Punishment
Punishment
Formal and informal punishment
Processes of formal punishment
Primitive and modern societies
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 and informal punishment
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.”
Processes of formal punishment
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.
Historical evolution
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.
Primitive and modern societies
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.”
Theoretical approaches
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.
Durkheim’s theory
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.
Marxist view
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.
Freudian theory
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 [1924] 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
[See alsoCriminal Law; Criminology; Law; Legal systems; Penology; Sanctions; Social Control; and the biographies ofBeccaria; Durkheim; Sutherland].
BIBLIOGRAPHY
Beccakia, Cesare Bonesana (1764) 1953 An Essay on Crimes and Punishments. Stanford, Calif.: Academic Reprints. -” First published as Dei delitti e delle pene. A paperback edition was published in 1963 by Bobbs Merrill.
Durkheim, Smile (1893) 1960 The Division of Labor in Society. Glencoe, 111.: Free Press. -* First published as De la division du travail social.
Fauconnet, Paul 1920 La responsabilite: Etude de so-ciologie. Paris: Alcan.
Hall, Jerome (1947)1960 General Principles of Criminal Law. 2d ed. Indianapolis, Ind.: Bobbs-Merrill.
Hardy, M. J. L. 1963 Blood Feuds and the Payment of Blood Money in the Middle East. Beirut: Privately published.
Hentig, Hans Von (1932) 1937 Punishment, Its Origin, Purpose and Psychology. London: Hodge. -“First published as Die Strafe: Ursprung, Zweck, Psychol-ogie.
Hilgard, Ernest R.; and Marquis, Donald G. (1940) 1961 Hilgard and Marquis’ Conditioning and Learning. Revised by Gregory A. Kimble. 2d ed. New York: Appleton. -” First published as Conditioning and Learning.
Hoebel, E. Adamson 1954 The Law of Primitive Man: A Study in Comparative Legal Dynamics. Cambridge, Mass.: Harvard Univ. Press.
Lewin, Kurt (1931)1935 The Psychological Situations of Reward and Punishment. Pages 114-170 in Kurt Lewin, A Dynamic Theory of Personality. New York: McGraw-Hill.
Malinowski, Bronislaw (1926) 1961 Crime and Custom in Savage Society. London: Routledge. -“A paperback edition was published in 1959 by Littlefield.
Oppenheimer, Heinrich 1913 The Rationale of Punishment. Univ. of London Press.
Ranulf, Svend (1938) 1964 Moral Indignation and Middle Class Psychology. New York: Schocken. -* First published in Danish.
Rusche, George; and Kirchheimer, Otto 1939 Punishment and Social Structure. New York: Columbia Univ. Press.
Shaw, George Bernard (1922) 1946 The Crime of Imprisonment. New York: Philosophical Library. -” First published as Imprisonment.
Sutherland, Edwin H.; and Cressey, Donald R. (1924) 1960 Principles of Criminology. 6th ed. New York: Lippincott. -“First published as a textbook under the title Criminology, by Edwin H. Sutherland.