisdictions for the same offense, and looked at the punishment for more serious crimes within the same jurisdiction.
In light of the comparisons, the Court found that the punishment of Weems was too harsh. According to the Court, the Eighth Amendment was designed to protect against such disproportionate punishment, and it ordered the case against Weems dismissed. Since the Weems decision, courts and lawmakers in the United States have attempted to find the right amount of punishment for various criminal acts.
Both legislators and judges determine punishment. Legislators identify the range of punishments that a court may impose for a certain crime. Punishment for crimes is listed in federal, state, and local laws. In most cases statutes name a variety of punishments appropriate for the crime, and courts have discretion in determining the precise punishment. However, many federal and state laws on narcotics identify a mandatory minimum prison sentence that must be imposed, and this ruling removes sentencing discretion from the judge.
In Harmelin v. Michigan, 501 U.S. 957, 111 S. Ct. 2680, 115 L. Ed. 2d 836 (1990), Ronald Harmelin challenged the punishment he received for possession of more than 650 grams of cocaine. Though he had no prior felonies, Harmelin was convicted in Michigan state court and sentenced to spend the rest of his life in prison. On appeal the U.S. Supreme Court upheld the sentence, ruling that "severe, mandatory penalties may be cruel, but they are not unusual in the constitutional sense, having been employed in various forms throughout our Nation's history."
Critics argue that the Harmelin opinion sidestepped the proportionality requirement created in earlier High Court cases and threw into doubt the standard for cruel and unusual punishment. Under Harmelin, proportionality is not required; what is relevant is whether the punishment has been used in the United States in the past. If it has been used, it is not unusual, and therefore not violative of the Cruel and Unusual Punishment Clause.
Because lawmakers can change laws, the list of acts that warrant punishment is not static. Before the twentieth century, many acts, such as sodomy, adultery, and premarital sex were punished with prison terms. In most states either these acts are no longer illegal or the laws prohibiting them are no longer enforced. Possession of most psychotropic substances was not punished until the late nineteenth and early twentieth centuries. The manufacture, sale, and transportation of alcohol was punished in the United States from 1919 to 1933 (see Prohibition).
Some acts have always been illegal, but the level of punishment inflicted for the crime has fluctuated. Drunk driving, for example, is punished more severely in the early 2000s than it was before the 1970s. The possession of a small amount of marijuana used to warrant a long prison term in most jurisdictions, but modern statutes limit the punishment for this crime to monetary fines and probation.
In assigning punishment for drug offenses, most laws differentiate between distribution and possession. State and federal statutes generally punish the selling or distribution of drugs more severely than possession. Repeat possession violators may receive short-term incarceration, but long prison terms are usually reserved for purveyors of illicit drugs. Lawmakers may vary the punishment within the same offense for different forms of the same drug. Possession of crack cocaine in most states and in the federal system, for example, is punished more harshly than possession of powder cocaine.
Before the Civil War, many states in the South had separate statutory codes for slaves, which imposed more severe punishment on slaves than on free persons. For example, any attempt by a slave to commit a crime punishable by death was punished with death, but free persons were not put to death for attempts. Also, the range of acts punished under slave codes was wider than that punished under the statutory codes for free persons.
Since the end of the Civil War, statutory codes in all states have purported to punish all persons equally. However, the unfairness concerning who gets punished has not disappeared. Many analysts of punishment in the United States cite the disproportionate number of African Americans in prisons as proof of selective prosecution and punishment. Scholars and others have also questioned a system that punishes drug offenses more harshly than violent offenses. Critics also note disparities between punishment of impoverished persons and punishment of wealthy persons, noting that poor defendants are punished more harshly because they do not have the resources necessary to mount a vigorous defense to criminal charges.
The United States relies primarily on incarceration as punishment. However, many states have sought alternatives to incarceration. Many states use short-term boot camps to rehabilitate first-time offenders. These highly regimented camps are intended to give offenders the discipline and respect for authority necessary to succeed in society. Other states and localities are experimenting with alternatives to imprisonment for drug offenders, such as treatment, probation, and work requirements. Others have supplanted long periods of confinement with a small dose of public humiliation and a variety of deprivations.
In Nevada, for example, a person convicted of one drunk driving offense may be ordered to perform 48 hours of community service dressed in clothing that identifies the person as a drunk driving offender. Additionally, the defendant is deprived of his or her driver's license for 90 days; ordered to pay a fine ranging from $200 to $1,000; and required to attend, at the defendant's own expense, an alcohol abuse education course.
Beccaria, Cesare. 1996. Of Crimes and Punishments. New York: Marsilio.
Denno, Deborah W. 1994. "Is Electrocution an Unconstitutional Method of Execution? The Engineering of Death over the Century." William and Mary Law Review 35.
Fletcher, Betty B. 1995. "The Death Penalty in America: Can Justice Be Done?" New York University Law Review 70.
Gutterman, Melvin. 1992. "Prison Objectives and Human Dignity: Reaching a Mutual Accommodation." Brigham Young University Law Review (fall).
Jackson, Bernard S. 1995. "Modelling Biblical Law: The Covenant Code." Chicago-Kent Law Review 70.
Johnson, Paula C. 1995. "At the Intersection of Injustice: Experiences of African American Women in Crime and Sentencing." American University Journal of Gender and Law 4.
Kittrie, Nicholas N., and Elyce H. Zenoff. 2002. Sentencing, Sanctions, and Corrections: Federal and State Law, Policy, and Practice. 2d ed. New York: Foundation Press.
Petersen, Scott K. 1993. "The Punishment Need Not Fit the Crime: Harmelin v. Michigan, and the Eighth Amendment." Pepperdine Law Review 20.
Sendor, Benjamin B. 1996. "The Relevance of Conduct and Character to Guilt and Punishment." Notre Dame Journal of Law, Ethics and Public Policy 10.
Spohn, Cassia C. 2002. How Do Judges Decide?: The Search for Fairness and Justice in Punishment. Thousand Oaks, Calif.: Sage Publications.
"Punishment." West's Encyclopedia of American Law. 2005. Encyclopedia.com. (July 27, 2016). http://www.encyclopedia.com/doc/1G2-3437703597.html
"Punishment." West's Encyclopedia of American Law. 2005. Retrieved July 27, 2016 from Encyclopedia.com: http://www.encyclopedia.com/doc/1G2-3437703597.html
The concept of punishment originates at least as far back in philosophy as Socrates (Cooper and Hutchinson 1997), and the practice of punishment as a social institution seems to go as far back as there have been human societies. While the histories of the institutions of punishment vary from society to society, country to country, and nation to nation, some questions about punishment seem to be nearly universal. Because of the importance of the institution of punishment, it is crucial that its conceptual underpinning be explored with precision and care. What is punishment? Is it ever morally justified? Can it play a role in maintaining and strengthening just political institutions?
There are at least three important philosophical and ethical questions concerning punishment. The first concerns its nature. Much confusion can result if the nature of punishment is not understood to amount to some kind of harsh treatment of the offender or the harmful wrongdoer. Although punishment is legitimate, institutionally implemented harsh treatment for the commission of a legal offense (Hart 1968; Feinberg 1970; Rawls 2000; Corlett 2006), it might well have side effects—even positive ones—such as moral education or rehabilitation. By “harsh treatment” is meant some form of corporal punishment, incarceration, fines, or the like. But it is important not to confuse punishment with deterrence, moral education, or rehabilitation. These are not forms of punishment, because punishment is not properly defined necessarily in terms of deterring, morally educating, or rehabilitating offenders. To think otherwise is to beg the question in favor of one of the theories of punishment considered below. This is not to say, however, that genuine punishment cannot deter future harmful wrongdoings, morally educate, or rehabilitate in some ways on some occasions.
A second question concerning punishment amounts to a set of questions raised by Anthony Quinton (1954), John Rawls (1955), and Stanley Benn (1958). The first pertains to the moral justification of the institution of punishment itself, while the second regards the moral justification of particular forms of punishment. Clearly, the belief that punishment is morally justified does not mean that all forms of punishment are justified, though it would seem that for any particular form of punishment to be justified, the institution of punishment itself must be justified. Attempts have been made to reconcile major theories of punishment by suggesting that one theory is best fit to answer the question of the morality of the institution of punishment, while another theory is best able to answer questions of how particular punishments ought to be meted out to offenders (Rawls 1955; Corlett 2006).
A third question regarding punishment is the extent to which it might serve to the betterment of just political institutions. The role that punishment might play in maintaining and strengthening just political institutions has been addressed in a myriad of ways in recent years, especially in the debate about the morality of the very institution of punishment. It has been argued by punishment abolitionists that punishment is morally wrong because of social and political inequalities of opportunity that make the imposition of the punishment unfair and hence unjust. Indeed, they argue, there exist significant degrees of unfairness in terms of racism and classism in the system of punishment that make punishment unjustified. Proponents of punishment argue that the system is often fair enough to justify the punishment of those who truly commit their crimes and are sufficiently responsible for them, assuming that adequate due process of law obtains.
Considering the nature of punishment as hard treatment, there are two main theories of punishment—that is, of the moral justification of the institution, particular forms, and the role of punishment. Although there are various hybrid forms of these theories, the two are called “utilitarianism” and “retributivism.” The former was defended by Jeremy Bentham ( 1948), among others, while the latter was formulated by Socrates (Cooper and Hutchinson 1997) and later made famous by Immanuel Kant ( 1996). Each theory defends some form(s) of the principle of proportional punishment. While Bentham provides no fewer than thirteen principles of proportional punishment based in utilitarian reasoning, Kant and other retributivists subscribe to some notion that punishments ought to fit the crimes and that the choice of punishment does not depend solely on considerations of social utility.
More recently, retributivists such as Joel Feinberg have argued for a number of expressive functions of punishment: authoritative disavowal, symbolic nonacquiescence, vindication of the law, and absolution of others (Feinberg 1970). It would seem that these expressive functions are consistent with either a utilitarian or retributivist outlook.
Perhaps the most oft discussed issue of punishment is that of capital punishment. Some capital punishment abolitionists argue that the criminal justice system is so corrupted because of racism and classism that the administration of capital punishment is unfair and hence unethical. Others point to the prohibitive cost of imposing the penalty as well as the mitigating factors that seem to accrue with every capital case. Still others point to the intrinsic value of human life and argue that this prohibits the taking of life in any circumstances. Utilitarians who oppose capital punishment argue that it fails to deter violent crime and robs society of the opportunity to rehabilitate capital offenders (Corlett 2006).
However, proponents of capital punishment argue that while these considerations are important and ought to be taken seriously by anyone thinking about punishment, it is unclear that the racism, classism, and other factors that make capital punishment unfair in one society make it necessarily unfair when imposed in another that lacks such factors. Also the administration of capital punishment can be made more economically efficient without threatening due process considerations of appeals and related factors necessary for a reasonably just legal system. Moreover considerations of alleged intrinsically valuable human life (in some absolute sense), deterrence, and rehabilitation each admit of dubious foundations apart from particular ethical standpoints, which themselves need independent argumentative support. In particular, it is argued, they do not seem to be able to account well for considerations of deservedness and proportional punishment, without which no theory of punishment can be properly construed as plausible.
For some, capital punishment is morally justified to the extent that it is administered without prejudice as to ethnicity, sexuality, and socioeconomic class and to the extent that the alleged offender is guilty of the capital offense; performed it with sufficient intent, voluntariness, and knowledge; and was at fault in what he or she did, failed to do, or attempted to do. That some are wrongfully charged and even convicted and sentenced to death in no way logically discounts the rightness of capital punishment for those who are guilty. However, no theory of punishment ought to take lightly the unforgivable evils of wrongful convictions—especially in capital cases. Thus these theorists desire to put in place legal rules punishing those responsible for wrongful convictions, where fault accrues.
But retributivism and utilitarianism differ from one another in other ways. According to utilitarianism, punishment is an evil and can only be justified insofar as it increases the overall happiness of society—either by deterrence of future harmful wrongdoings or by rehabilitation. Classic criticisms of this position on punishment’s justification include that it fails to take into consideration what offenders deserve and thus minimizes if not nullifies personal and social responsibility for harmful wrongdoing. It is future oriented.
Retributivism, on the other hand, holds that harmful wrongdoers ought to get what they deserve in approximate proportion to their harmful wrongdoings caused to others. Classic concerns with this theory include that it does not clarify the allegedly primitive notion of desert and that it cannot provide an adequate account of proportional punishment. Those who defend retributivism have replied with robust conceptual analyses of the concepts of desert and proportionality, adding that any plausible theory of punishment must take seriously deservedness, proportionality, and responsibility (Corlett 2006). And insofar as utilitarian theories flounder along these lines, only retributivism serves as a plausible foundation of punishment’s justification. For any plausible theory of punishment’s justification must make adequate sense of deservedness, responsibility, and proportional punishment because denying the importance of these notions spells disaster for systems of punishment seeking to be just and fair. Retributivism has often been confused with vengeance theories of punishment. But as Feinberg (1965) and Robert Nozick (1981) have argued at some length and with precision, retributivism does not entail vengeance of any kind. There are also moral education theories of punishment (Hampton 1984), but they seem not to entail punishment (hard treatment) at all or unwarrantedly assume a version of utilitarianism to justify punishment. Hence they either are not theories of punishment at all or they beg important questions about punishment’s justification.
Of course there are hybrid theories of punishment, especially between retributive and utilitarian theories. Indeed it might well be the case that most theories of punishment amount to some form of hybrid theory, as not even Kant (who many allege founded retributivism) held to a pure form of retributivism, as many believe he did (Corlett 2006).
Punishment theorists have written much on the matter of forgiveness, mercy, and punishment. Ought the state to forgive or show mercy to harmful wrongdoers by mitigating or even excusing punishments? Many utilitarian theorists have argued affirmatively to this complex question in that the future results of how society responds to harmful wrongdoers is more important than past harmful wrongdoings themselves. Some retributivists, however, have argued that taking responsibility seriously requires that a criminal justice system not permit the language and emotions of forgiveness to interfere with holding harmful wrongdoers responsible for their actions, failures to act, or attempted actions. The reason for this is that they must get what they deserve—nothing more and nothing less—for harmful wrongdoings they have wrought on others. The value of deservedness, responsibility, and proportionality are so strong for some retributivists that not to take them into account in punishment is to commit a most serious injustice. This implies that forgiveness and mercy have no legitimate place in a reasonably just criminal justice system. And this is true even if the wrongdoer offers a genuine apology. Apology, forgiveness, and mercy are irrelevant to a system of genuine criminal justice, though mitigation and excuse play pivotal roles in such a system where responsibility is, all relevant things considered, not full.
While collective forms of punishment do not take on forms of corporal punishment as in individual human cases, certain collectives can be legitimately held responsible for harmful wrongdoings as a kind of vicarious liability (Feinberg 1970; Corlett 2006). But unlike individual harmful wrongdoers, collective harmful wrongdoers are typically fined because they have “no soul to be damned, no body to be kicked” (Coffee 1981). Other forms of collective punishment might include adverse publicity (French 1984).
Among the many contemporary areas of investigation in punishment theory is the question of whether there ought to be similar punishments for both successful and failed crimes. Some have argued that certain theories of punishment demand by implication that they ought not to be punished differently simply because of differences in the consequences of the intended crimes. For insofar as the intentions of the harmful wrongdoers are the same, they ought to be punished similarly. Yet this places such theories of punishment in an embarrassing situation, as the result appears counterintuitive (Feinberg 2003). Others deny this point, arguing that no plausible theory of punishment would ever concede that punishment can rightly accrue to a harmful wrongdoer simply because of considerations of intent; that is, there are no purely anti-consequentialist theories of punishment that are even initially plausible. Thus any plausible theory of punishment must hold that a combination of criminal intent and the consequences of the harmful wrongdoing play roles in determining the just punishment of the criminal.
What is clear is that punishment entails hard treatment, and what justifies it on moral grounds must involve at least notions of deservedness, responsibility, and proportionality. To deny this much is implicitly to embrace claims that result in injustice and unfairness.
SEE ALSO Ethics; Foucault, Michel; Imprisonment; Justice; Kant, Immanuel; Philosophy; Prisons; Rawls, John; Utilitarianism
Benn, Stanley I. 1958. An Approach to the Problems of Punishment. Philosophy 33: 325–341.
Bentham, Jeremy.  1948. Introduction to the Principles of Morals and Legislation. New York: Hafner.
Coffee, John. 1981. No Soul to Blame, No Body to Kick: An Unscandalized Inquiry into the Problem of Corporate Punishment. Michigan Law Review 79: 386–460.
Cooper, John M., and D. S. Hutchinson, eds. 1997. Plato: Complete Works. Indianapolis, IN: Hackett Publishing.
Corlett, J. Angelo. 2006. The Philosophy of Joel Feinberg. Journal of Ethics 10: 131–191.
Corlett, J. Angelo. 2006. Responsibility and Punishment. 3rd ed. Dordrecht, Netherlands: Springer.
Feinberg, Joel, ed. 1965. Reason and Responsibility. Belmont, CA: Dickenson Publishing.
Feinberg, Joel. 1970. Doing and Deserving: Essays in the Theory of Responsibility. Princeton, NJ: Princeton University Press.
Feinberg, Joel. 2003. Problems at the Roots of Law. Oxford: Oxford University Press.
French, Peter A. 1984. Collective and Corporate Responsibility. New York: Columbia University Press.
Hampton, Jean. 1984. The Moral Education Theory of Punishment. Philosophy and Public Affairs 13: 208–238.
Hart, H. L. A. 1968. Punishment and Responsibility. Oxford: Oxford University Press.
Kant, Immanuel.  1996. The Metaphysical Elements of Justice. Trans. and ed. Mary Gregor. Cambridge, U.K., and New York: Cambridge University Press.
Nozick, Robert. 1981. Philosophical Explanations. Cambridge, MA: Harvard University Press.
Quinton, Anthony. 1954. On Punishment. Analysis 14: 133–142.
Rawls, John. 1955. Two Concepts of Rules. Philosophical Review 64: 3–32.
Rawls, John. 1999. Collected Papers, ed. Samuel Freeman. Cambridge, MA: Harvard University Press.
J. Angelo Corlett
"Punishment." International Encyclopedia of the Social Sciences. 2008. Encyclopedia.com. (July 27, 2016). http://www.encyclopedia.com/doc/1G2-3045302132.html
"Punishment." International Encyclopedia of the Social Sciences. 2008. Retrieved July 27, 2016 from Encyclopedia.com: http://www.encyclopedia.com/doc/1G2-3045302132.html
PUNISHMENT, in law, is the official infliction of discomfort on an individual as a response to the individual's commission of a criminal offense. That general definition invites attention to two related matters: the purposes for which punishment is visited upon an offender and the forms that punishment takes.
The purposes of punishment in American tradition cannot be determined from surviving records or inferred from experience but must be culled from the academic literature. That literature explains that government has punished offenders for reasons that fall roughly into utilitarian and nonutilitarian categories. Utilitarian objectives have in common the desire to prevent or to reduce crime. For example, government punishes criminals officially in order to preempt private retaliation by mob violence (vengeance), to restrain an offender while he or she undergoes discipline (incapacitation), to discourage an offender from misbehaving in the future (specific deterrence), to discourage others by making an example of the individual (general deterrence), and to dissuade an offender from committing more crimes by reforming him or her in some manner (rehabilitation). Nonutilitarian objectives are less eclectic. Governments punish an offender because the offender deserves to be punished for his or her crime and should be made to atone for it (retribution). The underlying Kantian idea is that a criminal has gained an advantage over others by virtue of his or her offense. That advantage must be eliminated via punishment to restore the proper balance of benefits and burdens in society.
The forms of punishment employed historically are fairly well documented. The colonists chiefly employed monetary fines and corporal punishments. They tortured slaves brutally and, outside the institution of slavery, they executed miscreants even for minor crimes. Offenders who were not hanged were whipped, branded, pilloried, ducked in water, placed in stocks, or banished from the colony (run out of town on a rail). It is difficult to say whether any of those punishments was consciously imposed to achieve utilitarian or nonutilitarian goals. Flogging slaves was part of the terror of slavery itself. Punishments of free colonists by public shaming may have had either utilitarian or nonutilitarian rationales. Punishments groomed to particular offenses may have been primarily retributive. Branding Hester Prynne with a scarlet letter A may have condemned her misbehavior more than it discouraged future illicit sexual liaisons.
Late in the eighteenth century the Quakers in Philadelphia conceived the notion that incarceration could substitute for the death penalty and physical torture. In the antebellum period custodial detention gradually became the preferred means of punishment in most states. The Pennsylvania Quakers' rationale was utilitarian. They meant to confine convicts in penal institutions to "reform" them and thus to reduce the risk that they would commit additional criminal acts. The very name of the Quaker institutions, "penitentiaries," conveyed the message that their purpose was moral reform. Other proponents of incarceration expressed similar ambitions. As penal facilities of varying kinds were established over the next century, the theoretical justification was, by contemporary standards, humane: the ideal of rehabilitating citizens so they might become law-abiding and productive members of the developing industrial society.
The "rehabilitative ideal" dominated American penology throughout most of the twentieth century, implicating a variety of familiar policies, including the indeterminate sentence, probation and parole, vocational training, and educational programs for inmates. The working idea was that an offender should be incarcerated not for any fixed term but for as long as necessary to ensure rehabilitation. During and after confinement the offender should receive "treatment" to help foster a normal, law-abiding life. In 1949 the Supreme Court recognized that rehabilitation had become an important goal of criminal jurisprudence. In 1972 the National Council of Crime and Delinquency declared that convicts should be subject to reformative programs befitting their individual characteristics and circumstances.
Within a few years, however, many Americans discarded rehabilitation and embraced instead the competing idea that criminal offenders should be punished because they deserve it and for no other reason, pragmatic or humanitarian. Analysts have offered three explanations for the rapid shift to retribution. Critics on the right argued that rehabilitative programs rendered incarceration insufficiently punitive, critics on the left contended that rehabilitative programs constituted unacceptable ideological indoctrination, and professional penologists conceded that rehabilitation could not be shown to reduce recidivism.
Retribution's hegemony was not complete at the beginning of the twenty-first century. Imprisonment continued to serve forward-looking, preventive goals and conventionally was understood to be justified at least in part on utilitarian grounds. For example, prison terms for young offenders were commonly defended as a means of incapacitating young men during their most dangerous years. Retribution in 2002 is not necessarily regarded as meaningless or ineffective. When offenders are given sentences commensurate with their crimes rather than with their own individual circumstances and "need" for rehabilitation, individuals who committed roughly the same offenses received roughly the same penalties. That result in turn conforms to the American predilection for equality. After 1980 the federal government and many states adopted sentencing guidelines grounded in the idea that like crimes should be treated alike. In the punitive atmosphere of the times, however, the sentence for any given offense tended to be harsh. Moreover, repeat offenders often received enhanced sentences. Thus sentencing guidelines made prison terms not only more uniform but uniformly long, especially in nonviolent drug cases. Lengthy sentences to distant penal facilities in turn revived the colonial utilitarian policy of banishment.
The Eighth Amendment bars "cruel and unusual punishments." The Supreme Court has held that physical punishments once commonly accepted may become "cruel and unusual" as society's standards of decency evolve. Apart from the death penalty, corporal punishments are extremely rare and are probably unconstitutional when they occur. Political support for the death penalty has ebbed occasionally, but the Supreme Court has declined to hold that capital punishment necessarily violates the Eighth Amendment. Instead, the Court has held that the Constitution limits the death penalty to certain classes of homicides committed by especially culpable offenders.
Allen, Francis A. The Decline of the Rehabilitative Ideal: Penal Policy and Social Purpose. New Haven, Conn.: Yale University Press, 1981.
Foucault, Michel. Discipline and Punish: The Birth of the Prison. Translated by Alan Sheridan. New York: Vintage, 1979.
Mitford, Jessica. Kind and Usual Punishment: The Prison Business. New York: Knopf, 1973.
Rotman, Edgardo. Beyond Punishment: A New View of the Rehabilitation of Criminal Offenders. New York: Greenwood, 1990.
Von Hirsch, Andrew. Doing Justice: The Choice of Punishments: Report of the Committee for the Study of Incarceration. New York: Hill and Wang, 1976.
"Punishment." Dictionary of American History. 2003. Encyclopedia.com. (July 27, 2016). http://www.encyclopedia.com/doc/1G2-3401803467.html
"Punishment." Dictionary of American History. 2003. Retrieved July 27, 2016 from Encyclopedia.com: http://www.encyclopedia.com/doc/1G2-3401803467.html
535. Punishment (See also Torture, Transformation.)
- Abijah Jeroboam’s child; taken by God for father’s wickedness. [O.T.: I Kings 14:12]
- Adam condemned to survive by sweat of brow. [O.T.: Genesis 3:19]
- Amfortas sinful life led to perpetual suffering. [Arth. Legend: Walsh Classical, 20; Ger. Opera: Parsifal ]
- Ammit half-hippopotamus, half-lion monster of underworld; ate the sinful. [Egyptian Myth.: Leach, 50]
- Ashura land of punishment for those who die angry. [Jap. Myth.: Jobes, 140]
- Atlas Titan condemned to bear world on shoulders. [Gk. Myth.: Walsh Classical, 38]
- Battus Arcadian shepherd who revealed Mercury’s theft of sheep; he was punished by being turned to stone. [Gk. and Rom. Myth.: Walsh Classical, 71]
- Born, Bertrand de Dante has him carry his head as lantern. [Ital. Lit.: Inferno ; Walsh Classical, 55]
- Cambyses had a venal judge put to death and the body skinned as covering for his judgment seat. [Gk. Hist.: Herodotus in Magill III, 479]
- Dirae the Furies; punished crimes and avenged wrongs. [Gk. Myth.: Kravitz, 82, 91–92]
- Don Juan for murder, devoured by fire. [Span. Lit.: Benét, 279; Ger. Opera: Mozart, Don Giovanni, Westerman, 95]
- Erinyes (Furies) three sisters who pursue those guilty of blood crimes and drive them mad. [Gk. Myth.: Benét, 320]
- Eve for disobeying God, would suffer in childbirth. [O.T.: Genesis 3:16]
- flood for his evilness, man perishes by inundation. [O.T.: Genesis 6: 5–8; 7:4]
- Herod Agrippa I was eaten by worms for playing god. [N.T.: Acts 12:23]
- Herodias lived for nineteen centuries as punishment for her crime against John the Baptist. [Fr. Lit.: Eugène Sue The Wandering Jew ]
- iron maiden hollow iron figure in the shape of a woman, lined with spikes that impaled the enclosed victim. [Ger. Hist.: Brewer Dictionary, 491]
- Ixion Thessalian king bound to fiery wheel by Zeus. [Gk. and Rom. Myth.: Zimmerman, 142; Rom. Lit.: Metamorphoses ]
- Laocoön Trojan priest offends Athena, is strangled to death by two sea serpents. [Gk. Myth.: Benét, 565]
- Nadab and Abihu destroyed by God for offering Him “alien fire.” [O.T.: Leviticus 10:1–3]
- Papageno for lying, has mouth padlocked. [Ger. Opera: Mozart, The Magic Flute, Westerman, 102–104]
- Peeping Tom struck blind for peeping at Lady Godiva. [Br. Legend: Brewer Dictionary, 403]
- plagues on Egypt God visits Egypt with plagues and epidemics to show his power. [O.T.: Exodus 8, 12]
- Prometheus for rebelliousness, chained to rock; vulture fed on his liver which grew back daily. [Rom. Myth.: Zimmerman, 221–222]
- Prynne, Hester pilloried and sentenced to wear a scarlet “A” for her sin of adultery. [Am. Lit.: The Scarlet Letter ]
- Sisyphus condemned in Hades to roll boulder uphill which would immediately roll down again. [Gk. Myth.: Zimmerman, 244; Gk. Lit.: Odyssey ; Rom. Lit.: Aeneid ]
- Tantalus for his crimes, sentenced to Hades to be within reach of water he cannot drink. [Gk. Myth.: Zimmerman, 253; Gk. Lit.: Odyssey ]
- Tell, William ordered to shoot apple placed on son’s head for refusing to salute governor’s hat. [Ger. Lit.: William Tell ; Ital. Opera: Rossini, William Tell ; Westerman, 121–122]
- Thyestes unknowingly eats sons served by vengeful brother. [Rom. Lit.: Thyestes ]
- Tyburn tree site of the London gibbet. [Br. Hist.: Espy, 169]
- Vale of Achor site of lapidation of Achan, Israelite troublemaker. [O.T.: Joshua 7:24–26]
- Vathek condemned to eternal flames for seeking forbidden knowledge. [Br. Lit.: Beckford Vathek ]
"Punishment." Allusions--Cultural, Literary, Biblical, and Historical: A Thematic Dictionary. 1986. Encyclopedia.com. (July 27, 2016). http://www.encyclopedia.com/doc/1G2-2505500544.html
"Punishment." Allusions--Cultural, Literary, Biblical, and Historical: A Thematic Dictionary. 1986. Retrieved July 27, 2016 from Encyclopedia.com: http://www.encyclopedia.com/doc/1G2-2505500544.html
Penalty imposed on another as a result of unwanted behavior.
Punishment is defined as the administration of aversive stimulus to reduce or eliminate unwanted behavior. It can be either physical or nonphysical. Punishment differs from negative reinforcement in that the latter increases the frequency of behavior by removing a negative event. Punishment can be as simple as giving electric shocks to lab rats to prevent them from touching a lever or as complex—and controversial—as placing criminals in jail for breaking the law. The use and effectiveness of corporal punishment have also been debated by psychologists, parents, teachers, and religious leaders for many years.
Research studies have found that punishment is effective in suppressing or eliminating unwanted behavior. But in order for punishment to be effective it must happen immediately after the behavior, be severe, and occur every time the behavior occurs. Detractors of the use of punishment have pointed out that, outside the laboratory setting, it is almost impossible to consistently administer punishment in this manner.
Even when punishment is administered "properly," psychologists have questioned the value of punishment in truly changing behavior, arguing that the desired outcome is only temporary. As evidenced by increasing crime rates in most major cities, punishment (fines, imprisonment,
|Positive punishment||Negative punishment|
|When the subject—a person or animal— engages in a behavior and something negative is applied as a result, the behavior is less likely to be repeated.||When the subject—a person or animal— engages in a behavior and something positive is taken away, that behavior is less likely to be repeated.|
social stigma, etc.) does not appear to deter unwanted behavior. In addition, psychologists have identified other "downsides" to using punishment. For instance, people use punishment inappropriately, decreasing its effectiveness. People punish when they are upset or angry. The recipient experiences anxiety, fear , rage, or hatred. The use of punishment can lead to more resistance and aggression on the part of the one being punished. The punishment can also backfire—instead of serving to punish a child, for example, spanking brings the wanted attention of a parent. In addition, corporal punishment defeats its own purpose by modeling aggressive or physical behavior, the very behavior it is often attempting to correct.
Most current promoters of punitive discipline in the United States espouse nonphysical forms of control, such as the use of reinforcements, logical consequences, or penalties. With children, behavior modification techniques such as time-out have proven very effective in modifying disruptive behaviors such as hitting, grabbing, talking back, or tantrums.
McCord, Joan, ed. Coercion and Punishment in Long-Term Perspectives. Cambridge/New York: Cambridge University Press, 1995.
Straus, Murray, Richard Gelles, and Suzanne Steinmetz. Behind Closed Doors: Violence in the American Family. New York: Anchor Press/Doubleday, 1980.
"Punishment." Gale Encyclopedia of Psychology. 2001. Encyclopedia.com. (July 27, 2016). http://www.encyclopedia.com/doc/1G2-3406000530.html
"Punishment." Gale Encyclopedia of Psychology. 2001. Retrieved July 27, 2016 from Encyclopedia.com: http://www.encyclopedia.com/doc/1G2-3406000530.html
See also 34. BANISHMENT ; 103. CRIME
- amercement, amerciament
- 1. punishment or penalty applied at the discretion of a court or other authority, as contrasted with a penalty predetermined by statute.
- 2. the imposing of such a penalty. —amercer, n.
- Humorous. advocacy of the use of a cane in corporal punishment.
- Obsolete, the process of removing the tongue.
- Obsolete, the act of castrating.
- Obsolete, the process of blinding.
- beating with a stick or club.
- an abnormal fear of being beaten. Also called rhabdophobia .
- an abnormal fear of punishment.
"Punishment." -Ologies and -Isms. 1986. Encyclopedia.com. (July 27, 2016). http://www.encyclopedia.com/doc/1G2-2505200346.html
"Punishment." -Ologies and -Isms. 1986. Retrieved July 27, 2016 from Encyclopedia.com: http://www.encyclopedia.com/doc/1G2-2505200346.html
pun·ish·ment / ˈpənishmənt/ • n. the infliction or imposition of a penalty as retribution for an offense: crime demands just punishment. ∎ the penalty inflicted: she assisted her husband to escape punishment for the crime | he approved of stiff punishments for criminals. ∎ inf. rough treatment or handling inflicted on or suffered by a person or thing: your machine can take a fair amount of punishment before falling to pieces.
"punishment." The Oxford Pocket Dictionary of Current English. 2009. Encyclopedia.com. (July 27, 2016). http://www.encyclopedia.com/doc/1O999-punishment.html
"punishment." The Oxford Pocket Dictionary of Current English. 2009. Retrieved July 27, 2016 from Encyclopedia.com: http://www.encyclopedia.com/doc/1O999-punishment.html
"punishment." The Columbia Encyclopedia, 6th ed.. 2016. Encyclopedia.com. (July 27, 2016). http://www.encyclopedia.com/doc/1E1-X-punishme.html
"punishment." The Columbia Encyclopedia, 6th ed.. 2016. Retrieved July 27, 2016 from Encyclopedia.com: http://www.encyclopedia.com/doc/1E1-X-punishme.html