Punishment
Punishment
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 ([1789] 1948), among others, while the latter was formulated by Socrates (Cooper and Hutchinson 1997) and later made famous by Immanuel Kant ([1780] 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
BIBLIOGRAPHY
Benn, Stanley I. 1958. An Approach to the Problems of Punishment. Philosophy 33: 325–341.
Bentham, Jeremy. [1789] 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.
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Hart, H. L. A. 1968. Punishment and Responsibility. Oxford: Oxford University Press.
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Nozick, Robert. 1981. Philosophical Explanations. Cambridge, MA: Harvard University Press.
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J. Angelo Corlett