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Is punishment justified?

In Home Affairs, Judicial Spotlight on September 24, 2009 at 4:43 pm

This essay will seek to answer two questions. Firstly, is punishment justified in principle? Can a coherent justification of punishment be provided? Secondly, is punishment in its current form in the UK justified? Does it meet the conditions for justified punishment as specified by the answer to the first question? This essay will start by defining punishment, then will consider four purported justifications of punishment – that it has a legitimate function as a deterrent, that it protects society, that it rehabilitates criminals, and that it is (justly) retributive. This essay will argue that deterrence does not justify punishment, that protection and rehabilitation only justify punishment provided stringent conditions be met, and that retribution-based justifications offer the best prospect of justifying punishment. However, the claims needed to justify retribution – especially that the guilty deserve to be punished – raise uncomfortable questions about to what extent we can be held morally responsible for the upshots of luck. This essay will conclude that many aspects of the UK criminal justice system are unjustified, the main end not being retribution.

What is punishment? The Stanford Encyclopaedia of Philosophy defines punishment as “the authorized imposition of deprivations — of freedom or privacy or other goods to which the person otherwise has a right, or the imposition of special burdens — because the person has been found guilty of some criminal violation, typically (though not invariably) involving harm to the innocent.” This essay will use this definition, with the recognition that in the UK civil, as well as criminal violations can result in the imposition of punishment: for example the breaching of a (civil) anti-social behaviour order can carry a prison sentence of up to five years. (43% of children who breached ASBOs between 2000 and 2004 were given a custodial sentence.) Most civil violations, such as breach of contract, do not result in the imposition of punishment: the SEP notes that what marks out these “nonpunitive deprivations from the punitive ones is that they do not express social condemnation”.

What must we do in order to justify punishment? The SEP notes four requirements. Firstly, “we must specify…what our goals are in establishing (or perpetuating) the practice itself”. Secondly, “we must show that when we punish we actually achieve these goals”. Thirdly, “we must show that we cannot achieve these goals unless we punish… and that we cannot achieve them with comparable or superior efficiency and fairness by nonpunitive interventions”. Fourthly, “we must show that striving to achieve these goals is itself justified”: in other words, no “moral side constraints” on action have been violated by punishment.

Definitions aside, now let us turn to the justification for punishment in terms of deterrence. This sees potential criminals as rational individuals seeking to maximise their own utility. If the expected value (found by multiplying the probability of possible outcomes by their (dis-)utility) of crime is higher than the expected value of keeping within the law, then crime will be committed; the existence of punishment lowers the expected value of crime, so acts as a deterrent to crime. Deterrence is a popular justification, especially in the pages of the Daily Mail; in an article protesting against the possibility of community sentences for drug dealers, they quote David Green of Civitas, who says “All the real evidence on drug dealing and deterrence shows that deterrence does work.” However, deterrence seems to fail the second justification requirement. The criminologists Gottfredson & Hirschi (1995) argue that people with low-self control (a feature disproportionately found in criminals) have limited capacity to appreciate long-term consequences, such as imprisonment. This leaves the individuals “[un]restrained by the fear of detection”, a requirement for punishment to be an effective deterrent. “Prisoner Ben”, a blogger who has been in prison for over thirty years, makes essentially the same point: “deterrence only works with putative criminals if they believed that they would be caught. If you believe that you will get away with your crime, then the potential sentence is utterly irrelevant. And guess what? Most criminals are drunk, desperate or very confident. The possible sentence for their crime is of as much interest to them as the movements of the Hang Seng index; they either believe that they won’t get caught, or are so desperate for the next beg of smack that they don’t care.” Moreover, deterrence seems unfair. Surely if the only reason to punish A is to have an effect on B, then A’s rights are being unjustifiably infringed: justifications for infringing A’s rights have to do with A (for example if he deserves to have his rights infringed) not with B. To consider whether deterrence suffices as a justification of punishment, consider whether it would be justified to punish an innocent man if the net result would be to reduce crime. My intuition is that it would be not justified; the sacrificing of one man’s interests to benefit others (those who would be the victims of the crimes prevented by the innocent man’s punishment) seems to fail to respect the “separateness of persons”, Rawls’ objection to utilitarianism. Thus deterrence fails as a strategy to justify punishment; it does not fulfil the second and fourth necessary criteria.

The argument that criminals need to be put in prison in order to protect society from their harmful presence seems to fare slightly better as a justification for punishment. The second criterion is fulfilled; on a basic level, when criminals are behind bars they cannot harm those outside prison. It also seems that no moral side constraints are violated if restricting the liberty of some is necessary to prevent them from violating others’ rights; it seems justified to pin a man to the ground if this is the only way of stopping him murdering someone. However, protection only serves as a justification of punishment given certain, restrictive conditions. Firstly, there must be no other (reasonably efficient and fair) way of protecting society (the third criterion); this seems implausible, especially in light of evidence suggesting that prison only protects temporarily. In 2002 67% of adults reoffended within two years of leaving prison, compared to only 54% of those serving community sentences. Secondly, the person must pose a real, imminent risk to society: it is clearly not justified to pin down everyone who has even a small chance (eg 0.1%) of murdering someone. 78% of people sentenced to prison in 2003 had committed non-violent offences (i.e. offences that did not involve violence, sex or robbery); were these people that much of a threat? Thus protection justifies punishment in a limited number of cases. It cannot provide a complete theory of punishment since if protection is the only justification of punishment then it is wrong to punish those criminals who are not an immediate threat, for example if they are too elderly/infirm to reoffend.
Successful rehabilitation satisfies the second and third requirements: if punishment did help to change the character of criminals so that their propensity to commit crime was reduced, and there was no other way of accomplishing this (perhaps the criminals would not attend “re-education” programmes if not under compulsion), then it is justified if rehabilitation breaches no moral side-constraints. However, there is little evidence that prison is a justified punishment because of its rehabilitative effects: 73% of young male offenders released in 2001 were reconvicted within 2 years. As previously mentioned, community sentences appear to be better at rehabilitating criminals. (However, this is extremely difficult to measure because those given community sentences may be less likely to reoffend anyway, being less hardened criminals.) Moreover, even setting the success of rehabilitation aside, some of the attempts at rehabilitation in contemporary UK prison practice do appear to violate prisoners’ rights. “Prisoner Ben” reports that prison governors routinely sell the labour of prisoners to outside companies, such as Bulk Hardware. Prisoners are then forced to work for as little as 75p an hour; if they refuse, they are subject to a range of penalties including solitary confinement for 23 hours a day. Is this not forced labour, defined in the 1930 ILO Convention as “all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily”?

The SEP notes that “The retributive justification of punishment is founded on two a priori norms (the guilty deserve to be punished, and no moral consideration relevant to punishment outweighs the offender’s criminal desert) and an epistemological claim (we know with reasonable certainty what punishment the guilty deserve)”. The epistemological claim seems dubious. How it is possible to decide what punishments are deserved? The famous maxim “an eye for an eye, a tooth for a tooth” does seem to generate unjust recommendations: for example that a rapist be raped himself. (Incidentally, who would do the raping?) A “proportionality principle” – that each criminal be punished in proportion to the severity of the crime – is an alternative, but this has a serious flaw: there is no non-arbitrary way to convert severity of crime into severity of punishment. (In the words of the SEP, “ There is no nonarbitrary way to locate either the end points of maximum and minimum severity defining the penalty schedule or the intervals between adjacent punishments”.) A more serious problem for retribution seems to be found in the claim that “the guilty deserve to be punished”. The moral intuitions of the vast majority of people would agree with this: we continually make moral judgements condemning people for their actions. However, many people would also assent to the Control Principle: that “we are morally assessable only to the extent that what we are assessed for depends on factors under our control” , and its corollary, “Two people ought not to be morally assessed differently if the only other differences between them are due to factors beyond their control” (SEP). There appears to be a clash of intuitions. On the one hand, we do think moral judgements of criminals are possible; however there is a sense in which some criminals become criminals because of factors outside their control. The connection between poverty and criminal behaviour is well-documented: 53% of those in prison in America earned less than $10,000 per year before incarceration. Even more troublingly, a third of teenage girls sentenced to imprisonment in a Young Offenders’ Institution report having been sexually abused. The morally arbitrary determinants of crime were suggested in a report by the Social Justice Commission: Ian Duncan Smith uses evidence from developmental psychology, which shows how significantly the formation of children’s brains is affected by their environment, to argue that “life outcomes” for children born into poverty and disadvantage is “virtually set in stone by the time they are three”. Without taking into account factors beyond people’s control, such as their parenting, how can higher crime rates among the children of the poor be explained? The Control Principle casts doubt upon the extent to which we can make moral judgements about criminals, and thus whether retribution is justified. However, attempts have been made (most notably by Bernard Williams and Thomas Nagel) to argue that the Control Principle can be discarded, and that a notion of “moral luck” (which “occurs when an agent can be correctly treated as an object of moral judgment despite the fact that a significant aspect of what she is assessed for depends on factors beyond her control”) can be incorporated in our moral framework. This essay cannot discuss these issues in great detail, though it will be assumed that a way can be found of rescuing our ability to make moral judgements about criminals.

Thus punishment’s main justification is to be found in retributive arguments; deterrence, protection and rehabilitation do not justify the UK prison system to any significant extent. A few concluding thoughts: what is punishment actually achieving in our society today? Reoffending rates indicate that it is not successfully rehabilitating criminals, nor acting as a deterrent, nor protecting the public except for the short time prisoners are behind bars. What it does seem to do is provide a way of providing the beneficiaries of the injustice in our society a way of ignoring the problems of poverty, inequality, literacy, and opportunities. The characterisation of Baby P’s mother as an “evil monster” took the spotlight away from uncomfortable questions about the likelihood of abusers having been abused themselves; Carol Midgley puts it well when she says “Imagine if Baby P had not died. Imagine if he had suffered less abuse and survived into teenagehood. How would he have turned out? A knife-wielding delinquent, an ASBO boy, an abuser? How much sympathy would society have had for him then? Thousands of problem teenagers were once defenceless, neglected babies like Peter. If only society remembered this when it is demanding that they be locked up and the key thrown away. Had he lived, poor battered Peter might have become tomorrow’s hoody.” Imprisoning record numbers of under-18s (twice as many are locked up now compared with a decade ago, despite no significant rise in youth crime) is a natural progression from demonising “hoodies” – both ways of conveying the message that “these people are not part of our society”. This has to be unjustified.

(1) If the poor suffer the injustice of the great inequalities in wealth and income in the UK, then the rich are the beneficiaries of this injustice.  This is also the case as regards opportunities – “A boy from social class one has a more than 30 times better chance of himself getting a class one job – as a banker or barrister, say – than a boy from the unskilled working class”.

Blog posts I’ve enjoyed reading on the subject of punishment:

http://badconscience.com/2008/12/31/stevie-g/

http://badconscience.com/2009/08/25/why-tories-should-bother-to-watch-the-wire/

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  1. On a note of humour, the Hitchhikers fans among you may notice that SEP can stand for “Someone Else’s Problem”.

    Just wanted to be the first to say that. Move along, nothing to see here.

  2. “Moreover, deterrence seems unfair. Surely if the only reason to punish A is to have an effect on B, then A’s rights are being unjustifiably infringed: justifications for infringing A’s rights have to do with A (for example if he deserves to have his rights infringed) not with B.”

    The problem with this sort of reasoning is that it is very similar to the argument employed by the right against redistribution of wealth — IE “the only person to benefit from my success should be me, not someone else”. How much I benefit from my success should be about me (IE how much I deserve it) and not someone else (IE how much someone else needs help).

    Given that we redistribute wealth because we recognise the social effects of success need some correction, then the same reasoning can happily apply to sentencing: a part of the sentence is for the crime itself and is about the criminal himself, an additional part is considering the social implications at stake.

  3. i can deny your likening of redistribution and punishment by denying that people have any right to vastly unequal holdings of wealth/income – so when we redistribute we’re not infringing their rights in order to help others (eg punishing for deterrence) – we’re just correcting injustice.

    incidentally i think some strategy like this is necessary to be able to resist (sam’s) charge that “someone in favour of redistribution is just like a utilitarian, trading off some people’s interests against others'”

  4. But equally, I can deny that criminals have any right to forgo their responsibility for the social implications of their crime. The point is that both redistribution and deterrence reasoning have at heart a consideration of broader social principles that lie beyond the individual — both attempt to social engineer a correction, so to speak, no matter how they are dressed up.

    And if utilitarianism is simply defined as “trading off some people’s interests against others” then pretty much any social policy can be classed as utilitarianism, and we might as well all become anarchists. But you know my views re: fundamental “property rights”.

  5. sorry for the lack of clarity, i didn’t mean to define utilitarianism as trading some people’s interests off against others’, but that is (i think) a very strong objection to utilitarianism, and one which has been levelled against redistribution

    “forgo their responsibility for the social implications of their crime.” it is not an implication of X’s crime that Y is tempted to commit a crime – Y may never even have heard of X.

  6. In answer to the latter point, it is firstly a possible implication to those that know/have heard of X, but more importantly it is secondly true that in breaching the law, X is attempting to breach society’s resolution towards his crime, and thus sentencing must be done with regard to the negative effect this may have on society as a whole, rather than merely in relation to X’s specific criminal actions.

  7. I don’t know If I said it already but …I’m so glad I found this site…Keep up the good work I read a lot of blogs on a daily basis and for the most part, people lack substance but, I just wanted to make a quick comment to say GREAT blog. Thanks, 🙂

    A definite great read..Jim Bean

  8. jim bean, how did you find us?

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