To Punish and Service
It seems that the polity could communicate messages of censure to offenders without imposing intended burdens; for example, it could issue a public proclamation condemning the crime and blaming the offender. Why, then, is the hard treatment characteristic of punishment an appropriate vehicle for conveying such messages?
Nonpunitive censure—blaming without imposing intended hard treatment—would fail to communicate the seriousness of the wrongdoing. Some have objected, however, that such an account implies too intrusive a role for the state. It is not a proper function of the state, critics charge, to seek to induce repentance and moral reform in offenders.
Thus even some scholars who agree that punishment is justified as a form of censure nevertheless disagree about the role of the hard treatment element. For Andrew von Hirsch , for instance, the intended burdens characteristic of punishment act as a sort of prudential supplement: Punishment, as hard treatment, also provides a prudential threat as a sort of supplement for those of us for whom the moral message is not sufficient. One worry with such an account, however, is whether the prudential threat will tend to drown out the moral message.
Alternative versions of retributivism have been offered. Some scholars, for instance, argue that those who commit crimes violate the trust of their fellow community members. Trust, on this account, is an essential feature of a healthy community. Offenders undermine this trust when they victimize others. In such cases, punishment is a deserved response to such violations and an appropriate way to help maintain or restore the conditions of trust among community members see Dimock, Advocates of this trust-based variety of retributivism must explain which violations of trust rise to the level that warrants criminalization, so that violators should be subject to punishment.
Also, we might question whether such accounts are purely retributivist after all: On the other hand, if punishment is justified not for what it helps to bring about but rather as an intrinsically appropriate because deserved response to violations of trust, then we need an explanation of why such violations deserve punishment, perhaps as opposed to some other form of response. Another form of retributivism holds that offenders incur a moral debt to their victims, and so they deserve punishment as a way to repay this debt McDermott, This moral debt is distinct from the material debt that an offender may incur.
The offender takes not only a material good from the victim but also a moral good. Repayment of material goods does not settle this moral debt, and so punishment is needed to fill this role. Such an account raises a host of questions: How can a moral good be taken away from someone? In what sense if at all has the perpetrator gained this good? How does punishment deny this good to the offender, and how does this thereby make things right for the victim? Because retributivism claims that punishment is justified as a deserved response to wrongdoing, retributivist accounts should provide some guidance about what sentences are deserved in particular cases.
Typically, retributivists hold that sentences should be no more severe than is deserved.
This negative retributivist constraint on sentencing corresponds with the negative retributivist constraint on punishment itself namely, that punishment is justified only of those who deserve it. Some scholars find this positive retributivism unappealing because it seems to preclude the state from taking into account mercy or other considerations that might count in favor of lenient sentences.
One question, though, is whether and if so, why retributivists are justified in endorsing the negative retributivist constraint on sentencing without also endorsing the positive retributivist constraint. Retributivists often discuss sentencing in terms of proportionality, where a proportionate sentence is understood as one that is deserved or at least, on some accounts, not clearly undeserved. Sentences may be proportionate in two senses: This sense of proportionality, called ordinal proportionality, holds that similarly serious offenses should receive similarly severe punishments like cases should be treated alike ; that more serious offenses should be punished more harshly than less serious offenses murder should be punished more harshly than shoplifting, for instance ; and that differences in sentence severity should reflect differences in relative seriousness of offenses because murder is much more serious than shoplifting, murder should carry a much more severe sentence.
For example, someone who is young, physically imposing, or has no children may have a much different experience of a year prison term from someone who is much older, physically frail, or must leave behind her children to serve the sentence. Considerations such as these do not in themselves demonstrate that the tenets of ordinal proportionality are false that like cases should not be treated alike, for instance, or that more serious violations should not receive harsher sentences. Rather, these considerations raise challenges to our ability in practice to implement a just sentencing scheme that reflects ordinal proportionality.
Even if sentences can be devised that satisfy ordinal proportionality, however—in other words, even if a sentencing scheme itself is internally proportionate—particular sentences may fail to be proportionate if the entire sentencing scheme is too severe or lenient. For instance, a sentencing scheme in which even the least offenses were punished with prison terms would appear disproportionate even if sentences in the scheme were proportionate relative to each other.
Thus theorists note a second sense of proportionality: Cardinal proportionality considers whether sentences are commensurate with the crimes they punish. A prison term for jaywalking would appear to violate cardinal proportionality, because such a sentence strikes us as too severe given the offense, even if this sentence were proportionate with other sentences in a sentencing scheme—that is, even if it satisfied ordinal proportionality.
Thus cardinal proportionality concerns not the relation of sentences to one another, but instead the relation of a sentence to the crime to which it is a response. Put another way, even if an entire sentencing scheme is internally ordinally proportionate, we need guidance in how to anchor the sentencing scheme to the crimes themselves so that offenders in particular cases receive the sentences they deserve.
In addition to addressing questions of deserved sentence severity, we would like retributivism to provide some guidance about how to determine what mode, or form, of punishment is appropriate in response to a given crime. Is prison time, community service, capital punishment, probation, or something else the deserved form of response, and why? Those who appeal to intuitions that the guilty deserve to suffer, for instance, can similarly appeal to intuitions that those who are guilty of more serious offenses deserve to suffer more than those who are guilty of less serious offenses.
As discussed, however, we would like to know how much punishment is deserved in particular cases in nonrelative terms, and also what form the suffering should take. One well-known account of sentencing is provided by lex talionis that is, an eye for an eye, a tooth for a tooth.
Immanuel Kant famously endorsed this principle: As critics have noted, though, not every crime appears to have an obvious like-for-like response—what would lex talionis demand for the childless kidnapper, for instance Shafer-Landau, And even when a like-for-like response is clearly indicated, it will not always be palatable torturing the torturer, for example. We might assert instead that the sentence and the offense need not be alike in kind, but that the sentence should impose an amount of suffering equal to the harm done by the offender.
Still, questions arise of how to make interpersonal comparisons of suffering. And again, for the most heinous crimes, a principle of inflicting equal amounts of suffering may recommend sentences that we would find troubling. The fair play view holds that punishment functions to remove an unfair advantage gained by an offender relative to members of society generally.
Critics of this view often object, however, that it provides insufficient or counterintuitive guidance about sentencing. Put simply, there does not seem to be any advantage that an offender gains, in proportion with the seriousness of her crime, relative to community members generally. On one version of the view, the offender gains freedom from the burden of self-constraint that others accept in complying with the particular law that the offender violates.
If so, then the sentence severity should be proportionate to the burden others feel in complying with that law. But compliance with laws is often not a burden for most citizens. Indeed, it is often less burdensome to comply with prohibitions on serious offenses murder, assault, and so forth than it is to comply with prohibitions on lesser crimes tax evasion, jaywalking, and so forth , given that we are more often tempted to commit the lesser crimes. But if the unfair advantage that punishment aims to remove is freedom from the burden of self-constraint, and if self-constraint is often more burdensome with lesser crimes, then these less serious crimes will often appear to merit relatively more severe punishments.
This is a violation of ordinal proportionality. Similar problems arise for other versions of the fair play view. Suppose, for instance, that the unfair advantage a criminal gains is not freedom from the burden of complying with the particular law she violates, but rather freedom from complying with the rule of law in general. This general compliance, Richard Dagger writes, is a genuine burden: Critics have objected, however, that on this conception of the unfair advantage all offenses become, for the purposes of punishment, the same offense.
If the unfair advantage is the same, however, then removing the advantage would seem to require equal sentences. Again, such sentencing appears to violate ordinal proportionality.
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For the censure view, questions arise about what form of punishment and what severity will communicate the deserved message of condemnation in particular cases. On such a view, the principles of ordinal proportionality appear to follow straightforwardly: The censure view should provide guidance not only about how severely to punish crimes relative to each other, but also how severely to punish in absolute terms, and also the appropriate mode of punishment.
To say that manslaughter should be censured more severely than theft, for instance, does not actually tell us how severely to censure manslaughter or theft, or with what form of punishment. Again, the challenge is in determining how to anchor the sentencing scale to actual offenses. Should the least serious offenses receive censure in the form of a small fine, a day in jail, or a year in jail?
Should the most serious offenses receive capital punishment, life imprisonment, or some less severe sentence? Similar questions arise for accounts that characterize punishment as a deserved response to violations of trust, or as a deserved response to the incurrence of a moral debt. What form and severity of punishment is appropriate to maintain conditions of community trust in response to attempted kidnapping, or the theft of a valuable piece of art?
How severe must a sentence be to resolve the moral debt that is incurred when one impersonates a police officer, or cheats on her taxes? Indeed, questions about fixing deserved sentences in response to particular offenses arise for retributivist accounts generally. Critics have charged that retributivism is unable to provide adequate, nonarbitrary guidance about either the deserved severity or deserved form of punishment in particular cases see Shafer-Landau, Retributivists are, of course, aware of such objections and have sought to meet them in various ways.
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Nonetheless, questions about proportionate sentencing continue to be a central challenge for retributivist accounts. In part as a response to objections commonly raised against consequentialist or retributivist views, a number of theorists have sought to develop alternative accounts of punishment. For some theorists, this question is best cast in terms of rights: One way in which punishment would not violate the rights of offenders is if, in committing the crime for which they are convicted, they forfeit the relevant right s. Because offenders forfeit their right not to be punished, the state has no corresponding duty not to punish them.
Notice that the forfeiture view itself does not imply any particular positive justification of punishment; it merely purports to explain why punishing offenders does not violate their rights. This is consistent with maintaining that the positive justification of punishment is that it helps reduce crime, or conversely, that wrongdoers deserve to be punished.
Thus the forfeiture view does not provide a complete account of the justification of punishment.
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Proponents, however, take this feature to be a virtue rather than a weakness of the view. The forfeiture claim raises a number of key questions: For those who are gripped by the dilemma of why punishing offenders does not violate their rights, the mere answer that offenders forfeit their rights, without some deeper account of what this forfeiture amounts to, may seem inadequate. Thus some theorists attempt to ground their forfeiture claim in a more comprehensive moral or political theory see, for instance, Morris, Second, what is the nature of the rights forfeited?
Do offenders forfeit the same rights they violate? If so, then this raises some of the same challenges as we saw with certain forms of retributivism: Alternatively, is the forfeited right simply the right not to be punished? If every offender forfeits this same, general right, then on what basis can we distinguish what sentence is permissible for different offenders? For example, if the burglar forfeits the same right as the murderer, then what prevents us from imposing the same punishment in each case could two offenders forfeit the same right to different degrees, as some have suggested?
Third, how should we determine the duration of the forfeiture? Fourth, if an offender forfeits her right against punishment, then why does the state maintain an exclusive right to punish? Why are other individuals not permitted to punish? This is the central claim of the consent view.
Defended most notably by C. Nino , the consent view holds that when a person voluntarily commits a crime while knowing the consequences of doing so, she effectively consents to these consequences. In doing so, she waives her right not to be subject to punishment. This is not to say that she explicitly consents to being punished, but rather that by her voluntary action she tacitly consents to be subject to what she knows are the consequences. Like the forfeiture view, the consent view does not supply a positive justification for punishment. To say that a person consents to some treatment does not by itself provide us with a reason to treat her that way.
So the consent view, like the forfeiture view, is compatible with consequentialist aims or with the claim that punishment is a deserved response to offending. One challenge for the consent view is that it does not seem to justify punishment of offenders who do not know that their acts are subject to punishment. For someone to have consented to be subject to certain consequences of an act, she must know of these consequences. If so, then it is not clear how she can be said to consent to her punishment.
It is not clear, for example, that a robber who knows that robbery is a punishable offense but does not realize the severity of the punishment to which she will be subject thereby consents to her sentence. By contrast, other critics have charged that the consent view cannot rule out sentences that most of us would find excessive. This is because a person who voluntarily commits an action with knowledge of the legal consequences, whatever these consequences happen to be, has consented to be subject to the consequences.
As Larry Alexander has put it: Another difficulty for the consent view is that tacit consent typically can be overridden by explicit denials of consent. Thus it would seem to follow that one who tacitly consents to be subject to punishment could override this tacit consent by explicitly denying that she consents. But of course, we do not think that an offender should be able to avoid punishment by explicitly refusing to consent to it Boonin, Another proposed justification of punishment conceives of punishment as a form of societal self-defense.
First consider self-defense in the interpersonal context: When an assailant attacks me, he culpably creates a situation in which harm will occur: In such a circumstance, I am justified in acting so that the harm falls on my attacker rather than on me. Similarly, when an offender creates a situation in which either she or her victim will be harmed, the state is permitted to use force to ensure that the harm falls on the perpetrator rather than on the victim Montague, So far, this view appears to justify state intervention only to stop ongoing crimes or ward off impending crimes.
How does this view justify punishment as a response to past crimes? Advocates of the view claim that the state is not only justified in intervening to stop actual offenses; it is also permitted to threaten the use of force to deter such crimes. For the threat to be credible and thus effective as a deterrent, however, the state will need to follow through on the threat in cases in which offenders are not deterred. Thus punishment of offenders is permissible.
Notice that although the self-defense account views punishment as a deterrent threat, it is not a pure consequentialist account. Critics object that the analogy between self-defense and punishment breaks down in a number of respects. But we do not typically believe that, by analogy, punishment of innocent people is permitted, even if such punishment helped to maintain the credibility of a deterrent threat. Second, the degree of force that is permitted to stop an actual attack may far exceed what we intuitively believe would be permitted as punishment of an offense that has already been committed.
Third, it is one thing to follow through on a threat in order to deter the person who has just offended from offending again. It is another thing—and one might argue, more difficult to justify—to punish one person in order to maintain a credible deterrent threat against the public generally. If we believe the primary deterrent effect of punishment is as a general deterrent rather than as a specific deterrent , then the analogy with typical accounts of self-defense seems strained. It would be as if, to deter the oncoming assailant from following through with his attack, I grab someone nearby who has previously attacked me and inflict the same degree of harm that I would aim to inflict on the assailant to defend myself.
This might, of course, be permissible if my previous attacker had thereby acquired a duty to protect me from future harm by allowing himself to be punished as a means of maintaining a credible deterrent threat Tadros, The moral education view shares certain features of consequentialist accounts as well as retributivist accounts. On this view, punishment is justified as a means of teaching a moral lesson to those who commit crimes and perhaps to community members more generally, as well.
By contrast, a central feature of the moral education view is that those who commit crimes are moral agents, capable of reflecting on and responding to moral reasons. Another way to express this difference between the education view and standard consequentialist views is that consequentialist views focus entirely on whether punishment promotes some goal. The education view, however, holds that only certain means are appropriate for pursuing this goal: Thus we can even distinguish the education view from consequentialist accounts that aim at crime reduction through offender reform.
The education view sets offender reform as an end, but it also grounds certain constraints on how we may appropriately pursue this end. The education view, like the retributive censure view discussed earlier, views punishment as a communicative enterprise. Punishment communicates to offenders indeed, to the community more generally that what they have done is wrong. Thus on both accounts, punishment aims to encourage offenders to reform themselves.
But whereas the retributive censure theorists view the message conveyed by punishment as justified insofar as it is deserved, education theorists contend that punishment is justified in virtue of what it aims to accomplish. In this respect, the education view sits more comfortably with standard consequentialist accounts than with retributivist views.
The education view conceives of punishment as aiming to confer a benefit on the offender, the benefit of moral education. This is not to say that punishment is not burdensome; as we have seen, its burdensomeness is an essential feature of punishment. But the burdens of punishment are intended to be ultimately beneficial.
Thus education theorists roundly reject accounts according to which it is permissible or even required to inflict harm on those guilty of wrongdoing. Instead, education theorists hold, following Plato, that we should never do harm to anyone, even those who have wronged us.
Critics have raised various objections to the moral education view. Some are skeptical about whether punishment is the most effective means of moral education. Others point out that many perhaps most offenders are not apparently in need of moral education: Even those who do not realize this as they are acting may recognize it soon afterward. Thus they do not seem to need moral education.
Finally, some object that the education view is inappropriately paternalistic. Many liberal theorists are uncomfortable, however, with the idea that the state may coerce a person for her own benefit. The most famous articulation of a hybrid view comes from H. Hart , although there have been numerous attempts to develop such accounts both before and after Hart.
But if we ask how we may punish in particular cases, the answer will appeal to retributivist principles about proportionality and desert. Some have distinguished these questions in terms of the proper consequentialist rationale of legislators in criminalizing certain types of behaviors and the proper retributivist rationale of judges in imposing sentences on those who violate the criminal laws. As we saw earlier, punishment actually raises a host of specific normative questions, and so if we accept the general strategy of distinguishing questions and answering them by appeal to different considerations, then there is no reason in principle to stop with only a two-level hybrid theory.
A hybrid view might offer distinct considerations in answer to a variety of questions: How severely may we punish in particular cases? What mode of punishment is permissible in particular cases? Also, although hybrid theories typically follow the pattern of aims and constraints, so that consequentialism provides the reason to have an institution of punishment and retributivism provides constraints on how we punish, there is no reason in principle why this could not be reversed. A hybrid theory might hold that suffering is an intrinsically appropriate deserved response to wrongdoing, but then endorse as a constraint, for example, that such retributive punishment should never tend to undermine offender reform.
Critics have charged hybrid accounts with being ad hoc and unstable. Why should retributivist proportionality considerations govern in sentencing if these conflict with the pursuit of crime reduction through deterrence?
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Retributivists, after all, tend to regard consequentialism as providing inappropriate reasons to punish. Some scholars are unpersuaded by any of the standardly articulated justifications of punishment. In fact, they conclude that punishment is morally unjustified, and thus that the practice should be abolished. An obvious question for abolitionists, of course, is what if anything should take the place of punishment. That is, how should society respond to those who behave in ways committing tax fraud, burglary, assault, and so on that currently are subject to punishment?
One option would be to endorse a model of treatment rather than punishment. On this model, an offender is viewed as manifesting some form of disease or pathology, and the appropriate response is thus to try to treat and cure the person rather than to punish her. Treatment differs from punishment, first, because it need not be burdensome. At least in principle, treatment could be pleasant.
In practice, of course, treatment may often be burdensome—indeed, it may involve many of the same sorts of restrictions and burdens as we find with punishment. But even though courses of treatment may be burdensome, treatment does not typically convey the condemnation that is characteristic of punishment. After all, we generally think of those who are sick as warranting sympathy or concern, not condemnation.
Other options for abolitionists would be to endorse some model of restitutive or restorative, rather than criminal, justice. We might require that offenders make restitution to their victims, as defendants in civil lawsuits are often required to make restitution to plaintiffs Boonin, Or offenders might engage with victims in a process of restorative justice, one in which both offenders and victims play an active role, with aims of repairing the harms done and restoring the relationships that have been damaged Braithwaite, Neither the restitutive nor the restorative models are centrally concerned with imposing intended, censuring burdens on offenders.
Not surprisingly, these alternative accounts are themselves subject to various objections. Critics of the treatment model, for instance, charge that it provides insufficient limits on what sort of treatment of offenders is permissible. Similarly, scholars have argued that the treatment model fails properly to respect offenders, as it treats them merely as patients rather than as moral agents who are responsible, and should be held responsible, for their actions Morris, Critics of the restitutive and restorative models may point out that some crimes do not clearly lend themselves to restitution or restoration: Other crimes do not have clearly specifiable victims.
In addition, consequentialists may worry that practices of restitution or restoration may be inadequate as means of crime reduction if, for example, they are less effective than punishment at deterring potential offenders. Retributivists also may argue that something important is lost when we respond to wrongdoing solely with restitutive or restorative practices. Particularly for those who hold that an important function of punishment is to convey societal censure, restitution or restoration may seem inadequate as responses to crime insofar as they are not essentially concerned with censuring offenders.
Alternatively, some retributivists argue that the restorative ideals can best be served by a system of retributive punishment Duff, ; Bennett, Table of Contents What is Punishment?
Various Questions When theorists ask whether punishment is justified, they typically assume a backdrop in which the legal system administering punishment is legitimate, and the criminal laws themselves are reasonably just. Consequentialist Accounts Consequentialism holds that the rightness or wrongness of actions—or rules for action, or relevant to our context institutions—is determined solely by their consequences.
Deterrence Deterrence accounts contend that the threat of punishment serves as a disincentive for potential criminals.
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Incapacitation Punishment might also help to reduce crime by incapacitating criminals. Offender Reform A third way in which punishment might help to reduce crime is by encouraging or facilitating offender reform. Sentencing Each of these aims—deterrence, incapacitation, and reform—will have distinct implications with respect to sentencing. Objections and Responses Typical consequentialist accounts of punishment contend that the practice is justified because it produces, on balance, positive consequences by helping to reduce crime, either through deterrence, incapacitation, or offender reform.
Retributivist Accounts As we have seen, consequentialist accounts of punishment are essentially forward-looking—punishment is said to be justified in virtue of the consequences it helps to produce. Deserved Suffering One common version of retributivism contends simply that wrongdoers deserve to suffer in proportion to their wrongdoing. Fair Play Another prominent type of retributivist account begins with a conception of society as a cooperative venture in which each member benefits when there is general compliance with the rules governing the venture. Other Versions Alternative versions of retributivism have been offered.
Sentencing Because retributivism claims that punishment is justified as a deserved response to wrongdoing, retributivist accounts should provide some guidance about what sentences are deserved in particular cases. Alternative Accounts In part as a response to objections commonly raised against consequentialist or retributivist views, a number of theorists have sought to develop alternative accounts of punishment. Self-Defense Another proposed justification of punishment conceives of punishment as a form of societal self-defense.
Moral Education The moral education view shares certain features of consequentialist accounts as well as retributivist accounts. Abolitionism Some scholars are unpersuaded by any of the standardly articulated justifications of punishment. References and Further Reading Alexander, Larry A Philosophical Theory of Punishment. Cambridge, Cambridge University Press. An Introduction to the Principles of Morals and Legislation.
Oxford, Clarendon Press, The Problem of Punishment. New York, Cambridge University Press. Assessing Optimistic and Pessimistic Accounts. Punishment, Communication, and Community. Oxford, Oxford University Press. Essays in the Philosophy of Law. New York, Oxford University Press. Reprinted by Dover Philosophical Classics, Henrichson, Christian, and Ruth Delaney Subscribe to our Daily news newsletter Enter email Subscribe.
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