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.
Alexander, Lawrence. "The Doomsday Machine: Proportionality, Punishment, and Prevention." Monist 63 (1980): 199–227.
Andenaes, Johannes. "The General Preventive Effects of Punishment." University of Pennsylvania Law Review 114 (1966): 949–983.
Bedau, Hugo A. "Concessions to Retribution in Punishment." In Justice and Punishment. Edited by Jerry B. Cederblom and William L. Blizek. Cambridge, Mass.: Ballinger, 1977. Pages 51–73.
Benn, Stanley I. "Punishment." In The Encyclopedia of Philosophy, vol. 7. Edited by Paul Edwards. New York: Macmillan and Free Press, 1967. Pages 29–36.
Bentham, Jeremy. An Introduction to the Principles of Morals and Legislation. Edited by James H. Burns and H. L. A. Hart. London: Athlone Press, 1970.
Brandt, Richard. "Retributive Justice and Criminal Law." In Ethics and Public Policy. Edited by Thomas Beauchamp. Englewood Cliffs, N.J.: Prentice-Hall, 1975. Pages 66–84.
Ezorsky, Gertrude, ed. Philosophical Perspectives on Punishment. Albany: State University of New York Press, 1972.
Feinberg, Joel. Doing and Deserving: Essays in the Theory of Responsibility. Princeton, N.J.: Princeton University Press, 1970.
Frase, Richard S. "Sentencing Principles in Theory and Practice." Crime & Justice: A Review of Research 22 (1997): 363–443.
Goldman, Alan H. "Can a Utilitarian's Support of Non-utilitarian Rules Vindicate Utilitarianism?" Social Theory and Practice 4 (1977): 333–345.
——. "The Paradox of Punishment." Philosophy and Public Affairs 9 (1979): 42–58.
Greenawalt, Kent. "'Uncontrollable' Actions and the Eighth Amendment: Implications of Powell v. Texas. " Columbia Law Review 69 (1969): 929–979.
Hall, Jerome. General Principles of Criminal Law. 2d ed. Indianapolis: Bobbs-Merrill, 1960.
Hart, H. L. A. Punishment and Responsibility: Essays in the Philosophy of Law. New York: Oxford University Press, 1968.
Kant, Immanuel. The Philosophy of Law: An Exposition of the Fundamental Principles of Jurisprudence as the Science of Right. Translated by W. Hastie. Edinburgh: T. & T. Clark, 1887.
Morris, Herbert. On Guilt and Innocence: Essays in Legal Philosophy and Moral Psychology. Berkeley: University of California Press, 1976.
Morris, Norval. The Future of Imprisonment. Chicago: University of Chicago Press, 1974.
Pincoffs, Edmund L. The Rationale of Legal Punishment. New York: Humanities Press, 1966.
Ross, W. D. "The Ethics of Punishment." Journal of Philosophical Studies 4 (1929): 205–224.
Tonry, Michael. "Proportionality, Parsimony, and Interchangeability of Punishments." In Penal Theory and Penal Practice. Edited by Anthony Duff and Sandra Marshall. Manchester, U.K.: Manchester University Press, 1994.
von Hirsch, Andrew. Censure and Sanctions. Oxford, U.K.: Clarendon Press, 1993.
MacCold, Paul E. Restorative Justice: An Annotated Bibliography. Monsey, N.Y.: Criminal Justice Press, 1997.
Walker, Nigel. Why Punish? Oxford: Oxford University Press, 1991.
Wasserstrom, Richard. "Some Problems in the Definition and Justification of Punishment." In Values and Morals. Edited by Alvin Goldman and Jaegwon Kim. Dordrecht, Holland: Reidel, 1978. Pages 299–315.
Wilson, James Q. Thinking About Crime, Second Edition. New York: Basic Books, 1983.
Wootton, Barbara, with Scol, Vera G., and Chambers, Rosalind. Social Science and Social Pathology. London: Allen & Unwin, 1959.
Zimring, Franklin E., and Hawkins, Gordon. Incapacitation: Penal Confinement and the Restraint of Crime. New York: Oxford University Press, 1995.
Abby M. Schrader
Penal practices as well as the theories behind them have varied considerably by region, the natures of the authorities involved in sentencing criminals, and the sociocultural contexts of their deployment. Moreover the practice of punishment has not always corresponded to the laws and philosophies that purportedly guided it. To further complicate matters, penalties have differed with regard to the social status, gender, and age of the convicted. Bearing in mind these distinctions, it is still possible to draw salient generalizations about punishment in Europe from the Renaissance through the twentieth century. This essay opens with a discussion of the general trajectories that characterized the evolution of European penal practices and proceeds to an analysis of how scholars have evaluated the political, social, and cultural significance of the practice and reform of legal punishment.
PENAL PRACTICES IN EARLY MODERN AND MODERN EUROPE
Generally early modern penalties targeted the criminal's body, whereas modern forms focused on the convict's soul. Both attempted to deter subjects or citizens from transgressing social and legal norms but in rather different manners. Early modern punishment strove to inculcate fear and set examples through public, corporal, and often cruel practices while simultaneously excluding criminals from society. In contrast, more modern penal systems tended to privatize punishment and confine criminals yet generalize disciplinary systems throughout society. Even as this pattern predominantly holds true, it is nonetheless necessary to note that penal practices overlapped and were used in combination with one another in both early modern and modern Europe. Moreover the transition from one form to another was neither simple nor without contradictions. Instead it was gradual, incomplete, and frequently contested. Corporal and capital punishments continued to exist alongside penal bondage and confinement, and penal innovations were subject to challenges arising at the same time that authorities instituted the innovations.
To simplify this picture, this essay first discusses the various penalties meted out by judicial authorities, beginning with physical, public, and shaming forms of punishment. It then moves on to different types of penal bondage and institutions of confinement and an examination of extrainstitutional penal practices that developed during the late nineteenth and early twentieth centuries. Where appropriate, this essay notes how penal forms operated in combination with one another; how secular authorities drew on other idioms, such as ecclesiastical and military ones; and how certain penal forms came to displace other practices.
CORPORAL AND PUBLIC PUNISHMENTS
Early modern European courts meted out various corporal punishments. Flogging was the most prevalent form practiced. Whips or lashes consisting of leather thongs fastened to handles were common all across Europe, but some countries also developed specific devices. The metal-barbed knout constituted the harshest Russian penal instrument before 1845, and the English had the fearsome cat-o'-nine-tails, nine leather tails thirty-three inches long that were spiked with metal balls. The gauntlet, rows of soldiers armed with crops, was generally reserved for military offenders or those inhabiting militarized zones. Lighter corporal punishments, like the birch or rod, were used against less serious offenders or to "domestically" punish wives and children.
Like other forms of corporal and capital punishment, floggings were often public during the early modern era. However, once criticism of public punishment sharpened in the mid-eighteenth century, floggings increasingly transpired behind prison walls. For example, subsequent to 1820 floggings were privatized for male convicts in England. Nonetheless, floggings remained part of the penal language even once the prison gained hegemony in modern Europe. Flogging was used to punish convicts transported to French penal colonies through 1880, corporal punishment remained prevalent in German prisons through the late nineteenth century, and England finally abandoned the whip in 1967. The significance of flogging's publicity and its abolition is explored below.
In addition to floggings, early modern courts prescribed various forms of bodily mutilation. Putting out eyes, slitting nostrils, slicing cheeks, and amputating arms, ears, and tongues frequently accompanied whippings, the death sentence, transportation, or penal bondage. Courts generally sentenced criminals to the mutilation of body parts that symbolized the nature of the offense committed. In Germany executioners amputated a thief's hand and publicly displayed it to spectators to convey the message that the ruler would not tolerate theft. Similarly tongues were clipped in cases where criminals committed perjury, blasphemy, or other offenses involving speech. Often the ceremonies associated with mutilation emulated rituals of personal retaliation, which roughly followed the precept of "an eye for an eye" articulated by Judeo-Christian law. By appropriating these forms, early modern penal regimes suggested that public justice was supplanting private. These practices also demonstrate that early modern penal forms frequently retributed the transgression committed and were not tailored to individual criminals.
The most severe mutilation practices were in decline by the sixteenth century, yet bodily mutilation did not disappear from the lexicon of physical penalties in many places until the nineteenth century. The Dutch cut off some felons' thumbs until the early eighteenth century, Napoleon reinstituted the amputation of parricides' right hands in his 1810 penal code, and Russians continued to rend the nostrils of serious criminals until 1845.
Mutilation served other functions beyond the symbolic and retaliatory. Disfigurement also made it easier for authorities to identify recidivists and escaped convicts in an era when states lacked sufficient policing, and it served as a visual marker enabling honest societies to exclude offenders. Branding, another form of bodily marking, was similarly motivated. European states devised branding practices that at once underscored the ruler's sovereignty, denoted the nature of the crime, facilitated the identification of the criminals, and distinguished convicts from the rest of society.
During the early modern period, when state sovereignty was still questionable, brands identified offenders as subject to the monarch's will. Russian convicts bore the brand of the eagle associated with Peter the Great, and Netherlandish criminals were marked with the elector's coat of arms. A brand also identified the nature of the crime. French and Russian thieves were marked with a "V" for voleur (thief ) and "VOR" for vorovstvo (theft), respectively. After 1650 the English burned the letters "AB" onto the foreheads of English adulterers and fornicators. Vagrants were a frequent target of authorities who, in the process of centralization, sought to clamp down on wanderers. The 1532 Carolina, the criminal code of the German emperor Charles V, authorized branding vagrants throughout the German states, while Russian ones were branded until 1863. Furthermore brands denoted the type of punishment to which the convict was sentenced. Criminals condemned to French galleys were branded with "GAL" (galère), and Russian hard laborers bore the scar "KAT" (katorga, exile at hard labor). Branding persisted well into the era of penal reform. In France considerable continuity existed between Old Regime branding rituals and those used after the French Revolution. Likewise the number and range of English offenses that compelled branding, first instituted by the Tudors, multiplied from the sixteenth century through the eighteenth century. Not until 1779 did England abandon branding. Branding as a form of punishment was abolished in Russia in 1845 but continued to be used as a police measure against vagrants and fugitive convicts for nearly another twenty years.
The third form of physical chastisement widely practiced in Europe from the fifteenth century through the nineteenth century was capital punishment. In the early modern era executions, like other penal forms targeting the body, symbolized royal power and were intended to safeguard society by prompting subjects to submit to the ruler's will. Early modern executions which took manifold forms, can be divided into those deemed honorable and relatively less painful, generally limited to beheading or death by sword, and those considered dishonorable, which involved painful, attenuated deaths. The latter included drowning, boiling in oil, burial alive, burning at the stake, breaking at the wheel, drawing and quartering, and hanging—the most enduring and prevalent form of dishonorable execution.
The most macabre forms of capital punishment annihilated every trace of the condemned. Until the late sixteenth century drowning and burial alive were frequently deployed against women who violated sexual or moral norms, and witches were burned at the stake during crazes that peaked in the era of the Reformation and Counter-Reformation. Drawing and quartering and breaking at the wheel were primarily used against men. The former was often reserved for regicides and traitors and was hardly ever employed after the sixteenth century, though the executions of Robert-François Damiens in 1757 and Yemelyan Ivanovich Pugachov in 1775 defy this rule. (Admittedly Pugachov was strangled before he was quartered.) In contrast, breaking at the wheel persisted into the nineteenth century as a penalty for robbery or wife murder because officials believed that its utterly terrifying nature was particularly deterrent. In spite of the endurance of these horrific penalties, the most gruesome forms of capital punishment were in decline by the late sixteenth century. This was largely due to the increased control that European authorities exerted over penal practices as well as the authorities' desire to ritualize punishment as a clear means of morally edifying witnesses.
A natural segue leads to the related concepts of dishonor and publicity. Across Europe scaffold ceremonies and stagings of punishment spectacles were as important as the contents of sentences. These rituals stigmatized the criminal and the society to which he or she belonged. Stripping and exposing the body, even when the criminal was subjected to less painful penalties such as the ducking stool, subjected the offender to disgrace and shame in the presence of witnesses and, in early modern Europe's corporatist societies, destroyed the perpetrator's civic identity, marking him or her as outcast.
The shame associated with flogging or execution was intensified by the executioner's touch. In the Germanies this contamination was so polluting that, if suspects survived torture and were acquitted, they were nonetheless exiled from their communities. Although executioners were central to the penal ritual, they were marginal figures who lived outside respectable communities and wore special clothes. In France and Germany executioners' children were excluded from honorable crafts and could marry only the children of other executioners. In the Baltics executioners also performed other disreputable jobs, like collecting night refuse and removing the dead. In Russia executioners were generally chosen from the ranks of convicts, and by the mid-nineteenth century executioners were so ignominious that criminals refused to volunteer for this role even though it would spare them the lash.
Because the executioner was considered a source of pollution by elites and popular society alike, members of those corporations bearing the greatest social status gradually were exempted from punishment involving the executioner's touch. Death by sword was reserved for nobles and "respected citizens" in France and Germany, and military courts in Germany and Russia replaced lashings with the gauntlet to preserve the dignity of officers and soldiers. By the nineteenth century even the gauntlet became incompatible with soldierly honor. Prussia and Russia abolished it in 1808 and 1863, respectively.
Thus the lower classes and outsiders, such as vagrants and Jews, felt the full force of the executioner's whip or the hangman's noose and were consequently subjected to the most defaming penalties. Even once the era of penal reform got underway in the late eighteenth century, the lower classes continued to be subject to corporal punishment. While Russian nobles were spared the lash and the knout beginning in 1785, peasants were flogged until 1904. Similarly the 1794 Prussian General Law Code began to replace lashings with imprisonment for elites but not for lower classes, and corporal punishment was not eliminated for most Germans until 1871. By the turn of the nineteenth century rulers differentiated between privileged and unprivileged members of their societies through, among other means, subjection to or exemption from floggings.
Like class, gender was a factor that mitigated the dishonor of public punishment. In France women were buried alive rather than hung prior to 1449 out of concern for modesty. This practice, which harkened back to ancient Rome, was also used in the Germanies and Russia in the early modern era. In England women were burned at the stake out of the same concern. Only female witches were drawn and quartered because they purportedly lacked feminine shame. When women were hung or lashed in France or Germany, their necks and faces were masked to protect their identities. Growing concern about baring the female torso contributed to the exemption of women from public whipping in England in 1817 and in Russia in 1863. While female exiles continued to be beaten in Russia for another thirty years, these floggings transpired privately after 1863. Across Europe crowds expressed especial affront at the sight of women's stripped, lashed, and hung bodies, and executioners were reluctant to administer beatings to female criminals. Thus while shame and dishonor were integral to the spectacle of public punishment, infamy had its limits, particularly when it threatened sexual mores and provoked erotic disorder.
Inculcating shame was only one object of scaffold rituals. They also conveyed sovereignty and allowed centralizing European states to symbolically monopolize control over violence. The ceremonies of public punishment frequently integrated ecclesiastical forms that implied the divine nature of secular justice. After the fifteenth century the Spanish monarchy employed the practices of the Inquisition, particularly the auto da fé (act of faith), to identify and prosecute deviance. Likewise seventeenth- and eighteenth-century German and Swiss rulers assimilated into the secular penal system religiously edifying forms of public punishment originally used by ecclesiastical courts. Public punishment often incorporated liturgical chants and funeral rites, and priests presided at the scaffold from England to Russia.
Authorities designed scaffold rituals to legitimate the capacity of the state to retribute crime. The appropriation of ecclesiastical practices constituted only one element of this enterprise. Rulers also encouraged popular participation in punishment because they required public validation of their supremacy. The presence of magistrates and soldiers with drawn swords, fearsome processions to the scaffold along the most populous routes, the enactment of punishment on the busiest squares on market days, and the ringing of bells and beating of drums were features common to penal rituals across early modern Europe. In many places authorities garbed convicts awaiting sentencing specially or mandated that they wear placards announcing their crimes. Formal clothes were also specified for the executioner and the officials presiding at the sentencing. These rituals underscored the majesty of the ruler and the consent of the gathered public to his or her sovereignty.
Yet public punishment's efficacy in expressing the ruler's legitimacy was dependent upon the correspondence between authorities' intentions and audiences' interpretations. Crowds were active agents in constructing the meaning of penal forms and as such were a necessary but potentially subversive component of the penal ceremony. Rulers were aware of this predicament. As they centralized their power, they began to regulate the scaffold more strictly to preclude the audience from interpreting these rites in ways that might sabotage their sovereignty.
While corporal and capital punishment originally transpired at the crime scene, from the seventeenth century through the nineteenth century, scaffolds occupied permanent locations. European officials also began to curtail the customary freedoms of the condemned. Seventeenth-century German rulers fearing it would provoke riots, repealed the Carolina's provision permitting criminals to curse their judges during the three-day interval between the proclamation of a death sentence and its execution. French authorities clamped down on the indulgences traditionally granted the condemned during the nuit blanche (last night) rituals. In a further effort to manage the penal spectacle, officials sought to repress the practice popular in France, Italy, Russia, the Germanies, and England wherein a man or woman condemned to public punishment would be pardoned if a virgin female or unmarried male, respectively, offered to marry the convict. Yet authorities were unable to prevent crowds from appealing for clemency on these grounds, even after they made it illegal in the eighteenth century.
Even earlier, in the mid-sixteenth century, Venetian officials attempted to abolish the centerpiece of the carnival festival because it challenged secular monopolization of penal rites. During the festival twelve pigs and a bull were chased ritually through the streets and penned up at the execution site in the square before the Palace of Doges. There blacksmiths garbed as executioners beheaded the animals in a parody of official justice. Although this ceremony transpired during a period of symbolic inversion—the days preceding lent—officials felt that it threatened their sovereignty, and their lack of success in repressing the practice clearly demonstrates the accuracy of their assessment. The parody pointed out the dangerous multivalent effects of the spectacle of punishment.
During the eighteenth century authorities became increasingly troubled by popular propensities to treat scaffold rituals as carnivalesque occasions. In England and on the Continent critics lamented that witnesses to floggings and executions behaved as if they were at a street theater. They took this as a sign of the masses' lack of civilization and tendency to trivialize death and bodily pain.
The same critics, however, simultaneously evinced a very different sort of anxiety. They feared that crowds might sabotage the scaffold by rioting. In England surgeons who removed the corpses of the executed for use in anatomy lessons were frequent targets of the crowd's ire. English authorities shifted their policies in 1749 and 1750, reserving bodies for friends and family, but this did little to quell popular discontent. The continued rioting that transpired along the Tyburn procession, the traditional route through London to the gallows, convinced officials to abolish the procession in 1783. Yet the removal of the scaffold to outside Newgate Prison failed to achieve the desired effect. Even once executions became rarer, crowds refused to grant uncomplicated consent to scaffold rituals, particularly when they perceived that the condemned was an ordinary member of their own society. Their celebration of convicts' heroism or martyrdom in broadsheets, ballads, and engravings continued to unsettle authorities, who eventually responded by abolishing public executions in England in 1868.
Similar riots transpired during the eighteenth century at scaffolds across Europe, taking place more regularly in France after the 1760s. In Germany crowds revolted at the sight of botched executions, a frequent occurrence. Although full-fledged execution riots were rare in the German states, scaffold punishments failed to convey the intended deterrent message, prompting Prussian officials to reform the laws governing public executions in 1805. As in England, they abolished scaffold processions and instead transported the condemned in closed carts. They also held back the crowd, encircling the punishment site with cavalry. Most importantly they authorized that executions be carried out only at dawn. Officials' fears about popular disturbances at the scaffold in the aftermath of the 1848 revolutions prompted all of the German states to move executions inside prison walls. Authorities further east noted that the Russian masses also absorbed mixed messages at the scaffold and attempted to contain the spectacle of punishment by eliminating the knout in 1845. When this failed to dissolve the specter of popular disturbance, Russian officials abolished public flogging altogether in 1863.
Social anxieties were not the only reasons that authorities restricted or abolished scaffold rituals. Enlightenment thought, the softening of morals associated with the civilizing process, and the rise of reformist evangelical movements combined to inculcate in elites a disdain for public and painful punishment. Nonetheless capital and corporal punishments were meted out against offenders, particularly those of the lower classes, into the twentieth century. While such penalties clearly were less acceptable and less prevalent throughout Europe by the mid-nineteenth century, the movement from physical punishments to confinement followed a complicated trajectory.
Many European countries repealed capital punishment in the nineteenth and twentieth centuries. Finland (1826), the Netherlands (1850), Belgium (1863), Norway (1875), Denmark (1892), and Sweden (1910) exemplify this trend. Yet abolition often proved impermanent. While Russia abolished the death penalty for all but political crimes in 1754, the autocracy sentenced thousands to summary executions after the 1905 Russian Revolution. Austria temporarily abolished capital punishment in 1786 but reinstated it after the French Revolution. Frequent reversals in policies regarding the death penalty characterized the situation in Germany well into the twentieth century. Although Maximilien de Robespierre vehemently decried executions, the French democratized and mechanized death in 1792 by introducing the guillotine, whose blade publicly lopped off offenders' heads until 1939. The English Parliament refused to revise the "Bloody Code" and between 1688 and 1820 increased four fold the number of offenses subject to capital statutes. While the monarch frequently exercised his merciful prerogative throughout that period, executions persisted in private through 1950. Thus, Britain practiced physical chastisements alongside penal forms.
BANISHMENT, PENAL BONDAGE, CONFINEMENT, AND DISCIPLINARY PRACTICES
In early modern Europe corporal punishment often was used in combination with fines and banishment. Generally monetary damages were imposed on elites, who were the only ones who could afford them. Until the eighteenth century primarily political dissidents of the upper class were subject to banishment, and rarely was an individual exiled from an entire country during this era. Prior to the rise of centralized states, troublemakers more often than not were barred from living in particular cities or small communities. Officials simply lacked the means of policing wider regions. As rulers consolidated their realms in the seventeenth and eighteenth centuries and the situation began to change, those who transgressed public order were banished from entire countries.
Penal bondage entailed several overlapping practices, such as galley and hulk labor, transportation, and imprisonment, and was more widely employed than banishment in early modern Europe. This punishment, which gradually developed from the sixteenth century through the nineteenth century, reflected the new values associated with the Reformation and the Counter-Reformation, including changing views of idleness and the desire to impose morality on wider social strata. It was additionally motivated by the new economic realities that expanding nation-states faced, particularly the need for regular militaries and the desire for colonies.
France, Spain, and Italy pioneered sentencing convicts to galleys. In the late fifteenth and early sixteenth centuries vagrants and beggars were consigned to this punishment alongside slaves. In 1530 the practice was extended to a wider range of minor and major offenders in Spain, and the trend persisted through the late sixteenth century, when galleys increased in both number and size. In seventeenth-century France galley labor became the primary penalty to which male convicts were sentenced.
The proliferation of galley sentences was largely attributable to naval expansion, and the abolition of the practice in Spain and France in 1748 resulted not from a change in penological methods or philosophies but from improved naval technologies. Galley sentences set the tone for hard labor patterns that emerged across Europe later in the early modern era. As Spanish colonialism advanced, more convicts were sentenced to work in mines and presidios. During the eighteenth century these work camps became full-fledged penal institutions that facilitated Bourbon economic development by mobilizing large workforces at relatively minimal costs. The French galley system underwent a similar transformation. Once ships no longer required oarsmen, convicts were used on shore as hulk laborers.
Utilitarianism motivated transportation. England innovated this system, using it to colonize its possessions in North America and later in Australasia, endeavors that were fiscally beneficial but hotly challenged from penological and sociological standpoints. From 1718 to 1776 England transported 50,000 convicts to its New World possessions and sold many of them to private planters. The American War of Independence temporarily disrupted transportation, which resumed in 1780. At that time Australasia became the repository for over 180,000 English convicts, mostly property offenders and petty criminals. New South Wales, Van Diemen's Land (Tasmania), and Western Australia were all built on convict labor. While this system effectively expelled criminals from Britain, critics denounced it on contradictory grounds. Supervision was lax, the homesteads and profitable work in private enterprises available to convicts undermined penal objectives, and difficulties in transporting women prevented family economies from taking root in Australasia, contributing to the impression that Australia lacked civilization. Critics condemned transportation as insufficiently dreadful yet simultaneously held that it sabotaged British efforts to attract voluntary settlers to the region. Whether in spite of or because of its profitability, British transportation was scaled back in 1838 and wholly dismantled in 1867.
Other European attempts to use transportation for state advantage were less successful than Britain's. From the seventeenth century through the nineteenth century Russia's efforts to settle Siberia produced dubious economic benefits and aggravated the marginal status of the borderland. Widespread criticism began in the mid-1840s, yet fiscal concerns, a lack of prisons, persistent desires to exploit Siberia, and the belief that some convicts could not be reintegrated into society impeded the substantive alteration of exile until the 1870s. Russians continued to banish large numbers of people to Siberia until the early twentieth century.
France also experimented with transportation, establishing a system just as Britain dismantled its own. A need for cheap colonial labor was one factor that led the French to begin transporting criminals to Guiana in 1852 and New Caledonia 1864, respectively. The French also sought to exclude "dangerous classes" from society in the aftermath of the 1848 revolution. Yet harsh conditions, morbidity rates that earned the colonies the epithet "bloodless guillotine," and inadequate discipline led the French to question the efficacy of transportation by the late nineteenth century. The system was curtailed in 1894 and abolished in 1947.
Operating under the same preconceptions the English held about women's capacity to civilize convicts, Russian and French authorities unsuccessfully attempted to import women to their penal colonies. The endeavors of all three countries failed dismally owing to a larger underlying tension. On the one hand authorities sought to exclude convicts from society and strip them of their civic identities, yet they simultaneously sent exiles a different message. By promoting marriages and homesteading exiles, they encouraged convicts to resume their normal lives in the colonies. On a material level this simply failed to achieve the desired effect. More fundamentally the paradox bankrupted transportation of its penological premise. The 1880 International Penal Congress questioned transportation's legitimacy and set the tone for its abandonment across Europe in subsequent decades.
Like banishment, confinement was motivated by the desire to exclude convicts from European society. Confinement began in Europe around 1600, when prisons gradually became institutions of forced labor. Early modern jails were places of detention for convicts awaiting sentencing and for debtors. The first workhouses confined the poor, elderly, and sick–not criminals. Whereas initially jail occupants remained idle, by the early sixteenth century workhouse inmates were submitted to labor regimens. By incarcerating vagrants in workhouses, Britons, Spaniards, Netherlanders, and French sought to crack down on idlers during the sixteenth-century economic crisis that swept across Europe. Labor appeared to have a redemptive quality, and the assumption was that work would turn beggars and the unemployed into productive subjects.
Beginning in 1596 the Dutch considered confinement in the Amsterdam tuchthuis (rasp-house or prison) a viable alternative to flogging and asserted that labor could correct criminality. Similar institutions were established across the Netherlands, and noncriminals were soon removed from the rasp-houses to other specialized facilities. Although other countries emulated the Amsterdam tuchthuis, confinement for penal purposes remained rare outside of Holland. London's Bridewell (1555) was reserved for poor relief, and only in the late seventeenth century did English prisons become associated with the judicial system. Charity and the confinement of noncriminals predominated in German and Baltic prisons through the mid-eighteenth century. Families refused to deliver undesirable members to institutions associated with criminality. Only after 1650, when specialized workhouses were erected for offenders, did authorities in the Germanic regions begin to incarcerate criminals.
Early modern workhouses served multiple purposes and were with few exceptions marked by confused boundaries and an undisciplined disposition. They were less segregated from the outside world than their modern counterparts. In the sixteenth and seventeenth centuries the Royal Prison of Seville was a meeting ground where the underworld maintained strong ties with other city groups. Prison doors often remained unlocked, prostitutes came and went, and wardens and inmates intermingled. The eighteenth-century Newgate Prison operated similarly. Confinement also affected different social strata in distinct ways. Because inmates had to pay room and board, their access to financial resources determined whether they starved or lived lavishly. Newgate's guards rented out well-appointed apartments to the wealthy, while debtors shared squalid common rooms. The Dutch elite were generally exempted from labor and were confined separately from the poor.
Significantly the prison developed alongside other penal practices, and its ascendancy over these other forms was neither predetermined nor complete. Corporal punishment continued to play an important role in disciplining offenders. Moreover imprisonment was often interchangeable with galley labor and transportation. If anything, the development of long-term incarceration, regimented labor practices, and increased tendency to close the prison to the public that became hallmarks of the penitentiary system lent the modern prison some of the mystique of other forms of penal bondage.
According to some historians, the contrasts between the early modern and the modern prison have been overdrawn. They suggest that the chaos of the eighteenth-century prison has been exaggerated and that the nineteenth-century prison was far from a "total institution." Nonetheless the penitentiary model that quickly influenced European developments did mark a transitional moment in penal history. While the early modern prison was not designed for long-term incarceration or rehabilitation of the convict, who generally lingered in it pending "real" punishment, by the early nineteenth century convicts were sentenced to lengthy confinement and subjected to routines aimed at encouraging their transformations. In addition, a movement developed to classify convicts according to crime, age, and sex. In stark contrast to early modern punishment, which focused on the offense, the nineteenth-century form penalized the offender by designing correctional tactics that accounted for his or her individual characteristics. Though this shift was marked by tensions, inconsistencies, and practical impediments, the alteration was momentous.
The new functions that specialists ascribed to punishment were both reflected in and fostered by the spatial organization of the penitentiaries founded across Europe during the nineteenth century. Early nineteenth-century reformers were enthralled with the architecture of North American prisons, particularly Philadelphia's. Like the blueprint of the panopticon produced by the English utilitarian Jeremy Bentham, radial prisons ensured constant supervision of inmates, whose cells were located along corridors branching off of a central inspection point. Advocates of this system asserted that spatial arrangements would allow them to reshape human nature. Confinement in austere, undecorated, and windowless cells seemingly compelled prisoners to contemplate their guilt and prevented them from consorting with one another in ways that might spread criminality. Inspired by such ideas, the British opened their first national prison at Millbank in 1816. While this prison was a costly failure, it set the tone for the much more successful Pentonville prison, founded in 1842. The Pennsylvania (or Philadelphia) system served as a model for Anglo-American developments and was influential elsewhere in Europe. For example, the Prussian penal code, promulgated the same year that Pentonville opened its doors, advocated solitary confinement and led to a spate of penitentiary construction beginning in 1844.
Although many European penal specialists invested faith in the power of separate confinement to discipline and reform inmates, this system posed great fiscal and architectural demands. Thus complete solitary confinement of prisoners remained rare, even in the heyday of the Pentonville model. Much more common was the Auburn System, whose more cost-conscious penitentiaries submitted inmates to silent communal work by day and solitary cellular confinement by night. Whereas the Philadelphia model required authorities to build new structures, the Auburn System permitted them to convert existing buildings into prisons. Embracing the Irish practice of gradual treatment, penal specialists in England, Prussia, France, Russia, and other countries instituted a system whereby convicts spent their first months in solitary confinement followed by communal living that was gradually increased for good behavior. While theoretically regenerating criminals and preparing them for eventual release, this approach also seemed more humane than complete solitary confinement. From the very start British, Prussian, and Russian penal reformers raised concerns that the total seclusion of inmates was excessively cruel and promoted insanity. Communal work and the stage system mitigated these problems.
Yet prison administrators faced difficulties in effecting even this modified system. Inadequate facilities and fiscal realities fostered overcrowding and impeded the categorization of offenders. Even in places like England and France, where the state devoted considerable resources to prison construction, convicts found numerous ways of evading separation, devising elaborate argots and other modes of communication, and homosexual subcultures flourished despite injunctions. Guard deficiencies compounded disciplinary problems.
The rehabilitative objectives of the penitentiary, however, mandated more than concern about proper confinement. Specialists also predicated the system's success upon the elaboration of labor regimens, moral and educative practices, and inspection. Work was the central organizing principle of life in the nineteenth-century carceral (prison). While this was nothing new, after all, prisoners had labored in the Amsterdam tuchthuis since the sixteenth century, work was more organized in the new penitentiaries, lending them at least theoretical similarity to the factories contemporaneously developing in Europe. Yet labor practices varied across Europe. Private entrepreneurs played a large role in the French penal system, which increased prisoners' productivity but detracted from the disciplinary philosophy of the prison. French entrepreneurs were more interested in maximizing profit and thus were unconcerned with teaching convicts skills that might have transformed them into useful citizens. In contrast, British penitentiaries often employed inmates at the treadmill ostensibly grinding corn but more frequently engaging in the unproductive task of grinding air. Although Russian reformers sought to introduce compulsory labor in the 1870s and 1880s, facilities were so overcrowded that it was impossible to allot adequate workshop space to implement their plans. Moreover penal administrators across Europe found it difficult to locate appropriate labor for convicts.
The paradoxes of the penitentiary system were also evident in moral regimes. Though prisons supposedly functioned as sites of educational and religious instruction, reformers failed to devise strategies for accomplishing these goals, and any developments in these directions remained uneven. Even where education existed, reformers found that this hardly impeded recidivism and ultimately perceived that literacy produced superior criminals.
That not all prisoners were men further complicated matters. It was difficult to fit women into a male-oriented disciplinary system. Reformers like the British nonconformist Elizabeth Fry, who spearheaded the foundation of women's prison associations in the 1810s, and penal specialists argued that women required special moral regimens that emphasized religion, the fostering of personal bonds between inmates and warders, and labor forms designed to inculcate domesticity. Gender-based modifications, which were embraced in many European countries after the second quarter of the nineteenth century, undermined much of the masculine penal complex. Even these changes were difficult to implement because pragmatic concerns impeded construction of gender-specific prisons, hiring of properly trained female guards, and location of suitably feminine labor. Even when authorities attempted to tailor the prison experience to women, punishment still failed to rehabilitate them. Authorities across Europe complained that female inmates posed greater disciplinary problems than male inmates and that incarceration seemingly bred deviance among women to an even greater extent than among men.
Penal reformers hoped that the inspection and nationalization of prisons would alleviate such problems. Britain established a national inspectorate in 1832, which resulted in the closure of many local prisons over subsequent decades and culminated in the nationalization of British prisons in 1876. Other European countries, such as Russia and Prussia, followed suit. While attempts to impose uniform disciplinary practices made prison regimes harsher, they nonetheless failed to enhance the rehabilitative potential of the penitentiary.
More than practical shortcomings frustrated the penitentiary's capacity to reform inmates. Rather, from its inception this system was undermined by a theoretical paradox. The twin goals of the nineteenth-century prison —rehabilitation and deterrence — worked at cross-purposes. By mid-century critics began to resolve this dilemma by separating criminals whom they sought to reform from hardened recidivists. The increased involvement of a whole range of specialists in penal reform; new scientific theories of criminality, including Cesare Lombroso's criminal anthropology and Social Darwinism; and greater public awareness of and fears about crime supported this medicalization of deviance. Experts argued that the prison failed to rehabilitate criminals because at least some offenders were incorrigible. Revising their penal philosophies, they used scientific practices to diagnose incurable criminals. Labeling this group degenerate, they advocated its incarceration in long-term facilities and applied to its members psychiatric treatment and eugenics principles then in vogue in Europe. They thus aimed to preclude members of this group from contaminating less serious criminals and reproducing deviance.
Taking cues from the principles that juvenile justice systems elaborated in the first half of the nineteenth century in Britain, France, and Germany, numerous countries established reformatories for corrigible convicts. These institutions, like the French agricultural colonies for youth, removed offenders from polluting urban environments into familial ones that inculcated domesticity, good health, and skills. Like their juvenile counterparts, these adult facilities came under considerable criticism in the years after World War I. Reformatories opened for inebriate women in Britain were judged excessively lenient, insufficiently rehabilitative, and exceedingly costly. The failure rate of such reformatories combined with the economizing demanded by the Great Depression led to their closure and replacement with more traditional penal confinement in some instances and cheaper, noncustodial arrangements in others.
Belgium first introduced the suspended sentence and probation in 1888. France (1891), Luxembourg (1892), Portugal (1893), Norway (1894), Italy (1904), Hungary (1908), Greece (1911), the Netherlands (1915), and Finland (1918) quickly followed suit, and much of eastern Europe emulated this model after World War I. Supervised parole, which remanded convicts into the custody of private patronage networks or police, developed simultaneously. First used experimentally on juveniles in the 1830s, parole was applied to adults in Portugal (1861), Saxony (1862), Germany (1871), and France (1885) and gained the approval of the 1910 International Prison Congress.
These noncustodial arrangements facilitated individualized sentencing and mainstreaming of former convicts, yet it is incorrect to equate them with de-institutionalization. Rather, they amounted to the extension of the prison's disciplinary practices into society. By the turn of the twentieth century many states possessed the capacity to effectively regulate and supervise their populations and to inaugurate surveillance techniques, such as the French and Russian passports that clearly marked an individual's status as a criminal. In 1999, Britain introduced an electronic tagging system to monitor criminals granted early release from prisons.
The extension of disciplinary regimes into the community at large did not signify that prisons everywhere were dismantled or that convictions ceased to mount, even in countries committed to noncustodial penalties. As prison committals declined in countries like France, where the prison population halved between 1887 and 1956, they proliferated elsewhere. Even before the Nazis rose to power, the prison network in Germany expanded massively. Many socialist countries witnessed similar increases in convictions. After the 1950s western European prison populations swelled, and penal forms continued to coexist. Just as it is impossible to posit a unidirectional trajectory of development from corporal punishment to confinement, so is it problematic to suggest that the prison was replaced by noncustodial penal forms.
In summary, two distinct trends characterize the penal systems articulated in twentieth-century Europe. On the one hand, some countries sought to rehabilitate criminals and mainstream them into society. To these ends, diverse states such as those of Scandinavia, the Netherlands, France, and Italy introduced and refined non-institutional punishments such as furloughs, fines, community-based correctional systems, conditional release, and supervised parole. On the other hand, penal institutions simultaneously proliferated throughout Europe and prisons remained the preeminent form of punishment for criminals, and particularly for a more concentrated recidivist population. Even as public awareness of the brutality of Germany's and the Soviet Union's extermination and labor camps fueled a mounting social outcry against inhumane and cruel incarceration and led critics and statesmen to emphasize the importance of prisoners' rights and fair treatment within carceral facilities, the number of prisons and inmates increased markedly in Western and Eastern bloc countries alike. Moreover, in the late twentieth century authorities largely have rejected the notion that the prison might rehabilitate the convict, instead suggesting that the carceral constitutes an institution in which criminals are to be managed, identified, and set off from upstanding citizens.
EVALUATING PUNISHMENT: THEORY AND HISTORIOGRAPHY
Scholars have evaluated European penal practices and developments in varying ways. Some historians have perceived these changes through the rubric of humanitarianism and progress. Accepting as valid the arguments of eighteenth- and nineteenth-century penal reformers, historians such as Leon Radzinowicz (1948), J. R. S. Whiting (1975), and David D. Cooper (1974) asserted that the rise of the penitentiary was enlightened in its intentions and results because it supplanted barbaric corporal and capital punishments, others, like Bruce F. Adams (1996), who studied nineteenth-century Russian prison reform, modified this picture somewhat, suggesting that shortcomings in practice resulted from the problems of interpreting advanced Western theories in backward autocratic contexts. These positions mistake rhetoric for reality, overlook the continued use of corporal punishment after the rise of the penitentiary, assume that the regimens established in the prisons were humane, and generally fail to examine the larger power relations and authority structures in which the new prisons took shape.
The narrative has been substantially revised by other analysts. Revisionists, who fall into several camps, have asserted that it is essential to examine the wider context in which punishment was deployed. By and large they have privileged the social control aspects of penal change, arguing that reformers' enlightened rhetoric obscured more nefarious tendencies.
One group, which concentrated on punishment's economic effects, asserted that utilitarian aims impelled the replacement of executions and floggings with penal bondage and prisons. According to Marxists like Georg Rusche and Otto Kirchheimer (1939) and Dario Melossi and Massimo Pavarini (1981), the labor demands of nascent commercial capitalism led states to develop prisons that resembled factories. Empiricists demonstrated that penal labor bore little resemblance to factory work and instead was frequently far from productive, was traditionally organized, and existed in countries that evinced little capitalist development, rendering the Marxist argument suspect.
Other Marxists, such as Douglas Hay and Peter Linebaugh (1975), took a different approach. They contended that the sharpening class conflict constituted the ideological basis of criminal law and explains the continued commitment of the English Parliament to capital punishment even in the face of reformers' attacks on and popular riots against executions. Yet by belying that the lower classes benefited from and often championed the "Bloody Code," this position strips them of agency.
Still others of an orientation not necessarily Marxist insisted that, while the penitentiary's economic benefits were dubious, the context of capitalism's rise and state consolidation engendered and was facilitated by new penal modes that asserted greater discipline over criminals and noncriminals alike. Examining the power relations inherent in capitalism, Michael Ignatieff (1978) considered that the birth of the penitentiary constituted part of the process whereby government reformers, social critics, employers, and nonconformist evangelicals sought to locate new forms of social order that could manage the poor, given increased urbanization and the breakdown of traditional relations. In contrast to Ignatieff, Michel Foucault expressed no interest in the multiple discourses that informed penal transformations. Although ostensibly focused on penal practices, his influential Discipline and Punish (1979) is more concerned with the rise of modern disciplinary society. Tracing the late-eighteenth century movement away from executions that marked sovereign power in increasingly ambivalent spectacles of punishment, Foucault suggested that the nineteenth-century penitentiary was the site at which various discourses—penal, medical, and psychiatric—converged to form a carceral continuum. Operating in a manner similar to Bentham's panopticon, this institution at once imposed total supervision, individualized convicts by classifying them, and ensured the construction of permanent deviance that facilitated the reproduction of disciplinary practices and their eventual generalization throughout society, even as the process of punishment itself was increasingly privatized.
Both Ignatieff and Foucault take their arguments concerning social control too far. As Ignatieff (1981) noted, revisionists have predicated their positions on the misconceptions that the state monopolized penal regimes and was solely responsible for enforcing social order and that domination is the essence of all social relations. Foucault's portrayal of the carceral continuum is also marred by his attribution of agency to power, which in his account is totalizing. For Foucault disciplinary regimes are everywhere and unstoppable; any resistance ultimately reinforces and can never subvert discourses of domination.
Others have offered correctives to all these models. Some, like Pieter Spierenburg (1984; 1991), emphasized the gradual and overlapping nature of transformations from the scaffold to the prison. Extending Norbert Elias's argument concerning the civilizing process (1939), Spierenburg suggested that the amelioration of elite and popular morals, the increased visibility of and potential for managing marginal populations, and social pacification facilitated by urbanization and state building explain the demise of harsh bodily punishment and the rise of confinement.
According to Spierenburg's theory, during the sixteenth and early seventeenth centuries, feudal codes still held sway and, in the absence of well-developed and centralized state power and policing, individuals often took to arms and unquestionably accepted the violence that pervaded their societies. In contrast, from the late seventeenth century, as absolutist authorities began to monopolize the technologies of physical violence and began to pacify the societies that they governed, attitudes toward physical chastisements changed markedly. These sensibilities, which first developed among elites and only slowly spread to the masses, led to the privatization of corporal and capital punishment and helped fuel an ever widening critique of violent penal regimes.
Others emphasized that, more than humanitarianism or the civilizing process, social fears engendered penal change. Thomas Laqueur (1989), Arlette Farge (1993), and Abby M. Schrader (1997) modified Hay and Foucault's depictions of the scaffold spectacle, asserting that the crowd constituted the central actor and interpreter of executions. Authorities curtailed them because the effects of public executions became increasingly ambiguous and threatened state power. While V. A. C. Gatrell (1994) contended that the eighteenth-century crowd more frequently affirmed executions than negated them, he maintained that politicized spectators in the Victorian era forced the British government to abolish public hangings. That humanitarianism was never central to these abolition processes may explain the continued existence of corporal and capital punishment.
Historians like Patricia O'Brien (1982) suggested that social fears also motivated authorities to establish prisons. Concern about the political unrest of the dangerous classes led elites to replace executions with more generalized disciplinary practices, first articulated within prison walls and then generalized throughout society once states developed sufficient policing. Modifying Foucault's argument in important ways, O'Brien maintained that this process failed to strip convicts of agency. Inmates developed their own subcultures in dialogue with and resistance to penal discipline. Finally, disciplinary practices were never totalizing. Rather, disorder was as important as order in the penitentiary. Penal forms were continually combined, and at the same time that penal specialists articulated new disciplinary regimes, challenges arose to them. Likewise, Michelle Perrot (1980) and Lucia Zedner (1991) contended that modern "total institutions" were exceptional and can hardly be deemed successful.
Ultimately, as David Garland (1990) suggested, no single cause explains the development, reform, and abandonment of penal practices. All of these theorists articulated elements of truth. Humanitarian arguments were not merely empty rhetoric. Economic concerns certainly explain why particular labor regimes seemed attractive in certain contexts, and class conflict always pervaded but never predetermined social relationships. Likewise authorities were motivated to undertake reforms because of social fears but not exclusively for this reason. Resistance from below was neither wholly impotent nor completely powerful. Finally, disciplinary practices predominated but never completely controlled either the inmates' lives inside the prison or those of the free individuals outside it. As Foucault contended, punishment fulfilled a "complex social function" (Discipline and Punish, p. 23) in both early modern and modern Europe. History and historiography certainly confirm this impression.
See also other articles in this section.
Adams, Bruce F. The Politics of Punishment: Prison Reform in Russia, 1863–1917. DeKalb, Ill., 1996.
Beccaria, Cesare. On Crimes and Punishments, and Other Writings. Edited by Richard Bellamy and translated by Richard Davies with Virginia Cox and Richard Bellamy. Cambridge, U.K., and New York, 1995. Originally published in Italian in 1764 as Dei delitti e delle pene.
Bender, John. Imagining the Penitentiary: Fiction and the Architecture of Mind inEighteenth-century England. Chicago, 1987.
Bentham, Jeremy. The Panopticon Writings. Edited by Miran Bozovic. London and New York, 1995. Originally published in French in 1791 as Le panoptique.
Cooper, David D. The Lesson of the Scaffold: The Public Execution Controversy inVictorian England. Athens, Ohio, 1974.
Dülmen, Richard van. Theatre of Horror: Crime and Punishment in Early ModernGermany. Translated by Elisabeth Neu. Cambridge, U.K., 1990. Translation of Theatre des Schreckens.
Elias, Norbert. The Civilizing Process: The History of Manners. Translated by Edmund Jephcott. Oxford and Cambridge, Mass., 1994. Originally published in German in 1939 as Über den Prozess der Zivilisation.
Evans, Richard J. Rituals of Retribution: Capital Punishment in Germany, 1600–1987. Oxford and New York, 1996.
Farge, Arlette. Fragile Lives: Violence, Power, and Solidarity in Eighteenth-centuryParis. Translated by Carol Shelton. Cambridge, Mass., 1993. Translation of Vie fragile.
Foucault, Michel. Discipline and Punish: The Birth of the Prison. Translated by Alan Sheridan. New York, 1979. Originally published in French in 1975 as Surveiller et punir: Naissance de la prison.
Garland, David. Punishment and Modern Society: A Study in Social Theory. Chicago, 1990.
Gatrell, V. A. C. The Hanging Tree: Execution and the English People, 1770–1868. Oxford and New York, 1994.
Hay, Douglas, et al., eds. Albion's Fatal Tree: Crime and Society in Eighteenth-centuryEngland. New York, 1975.
Howard, John. The State of the Prisons in England and Wales. Warrington, U.K., 1777. Reprint, New York, 1923.
Ignatieff, Michael. A Just Measure of Pain: The Penitentiary in the Industrial Revolution, 1750–1850. New York, 1978.
Ignatieff, Michael. "State, Civil Society, and Total Institutions: A Critique of Recent Social Histories of Punishment." In Crime and Justice: An Annual Review of Research. Edited by Michael Tonry and Norval Morris. Vol. 3. Chicago, 1981. Pages 153–192.
Innes, Joanna. "Prisons for the Poor: English Bridewells, 1555–1800." In Labour,Law, and Crime: An Historical Perspective. Edited by Francis Snyder and Douglas Hay. London and New York, 1987. Pages 42–122.
Laqueur, Thomas. "Crowds, Carnival, and the State in English Executions, 1604–1868." In The First Modern Society. Essays in English History in Honour of Lawrence Stone. Edited by A. L. Beier, David Cannadine, and James M. Rosenheim. Cambridge, U.K., and New York, 1989. Pages 305–355.
Lincoln, W. Bruce. The Conquest of a Continent: Siberia and the Russians.NewYork, 1994.
McConville, Sean. A History of English Prison Administration. London and Boston, 1981–.
Melossi, Dario, and Massimo Pavarini. The Prison and the Factory: The Origins of the Penitentiary System. Translated by Glynis Cousin. London, 1981. Translation of Carcere e fabbrica.
Morris, Norval, and David J. Rothman, eds. The Oxford History of the Prison: ThePractice of Punishment in Western Society. Oxford, 1998.
O'Brien, Patricia. The Promise of Punishment: Prisons in Nineteenth-century France. Princeton, N.J., 1982.
Perrot, Michelle, comp. L'Impossible prison: Recherches sur le système pénitentiaire auXIXe siècle. Paris, 1980.
Perry, Mary Elizabeth. Crime and Society in Early Modern Seville. Hanover, N.H., 1980.
Pike, Ruth. Penal Servitude in Early Modern Spain. Madison, Wis., 1983.
Radzinowicz, Leon, Sr. A History of English Criminal Law and Its Administration from 1750. Vol. 1: The Movement for Reform, 1750–1833. New York, 1948.
Rusche, Georg, and Otto Kirchheimer. Punishment and Social Structure. New York, 1939.
Schrader, Abby M. "Containing the Spectacle of Punishment: The Russian Autocracy and the Abolition of the Knout, 1817–1845." Slavic Review 56, no. 4 (1997): 613–644.
Spierenburg, Pieter. The Prison Experience: Disciplinary Institutions and Their Inmates in Early Modern Europe. New Brunswick, N.J., 1991.
Spierenburg, Pieter. The Spectacle of Suffering. Executions and the Evolution of Repression: From a Preindustrial Metropolis to the European Experience. Cambridge, U.K., and New York, 1984.
Whiting, J. R. S. Prison Relief in Gloucestershire 1775–1820. London, 1975.
Wright, Gordon. Between the Guillotine and Liberty: Two Centuries of the CrimeProblem in France. New York, 1983.
Zedner, Lucia. Women, Crime, and Custody in Victorian England. Oxford and New York, 1991.
The word punishment is used in varying contexts. The punishment meted out by the state to a criminal or by a parent to his children is not the same as the punishment boxers give or receive. The latter, however, is punishment only in a metaphorical sense, for it lacks several of the features necessary to a standard case of punishment. Characteristically, punishment is unpleasant. It is inflicted on an offender because of an offense he has committed; it is deliberately imposed, not just the natural consequence of a person's action (like a hangover), and the unpleasantness is essential to it, not an accidental accompaniment to some other treatment (like the pain of the dentist's drill). It is imposed by an agent authorized by the system of rules against which an offense has been committed; a lynching is not a standard case of punishment. Philosophers who have written on punishment have usually had in mind punishment in the standard sense rather than in any extended or metaphorical sense.
The philosopher's interest in punishment is mainly connected with questions of justification. It is, prima facie, wrong to deliberately inflict suffering or deprivation on another person, yet punishment consists in doing precisely this. What conditions, the philosopher asks, would justify it? Or, more generally, what kind of consideration would count toward a justification? For instance, if a person had already committed a crime, that would clearly be relevant to the question of whether he ought to be punished (although it might not be conclusive). What if he were only expected to commit a crime in the future? Or, again, is it relevant to the question of whether this man should be punished to say that punishing him would deter others? And assuming that criminals ought to be punished, how should we set about deciding appropriate penalties?
It is not, of course, the business of the moral or social philosopher to provide a justification for any particular act or system of punishment or even of the institution of punishment in general. Philosophers are not necessarily apologists for their society and age. They are interested in the procedures and modes of argument that we are committed to by our fundamental conceptions of morality and in criteria of criticism and justification rather than in inquiries into whether actual institutions satisfy them.
Philosophers, it is true, have not always made this distinction; they have often worked on the understanding that a philosophical argument could be seriously shaken by showing that it leads to conclusions inconsistent with some widely approved institution or moral rule. Moreover, for many philosophers, if such a rule or institution seemed to imply a principle inconsistent with other moral principles accepted by the society, there must necessarily be some broader principle, which a philosopher could discover and by which the conflict could be resolved. Applied to the case of punishment, this would mean that a philosopher must reconcile the apparently conflicting principles that wrongdoers should be punished and that it is wrong to deliberately make another person suffer. But this is surely a misconception of the nature of philosophy. There is no point, after all, in asking whether and how punishment can be justified if one assumed in advance that it can. For justification a number of contingent facts are required that the philosopher as such is not qualified to provide. His task is to analyze what is being asked for and so to point out what kinds of facts and arguments are admissible to the discussion.
Justification of Punishment
The question of justification arises at two levels. One can take for granted the principle that wrongdoers should be punished and ask whether a particular case of punishment was justified. At this level the philosopher is concerned with the criteria in a general system which any particular act of punishment must satisfy. One can, however, question the very idea of punishment as an institution that involves deliberately inflicting pain or deprivation. This raises the philosophical question of how one justifies a set of rules or an institution like a penal system. Corresponding to these two levels of justification are two broadly opposed approaches to punishment, the retributivist and the utilitarian. Each, in fact, has been taken to offer an answer to the problems at both levels, but the persuasive force of retributivism is mainly in its answers to problems of the first type, and of utilitarianism to questions of the second type. Characteristically, the retributivist stresses guilt and desert, looking back to the crime to justify punishment and denying that the consequences of punishment, beneficial or otherwise, have any relevance to justification. The utilitarian, on the other hand, insists that punishment can be justified only if it has beneficent consequences that outweigh the intrinsic evil of inflicting suffering on human beings.
The most thoroughgoing retributivists, exemplified by Immanuel Kant, maintain that the punishment of crime is right in itself, that it is fitting that the guilty should suffer, and that justice, or the moral order, requires the institution of punishment. This, however, is not to justify punishment but, rather, to deny that it needs any justification. To say that something is right or good in itself means that it does not need to be justified in terms of the value or rightness of anything else. Its intrinsic value is appreciated immediately or intuitively. But since at least some people do doubt that punishment is right, an appeal to intuition is necessarily unsatisfactory. Again, to say "it is fitting" or "justice demands" that the guilty should suffer is only to reaffirm that punishment is right, not to give grounds for thinking so.
Some retributivists, while admitting that punishment is, prima facie, evil, maintain that it is nevertheless better that the wicked should be punished than that they should prosper more than the virtuous and, perhaps, at their expense. In this view, the function of criminal law is to punish wickedness or immorality in order to maintain a kind of cosmic distributive justice. However, it is not self-evident that wickedness should be punished any more than it is self-evident that legal guilt should be. Archbishop Temple, himself a retributivist, declared that he had no "intuition that it is good that the wicked should suffer." Nor is it clear that virtue must be rewarded or that universal justice requires the kind of human rectification that this sort of retributivism envisages. Of course, in a universe in which the wicked prospered, there might be no incentive to virtue, but this is essentially a utilitarian mode of argument. Again, evil motives and a bad character are necessary conditions of wickedness but not of legal guilt and criminal liability. The state's function is to punish breaches of those rules which in the public interest ought to be upheld; it is a matter of indifference in law (but not in morals) that some men who observe the rules do so from the unworthy motive of fear and others break them from laudable motives of principle. Conversely, it is at least doubtful whether the criminal law should provide penalties for offenses against morality except where the public interest is at stake—for example, whether it should extend to cases of lying other than, say, false pretenses and perjury.
Though immorality is neither a necessary nor a sufficient condition for punishment, the relation between law and morals is nevertheless a close one, and what punishment is to the one, blame is to the other. Both regulate social intercourse, and in any given society the aims and ideals upheld by the law will usually correspond, more or less, with those upheld by the dominant morality. Moreover, in the family and the school punishment is often used to reinforce moral condemnation as part of the process of moral education. Some writers who regard punishment as moral retribution couple this idea with the argument that the point of punishment is to be found in what Lord Justice Denning has called "the emphatic denunciation by the community of a crime." In this view, punishment reinforces the community's respect for its legal and moral standards, which criminal acts would tend to undermine if they were not solemnly denounced. There is, however, no intrinsic reason why denunciation should take precisely the form of inflicting suffering on criminals, unless, perhaps, one accepts Ewing's view that punishment has the advantage of impressing both on the criminal and on everyone else that a breach of law and morals is so serious that society must do something to prevent it. That, however, is surely to justify punishment by its utility in maintaining respect for the law. Hastings Rashdall refers to "the enormous importance of the criminal law in promoting the moral education of the public mind," but Rashdall was a utilitarian who justified punishment by reference to "the production of good effects on conscious beings."
For G. W. F. Hegel punishment is necessary to annul the wrong done by the criminal. By this he means something more than restitution or compensation, neither of which is, strictly speaking, punishment. It is, rather, that the criminal has upset the balance of the moral order, which can be restored only by his being made to suffer. Or, in terms of the dialectic, crime is a negation of right and as such a nullity; punishment negates the negation, thus reaffirming the right. But in what sense can punishment be said to restore the balance or annul the wrong, unless it is taken for granted that criminals deserve to be punished? This is precisely the point in question.
The utilitarian position is exemplified in Jeremy Bentham's remark that "all punishment is a mischief.… If it ought at all to be admitted, it ought only to be admitted in as far as it promises to exclude some greater evil." By reforming the criminal, by deterring him or others from similar offenses in the future, or by directly preventing further offenses by imprisonment, deportation, or execution, the good that comes out of punishment may outweigh (so the utilitarian argues) the intrinsic evil of suffering deliberately inflicted. Without such effects, or if the suffering inflicted exceeded the suffering avoided, the institution would be unjustified.
The critics of utilitarianism claim that if people generally could be persuaded that an innocent man was guilty, utilitarianism would justify punishing him since as a warning to others he would be just as useful as a genuine offender. Again, offenders might be deterred by threatening to punish their wives and children, particularly, if as is so often the case with political terrorists and resistance fighters, it were difficult to catch the offenders themselves. Or, again, if punishment could be justified as a way of reforming criminals, it would seem better to punish them before, rather than after, they committed their crimes. Retributivists claim that utilitarians are in danger of losing sight of two conditions that are necessary to the very idea of punishment—namely, that an offense should have been committed and that punishment shall be of the offender himself, who alone can be said to deserve it. "Punishment is punishment," wrote F. H. Bradley, "only when it is deserved"; punishment for any other reason is "a crying injustice."
The dilemma of utilitarianism, then, at least in its crude form, is that it justifies punishing innocent people provided that such punishment causes less suffering than might otherwise be caused by the would-be criminals it deters. Some utilitarians argue that in the end the deception would break down, that it could not be used systematically, or that the long-term consequences would be bad for society. But these answers are unsatisfactory because they depend on assumptions of purely contingent consequences. Our revulsion against punishing innocent people seems to go deeper than that. In any case, these answers will not meet the case for punishing hostages, which can certainly be done systematically and requires no deception or secrecy.
punishment and principles of justice
To meet the above criticisms, a crude utilitarianism would have to be supplemented by other moral principles—namely, that differences in treatment must be justified by relevant differences in circumstance or condition, where "relevance" is defined in the light of general rules, and that every human being should be treated with at least a minimum of respect as a source of claims and not as a mere instrument for the promotion of the interests of others. It can be argued that punishment of the innocent or of hostages is an abuse not because it necessarily makes for more unhappiness than it prevents but because it treats innocent men in a way that is appropriate only for the guilty and makes an arbitrary difference in treatment between them and other innocent men. Moreover, a legal system is designed to guide conduct by laying down rules and attaching penalties to those who choose to break them. It is acceptable, in the words of J. D. Mabbott, only because "the criminal makes the essential choice; he 'brings it on himself.'" Otherwise, punishment would not be consistent with the principle of respect for persons. The hostage, on the other hand, has no chance to settle his own fate; he is used as a mere lever for manipulating other people's conduct, and his own interest is subordinate to that of the other members of society. Punishment of the innocent ignores, in short, fundamental procedural rules of justice and morality without which utilitarianism would make little sense, for unless everyone is worthy of equal consideration as a source of claims, whose interest is to count in assessing the utility of a course of action? Whom are we entitled to treat as simply a tool for advancing other men's interests—as Aristotle's "slave by nature"—and what would count as a reason for considering other men before him?
This has bearing, too, on the reasons for accepting as excuses such defenses as duress, unavoidable accident, or ignorance of fact—conditions under which an offender can claim that he could not help doing what he did. Bentham argued that to punish anyone under such conditions would be pointless and, therefore, mischievous, because the threat of penalties could not possibly deter anyone in the future who was similarly placed. Now, it is true that nothing would be lost if such people escaped punishment, provided they could be distinguished from cheats trying to take advantage of such excuses and provided enough offenders without such excuses could be detected to furnish examples for others. The principle of "strict liability," which exists in some legal systems for certain offenses, has been defended on the utilitarian ground that it is impossible to tell a genuine excuse from a pretense. It is questionable, however, whether a person who would otherwise be treated as innocent ought to be treated as guilty because someone else might otherwise escape a merited penalty. Punishing the man who commits an offense through ignorance or accident, because it is too difficult to tell whether he really did it on purpose or because we have to make an example of someone, is very like punishing the innocent as a warning to the guilty. The utilitarian case for these excuses is unsatisfactory inasmuch as it makes them subject to such qualifications.
A better ground for such excuses is that punishment is morally acceptable only if it is the consequence of an act freely chosen by the criminal, which it would not be under these conditions. A man acting in ignorance or by accident cannot be said to bring his punishment on himself. Punishment, seen as a way of influencing conduct, cannot be justified if there has been no real possibility of choice. Moreover, the punishment of involuntary offenses introduces into men's lives the possibility of disasters that they can neither foresee nor avert.
Utilitarianism, then, must be supplemented by principles of justice if it is not to clash with other moral principles that are usually considered fundamental. It has, however, the merit, as an approach to the justification of punishment, that it provides a clear procedure for determining whether the institution is acceptable in general terms. This the retributivist approach cannot do because it denies the relevance of weighing advantages and disadvantages, which is what we ultimately must do in moral criticism of rules and institutions. Consequently, a retributivist justification of punishment as an institution usually turns out to be a denial of the necessity for justification, a veiled reference to the beneficial results of punishment (a utilitarianism in disguise), or an appeal to religious authority.
When it is a question of justifying a particular case of punishment, however, the retributivist is in a far stronger position. There would be no point in having a general rule if on every occasion that it had to be applied one had to consider whether the advantages in this particular case warranted acting in accordance with it. Moreover, the point of punishment as deterrent would be quite lost were there no general expectation, based on the general operation of the rule, that the guilty would be punished. Assuming, then, that a penal system can be justified in utilitarian terms, any offense is at least prima facie an occasion for a penalty. Equally, without an offense there is no question of a penalty. The retributivist contention that punishment is justified if, and only if, it is deserved is really applicable, therefore, to the justification of particular instances of punishment, the institution as such being taken for granted.
Severity of Punishment
The clash between the utilitarian and retributivist approaches to punishment also arises in considering the criteria by which appropriate punishments are assessed. The retributivist insists that the punishment must fit the crime; the utilitarian relates the penalty to the general aims of the system, to the prevention of further crime, and, perhaps, to the reform of the criminal.
The most extreme form of retributivism is the law of retaliation: "an eye for an eye." This alone, Kant claimed, could provide a just measure of the penalty, since it was the crime itself and nothing else that settled it. However, to try to apply it literally might be monstrously cruel, or, as Kant recognized, it might be absurd. Thieves can be deprived of their property and murderers hanged, but what penalty is appropriate to the dope-peddler, the blackmailer, and the smuggler?
There is not much sense, either, in trying to construct a table of equivalents so that the amount of suffering inflicted by the criminal could be meted out to him in some other form. How can such a table be drawn up? How many years must a blackmailer spend in jail to experience suffering equal to his victim's? Is it possible, in any case, to make comparisons of suffering between persons? Of course, we do assess the gravity of an offense and try to ensure that the punishment for a trivial offense is less severe than for a serious one. But this is possible only because we take for granted an existing scale of penalties and grade new offenses accordingly. Such grading does not imply an intrinsic relation between the crime and the penalty apart from that established by the scale. Some retributivists admit this but claim nevertheless that the penalties prescribed by the law ought to reflect the moral heinousness of the offense. The most serious offenses against morals deserve the most severe penalties. This, however, only shifts the question a step back, for what makes one moral offense more serious than another?
Utilitarians have tended to concentrate on deterrence, turning away from the actual criminal act except as one of a class of actions that might be prevented by punishing the particular instance severely enough (but only just enough) to make the action unattractive to the offender and to possible future offenders. Unfortunately, there are always people who cannot be deterred or reformed. Beyond a certain point the additional suffering one would have to inflict on all offenders to reduce their number might be so great as to exceed the amount of suffering thereby averted. The aim of the utilitarian, then, would presumably be to select the penalty at which the aggregate of suffering caused by crimes actually committed and punishments actually inflicted would be the smallest possible.
The utilitarian approach has often been criticized as justifying severe penalties for trivial offenses and vice versa. To eliminate parking offenses might need heavier penalties then to eliminate blackmail, which would be monstrous. But this criticism misses the point of the utilitarian case. There would, indeed, be no objection to threatening the severest penalty for any offense providing the threat never had to be carried out. Punishment is only an unfortunate consequence of the fact that the threats, which are the true operative elements in the system, are partially ineffective and would be wholly ineffective if they were not carried out when they failed to deter. In fixing penalties, the utilitarian's problem is not, therefore, to minimize the number of offenses, irrespective of the punishment inflicted, but to minimize the total amount of suffering from both sources. If we call parking offenses trivial, we mean that each one causes relatively little suffering; therefore, we are prepared to put up with a large number of them rather than incur the cost of making offenders suffer heavy penalties. Blackmail, on the other hand, causes so much suffering that if heavier penalties would yield even a small reduction in the number of offenses, there might be a net gain even though offenders would suffer more than they did before. In this way a utilitarian might agree with the retributivist that severe penalties ought to be restricted to serious offenses, but he would argue that we call an offense serious precisely because it causes a great deal of suffering. For the retributivist only serious crimes deserve severe penalties; for the utilitarian only serious crimes are worth averting at the cost of severe penalties.
The utilitarian approach to this matter does not supply a procedure for sentencing particular criminals (any more than a justification for punishment as an institution would be a case for any particular application of it). Arguing from expected consequences, one might establish a kind of standard penalty for each class of offense. Officials drafting new rules might consider whether a proposed maximum penalty would keep offenses down to manageable proportions, or people concerned about road accidents might argue that heavier penalties for motoring offenses would make drivers more careful. Deciding the sentence in a particular case, however, is clearly a different matter. The maximum penalty is a limiting factor, but questions like the degree of responsibility, provocation, and the offender's previous record are all relevant. However, one might reasonably ask why, as a matter of principle, they should be relevant.
Punishment and Responsibility
The problem of responsibility arises in relation to punishment as it does in relation to blame in moral theory. The principle, discussed already, that a man ought not to be punished for doing what he cannot help creates difficulties when extended to actions which a man could not help doing because of his own state of mind instead of external or contingent factors, like duress or ignorance of fact. An insane man, as defined, say, by the M'Naghten rules (that is, one who did not know what he was doing or did not know that what he was doing was wrong), cannot be said to choose his act because he cannot know it for what it is. But sometimes a man may know that what he is doing is wrong yet still be unable to stop himself from doing it. He may be subject, for instance, to an irresistible temptation or provocation. But how is that to be understood? A temptation is not irresistible merely because a particular man has yielded to it or even because he might have been expected to yield to it. However, a temptation may be so strong that we might expect any ordinary person to yield to it (even though a few people may in fact resist it), or, as one might say, it might be "more than human nature can stand." In that sense it may be "irresistible."
Some people, of course, find it much more difficult than others to resist temptation. Some, like kleptomaniacs, are "impelled" to act in the sense that deliberation neither plays, nor could play, any part in what they do. Such people might be distinguished from plain wrongdoers by the fact that nothing—not blame, punishment, praise, or rational argument—seems to affect their disposition to break the rules. Or, again, their actions may lack any point, or if they can be said to have any point, it is only in relation to a set of aims and standards of achievement so distorted and eccentric that they are intelligible only to a psychiatrist. The kleptomaniac who steals nylon stockings for which he has no possible use (according to ordinary standards of utility) might properly be said to be unable to help stealing them. Far more difficult is the case of the psychopath, who seems to have no wish to resist temptation or, rather, who knows that some of the things he wants to do are wrong in the sense that other people disapprove of them but on whom this knowledge enforces no internal restraint beyond prompting a degree of caution. Criminals of this type would once have been described as "wicked" but are now often described as incapable of self-control. To say, however, that they are not responsible for their acts creates the odd situation that anyone is liable to punishment who usually resists temptation but sometimes fails, whereas the man who never resists is not liable at all.
The determinist has a short way with these difficulties. Since everyone's actions are the response of his character to a given set of circumstances, how can anyone ever be held responsible for his actions? We do what we must, given what we are, and what we are is the end of a causal chain going back to before we were born. If one knew a person well enough, one might predict that under given conditions he would commit a crime. Is this compatible with saying that he can choose whether to do so, or is his belief in his freedom to choose simply an illusion? Can the result of a genuine choice be predicted?
To say that something is predictable is not, however, the same as saying it is unavoidable. We can forecast a man's actions just because we know the kind of choices that he regularly makes. The more we know of his dispositions and his preferences, the more likely we are to be right. But that does not mean that he never acts voluntarily or that he never makes a real choice but only thinks he does. If all choices are illusions, what would a real choice be like? A man's behavior may be predictable because he can be relied upon to do what is reasonable, but to act with good reason is the very reverse of being subject to an inner compulsion. An essential difference between voluntary and involuntary action is that it makes sense to speak of the motives, aims, and reasons for the former but only of the causes of the latter. It is only when a person's behavior seems pointless or when explanations in terms of aims do not seem sufficient that we look for the kind of cause which would justify saying that he could not help himself. Of course, a complete account of voluntary and rational behavior must refer to causes as necessary conditions for action, but such causes would not constitute a sufficient explanation. An account of the electronic activity in the brain would not provide a sufficient explanation of a move in a game of chess unless the move was so completely and absurdly irrelevant that it had to be accounted for simply as the result of a nervous twitch. In that case, however, it would not really be a move in the game at all, not an action, indeed, but something that happens to the player. The weakness of the determinist position, insofar as it purports to undermine the notion of responsibility, is that it treats such abnormalities as the explanatory model for the normal.
It is arguable, in any case, that the concept of responsibility requires that human behavior be causally accountable rather than the reverse. As David Hume pointed out in An Enquiry concerning Human Understanding,
[Where actions] proceed not from some cause in the character and disposition of the person who performed them, they can neither redound to his honour, if good; nor infamy, if evil. … The person is not answerable for them; and as they proceeded from nothing in him that is durable and constant, and leave nothing of that nature behind them, it is impossible [that] he can, upon their account, become the object of punishment or vengeance.
In Hume's view universal causality is consistent with the concept of choice and is a necessary condition for responsibility and, therefore, for blame and punishment.
Strictly speaking, all that is necessary for a theory of punishment is that human conduct should be capable of being modified by threats. For some people—for instance, compulsive lawbreakers like kleptomaniacs—that is not the case. Others, however, commit crimes believing they can escape punishment; still others, in a spirit of rebellion, indifference, or, more rarely, of martyrdom, prefer to do what they want and risk the consequences rather than conform. Why they prefer it—what conditions account for their being the men they are—is irrelevant. To say "they prefer it" is to say they might have chosen to do otherwise but did not, and that is all that is necessary for the concept "responsibility." To ask whether they were free to prefer otherwise, being what they were, is to ask whether they could choose to choose, and it is not clear that this really means anything. The experience of punishment may provide a reason for choosing differently next time, but to have a reason for choosing is not to be without a choice and, therefore, without responsibility.
Though a criminal may be held responsible for his actions, there may nevertheless be circumstances which, so it is said, diminish responsibility or extenuate guilt. Temptation or provocation, though not irresistible may have been very great. The offender may have had a good character, and there may be no reason to expect any future lapse.
In some cases mitigation of sentence on such grounds can be readily justified in utilitarian terms. Little is to be gained by punishing the obviously exceptional lapse; a very small penalty might be enough to dissuade other respectable people who might otherwise be tempted to imitate it and for whom the shame of being treated as a criminal, whatever the penalty, is usually deterrent enough.
However, it is not easy to show, at least in utilitarian terms, that mitigation is reasonable in all the instances in which it is commonly thought appropriate. Nor does everyone agree on what are extenuating circumstances. It is not self-evident that whoever is sorely (but not irresistibly) tempted should be treated more leniently than people who have done the same thing but under less temptation. A strong temptation might be withstood if there were sufficient counterinducement. Leniency might weaken the resolve of others in the future. Some people treat crimes of passion leniently; others would say that the temptation is so commonly felt that if people were not discouraged from taking the law into their own hands by treating offenses of this kind severely, such offenses would rapidly multiply. Again, some people would accept a plea of drunkenness as an extenuation of an offense, whereas others would consider it an aggravation.
It is doubtful whether our ideas on this aspect of punishment depend on utilitarian considerations. Nor is there any reason to suppose that any system of utilitarian argument could show them to be consistent and rational. It was suggested earlier that though the criteria of morality and law, of blame and punishment, are not identical, they influence one another. If we blame people less for yielding to strong temptation, we also feel they deserve a less severe punishment. But this only shifts the question a step back. Why should temptation mitigate blame?
A possible answer might be that at least some temptations can be pleaded as partial justifications. Thus, a man who pleads that he killed someone to shorten his sufferings or a woman who kills her deformed baby is appealing to another moral principle to excuse the act. Similarly, a man who kills his wife's lover might claim that his victim was violating his rights. These are not complete justifications, as a plea of self-defense would be, but they are excuses that count, as it were, against the initial presumption of guilt and so incline us to look at the offense more sympathetically and more leniently, whatever the advantages of severity in terms of deterrence, prevention, or reform. There is nothing irrational in striking a balance of desert.
But differences of opinion about a criminal's deserts often turn not on the way such a balance is struck but on the extent to which his judges (or their critics) are able to comprehend his action. Anyone who could imagine himself tempted in similar circumstances would probably be more sympathetic than someone who could not and who would therefore see no reason for being indulgent. On the other hand, anyone who suspected that he himself might yield to such a temptation and who flinched from the possibility might react to it with very great severity indeed.
Punishment and Reform
There is no reason to suppose, then, that the sentencing practice of the courts will display rational and consistent principles; furthermore, any attempt to set up criteria of rational judgment on strictly utilitarian principles is likely to cut across deeply rooted moral convictions. Accordingly, some criminologists and psychiatrists, such as Eliot Slater and Bernard Glueck, and some penal reformers, such as Barbara Wootton, have swung away from the general conceptions of punishment and desert. Instead of asking what penalty is warranted by the crime, whether the agent was fully responsible for his action, whether circumstances exonerate him wholly or in part, they prefer to ask what kind of treatment is most likely to rehabilitate him, subject, of course, to the example it might set for others.
This comes very close to repudiating altogether the concept of punishment as a deliberate infliction of suffering, which the criminal deserves, consequent to a voluntary breach of the law. First, the treatment most likely to rehabilitate him need not be unpleasant (though if it is to instill a measure of discipline, it very well may be). And, second, avoiding the question of moral responsibility, the reformer also avoids the question of what the criminal deserves, because the reformer's prime concern is with the treatment he needs. Criminals would no more deserve punishment than the sick deserve medicine. Indeed, for such writers as Samuel Butler and the American lawyer Clarence Darrow, criminality is a kind of sickness to be treated rather than a wrong to be punished.
Attractive as this approach may seem on humanitarian grounds, it has at least one serious consequence. The concepts of responsibility and desert cannot be discarded without some loss. For it is not a necessary condition of medical treatment that a patient must have shown symptoms of a disease; those exposed to smallpox are vaccinated before they develop a fever. Without the principle that punishment must be deserved, there would be no obstacle to subjecting people likely to become criminals to corresponding forms of penal prophylaxis. Moreover, if we substitute for punishment the idea of rehabilitative treatment, there is nothing against sentencing a person of bad character to a severe course of treatment for the most trivial offense if his character would be better for it in the end. This would clearly be incompatible with the usually accepted principle that trivial offenses should not carry severe penalties.
Reformism of this kind is open to attack from another quarter. The point has been made by Hegel and Bernard Bosanquet, among others, that retributive punishment is a kind of tribute to the moral personality of the criminal. It is precisely as a morally responsible agent, recognized as capable of making reasoned choices and accepting the consequences, that the criminal is punishable. Bosanquet goes so far as to say that punishment is "his right, of which he must not be defrauded." It is to be distinguished, argued Bradley, from the discipline or correction appropriately administered to animals and children. Punishment "is inflicted because of wrongdoing, as desert, the latter is applied as means of improvement." Since rational adults are neither animals nor children, no one has the right to treat them as if they were. It might be similarly argued that lunatics are under tutelage because they are incapable of looking after their own interests and cannot be expected to respect those of other people. The sane criminal, on the contrary, can be made to pay for his antisocial choices in order to demonstrate to him and, through him, to others that crime does not pay, but it diminishes his stature as a rational adult to deny that he is responsible for ordering his own life and to impose upon him ends of another person's choosing.
Nevertheless, retributivists have often been much concerned with moral reformation. They have insisted, however, that this was something the criminal must do for himself. Because it was associated with shame and rejection, punishment could bring the criminal up short and force him to reconsider his life in the light of society's condemnation of his actions. But the remorse that was a necessary condition for self-reformation was entirely dependent on the criminal's recognition that his punishment was deserved. Without that there could be no inward reformation, no reassertion of moral standards, but only a sense of resentment and injustice. Accordingly, punishment can yield the benefits of reform only if it is thought of, above everything else, as retributive—as the appropriate desert of a responsible guilty agent. It is this which distinguishes the retributive approach to moral reformation from the kind of utilitarianism which turns its back on desert and responsibility and is concerned only with the needs of rehabilitation.
It is, of course, an open question whether punishment ever does produce the kind of self-reformation the Hegelians had in mind or whether it does so more often than it produces a moral decay. Indeed, our knowledge of the facts of criminal behavior is probably far too scanty and uncertain for us to know how relevant much of the philosophical discussion of punishment really is. We cannot say for sure that a penal system is justified because it tends to reform criminals. Nor do we know, for that matter, whether the deterrent view of punishment is applicable to all kinds of crime. Many people commit offenses without seeming to take any account of consequences before they act, and they repeat the same offenses again and again in spite of punishment. Perhaps those who do not, would not repeat them even without punishment. Perhaps there would be no more cases of certain classes of crime than there are already; perhaps the only people to commit them are those who also do not take account of consequences before they act. It seems likely that some potential offenders are deterred from evading taxes or from smuggling by the threat of punishment, but is there any certain evidence that the threat of punishment deters anyone who would otherwise commit rape or arson?
Utilitarians tend to assume that punishment as an institution can be justified by its beneficial consequences, but the argument depends on certain a priori assumptions about criminal (or would-be criminal) behavior that may be greatly overintellectualized. However, even though research should prove the usual utilitarian justifications for punishment groundless, that does not mean that some other, nonutilitarian justification is better. The proper procedure may well be to ask, with the utilitarian, whether the consequences are by and large beneficial; it is equally possible that punishment as an institution might fail that test. A theory of punishment that led to the conclusion that all punishment was wrong need be no more necessarily mistaken than a theory that led to a similar conclusion as regards, say, slavery, which, after all, was accepted as uncritically in Aristotle's day as punishment is today.
See also Aristotle; Bosanquet, Bernard; Bradley, Francis Herbert; Butler, Samuel; Good, The; Hegel, Georg Wilhelm Friedrich; Hume, David; Kant, Immanuel; Moral Rules and Principles; Rashdall, Hastings; Responsibility, Moral and Legal; Utilitarianism.
For a broad treatment of the subject, see A. C. Ewing, The Morality of Punishment (London: K. Paul, Trench, Trubner, 1929). For classic expositions of retributive positions, see Immanuel Kant, "Metaphysische Anfangsgründe der Rechtslehre," in Die Metaphysik der Sitten (1797), in Werke, Vol. VII (Berlin, 1922), translated by W. Hastie as Kant's Philosophy of Law (Edinburgh, 1887); G. W. F. Hegel, Philosophie des Rechts (1821), in Werke, Vol. VIII (Berlin, 1833), translated by T. M. Knox as Hegel's Philosophy of Right (Oxford: Clarendon, 1942). See also Ch. 8 of Bernard Bosanquet, Philosophical Theory of the State (London, 1899; 4th ed., Macmillan, 1923), and Essay 1 of F. H. Bradley, Ethical Studies (London, 1876; 2nd ed., rev., Oxford: Oxford University Press, 1927). Extensive bibliographic notes can be found in Giorgio Del Vecchio, La giustizia, which was originally published in Annuario dell'Università di Roma (1922–1923), 4th ed. (Rome, 1951), translated by Lady Guthrie as Justice, edited by A. H. Campbell (Edinburgh, 1952).
More recent analyses, mainly in retributive terms, can be found in J. D. Mabbott, "Punishment," in Mind 48 (1939): 152–167; C. W. K. Mundle, "Punishment and Desert," in Philosophical Quarterly 4 (16) (1954): 216–228; D. C. Hodges, "Punishment," in Philosophy and Phenomenological Research 18 (2) (1957–1958): 209 (a case for viewing punishment as reparation). K. Baier, "Is Punishment Retributive?," in Analysis 16 (2) (1955): 25–32, argues that the concept of punishment entails retribution but does not deal with problems of justification. See also A. R. Manser, "It Serves You Right," in Philosophy 37 (142) (1962): 293–306. H. J. McCloskey, "The Complexity of the Concepts of Punishment," ibid., 307–326, draws attention to variety of contexts in which "punishment" is used and argues against analysis in terms of a standard case.
For classic statements of utilitarian positions, see C. B. Beccaria, Dei delitti e delle pene (1764); An Essay on Crimes and Punishment, Translated from the Italian, 4th ed. (London, 1785); Jeremy Bentham, Introduction to the Principles of Morals and Legislation (1789), Wilfrid Harrison, ed. (Oxford, 1948), and Traités de législation, civile et pénale, E. Dumont, ed. (Paris, 1802), translated by R. Hildreth as Theory of Legislation, C. K. Ogden, ed. (London, 1931). See T. H. Green, Lectures on the Principles of Political Obligation, in Works, edited by R. L. Nettleship, Vol. II (London, 1885), or in a separate edition, with an introduction by A. D. Lindsay (London: Longman, 1941); Green repudiates retributivism but stresses moral reformation as a function of punishment and, therefore, the importance of the concept of desert (cf. Bosanquet, op. cit.). See also Vol. I of Hastings Rashdall, Theory of Good and Evil, 2 vols. (Oxford: Clarendon Press, 1907; 2nd ed., 1924).
The following examples of recent analyses of the problems of punishment are mainly utilitarian in emphasis but try to allow some place for retributivism in a general theory. In W. D. Ross, The Right and the Good (Oxford: Clarendon Press, 1930), especially Appendix II, Ross argues that the state is entitled to punish offenders in the public interest because by invading the rights of others, they forfeit their own claim to protection. On this subject see also A. G. N. Flew, "The Justification of Punishment," in Philosophy 29 (3) (1954): 291–307; H. L. A. Hart, "Prolegomenon to the Principles of Punishment," in PAS 60 (1959–1960): 1, and "Murder and the Principles of Punishment: England and the United States," in Northwestern University Law Review 52 (4) (1957): 433. Also, see A. Quinton, "On Punishment," and Stanley I. Benn, "An Approach to the Problems of Punishment," in Freedom and Responsibility, edited by Herbert Morris (Stanford, CA: Stanford University Press, 1961); J. Rawls, "Two Concepts of Rules," in Society, Law, and Morality, edited by F. A. Olafson (Englewood Cliffs, NJ: Prentice-Hall, 1961); Stanley I. Benn and R. S. Peters, Social Principles and the Democratic State (London: Allen and Unwin, 1959), especially Chs. 8–9. Patrick J. Fitzgerald, Criminal Law and Punishment (Oxford: Clarendon Press, 1962), deals with the philosophical problems in the broad context of English criminal law. For a discussion of the relations of law, morality, and punishment, see Patrick Devlin, The Enforcement of Morals (London: Oxford University Press, 1965), and H. L. A. Hart, Law, Liberty and Morality (Stanford, CA: Stanford University Press, 1963).
For discussions of free will, determinism, and responsibility in relation to punishment, see H. L. A. Hart, Paul Edwards, and John Hospers, symposium on "Determinism and Freedom in Law and Ethics," in Determinism and Freedom, edited by Sidney Hook (New York: New York University Press, 1958); J. D. Mabbott, "Freewill and Punishment," in Contemporary British Philosophy, edited by H. D. Lewis, 3r series (London, 1956). In Barbara Wootton, Social Science and Social Pathology (London: Allen and Unwin, 1959), there is a survey of recent trends in psychiatric and criminological studies critical of the concept "responsibility"; see especially Ch. 8. For a criticism of these trends, see H. L. A. Hart, Punishment and the Elimination of Responsibility (Oxford: Clarendon Press, 1968). Freedom and Responsibility (see above) is a useful collection of readings on various aspects of the problem of responsibility, including its relation to punishment, extenuation, and so on; it includes an extensive bibliography.
Stanley I. Benn (1967)
While there is no modern theory of punishment that cannot, in some form or other, be traced back to biblical concepts, the original and foremost purpose of punishment in biblical law was the appeasement of God. God abhors the criminal ways of other nations (Lev. 20:23) whose practices the Israelites must not follow (ibid.) and from whose abominations they must not learn (Deut. 20:18); by violating His laws, His name is profaned (Lev. 22:31–32); and not only are criminals abhorrent to God (Deut. 18:12; 22:5; 25:16; 27:15), as well as crimes (Lev. 18:27–29), but God's own holiness obliges man to be holy like Him (Lev. 19:2). By taking "impassioned action" (Num. 25:13) to punish violators of His laws, expiation is made to God and God's "fierce anger" (Deut. 13:18) turned away from Israel (Num. 25:4). Closely related to the appeasement of God is another expiatory purpose of punishment: a crime, and more particularly the shedding of blood, pollutes the land – "and no expiation can be made for the land for the blood that is shed therein but by the blood of him that shed it" (Num. 35: 33). Excrement must be covered because the land being holy demands that "thy camp be holy,… "(Deut. 23:15), so that God would "see no unseemly thing" occurring there (ibid.).
Still another aspect is reflected in the talionic punishment of death for *homicide, as originally formulated: "Whoso sheddeth man's blood, by man shall his blood be shed; for in the image of God made He man" (Gen. 9:6). Man being created in the image of God, it is an affront to God to kill him and killing the killer is the only acceptable expiation to God. Similarly, purging Israel of the blood of the innocent (Deut. 19:13) by killing the killer appears to be necessary in order to avoid blood guilt attaching to the land and to the people forever (cf. Deut. 21:9; 19:10); and it is for this reason that a murderer must be taken even from God's very altar to be put to death (Ex. 21:14).
All talionic punishment as such reflects its underlying purpose, namely the apparent restitution of the status quo ante by inflicting on the offender the injury inflicted by him (Lev. 24:20) and by doing to him what he had done to another (Lev. 24:19). This sort of sanction (see *Talion), where the character and measure of punishment is precisely commensurate with those of the crime, is intended to represent exact justice. It was, indeed, by proving that this kind of "exact justice" necessarily involved unavoidable injustice, that some talmudical jurists justified the abolition of talionic punishment except for murder (bk 84a). And while they did not abolish it for murder, whether by reason of the many express biblical injunctions that murderers must be killed (especially Num. 35:31), or in order to retain the deterrent effect of the death penalty, many of them held that judges must do everything in their power to avoid passing death sentences (cf. Mak. 1:10), e.g., by rigorously cross-examining the witnesses long enough to have them contradict themselves or each other in some particular (Mak. 7a) and thus render their evidence unreliable (see *Evidence, *Witness). The warning was already sounded then that any reticence in imposing capital punishment would result in an increase of crime and bloodshed (Mak. 1:10). Maimonides comments on the talmudical discussion, that while it was true that the courts must always satisfy themselves that the incriminating evidence was credible and admissible, once they were so satisfied, they ought to order the execution even of a thousand men, day after day, if that is what the law (the Torah) prescribes (his commentary to the Mishnah, Mak. 1:10).
The most common purpose of punishment, as found in the Bible, is "to put away the evil from the midst of thee" (Deut. 17:7, 12; 19:19; 21:21; 22:24; 24:7). While such "putting away" is applied in the Bible to capital punishment only (which indeed constitutes the only effective total elimination), the principle underlying the elimination of evil, as distinguished from that of the evildoer (cf. Ps. 104:35 and Ber. 10a), provides a theory of punishment of universal validity and applicable to all criminal sanctions. It means that the act of punishment is not so much directed against the individual offender – who is, however, unavoidably its victim – as it is a demonstration of resentment and disapproval of that particular mode of conduct. By branding that conduct as worthy of, and necessitating, judicial punishment, it is outlawed and ostracized. Similarly, punishment is inflicted on the offender not so much for his own sake as for the deterrence of others: that all people should hear and be afraid (Deut. 17:13 – rebellious elder; 19:20 – perjury; 21:21 – rebellious son). From the point of view of criminal law enforcement policies, the deterrent aspect of punishment in Jewish law is already the most important of all: people who hear and see a man heavily punished for his offense are supposed to be deterred from committing the offense and incurring the risk of such punishment (they "will do no more presumptuously" – Deut. 19:20). Hence the particular injunction to have the offender impaled on a stake after having been put to death (Deut. 21:22), so as to publicize the execution as widely and impressively as possible; but note that the corpse must be taken off the gibbet before nightfall, "for he that is hanged is a reproach to God" and defiles the land (Deut. 21:23) – and no concession made to policies of law enforcement can derogate from the affront to God involved in killing and impaling a human being.
It is not only the principle known in modern criminology as "general prevention," the deterrence of the general public, but also that of "special prevention," the prevention of the individual offender from committing further crimes, that is reflected in Jewish law. It has been said that the imposition of capital punishment on such offenders as the rebellious son (Deut. 21:18–21), the rebellious elder (Deut. 17:12), the abductor (Ex. 21:16), and the burglar (Ex. 22:1) is justified on the ground that these are all potential murderers (cf. Maim., Guide 3:41); and rather than let them take innocent human lives, they should themselves be eliminated. That the deterrent effect of punishment on the offender himself was a consideration which weighed heavily with the talmudical jurists is illustrated also by the rule that where punishment had proved to have had no beneficial deterrent effect on the offender and he has committed the same or some similar offenses over and over again, he would be liable to be imprisoned and "fed on barley until his belly bursts" (Sanh. 9:5).
The talmudical law reformers also achieved the substitution for the ever-threatening divine punishment by the judicial punishment of *flogging, making it clear that whoever underwent judicial punishment would not be visited with any further *divine punishment (Mak. 3:15). They went so far as to lay down that even though God had Himself expressly proclaimed that a criminal would not be "guiltless" and escape divine wrath (Ex. 20:7; Deut. 5:11), the judicial authorities in imposing the flogging were authorized by the Torah itself to clear him: if God would never clear him, a court of justice could (Shevu. 21a). The measure of punishment must always conform to the gravity of the offense on the one hand, and the blameworthiness of the individual offender on the other: "according to the measure of his wickedness" (Deut. 25:2). Even here the talmudical law reformers found cause for some mitigatory improvement: they interpreted "wickedness" as the yardstick for the measure of punishment, as including also the physical capacity of the offender to undergo and suffer punishment (cf. Maim., Comm. Mak. 3:10 and Yad, Sanhedrin 17:1). In several instances, the particular turpitude of the offense is expressly stressed as reason for heavy penalties (e.g., "because she hath wrought a wanton deed in Israel" – Deut. 22:21; "it is wickedness" – Lev. 20:14); and in post-talmudic times, the imposition of severe punishments (such as *capital punishment) was always justified by stressing the severity of the particular offense and the public danger of mischief thereby caused.
Maimonides laid down that the gravity and measure of punishment are to be determined, first, by the gravity of the offense: the greater the mischief caused, the heavier must be the penalty; second, by the frequency of the offense: the more widespread and epidemic the offense, the heavier must the penalty be; third, the temptation prompting the offense: the more easily a man is tempted to commit it, and the more difficult it is for him to resist the temptation, the heavier must the penalty be; and fourth, the secrecy of the offense: the more difficult it is to detect the offense and catch the offender, the more necessary is it to deter potential offenders by heavy penalties (Maim., Guide 3:41).
[Haim Hermann Cohn]
In the Framework of Jewish Autonomy
Within the framework of the Jewish *autonomy structure, a great variety of penalties could be imposed on wrongdoers, including *fines, *imprisonment, *ḥerem, and – extremely rarely – capital punishment, according to judgment passed by a bet din under the ordinances of the community or a *ḥevrah. New and previously unknown penalties were resorted to in the Middle Ages, sometimes for crimes not provided for in talmudic law. This development was especially evident in Muslim and Christian Spain. Capital punishment was openly imposed in Spain with the sanction of the state authorities, and somewhat clandestinely in other countries on rare occasions; the death penalty was reserved mainly for *informers, and it was imposed with the aid and often the urging of the very authorities to whom the denunciation had been made. The manner of execution usually followed that obtaining in the host country, such as bloodletting from an arm, drowning, strangulation, or stoning. Some of the talmudic rules of evidence were waived. In 1380 the Jews of Castile were denied the right of capital punishment. Other bodily penalties – again mainly in Spain – were amputation and mutilation of limbs (mainly for sexual offenses), cutting off the nose and ears, cutting out the tongue (in the case of informers), gouging out the eyes, shaving of head and beard, and stripes. Flogging was most common, particularly in lands like Germany where capital punishment was not resorted to. There were two kinds of lashes: the biblical statutory 39 stripes and the discretionary rabbinic penalty, which could be severe or very light, aimed at inflicting not pain but rather public shame. In Babylonia the person punished in this way had his hands and feet tied as he lay on a bench in the courtroom. More customary was the symbolic penance at the threshold of the synagogue between the afternoon and evening daily services. Shaving the head or beard, which was dreaded more than bodily mutilation, was reserved mainly for assault and battery, adultery, or fornication with a gentile maiden.
The most severe social penalty was the ḥerem, with its associated "donkey's burial," interment by the fence of the cemetery, far from respectable graves. Another punishment was expulsion – most customary in Spain and Poland-Lithuania – from the town or even from the country for a stated period or permanently. Sometimes a man's entire family was banished with him. This penalty was imposed on suspected murderers who had only one witness to testify against them, for assault and battery resulting in death, for wife-beating, fornication, stealing, and forgery. The *Mahamad community council of the Sephardi Jews of Hamburg expelled moral or business offenders for several years to Amsterdam or elsewhere. For card-playing and similar offenses German Jewry was accustomed to banish the recalcitrant from the local synagogue. A bankrupt was sometimes ordered to sit for three years behind the almemar. For libeling a friend, a woman was ordered to change her seat periodically in the women's gallery of the synagogue. Various penalties involving loss of title or prestige were imposed. For insulting a fellow Jew the culprit would be denied the title of morenu or ḥaver in Ashkenazi Jewry. The right to be called to the reading of the Torah was withdrawn in certain cases. Often an announcement would be made in all synagogues that for a stated offense a person could not be trusted as a witness or to take an oath.
Institutionally imposed punishment ran parallel to punishment self-inflicted by people who wanted to do penance for their sins. The *Ḥasidei Ashkenaz, in particular Eleazar b. Judah of Worms, developed a detailed and exacting system of penance, the teshuvat ha-mishkal. Throughout the Middle Ages and early modern times such offenders as mothers who smothered their infants in sleep, people who killed unwittingly, or persons who committed undetected sexual transgressions would ask the rabbi to impose on them strict penances, which included public confession and self-vilification. Denial of participation in and benefit from communal and religious services was considered a severe penalty. The sinner could also be deprived of certain citizenship rights, such as membership in the plenary assembly and the right to vote. Most damaging socially and economically – especially in Eastern Europe – was expulsion from a ḥevrah by the kahal, since expulsion from a guild could also mean the loss of livelihood. The kahal was especially strict with its own employees or other communal functionaries. A *badḥan ("jester") would be forbidden to perform at weddings and musicians to solicit their customary holiday gifts. The kahal possessed much more serious weapons against persons who refused to cooperate: exorbitant taxes, frequent billeting of troops, and, in Russia during the *Cantonist troubles, drafting the son into military service. Fines and confiscation of property were very common.
With the weakening of Jewish autonomy in modern times these penalties became, in various stages in different countries, obsolete and inoperative.
Forms of Punishment: Biblical Law; Extra-Legal Punishment; "The King's Law"
Jewish criminal law as crystallized in talmudic literature, includes, inter alia, the following characteristics:
1. Before commission of an offense, the prospective offender must have been admonished by two witnesses, who explain to the prospective offender the specific offense he is about to commit, and the offender must answer them, stating that he is aware of the offense and that he is nevertheless deliberately committing the offense (Yad, Sanhedrin 1–2);
2. Strict evidentiary law, which prevents the admissionof many forms of testimony and evidence (see *Witness; *Evidence). These two requirements made it very difficult to maintain a system of criminal judgment that could realistically deter criminal behavior. In order to cope with these difficulties, in both the societal and legal arenas, Jewish law recognizes two additional tracks of judgment and punishment. The first is that of "punishment not in accordance with Torah law" (anishah shelo min ha-din), which authorizes the court, in accordance with the exigencies of the times, to impose punishment, as well as to legislate enactments with regard to punishment, on a far broader scale than that prescribed by biblical law (for an extensive discussion regarding the implementation of this power by rabbinic courts throughout various periods of history, see: *Capital Punishment). The second track is "the King's Law" (mishpat ha-melekh), which was defined in great detail by Rabbi Nissim of Gerona (Derashot ha-Ran, no. 11). The "King's Law" is a legal system that operates concurrently with biblical law, and that complements the law of the Torah by adjudicating and punishing those offenses or cases regarding which punishment cannot be imposed and enforced under strict biblical law. If such a parallel system did not exist, says Rabbenu Nissim, "the social order would collapse entirely, and murderers would proliferate without fear of punishment; therefore God, may He be blessed, commanded that Kings be appointed, so that public order might be maintained … a king may judge a case without [prior] admonition, as he sees fit, for the benefit of the public" (ibid.).
These two tracks – punishment not prescribed by the Torah, and the King's Law – are characterized by the fact that they grant considerable discretionary authority to the courts both in prescribing punishment in specific instances, and in legislating general enactments in criminal law. One important distinction between these two systems and the Torah's penal system is that, when the law of the Torah prescribes a specific punishment for a particular transgression, the rabbinic court may not deviate from the prescribed punishment (Yad, Sanhedrin 14.1). In the extra-legal system of punishment and in the King's Law, on the other hand, the judges are not limited by any such restriction. It follows, therefore, that these two legal systems enable the courts to adjudicate and punish even in those situations not punishable under biblical law, as well as to impose more lenient sentences than those prescribed by the Torah, in accordance with the specific circumstances.
Instructions to Judges in Imposing Sentence
Once this broad authority has been bestowed on the courts, the judges are instructed, with regard to each and every case presented to them, to carefully consider the appropriate punishment, and the degree to which it should be imposed. Maimonides affirms that rabbinical judges are indeed vested with the authority to impose punishment which deviates from the strict law of the Torah, and proceeds to summarize a judge's obligations in exercising that authority:
All these matters are carried out in accordance with what the judge deems necessary in accordance with the exigencies of that time, and his acts should always be for the sake of heaven and he should not take a frivolous attitude to human dignity… This applies with even greater force to the dignity of the children of Abraham, Isaac, and Jacob, who adhere to the true Law. The judge must be careful not to do aught calculated to destroy their dignity, but his sole concern should be to enhance the glory of God… (Yad, Sanhedrin 24:10).
Similarly, Rashba warned judges that the law should be adjusted and imposed in a manner appropriate to the situation of the public. A judge needs to take into account the public's ability to accept the punishments imposed on offenders, rather than be carried away by the passion for revenge: "moderation, consideration, and consent are required, and then the public will be led in the name of Heaven; the greater the act, and the more powerful its execution, the greater the need for consideration, observation and controlled anger; the judge must be on guard lest he be consumed by the heat of his zeal for the Holy God that may have caused him to abandon the appropriate path" (Resp. Rashba, 5: 238).
The Israeli Supreme Court was guided by Rashba's comments when considering the appropriate punishment for criminals (ca 212/79 Anon. v State of Israel, 34 (2) 421, 426–428; Cr. A. 156/80 Binyamin v. State of Israel, 35 (4) pd 744, Justice Menachem Elon.)
Avoiding Discrimination in Imposing Punishment
The discretionary authority enjoyed by the judges in imposing punishment does not release them from their responsibility to refrain from discrimination between offenders in doing so. This obligation appears repeatedly in the Torah and in rabbinic literature, in various contexts. Judges are warned not to discriminate for socioeconomic reasons – neither on behalf of the rich, in deference to their dignity, nor in favor of the poor, out of inappropriate compassion (Exod. 23:6; Lev. 19: 15; Deut. 24:17). The Torah certainly grants special consideration to the poor man, even when he has broken the law in order to deal with his predicament, as in the words of King Solomon, "Do not despise a thief if he steals to satisfy his appetite when he is hungry" (Prov. 6:30). This is, however, not a legal instruction, but a moral one: "It is written: 'justify the poor and the downtrodden' (Ps. 82:3). What is meant by 'justify'? If this were meant to justify him legally, is it not written, 'you shall not show preference to a poor person in his suit'?! Rather, exact justice [by giving him] from your own property and give it to him." That is, the judge must bestow his own property to the poor person, after the legal process has been completed, as an act of charity.
The Torah emphasizes that there must be no discrimination between man and woman with regard to punishment. The Torah states, "when a man or woman may do any in transgression" (Num. 5:6), which the Rabbis understood to mean that "Scripture considers women equal to men with regard to all of the punishments in the Torah" (Bava Kamma 15a; Yad, Genevah, 1:7; Tur, Sh. Ar., Ḥm, 349:1). Similarly, discrimination between Jews and proselytes as it states: "you shall not pervert the judgment of a proselyte" (Deut. 24:17).
Talmudic halakhah determines that public figures are not immune from the law or from punishment. A high priest is not punished differently than a layman in any respect (Sanh. 18a), and a president (nasi) who sins may be flogged (jt Horayot 3:1). The same applies to a rabbinic scholar (talmid ḥakham). The one exception to this rule is the king who, according to the Mishnah, may not be judged (Sanh. 2.2). According to the Babylonian Talmud, this exception was introduced as a rabbinic enactment in wake of an episode in which King Yannai was summoned to court but the members of the Sanhedrin would not judge him because they were afraid of him (Sanh. 19a–b; Yad, Sanh. 2:5). This exceptional enactment applies only to "kings of Israel," i.e., to Hasmonean Kings, to their contempt for the Sanhedrin's authority, and not to the kings of the Davidic dynasty, who are judged as any other individual would be. According to the Jerusalem Talmud (Sanh. 2.3), the exemption from judgment applies to any king, whether or not from the House of David, because the king is not subject to any authority whatsoever, other than that of God Himself. It would seem that in our era the president or prime minister of the State of Israel would not be included in this classification, and that they would be judged as any other individual, according to Jewish law. This is because, first, they are not "kings," but rather, at best enjoy a status similar to that of the "Nasi"; second, because they are indeed governed by other institutions, unlike the king who is subject to God alone (see bibliography, Fogelman, and editors notes, ibid.).
Sentencing in Accordance with the Offender's Circumstances
The obligation to avoid discrimination does not mean that the personal circumstances of an offender may not be taken into account when imposing punishment. While the same punishment might be meted out to different offenders, it may not have the same implications. Thus, when imposing flogging, for example, the rule is that the degree of the punishment should correspond to the physical capacity of the offender (see *Flogging). This rule was cited by the Israeli Supreme Court in when establishing a fundamental principle in sentencing policy (ca 419/81, Kalman Feibish v. State of Israel, pd 35(4)701; per Justice Shilo). In discussing the tension between the need to impose punishment appropriate to the offender, and the desire that punishment be perceived as being consistent and uniform – i.e., that all offenders receive the same punishment for the same offense – Justice Shilo pointed out that "the origin of the concept of setting the degree of punishment in accordance with the offender's circumstances" is indeed to be found in the principle discussed above, i.e., that an offender may not be flogged to a greater degree than he is able to tolerate (p. 708 and 709 of the judgment).
The rule in Jewish law is that the offender, and he alone, is liable for his actions, and that he alone may be punished for his behavior. Since the era of the Tannaim, this rule has been clear and unequivocal. In the Bible, however, we find seemingly contradictory statements in this respect. On the one hand, the Bible warns that "The fathers shall not be put to death for the children, neither shall the children be put to death for the fathers: every man shall be put to death for his own sin." (Deut 24:16). During the era preceding the Destruction of the First Temple, the prophets confronted the complaint that the people were being punished by God for the sins of their fathers; the prophets rejected those accusations, and attempted to convince the people that, according to Divine law, only the sinner himself, and not his offspring, could be punished (Jer. 31:28–29; Ezek. 18:2–3). On the other hand, Scripture describes God as "visiting the iniquity of the fathers upon the children, and upon the children's children, unto the third and to the fourth generation." (Exod. 34:7), implying that He indeed punishes descendants for the sins of their fathers. The Rabbis, however, interpreted this as applying to descendents who "continue to perform the actions of their fathers" (Sanh. 27b).
An additional case in which the Torah ostensibly mandates collective punishment is the law of the "condemned city" (ir ha-nidaḥat; Deut. 13:13–19), a city in which, according to the Biblical description, all of the city's inhabitants are punished because certain individuals incited the other inhabitants to worship idols. But according to the rabbinic interpretation of these passages, this is not a case of collective punishment at all; the halakhic Midrash interprets the verses as requiring a standard legal process, in which each and every individual among the city's inhabitants receives his punishment by a court of law, and even then only after testimony and admonition by witnesses (Midrash Tannaim, ed. Hoffmann, 13.15; Sifre Devarim, 93) – that is to say, punishment identical to that of any other case of capital punishment (see *Capital Punishment). The dissenting opinion in this regard is that of Maimonides (Yad, Ovedei Kokhavim 4:6), who rules that it is sufficient that the majority of the city be idolatrous for all of its inhabitants be sentenced to death. Maimonides' ruling was the subject of heated debate among the leading scholars of the generation that followed him. It is also important to note that a view was expressed in the Talmud, that a condemned city ever actually existed, and that its laws were never intended for concrete application, but rather as a hypothetical concept for the sake of theoretical study and drawing moral lessons alone (Sanh. 71a).
The Appropriate Attitude Toward the Offender During and After His Punishment
The obligation to respect the dignity of every individual applies even when the individual in question is an offender who is serving a sentence, and this obligation applies even during the process of the sentence itself. The rabbis ordered that even the execution of a person sentenced to death must be carried out in such fashion that minimizes suffering and does not include humiliation. The well-known great principle of the Torah, "you shall love your fellow as yourself" (Lev. 19:18; Sifra, Kedoshim 2) was interpreted by the rabbis of the Talmud as obligatory even with regard to an offender awaiting punishment, even capital punishment. The rabbis ruled: "choose (i.e., rule in favor of) a pleasant death for him" (Ket. 37b). Even an individual sentenced to death is considered "your fellow." The rabbis also taught that the dignity of an individual who is sentenced to imprisonment must be preserved. In a responsum by Rabbi Hayyim Palaggi (19th century – Resp. Ḥikekei Lev, vol. 2 Ḥm 5), we find a ruling that prisoners may not be incarcerated in "dirty and desolate cells," because "even though they have sinned, they are still Jews," and they must therefore be kept in a "dignified prison." This requirement of Jewish law formed the basis for the Israeli Supreme Court's judgment in the Tamir case, which dealt with conditions of imprisonment of prisoners in the Stateof Israel (caa 4/82, State of Israel v. Tamir, pd 37(3)201; Justice Elon; for further information and additional legislation regarding this matter, see *Imprisonment; *Human dignity).
Jewish law seeks to prevent any offender being permanently stigmatized. Rather, after being punished the offender once again becomes a regular citizen for all intents and purposes. This reflects his position in relation to his Creator: the truly repentant offender is accepted by God as pure and unblemished: "Yesterday, this one [i.e., the offender] was hated by the Holy One blessed be He – and was considered a detestable outcast, rejected, and abhorred… but today, he is beloved, near to him, and a friend… Yesterday he was separated from the God of Israel…. he cries [prays] and is not answered…; today he is cleaved to the Shekhinah… he cries out and is answered immediately…" (Maimonides, Hilkhot Teshuvah 7:6–7), and this is similarly the case in human criminal law. Regarding punishment by flogging, the Torah states that an offender may not be flogged more than is necessary, so as not to create a situation in which "your brother shall be debased before your eyes" (Deut. 25:3). The rabbis expounded this verse as meaning that "once he has been flogged – he is to be considered as your brother" (M. Makkot 3.15). In another source, we read: "all day the Torah calls him as "a wicked person," as it is stated "If the wicked one is to be flogged" (Deut. 25:2). However once he has been flogged, the Torah refers to him as 'your brother' as it is stated 'Lest your brother be degraded'" (Sifre Devarim, 286).
This fundamental rule served as the basis for a set of laws and halakhot intended to rehabilitate offenders who have borne their punishment, a concept known as "the Enactment for the Encouragement of Penitents" (Takkanat ha-Shavim: Mishnah Gittin 5:5). The Mishnah cites the testimony of Rabbi Johanan ben Gudgada (end of 2nd century, c.e.) concerning a law stipulating that one who stole a wooden beam and built it into his house is not required to dismantle his house in order to return the actual beam to its rightful owner, but rather may restore its monetary value, "so as to enable the encouragement of penitents." The reasoning behind this enactment is that if the thief is required to destroy his house in order to return the specific beam to its owner, he might refrain from repentance altogether (Rashi, on Gittin 55a). This enactment was accepted as legally binding, in accordance with the opinion of the School of Hillel, and in opposition to the dissenting view of the School of Shammai, who maintained that the thief must in fact take down his home in order to return the original beam to its owner.
There are exceptions to this rule: where the offense is particularly grave, or involves a position demanding an especially high level of moral integrity and reposition of trust in the position holder, the offender may not continue to serve in that position even if he has served his sentence and repented. Maimonides (Yad, 17:7–9) rules that:
Whoever sins and has been flogged returns to his state of propriety, as it is stated: "Lest your brother be degraded before your eyes" (Deut. 25:3) – once he has been flogged, he is to be considered [again] as your brother… If the High Priest sins, he is flogged and is reinstated to his high position… But if the head of the academy [i.e., the President (nasi) of the Sanhedrin] sins, he is flogged, and he does not return to his position, and cannot even resume a position as an ordinary member of the Sanhedrin….
The same holds true for crime of involuntary manslaughter. An individual who killed another involuntarily must flee to a city of refuge. The Mishnah (Makkot 2:8) records a dispute between the Sages regarding the status of the prisoner exiled to the city of refuge: May an exile who has served his punishment and returned from the city of refuge, return to a position of authority he formerly held? The halakhic ruling cited by Maimonides (Yad, Roẓe'aḥ u-Shemirat ha-Nefesh 7:13–14) is that the individual may not return to his former position for the rest of his life "since it was through him that this great misfortune came about" (cf. Nov. Ritba to Makk. 13a; and see *City of Refuge).
In addition, it is forbidden to remind an individual who has served his sentence and/or repented of his former offenses; this is considered "oppression by means of words" (ona'at devarim; Mishnah, bm 4:10; Yad, Teshuvah 7:8; Mekhirah 14:13). Rabbenu Gershom Meor ha-Golah actually imposed a ban on any person who reminded a former offender of his bygone deeds. The reason invoked by Rabbenu Gershom for this prohibition is the desire to make it easier for offenders to reform their ways and to reintegrate into society as honest citizens (Teshuvot Rabbenu Gershom Meor ha-Golah, 4; see also under *Apostate).
The "Rehabilitation of Penitents" in the State of Israel
Jewish law's basic approach – that the past life of an offender who has been punished is to be forgotten – is the basis of the legislation of the Rehabilitation of Offenders and Crime Register Law, 5741 – 1981. This law imposes restrictions on divulging information from the Crime Register regarding crimes committed by an individual after the period of limitations has passed as well as ordering the deletion of such information from the Register after an additional period of time has passed. Nonetheless, the law regarding the aforementioned statute of limitations differentiates between various offenses, depending on their severity, and it also differentiates between various bodies to whom such information may be divulged. During the parliamentary debate that preceded the enactment of the law, the justice minister emphasized that "the proposed law is consistent with the principles of Jewish law as mentioned above, i.e., on the one hand, it forbids the use of information regarding an individual's past history when it is possible to conclude – without harming the public interest – that for certain purposes and under certain circumstances, the past history of an individual who has transgressed, but did not return to his former ways, is immaterial; on the other hand, it allows use of information concerning the individual's past history in those cases where preserving the public interest is of greater importance than rehabilitation of the offender. For this reason it allows for preserving the information, without erasure, even after the passage of time (Divrei ha-Knesset 75 (5736) 301).
In the Carmi case (aba 18/84, Carmi v. Attorney General of the State of Israel, 44(1) pd 53); Justice Menahem Elon), the issue of the interpretation of the Crime Register and Rehabilitation of Offenders Law was raised before the Israeli Supreme Court in the wake of an appeal submitted by a lawyer who, long after he had been found guilty of criminal activity, was suspended by the disciplinary court of the Israel Bar Association. The court conducted an extensive study of the sources of the law, which are rooted in Jewish law and part of which have been cited above, with particular attention to the matter in general, as well as to cases in which exceptions were determined.
[Menachem Elon (2nd ed.)]
E. Goitein, Das Vergeltungsprincip im biblischen und talmudischen Strafrecht (1893); S. Gronemann, in: Zeitschrift fuer vergleichende Rechtswissenschaft, 13 (1899), 415–50; J. Wohlgemuth, Das juedische Strafrecht und die positive Strafrechtsschule (1903); J. Herrmann, Die Idee der Suehne im Alten Testament (1905); I.S. Zuri, Mishpat ha-Talmud, 6 (1921), 1–27; A. Pomeranz, in: Ha-Mishpat, 3 (1928), 23–27; A. Buechler, Studies in Sin and Atonement in the Rabbinic Literature (1928); J. Lipkin, in: Haolam, 16 (1928), 281–3; T. Ostersetzer, in: Sefer ha-Shanah li-Yhudei Polanyah, 1 (1938), 35–60: H.H. Cohn, in: ilr, 5 (1970), 53–74. in the framework of jewish autonomy: S. Assaf, Ha-Onshin Aḥarei Ḥatimat ha-Talmud (1922); Dubnow, Hist Russ, index, s.v.Kahal Courts; I. Levitats, Jewish Community in Russia (1943), 198–217; Baron, Community, index; Baer, Spain, index s.v.Criminal Jurisdiction of Jewish Community. add. bibliography: M. Elon, Ha-Mishpat ha-Ivri (1988), 1:10, 65, 97, 119, 156, 180, 307, 423ff, 437, 438, 499, 558, 568, 649, 692, 693, 720, 11, 841, 111, 1464; idem, Jewish Law (1994), 1:9, 73, 109, 134, 173, 202, 367; 2:516ff, 534, 535, 608, 679, 698, 803, 854, 855, 888; 3:1029, 4:1739; idem, Jewish Law (Cases and Materials) (1999), 567–83; idem, "Ha-Ma'asar ba-Mishpat ha-Ivri," in: Sefer Ha-Yovel Le-Pinḥas Rozen (1962); M. Elon and B. Lifshitz, Mafte'aḥ ha-She'elot ve-ha-Teshuvot shel Ḥakhmei Sefarad u-Ẓefon Afrikah (legal digest) (1986), (2), 329–45; B. Lifshitz and E. Shochetman, Mafte'ah ha-She'elot ve-ha-Teshuvot shel Ḥakhmei Ashkenaz, Ẓarefat ve-Italyah (legal digest) (1997), 228–36; M. Frishtick, Anishah ve-Shikkum be-Yehadut (1986); A. Kirshenbaum, "Mekomah shel ha-Anishah ba-Mishpat ha-Ivri ha-Pelili," in: Iyyunei Mishpat, 12 (1987), 253–73; A. Desberg, "Ha-Hatra'ah, Mekor ha-Din ve-Ta'amo," in: Teḥumin, 12 (1991) 307–26; A. Enker, "Yesodot ba-Mishpat ha-Pelili ha-Ivri,": in: Mishpatim, 24 (1995), 177–206; S. Albeck, Yesodot ha-Averah be-Dinei ha-Talmud (1997), 100–40; M. Halbertal, Mahapekhot Parshaniyyot be-Hithavutan (1997), 128–44; M. Fogelman, "Ha-Nasi Lo Dan ve-lo Danim Oto," in: Be-Ẓomet ha-Torah ve-ha- Medinah, vol. 1 (1991).
Although nations speak out strongly against the crime of genocide and crimes against humanity, these same nations have done very little to punish individuals accused of committing such heinous acts. Prosecution and the subsequent penalties imposed for genocide and crimes against humanity, while gaining momentum through international support, remain rare. Practice is sparse, but a significant shift is evident in attitudes toward the applicable penalties for genocide and crimes against humanity since these acts were first punished in 1946.
Purposes of Punishment
Scholars and criminologists describe two main purposes of punishment—utilitarian and retributive. The first includes attempts at deterrence and incapacitation, whereas the second focuses more on the notion of just deserts or the ancient pronouncement of "an eye for an eye." Theoretical approaches to punishment have been studied and advanced by such renowned scholars as Hugo Grotius, Cesare Beccaria, Immanuel Kant, Jeremy Bentham, Michael Foucault, and John Rawls.
Beccaria believed that the certainty of some punishment, in whatever form, was more likely to deter future criminal acts than the imposition of a severe punishment. The key to deterrence under Beccaria's view was assurance that a swift punishment would follow the criminal act. Beccaria, a utilitarian, advocated immediate and proportionate sentences. Punishment, to be just and effective, could be only as severe as necessary to ensure that others would not commit similar offenses. Bentham and Grotius were also advocates of the utilitarian approach.
In contrast to Beccaria's philosophy, Immanuel Kant adhered to retribution as a basis for punishment. Under Kant's theory, those who committed crimes deserved to be punished. In fact, Kant believed that those who committed crimes needed to be punished. One of the more common justifications for the death penalty is retribution. Retributivists believe that those who murder deserve to die. A modern disciple of the retributive theory is Andrew von Hirsch. And, in modern application, the International Criminal Tribunal for the Former Yugoslavia (ICTY) quoted Kant during the sentencing proceedings for General Radislav Krstic, reminding spectators that, as Kant believed, if justice is ignored, life on this earth has no value.
In truth many punishments reflect more than one approach. Some punishments even adopt a rehabilitative component recognizing that convicts are often reintegrated into society on completion of their sentence. The most recent example, the Rome Statute establishing the International Criminal Court (ICC), combines the utilitarian and retributive approaches to punishment. At least one punishment theory scholar, Nigel Walker, has noted that consideration of mitigating and aggravating factors in sentencing suggests a retributive theory of punishment. Both current United Nations (UN) tribunals, the ICTY and the International Criminal Tribunal for Rwanda (ICTR), embrace the notion of aggravating and mitigating factors in determining sentence. The ICC likewise envisions a penalty scheme that assesses both aggravating and mitigating factors for sentencing purposes.
Prohibitions and Penalties in Law
Throughout recorded history, there have been many pronouncements and declarations calling for prosecution and punishment of acts constituting genocide and crimes against humanity. These pronouncements, however, have not always had the force of law or the agreement of all nation-states. In the seventeenth century Hugo Grotius, considered by many to be the father of international law, published The Law of War and Peace. In this major work Grotius discussed the nature of punishment as it relates to crimes committed during war and devoted an entire chapter to those penalties that might be appropriate for punishing individual war criminals. Although many describe Grotius's approach as utilitarian, he defined punishment generally as signifying "the pain of suffering which is inflicted for evil actions." Grotius dedicated a great deal of his penalty chapter to comparing the divine right to punish with human law and the laws of nature. He clearly disfavored revenge as a motive for punishment, underscoring that such a basis is "condemned by both Christian teachers and heathen philosophers." However, Grotius emphasized the proportionality component of utilitarian punishment, reminding his readers that "[i]t is undoubtedly one of the first principles of justice to establish an equality between the penalty and offense."
The first national code defining crimes of war and applicable penalties was a direct by-product of the American Civil War. Upon witnessing the atrocities committed on the battlefield during that conflict, Professor Charles Lieber was inspired to draft a code of conduct for soldiers during warfare. This code was officially adopted as General Orders 100: Instructions for the Government of Armies of the United States in the Field and unofficially became known simply as the Lieber Code. The Lieber Code presented an extensive list of prohibited behavior during war—including applicable penalties—and was adopted by President Abraham Lincoln in 1863. Thereafter copies of the Lieber Code were distributed to the American military and it became the governing law for all U.S. soldiers. Under the code soldiers who committed atrocities on the battle-field or against an enemy civilian population could be subjected to severe penalty, including death.
Crimes against humanity and genocide have been clearly outlawed in treaties and many domestic legal systems since the late 1940s. The 1948 UN Convention on the Prevention and Punishment of the Crime of Genocide (the Genocide Convention), which entered into force on January 12, 1951, does not specify what measure of punishment is appropriate for crimes defined under the Convention. Rather, the Convention outlaws genocidal acts, conspiracy to commit genocide, incitement to commit genocide, and attempts to commit genocide. Article V specifies that contracting parties shall provide the "necessary legislation to give effect to the provisions of [the Convention], and in particular, to provide effective penalties for persons guilty of genocide." No definition of "effective penalties" is given.
Similarly, the four Geneva Conventions of 1949 do not identify any penalties for violations arising under these treaties but merely outlaw acts that qualify as "grave breaches," that is, war crimes. These early attempts at proscribing international crimes did not explicitly provide a clear list of possible penalties or proffer any guidance regarding what penalty scheme would be acceptable. Instead, tribunals and courts could resort to any penalty scheme deemed just—including, frequently, penalties of death.
Modern international law illustrates a change in approach regarding punishment for international crimes. In 1993 and 1994 the UN created two ad hoc international tribunals to punish crimes committed in Yugoslavia and Rwanda. The statutes creating the two tribunals strictly limit punishment to terms of imprisonment. This modern approach was followed in the Rome Statute creating the ICC. Article 77 of the Rome Statute limits penalties for violations committed under the statute to prison terms and possible fines.
Although the death penalty has been discarded by most nation-states and is a prohibited penalty before the modern international tribunals, including the ICTY, ICTR, and ICC, certain domestic statutory schemes still permit resort to capital punishment for crimes of genocide and crimes against humanity. Thus, the question of whether the death penalty is an available option for the punishment of genocide or crimes against humanity depends on the character of the tribunal involved. The most stark example of this distinction can be seen in the disparity of punishment between the ICTR and the domestic Rwandan courts. Defendants facing justice before the ICTR are protected from capital punishment by the ICTR statute. In contrast, individual defendants tried domestically by Rwandan courts have been sentenced to death. The Rome Statute prohibits resort to capital punishment and, thus, no ICC defendant will be, or can be, sentenced to death.
The first recorded international adjudication for war crimes, including allegations of rape and murder, involved Sir Peter von Hagenbach. Von Hagenbach was tried and found guilty by what many scholars believe was the first international tribunal established to address atrocities committed during war. In 1474 a panel of international judges convicted von Hagenbach. In sentencing, the court not only condemned von Hagenbach to death, but also stripped him of his title as knight and took from him all the privileges attendant to his rank. Thus, the first international tribunal for war crimes imposed the first international death sentence and a penalty that focused on the shameful nature of the crimes, by depriving von Hagenbach and his family of the privileges to which they had been previously entitled by virtue of his title.
Nearly four hundred years later humanity witnessed the second major punishment imposed for crimes committed during war. In 1865 Captain Henry Wirz, a Swiss-born doctor and solider in the Confederate Army, was prosecuted and convicted by a controversial military commission following the U.S. Civil War. Wirz was held responsible for overseeing the operations of the Andersonville Prison, officially known as Camp Sumter, in Andersonville, Georgia. Under his command many prisoners perished as a result of extremely poor conditions. The indictment also charged that Wirz was directly responsible for the murder of thirteen individuals at Andersonville. Upon conviction for murder in violation of the laws and customs of war, Wirz was sentenced to hang for his crimes and was later executed.
The evolving doctrine relating to punishment for war crimes and crimes against humanity appeared to take a very severe and unyielding approach, but few individuals faced prosecution or punishment. This sporadic approach toward prosecution and punishment is most clearly illustrated in the aftermath of World War I. The Treaty of Versailles signed on June 28, 1919, officially brought the war to an end. It reserved an entire section, Section VII, and four distinct articles, Articles 227 through 230, for the issue of "penalties." Furthermore, Article 227 explicitly provided that the former German Emperor, Kaiser Wilhelm II of Hohenzollern, was to be publicly arraigned "for a supreme offense against international morality and the sanctity of treaties." The treaty envisioned the creation of an international tribunal to prosecute the Kaiser and military commissions for the prosecution of "persons accused of having committed acts in violation of the laws and customs of war." No specific penalties were set forth or identified in the section on penalties. Rather, the treaty simply called for penalties "laid down by law."
Kaiser Wilhelm II would never be punished for his alleged crimes. The lesser defendants covered by Article 228 of the Treaty of Versailles were effectively protected from punishment when the Allied forces delegated the responsibility for trying these individuals to the defeated nation of Germany. The Allied forces initially demanded that 896 Germans face trial for their crimes and misdeeds committed during World War I. Germany balked at the extensive list and ultimately agreed to prosecute a mere twelve individuals.
The Supreme Court of Germany at Leipzig tried the twelve persons accused of committing crimes during war. Three of them were convicted, while the remaining nine were acquitted of all charges. The three convicted war criminals received the following sentences: six months, ten months, and two years in prison. It is doubtful that these sparse convictions and equally terse penalties embodied the criminal solution proposed in the Treaty of Versailles.
The most renowned international tribunal to prosecute war crimes, crimes against humanity, and crimes against peace was undoubtedly the Nuremberg Tribunal. Nuremberg, officially known as the International Military Tribunal (IMT), was established to assess the criminal responsibility of the main architects of World War II. Created and governed by the Charter of the International Military Tribunal, which was annexed to the London agreement on August 8, 1945, the Nuremberg Tribunal prosecuted only twenty-three individuals—including one defendant in absentia.
Of the twenty-two defendants physically present and facing justice at Nuremberg, eighteen individuals were indicted for crimes against humanity and sixteen were found guilty. The IMT took a very stern approach toward penalizing the convicted, as twelve of the sixteen were sentenced to death by hanging. Despite cries of "victor's justice," many scholars note that Nuremberg represented an improvement over Joseph Stalin and Winston Churchill's unsuccessful pleas for summary execution. The remaining four convicts received prison sentences ranging from life imprisonment (one defendant) to twenty years (two defendants) to a sentence of fifteen years in prison (one defendant). When one compares the gravity of sentences handed down at Nuremberg, it is notable that those who were not convicted of crimes against humanity were all spared the death penalty, with two individuals receiving life sentences (Rudolf Hess and Erich Raeder) and one (Karl Dönitz) receiving a sentence of ten years.
The Allied forces undertook additional prosecutions of Germans for crimes against humanity and other offenses of war pursuant to Control Council Law No. 10. Of 185 defendants in seven cases alleging crimes against humanity, seventy-eight individuals were convicted. The sentences imposed ranged from death (twenty-four defendants) to life imprisonment (eighteen defendants) to various prison terms between twenty-five and five years. Not all the death sentences were carried out. Furthermore, although numerous prison sentences were also imposed (eighteen life sentences, two sentences of twenty-five years, nine sentences of twenty years, nine sentences of fifteen years, twelve sentences of ten years, one sentence of eight years, two sentences of seven years, and one sentence of five years), most defendants were released well before their sentences had been fully served. Historian Peter Maguire reported that the majority of sentences imposed under Control Council Law No. 10 were paroled between 1949 and 1958—barely a decade after the end of World War II.
War crimes committed by the Japanese in the Pacific theater also resulted in the creation of an international military tribunal—the International Military Tribunal for the Far East, more commonly referred to as the Tokyo Tribunal. The Charter of the Tokyo Tribunal was proclaimed by U.S. General Douglas MacArthur without major deviation from the Nuremberg Charter. Similar to the punishments imposed at Nuremberg, the Tokyo Tribunal meted out seven death sentences (General Doihara Kenji, Baron Hirota Koki, General Seishrio Itagaki, General Kimura Heitaro, General Matsui Iwane, General Muto Akira, and General Tojo Hideki) and eighteen prison sentences. The main dispute at Tokyo was not the guilt of the defendants, as all were convicted on at least one count, but rather, the nature of the punishment handed down to each defendant.
At Tokyo, unless a defendant was found guilty of committing a crime against humanity, the tribunal only imposed a punishment involving prison. It assessed sixteen life sentences and two lesser sentences of twenty and seven years, respectively. The seven death sentences imposed were carried out on December 23, 1948, at Sugamo Prison. Those who were not sentenced to die remained at Sugamo until their paroles between 1949 and 1955. Here, just as at Nuremberg, the defendants were initially punished with relatively severe sentences. But also as with the individuals convicted at Nuremberg, those punished were often not required to serve their entire sentence. Of the eighteen individuals sentenced to imprisonment, all, except the six who died in prison, were released prior to the expiration of their respective sentences.
There were secondary prosecutions in Japan following the Tokyo Tribunal just like those conducted under Control Council Law No. 10 in Europe. Although the statistics for these tribunals are more difficult to catalogue, penalties imposed did not differ markedly from either those meted out at Tokyo or those imposed under Control Council Law No. 10. The two most common penalties included death sentences and prison sentences. And, as occurred with the other World War II tribunals, very few individuals were required to serve out their initial sentence and, if not executed quickly, either received a reprieve or were paroled from prison early.
Thus, the historical approaches to punishment can best be summarized by the sentences imposed at Nuremberg and Tokyo. Of those individuals who were convicted of crimes against humanity committed during World War II, most were given a sentence of death. Of those whose crimes were of a lesser character, however, most defendants were burdened with a prison sentence of some length that was partially served out at either Landsberg or Spandau Prison in Germany or Sugamo Prison in Japan. In both instances most prison terms were paroled within a decade after prosecution, well before the sentence would otherwise have expired.
The Modern Approach Toward Punishment
Two notable domestic prosecutions of Nazi defendants involved Klaus Barbie and Adolf Eichmann. Both were tried by domestic courts for crimes against humanity. A French court convicted Barbie of crimes against humanity and sentenced him to life in prison. He remained in a French prison until his death in 1991.
The trial of Eichmann is one of the most renowned in history. Eichmann fled Germany after escaping from an American prisoner-of-war camp. He was later kidnapped by Israeli officials while living in Argentina under a false name. Once the fervor regarding Eichmann's abduction diminished, he was tried under a 1950 Israeli law for crimes he committed during World War II. The Israeli law permitted prosecution for crimes against humanity and crimes against the Jews despite the fact that such acts had been committed several years prior to the creation of the state of Israel. Under many punishment schemes the application of a law to acts that occurred prior to its adoption constitutes an impermissible ex post facto application of law. Israel, however, did not interpret its law in this fashion. In December 1961, Eichmann was found guilty of all counts against him and sentenced to the same fate suffered by many at Nuremberg—death by hanging. Less than one year later his sentence was carried out by Israel.
In contrast to the spectrum of penalties available under domestic sentencing schemes, neither the death penalty nor any other form of corporeal punishment is available under any of the modern international tribunals—the ICTY, ICTR, or ICC. This limit represents a clear deviation from the historical efforts to punish crimes against humanity, where the death penalty was a common feature. Rather, both the ICTY and ICTR penalty schemes are specifically limited to terms of imprisonment. The language governing penalties is virtually identical under the ICTY and ICTR statutes. Both statutes provide initially that "[t]he penalty imposed by the Trial Chamber shall be limited to imprisonment." Thereafter, both statutes admonish that "[i]n determining the terms of imprisonment, the Trial Chambers shall have recourse to the general practice regarding prison sentences in the [domestic] courts [of Yugoslavia and Rwanda, respectively]." The second paragraph under these penalty provisions, Article 24 of the ICTY statute and Article 23 of the ICTR statute, provides that "[i]n imposing the sentences, the Trial Chamber should take into account such factors as the gravity of the offense and the individual circumstances of the convicted person." The Rules of Procedure and Evidence for both tribunals permit terms of imprisonment up to and including a life sentence. Rules 100 through 106 are related directly to penalties but provide very little additional guidance in relation to sentencing. Rule 101 provides only generally that the Trial Chambers should take into account both aggravating and mitigating circumstances in pronouncing sentence. Although the governing articles on punishment prohibit the imposition of fines or resort to corporeal punishment as a penalty, an explicit provision is made for the return of wrongfully obtained property or proceeds occurring as a result of the criminal conduct.
Another interesting distinction between the World War II tribunals, domestic prosecutions, and the modern-day UN tribunals is that there are no prearranged or permanent prison facilities for individuals convicted by the ICTY, ICTR, or the ICC. Rather, under the governing statutes, individuals convicted of crimes before these tribunals will be transferred to a cooperating state that has signed an agreement with the respective tribunal for the purpose of enforcing sentences. During its first ten years, eight Western European nations signed sentence enforcement agreements with the ICTY: Italy (1997), Finland (1997), Norway (1998), Sweden (1999), Austria (1999), France (2000), Spain (2000), and Denmark (2002). In addition, Germany has entered into two ad hoc agreements with the ICTY to accept particular prisoners (Dusko Tadic and Dragoljub Kunarac). No North American, South American, Eastern European, Middle Eastern, Asian, or African country has agreed to accept prisoners sentenced by the ICTY.
The ICTR has an identical protocol for placing convicted individuals in the domestic prisons of cooperating states. Much like the paradigm at the ICTY, the countries that have agreed to accept ICTR prisoners are regionally restricted and include only African nations. For socio-cultural reasons the ICTR has specifically stated a preference for placing ICTR convicts with African states. During the ICTR's first ten years only three African nations (Mali, Benin, and the Kingdom of Swaziland) have agreed to accept its prisoners. Thus far only Mali has actually received ICTR convicts and, as of 2003, just a total of six prisoners.
The sentencing range for those finally convicted of genocide, crimes against humanity, and war crimes by the ICTY is between three and forty-six years in prison. Six individuals have received sentences of less than ten years, including Zlatko Aleksovski (seven years in prison—sent to Finland to serve his sentence), Damir Dosen (five years in prison—sent to Norway to serve his sentence), Drazen Erdemovic (five years in prison—sent to Norway to serve his sentence), Dragan Kolundzija (three years), Milokica Kos (six years in prison), and Zdravko Mucic (nine years in prison—released early after serving two-thirds of his sentence). All individuals whose sentences were less than ten years were released from custody on or before the ICTY's tenth anniversary.
In contrast three individuals have received a sentence of forty years or longer (General Tihomir Blaskic, Goran Jelisic, and Radislav Krstic). Only one individual, Milomar Stakic, has received a life sentence from the ICTY. Three individuals have received sentences of twenty years or longer: Radomir Kovac (twenty years), Dragoljub Kunarac (twenty-eight years), and Dusko Tadic (twenty years). Two individuals have received eighteen year sentences from the ICTY: Hazim Delic and Vladimir Santic. Two individuals have received sentences of fifteen years: Esad Landzo and Dusko Dikirica. The remaining five prisoners have been sentenced to terms ranging from twelve years (Drago Josipovic and Zoran Vukovic) to eleven years (Biljana Plavsic, the only female convicted by the ICTY) to ten years (Anto Furundzija and Stevan Todorovic). In many respects these sentences are similar to, although slightly less severe, than those meted out by the judges enforcing Control Council Law No. 10 in postwar Europe. The main distinction between the ICTY and the World War II tribunals is that no one appearing before the ICTY will receive the death penalty because this practice is not permitted under modern international tribunals. However, much like the World War II tribunals, individuals convicted by the ICTY stand a very solid chance of actually serving less time than the punishment initially imposed against them. In fact, several have already been granted early release by the tribunal.
From this small sampling before the ICTY, there is little information that can be gleaned about international sentencing policies. The ICTY and ICTR statutes both suggest that "[i]n imposing sentences, the Trial Chambers should take into account such factors as the gravity of the offense and the individual circumstances of the convicted person." This vague statement has not yielded any consistent pattern in actual sentencing practices. Rather, the tribunal must grapple with some of the most heinous crimes ever committed and carefully delineate a punishment meriting three years as opposed to ten as opposed to eighteen as opposed to forty. Because none of the main architects or perpetrators of the Yugoslavian genocide have yet been convicted, it may be entirely reasonable that only one ICTY defendant has received the most lasting punishment, life in prison. This sentence remains on appeal and may be changed.
In comparison, the ICTR, which is nearing its tenth anniversary, has issued eight final convictions against individuals for genocide, crimes against humanity, and war crimes. The sentencing range for persons convicted before the ICTR is between life in prison and twelve years' imprisonment. ICTR penalties seem more severe than those imposed by the ICTY. For example, five of the eight individuals convicted have been sentenced to life in prison: Jean-Paul Akayesu, Jean Kambanda, Clement Kayishema, Alfred Musema, and George Rutaganda. In contrast to the ICTY with its minimum sentence of three years, the minimum punishment imposed by the ICTR has been twelve years in prison. Furthermore, while the ICTY has sentenced six individuals to prison terms of less than ten years, the three ICTR defendants not receiving life sentences have been sentenced to twelve (George Ruggiu), fifteen (Omar Serushago), and twenty-five (Obed Ruzindana) years in prison. One possible explanation for the deviation between the ICTY and ICTR is that both statutes permit the Trial Chamber to consider the domestic sentencing practices in the applicable nations—the former Yugoslavia and Rwanda. Although the Balkan nations have been reluctant to pursue any consistent course for domestic prosecutions, Rwanda has aggressively prosecuted and punished individual defendants for the country's 1994 genocide. Of the domestic Rwandan convictions occurring between December 1996 and January 2000, 15 percent of all defendants (roughly 370 individuals) have been sentenced to death, 32 percent of defendants (approximately 800 individuals) have been sentenced to life in prison, and 33 percent of defendants (approximately 830 individuals) have been sentenced to prison terms of varying lengths. The remaining 20 percent of domestic defendants (approximately 500 individuals) have been acquitted and, thus, received no sentence.
It is difficult in studying both the ICTY and ICTR to discern a clear mandate regarding international punishment for genocide and crimes against humanity. If the crimes committed in these regions were similar, one would expect some similarity in the courts' sentencing practices. A clear omission before both tribunals is any reference to gradations of punishment—penalties that become increasingly severe based on the crime committed and its underlying circumstances. There is not always a readily defensible or easily explainable reason why one individual received twelve years for participating in genocide while another defendant received life in prison. Both tribunals are permitted by their governing statutes to consider mitigating and aggravating factors in pronouncing sentence. The tribunals have considered a defendant's role in the crime, the defendant's position of leadership or authority (if any), the depravity of the crime, and the status of the victim (such as women, children, the elderly, or other vulnerable victims) as aggravating factors in determining sentence. Likewise, the tribunals have accepted the following as mitigating factors: the defendant's cooperation with the prosecutor, the defendant's lack of authority or position, the defendant's plea of guilty in saving tribunal resources, the defendant's family and personal circumstances, any acceptance of responsibility, and any expression of remorse.
Contemporary international tribunals have not, by either custom or statute, placed any consistent sentencing range on crimes falling within their jurisdiction. Rather, because there is no set range for crimes against humanity or genocide, despite the fact that such gradations or sentencing ranges appear in nearly every domestic punishment scheme, sentencing remains a discretionary exercise delimited only by the tribunals' governing statutes. Because the international community has not definitively placed any one crime, such as genocide, at the top of the hierarchy for sentencing purposes, tribunals have often pronounced their punishment without reference to any standard international penalty scheme. In certain instances judges could provide a more severe sentence for crimes against humanity than might be imposed for genocide despite the much greater intent that is required to secure a prosecution for genocide. Thus, it is difficult to project with any certainty what sentence lengths will be imposed by either tribunal as they assess the guilt of the numerous individuals still awaiting prosecution.
The penalty scheme embraced by the ICC underscores the movement toward more standardized punishment—prison and fines only. Although the Rome Statute does not create gradations for crimes committed or provide any solid guidance relating to punishment, the law established by its predecessor institutions (the IMT at Nuremberg, the Tokyo Tribunal, the ICTY, and the ICTR) should shed some light on the punishment of future atrocities. As prosecutions for these heinous acts increase, there is a greater likelihood that the penalties will become more certain and the bases for punishments more consistently articulated and applied. However, until these international tribunals establish a more structured approach to punishment, future defendants can be sure of only one thing—an international conviction for genocide or crimes against humanity will, at most, result in a prison term to be determined by an international court. A fine or the opportunity for reparations may follow, but international law only allows for penalties that begin with imprisonment.
Rule 145 of the ICC Rules of Procedure and Evidence provides some measure of guidance in determining sentences. First, Rule 145 states that the court shall "[b]ear in mind that the totality of any sentence of imprisonment and fine, as the case may be, imposed under Article 77 must reflect the culpability of the convicted person." Next, Rule 145 mandates that the court "[b]alance all the relevant factors, including any mitigating and aggravating factors and consider the circumstances both of the convicted person and of the crime." The court is further admonished to consider the following factors, although they are not specifically labeled as either mitigating or aggravating factors: the extent of damage caused—especially in relation to the victims and their families; the nature of the unlawful behavior and the means employed to execute the crime; the degree of participation of the convicted person; the degree of intent; the circumstances of time, manner, and location of the crime; and the individual circumstances of the offender, especially as they relate to the individual's age, education, and socioeconomic status.
In addition to the litany of variables listed for consideration in punishment, Rule 145 further requires that the Court shall take into account, as appropriate:
- (a) Mitigating circumstances such as:
- (i) The circumstances falling short of constituting grounds for exclusion of criminal responsibility, such as substantially diminished mental capacity or duress;
- (ii) The convicted person's conduct after the act, including any efforts by the person to compensate the victims and any cooperation with the Court;
- (b) As aggravating circumstances:
- (i) Any relevant prior criminal convictions for crimes under the jurisdiction of the Court or of a similar nature;
- (ii) Abuse of power or official capacity;
- (iii) Commission of the crime where the victim is particularly defenseless;
- (iv) Commission of the crime with particular cruelty or where there were multiple victims;
- (v) Commission of the crime for any motive involving discrimination on any of the grounds referred to in article 21, paragraph 3; [and],
- (vi) Other circumstances which, although not enumerated above, by virtue of their nature are similar to those mentioned.
Under the ICC sentencing paradigm in Article 77(b), a life sentence may only be imposed when justified by the extreme gravity of the crime and the individual circumstances of the convicted person, as evidenced by the existence of one or more aggravating factors.
The ICC provides hope that punishment for crimes against humanity and genocide will serve one of the underlying purposes of punishment—deterrence. It would be a welcome advancement if humanity no longer needed a tribunal to evaluate the guilt of individuals accused of committing acts of genocide or crimes against humanity. However, for those future cases in which a just punishment must be meted out, there now exists a permanent international body capable of rendering justice. And, for sentencing purposes, there increasingly exists a body of comparable cases and maturing, although still rudimentary, statutory guidance for judges to rely on in assessing proper penalties.
Appleman, John Allen (1954). Military Tribunals and International Crimes. Westport, Conn.: Greenswood Press.
Beccaria, Cesare (1973). Essays on Crimes and Punishments. Philadelphia: Temple University Press.
Cassese, Antonio, ed. (2002). The Rome Statute of the International Criminal Court: A Commentary. Oxford: Oxford University Press.
Earle, Alice Morse (1896). Curious Punishments of Bygone Days. Detroit, Mich.: Singing Tree Press.
Ginn, John L. (1992). Sugamo Prison, Tokyo. Jefferson, N.C.: McFarland & Co.
Grotius, Hugo (1901). The Rights of War and Peace, trans. A.C. Campbell, London: M. Walter Dunne.
Grupp, Stanley E., ed. (1971). Theories of Punishment Bloomington: Indiana University Press.
Minear, Richard H. (1971). Victor's Justice: The Tokyo War Crimes Trial. Princeton, N.J.: Princeton University Press.
Morris, Virginia, and Michael P. Scharf (1994). An Insider's Guide to the International Criminal Tribunal for the Former Yugoslavia. Irvington-on-Hudson, N.Y.: Transnational Publishers.
Persico, Joseph E. (1994). Nuremberg: Infamy on Trial. New York: Viking.
Schabas, William A. (2001). An Introduction to the International Criminal Court Cambridge: Cambridge University Press.
Schabas, William A. (2002). The Abolition of the Death Penalty in International Law Cambridge: Cambridge University Press.
Shaw, George Bernard (1946). The Crime of Imprisonment. New York: The Philosophical Library, Inc.
Taylor, Telford (1992). The Anatomy of the Nuremberg Trials. New York: Knopf
Von Hirsch, Andrew (1978). Doing Justice: The Choice of Punishments. New York: Hill and Wang.
Walker, Nigel (1980). Punishment, Danger and Stigma: The Morality of Criminal Justice Totowa, N.J.: Barnes and Noble Books.
Walker, Nigel (1991). Why Punish? Oxford, U.K.: Oxford University Press.
Wells, Donald A. (1984). War Crimes and Laws of War. Lanham, Md.: University Press of America.
Willis, James F. (1982). Prologue to Nuremberg: The Politics and Diplomacy of Punishing War Criminals of the First World War. Westport, Conn.: Greenwood Press.
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.
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.
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
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.
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.
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.
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
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, 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.
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.