“In its function, the power to punish is not essentially different from that of curing or educating”
(Paul-Michél Foucault)
Punish: from the Latin pœnire “inflict a penalty on, cause pain for some offense”.
Philosophically speaking, the act of punishment is a polemic one as it involves the intentional and authoritative infliction of a disagreeable or negative consequence by the State upon a citizen, in response to behaviour deemed wrong by an individual or group that the State must be able to justify and legitimise (Hugo, 2010; Toby, 1964; Foucault, 1975; Walker, 1991). This essay will identify the academically recognised justifications for punishment in the modern world, which is to say in post-Enlightenment society, and evaluate them, drawing on sources sociological, philosophical and political.
As Hugo (2010) said, the State must be able to justify its actions when, in punishing, we remember that the power to punish is derived from the State’s legal remit to do things that would otherwise be classed a priori as morally wrong (Lacey, 1988).
In discussing the nature of punishment the French satirist and philosopher Paul-Michel Foucault (1975; 1977) wrote that ‘premodern’ punishment was a violent assault on the criminal body where modern punishment demanded an inner transformation, a “conversion of the heart to a new way of life” – a thinly veiled biblical reference - and that the soul was the prison of the body. In his seminal work “Discipline and Punishment”, Foucault (1975; 1977) argued that the primary objective of punishment was no longer retribution, but the reform and rehabilitation of the criminal: a switch from the brutal, but unfocused, physical punishment to a less painful but more intrusive psychological control. But he struggled with one question: is the new idea – to imprison rather to torture – the enlightened, progressive development it thinks it is? Surely the point was not to punish less, but to punish better (Foucault, 1977; Gutting, 2005).
Broadly speaking the philosophic justifications can be placed into two distinctive groups: reductivist and retributivist (Carrabine, Cox, Lee, Plummer & South, 2009), though due to the realities and issues faced by most criminal justice systems today (e.g., crime control vs. due process) a combination of both orientations can be found to be at use.
REDUCTIVIST
The primary objective of the reductivist approach is, as the etymology of the word would suggest, reducing crime and the risk of further offense. As a theory it is ‘consequentialist’ in that it attempts to justify punishment by its alleged future consequences (Carrabine et al, 2009). For Bentham (1789), in order for punishment to reduce future crimes, the discomfort and disagreeability caused to the offender ought to be ‘outweighed by the compensating good effects for overall human well-being’ (Cavadino and Dignan, 2002: 34; Carrabine et al, 2009) It was held by the utilitarians that the avoidance of future crimes was best achieved through a number of strategies, including:
1. Deterrence: individual and general
2. Reform and Rehabilitation
3. Community Protection and Incapacitation
Lawrence, Snortum and Zimring (1988) defined deterrence as ‘the prevention of socially undesirable behaviour through fear of punishment’. Someone that might otherwise have committed a crime is impeded by the thought of the unpleasant consequences of detection, and the criminal justice process (also known as “individual deterrence"). Another form of deterrence is known as “general deterrence”, and would appear to offer a more plausible justification: the offenders are punished, not to deter the offenders themselves, but to discourage other potential offenders (Carrabine et al, 2009; Cavadino and Dignan, 2002).
Reform (or ‘rehabilitation’) is the idea that punishment can reduce the incidence of crime by taking a form which will improve the individual offender’s character or behaviour and make him or her less likely to reoffend in future. Reform as the central aim of the penal system was a highly popular notion in the 1950s and 1960s: a time when many liberal democratic formulations had permeated social scientific thought -such as moral relativism in sociology and ‘the rehabilitative ideal’ in penology (Cavadino & Dignan, 2002; Tierney, 2010). Rehabilitation was highly informed by positivist criminology, that viewed the criminal man not as a voluntaristic inherently criminal individual but as experiencing some form of biological, or psychological condition which ought to be treated appropriately (Carrabine et al, 2009; McLaughlin, Muncie and Hughes, 2006; Cavadino and Dignan, 2002). Strain theory, championed by Émile Durkheim, supported the notion of rehabilitation maintaining that the focus should be on developing strategies and policies that involved some degree of institutional reform, rather than solely changing or modifying the individual in some way. As supporters of Strain Theory held that a correlation existed between deviance and criminality and the problems faced by groups of individuals in disadvantaged situations, the solution to crime and punishment had to be in remedying the disadvantages as far as possible (White and Haines, 2009).
In contrast, the underlying principle of ‘Incapacitation’ is that the protection of the community (potential victims) should be the essence of punishment and not the change in the offender’s behaviour or finding the causes of the crime, and that the offender’s ability to commit further crimes should be removed, be it physically or geographically -through incarceration, amputation, chemical castration or the death penalty (Carrabine et al, 2009, Newburn, 2003). The incapacitation justification has informed many contemporary criminal justice policies, including the ‘three strikes and you’re out’ penalty and ‘selective incapacitation’ (Cavadino, 2002; Carrabine et al, 2009). Until 1975 the USA incarceration rate remained strikingly steady averaging 107 prison inmates per 100,000 residents. Thereafter, and particularly since the early 1980s, the prison population grew at an astonishing rate of 7.2 percent each year, leading to a fourfold increase in the nation's incarceration rate by the end of the century, a pattern that wasn’t unique to the US (Canelo-Cacho, 2002; Dunbar and Langdon, 1998).
The so-called war on drugs was certainly an important factor fueling this gargantuan expansion of the imprisoned populace. Under this approach, introduced during the first (Neo-Conservative) Reagan Administration, stiff criminal sanctions replaced the liberal ‘treatment-on-demand’ approach as the main weapon of choice to fight the use of illegal substances. The effects of this policy change were dramatic in the extreme, but did it reduce crime? Or did someone else just step up to take the place of the recently incarcerated? (Canelo-Cacho, 2002).
Incapacitation has become the principal philosophical justification for incarceration in countries that subscribe to the notion that ‘prison works’ as it removes repeat and serious offenders from the streets and thus, it is claimed by its advocates, reduces the crime rate (Murray, 1997; Newburn, 2003; Carrabine et al, 2009). But to repeat Foucault’s earlier problem: is the new idea – to imprison rather to torture – the enlightened, progressive development it thinks it is? And what of those who leave prison ever more criminally sophisticated than when they went in? What of the risk of institutionalisation?
RETRIBUTIVIST
Retributivism is above all a theory of punishment. It seeks to answer the question “Why do we have institutions of punishment?” The answer provided is thus: to punish people when and only when they deserve to be punished. To avoid “question-begging circularity”, "deserve to be" is not synonymous with "ought to be": to deserve punishment equates with being morally culpable (Moore, 2002). The retributivist therefore is of the belief that the sole, and just end of punishment is to make the morally blameworthy suffer the sanctions we call punishment (Moore, 2002). Retributivism is much more popular amongst the right-wing schools of thought (Classicism, Neo-Conservatism, Right Wing Libertarianism et al) as the concepts of denunciation, reprobation and retribution fit much more comfortably with their notion of the offender: voluntaristic, rationally minded and the architect of his own criminality – the individual that turns an open window into a window of opportunity (McLaughlin, Muncie and Hughes, 2006; Barlow, 1993; McLaughlin and Muncie, 2008). Retributivism is both a general theoretical position on punishment and a theory about all the more discrete questions about the penal code, right down to the questions of whether and to what extent each offender deserves to be punished (Moore, 2002; Garland, 1993; Dolinko, 1991). The principal justifications cited by the Retributivists are:
1. Denunciation and Public Reprobation
2. Retribution and Just Deserts
For retributivists the punishments of denunciation and public reprobation were seen as a symbolic response to (socially) harmful behaviour, with an emphasis on the public disapproval of the offender and/or the offence (Moore, 2002). The Punishment of Denunciation was seen to reinforce the posited moral boundaries and reaffirm specific forms of authority and accepted belief structures. As a form of control, denunciation and public reprobation is practiced today by the Amish and Mennonite Communities in the USA, continuing a tradition that goes back to Biblical times, and mirrored by the Lubavitch communities of Orthodox and Hassidic Jews, and is also a popular method of pursuing justice in the non-litigious societies of France and Spain (c.f the “I’ll sue you” culture of America and Britain).
Immanuel Kant identified the duty of the state to punish thus as a ‘categorical imperative’: to ‘name and shame’ the wrongdoers, so as to restore the moral equilibrium in society, a thought process echoed by Andrew von Hirsch (1976) the eminent legal philosopher and penal theorist, who held that denunciation was a condemnation of the offence through restoring the moral equilibrium while expressing social disapproval.
Although, as we and the paediatrician learnt at the turn of the century with the Sun Newspaper’s name and shame campaign of paedophiles, the process of public denunciation and reprobation is a delicate one, and when it turns into State (unofficially) condoned vigilantism innocent people get hurt as mistakes can be made, and it only takes one person to cry foul for a complete character assassination to take place.
Hirsch (1976) was the leading advocate of the movement arguing that the punishment must serve as a ‘just deserts’ for the offense – proportionality, according to what the act deserves: the offender should only be punished as severely as they deserve, in reaction to the unfair excesses of rehabilitation and the ‘get tough’ incapacitative drive of the Neo-Conservatives.
Law and Order Politics is a well established tool of the political manifesto. The different approaches to punishment, like many of the wider reaching criminological theories are linked to particular political sympathies and sociological persuasions. But each criminal justice system has to face the global and local realities it is presented with. When faced with maintaining the balance of due process vs. crime control, they need to have possibilities and options, both reductivist and retributivist in approach, available to them. The reduction of crime on the one hand and the well-being of the nation on the other must be the double edged sword branded by Lady Justice wherever she is invoked.
“...if capital punishment is state murder, then imprisonment is state kidnapping, and restitution is state theft...”
Don Feder, Boston Herald.
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