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Is punishment ever justified?IntroductionThe imposing of penalties upon offenders who have broken society's laws seems intuitively justifiable, but the question I shall attempt to answer here is whether it is philosophically justifiable. I shall critically assess the three main theories of punishment justification - rehabilitation, deterrence and retribution - and attempt to ascertain whether their application respects an offender's personhood. I shall consider whether each theory adheres to the means/end constraint and the reason constraint. I hope to show that none of the theories are, in isolation, sufficient to justify punishment. However, I hope to demonstrate that punishment can be justified through a combination of a modified deterrence theory and a version of retributivism. This essay aims only to answer the simplest yes/no question of whether punishment can ever be justified. I shall make no attempts to explore the circumstances in which punishment can be justified, or to justify any particular methods. Definitions and assumptionsThe necessary conditions we shall be applying to justifications of punishment are derived from Kant. The means/end constraint states that a person cannot be treated merely as a means to some independent aim, but must also be treated as an end unto himself. In other words, a person may not be treated merely as a tool or a chess-piece. The reason constraint states that one must always engage with a person's reason, as distinct from more primal instincts such as fear. A person may not be treated as a tiger to be tamed, or a dog to be trained. Rather, they must be allowed to freely choose their actions (Matravers 2005, p236). Punishment is the imposition of a penalty upon a person in response to a transgression they have made. For the present purposes I shall restrict myself to punishment inflicted by state authorities upon persons who have violated a law. Unjust LawsA given law can be created for all manner of reasons, not all of them just. Some, for example road-use laws, exist primarily for logistical reasons. Some, such as the censorship laws in China or the anti-Christianity laws in Taliban Afghanistan, exist primarily to maintain the state's grip on power. Some, such as the segregation laws in apartheid South Africa, are patently unjust. The very fact that we can coherently talk about unjust laws demonstrates that, at least in the realms of philosophy, justice and law are separate and distinct concepts. In this essay I shall restrict myself to just laws. If punishment cannot be justified for violation of a just law, then it certainly cannot be justified for violation of a neutral or unjust law. Rational OffendersThe causes and motives behind criminal acts are many and varied. Even the violation of a just law can sometimes be justified if the circumstances dictate. However, I shall only be considering offenders who freely and rationally choose to violate the law, in the full knowledge that it is a crime and of the punishment they risk. I shall refer to them as "rational offenders". This class of offender will always be the most deserving of punishment. A person who has weighed up the factors and risks, and who is under no undue influence of any kind, yet still chooses to commit a crime is in a sense the purest form of offender. All other kinds of offenders necessarily have some manner of extra mitigating factor such as addiction, desperation, ignorance or remorse which makes them less deserving of punishment than the rational offender. If we cannot justify punishing the rational offender, we cannot justify punishment at all. As I shall rely on it throughout this essay, it is worth emphasising that the rational offender is rational. Their choice to offend is a reasoned decision, based on a logical assessment of all the factors and risks. It could perhaps be argued that crime is never rational, and therefore "rational offender" is logically incoherent. However, this seems a stretch. Every day, rational people make rational choices to do things that necessarily entail risk. Thus, we cannot claim an offender is irrational simply because he risks punishment. We cannot claim the law is inherently rational, as we have already established that unjust laws are possible, and history provides no shortage of irrational law-makers. One might attempt to equate morality with rationality, i.e. the morally correct choice is always the rationally correct choice. This might work if one resorted to some kind of theistic argument involving an omniscient and vengeful god, or appeals to natural laws or karmic forces. However, such arguments come with their own problems that far outweigh their solutions (what is god etc.). One could argue that any crime would result in the censure of society, which would make continued functioning in that society impossible. This places too much burden on the intrinsic goodness of humanity though. There is no shortage of deprived urban communities where defying the law brings prestige. Once might claim that doing harm to another is always irrational, but it is a simple matter to construct a dilemma whereby one must commit a small harm in order to prevent a greater harm. For example, the rational offender might be able to save his child's life by breaking into a doctor's home and stealing drugs and equipment. Therefore I maintain that the concept of the rational offender is coherent and robust. Now, lets begin the examination of the theories of punishment. RehabilitationRehabilitation theory justifies punishment of an offender by casting it as a method of correcting their aberrant ways. Not only will this reduce crime by eliminating repeat offences, but we have a duty to the offenders to make them into better people, or to fix whatever went wrong in their lives to turn them into offenders. This theory has appeal to those who worry about the dehumanising aspects of punishment, as it appears to offer a more humane approach. "Indeed, that punishment should be primarily reformative is thought to be the very essence of any approach which can lay claim to being humane, liberal, civilised" (Kaufman 1960, p1). It suggests that offenders have, not necessarily through any fault of their own, gone astray and it is the duty of a caring society to put them back on track. We are treating the offenders as persons, and persons in need of help. By trying to turn them into better people we are treating them as ends unto themselves (Matravers 2005, p244-246). However, when we begin to look more closely, we can see that rehabilitation is as dehumanising as any regime. As Kaufman points out, if an offender does not want to be rehabilitated then the authorities must resort to either deception or force, either of which violates the reason constraint (Kaufman, 1960). However, I hope to show that it violates the reason constraint more fundamentally, by violating the offender's reason. Consider the rational offender. Having considered the risks and benefits, he freely and rationally chooses to commit a crime. As it was a rational choice, we can be sure that in identical circumstances he would make an identical choice, and that this choice would again be the rational choice. The intention of rehabilitative punishment is to prevent exactly this, not by changing the circumstances (which would not constitute a rehabilitative punishment) but by changing the offender. In other words, the rehabilitation will have to make the offender less rational. To illustrate, consider this example. A skilled chemist brews some MDMA (aka Ecstasy) in his lab, and sells it only to people who are fully informed as to its nature and who take all sensible precautions to prevent adverse effects. He makes a tidy profit doing something he is good at and enjoys, and no-one is being harmed. He knows it is illegal, but the money is worth the risk. If the chemist is caught, the only way he could be 'rehabilitated' is to convince him of the evils of recreational drug use. However, he knows as much as anyone about the drug and its effects, and is already well aware of any 'evils' there may be. If he is to be 'rehabilitated' he must have his belief of the facts altered. In other words, he must be brainwashed. We are not engaging with his reason, we are altering his reason, and thus not treating the offender as a person after all. Note that this argument is independent of the actual method of rehabilitation. My point is that to rehabilitate a rational offender one must necessarily make him less rational. As stated above, if punishment cannot be justified for the rational offender, then it cannot be justified for any offender1. The only counter to this that I can foresee is to maintain that the violation of law can never be rational in the way stated, but this objection was addressed earlier. DeterrenceDeterrence theory is a two-pronged theory. It claims that the punishment of an offender is justified because it deters the offender from re-offending ("individual deterrence"), and deters potential offenders from imitation ("general deterrence") (Farrell, 1985). General deterrence in particular is typically built upon consequentialist ideas such as utilitarianism that justify actions with reference to the end result. In this case the end result is a reduction of crime and the various deleterious effects thereof. Even if one is not a supporter of consequentialism, this seems an acceptable goal. However, regardless of the merits of the end, we cannot justify using people merely as a means to that end, which is what general deterrence theory appears to be advocating. At its most extreme, general deterrence theory appears to advocate the punishment of innocent people as scapegoats, e.g. if a crime was becoming increasingly prevalent but no genuine offenders had yet been caught (Matravers 2005, p241-242). This is a clear case of using people solely as a means to an end. However, we can show this to be a general fault of deterrence theory without resorting to such extreme examples. Consider instead an example of exemplary punishment. A popular but notoriously anti-establishment celebrity has been a constant and vocal opponent of drugs laws. The popularity of this celebrity is such that the authorities worry that he will inspire a whole generation of teenagers to take up drug use. When he is finally caught and found guilty of drug possession the judge imposes an especially harsh punishment to make an example of him, and hopefully deter his legions of fans from following his example. By his punishment, the celebrity is thus being used as a means to an end. However, this does not necessarily violate the means/end constraint if he is also being treated as an end unto himself. This brings us to individual deterrence theory. A defender of deterrence theory could argue that, because the punishment is also intended to deter the individual from re-offending, this treats the individual as an end unto himself. This defuses the criticism that it violates the means/end constraint, as the offender is not being treated merely as a means, but also as an end. The problem is though that the same punishment must serve both purposes. If the offender is punished once to deter him, and then again in a different way to deter others, the second punishment can no longer be defended by claiming the offender is also being treated as an end unto himself. The reason this is a problem is that individual deterrence and general deterrence may require significantly different forms of punishment. We can see this in cases of exemplary punishment, where what would be ample deterrent for the individual is considered insufficient to deter the general populace (Farrell, 1985). Thus punishment can be for the purpose of individual deterrence or general deterrence but not both (except by chance), and general deterrence violates the means/end constraint. A way out if this is to simply abandon general deterrence theory and justify punishment solely on the basis of individual deterrence. However, while individual deterrence might respect the means/end constraint, it violates the reason constraint in much the same way as rehabilitation theory. Assuming the celebrity is a rational offender, we know that he has made a reasoned decision to offend, and that in identical circumstances would re-offend for identical reasons. Punishment therefore cannot deter him from re-offending by engaging with his reason, but only by engaging with his fear of further and perhaps greater punishment. A counter to this might be that threats of further punishment do in fact engage with the offender's reason by altering the facts surrounding the original crime in a way that rehabilitation does not. If the crime initially risked a small fine but re-offence risked a jail sentence, a rational offender would reassess the risk of the crime before re-offending and hopefully be deterred. Notice however that the individual is not being deterred by the punishment inflicted, but by the threat of the future punishment. The threat of future punishment would be equally as effective if there was no inflicting of a present punishment. Thus only the threat has been justified, not the punishment. However, this does raise an interesting line of enquiry. Suppose deterrence theory is used not to justify the punishment of the offender, but to justify the threat of punishment. This meets the means/end constraint as no person is being utilised in the means. It meets the reason constraint, as the threat is a statement of fact (if you commit a crime, you will be punished) which will be factored into potential offenders' reasoning when they consider whether or not to commit a crime. However, justifying the threat does not automatically justify the act. Imagine that a group of children have repeatedly climbed into your back garden to steal your apples. To deter them you erect a sign saying "Trespassers will be shot". Justifying the sign is one thing, but it would be another matter entirely to justify actually shooting a child. Using deterrence theory to justify the threat of punishment will form the first part of the combination theory I shall be suggesting. To justify the enactment of the threat requires examining the third and final theory of punishment. RetributivismRetributivism is an umbrella term for a number of theories, some of which have little to do with retribution in the normally understood sense of the word (Cottingham, 1979). They are only very loosely related ("planets revolving around a single sun", Cottingham p9) but what they have in common is that they are "backward-looking". Rather than looking forward to some goal that punishment intends to achieve they look backwards to the crime itself. Retributivism is perhaps the most intuitive theory. When an offender commits a crime, the natural reaction is that they deserve punishing, and that the punishment should fit the crime. However, it runs the risk of accusations of triviality and/or circularity unless we can define "deserves" in terms of something more fundamental (Matravers 2005, p247-248). This is where the various subdivisions of retributivism separate. Note that these subdivisions are my own, but derived from a regrouping of the subdivisions identified by John Cottingham (Cottingham 1979). IntuitionThis subgroup covers those theories that talk of desert or satisfaction, or appeal to our intuitions. They speak of the grievances of the victim, and how they are balanced by the infliction of punishment by the victim - or authorities acting on behalf of the victim - onto the offender. Also, punishment by society provides an outlet for the satisfaction of the desire for revenge that would otherwise result in vendettas. Michael Moore suggests defining just retribution in terms of a best-fit theory of human intuitions as to what is right and wrong (Moore 1987). However, basing philosophy on human intuition will always be problematic. Human intuitions change over time, and vary widely from culture to culture. Compare the attitudes to homosexuality in modern Britain to those of a century ago when it was a serious crime, or compare attitudes in the Netherlands to those in Iran. Even in cases such as murder where there is no great disagreement as to the wrongs of the crime, there will be disagreement as to precisely what the offender deserves as punishment. RestitutionAnother approach utilises ideas of balance, or restitution. An offence causes some sort of imbalance, which punishment aims to restore. This is sometimes described in terms of an offender paying his debt to society, or of the punishment somehow annulling the crime. It could also be regarded as restoring fairness after an offender has gained an unfair advantage over law-abiding citizens by breaking the rules. This idea is most succinctly put in the biblical lex talionis of "an eye for an eye, and a tooth for a tooth". However, this approach can just as succinctly be countered with "two wrongs don't make a right" (Meyer 1968, p2). Proponents must show why we are justified in condemning a murderer, and yet we are justified in performing what is exactly the same act upon him as punishment - i.e. execution. Appealing to the law, e.g. murder is contrary to the law whereas execution is enshrined within the law, begs the question. We are after all attempting to justify why execution is enshrined within the law. Also, as discussed earlier, there are such things as unjust laws. DenunciationAlso known as communicative or paternalistic theory, this theory suggests that punishment is the instrument of society's disapproval and indignation towards an offender. It talks about the offender being disconnected from the human good, and of punishment restoring that connection. This theory is intended to show how retribution can engage with a person's reason. An offender is "viewed as a responsible being responsible for having done wrong and possessing the capacity for recognising the wrongfulness of his conduct" (Morris 1981). It also follows the ideas of Strawson, that we are justified in our indignation towards an offender precisely because we are regarding them as a person (Strawson, 1962). It shares some ideas with rehabilitation theory, but doesn't suffer the same faults when applied to the rational offender as it is not intended to 'fix' him in the same way. However, it does still suffer faults. Any appeal to society's denunciation is vulnerable to the same criticisms as intuition-based retributivism, as it relies too heavily on the vagaries of human intuitions as to what should be denounced. There is also the question of whether the state has the moral right to impose its values upon a person. We could be justifying punishment using something which itself requires justification. More troubling though is that, if the offender has made a rational decision to commit the crime then there is a sense in which society is quite simply wrong to denounce him. If the decision is rational then any one of us, in identical circumstances, would do the same thing. Implied ConsentThis is taken from an argument presented by C.S. Nino. It is retributivist inasmuch as it looks backwards to the crime rather than forward to a goal, although Nino in fact proposes it as a refinement of consequentialism (Nino, 1983) Consider consenting to an obligation, e.g. a contract. The theory is that consent is implied by any action freely performed in the full knowledge that said action would be taken to imply said consent (ibid, p6). If I sign a contract, I know that this action will imply that I consent to the contract. Thus, others are justified in inferring my consent from this action. Once I consent, those I contract with are justified in enforcing that undertaking. Note that I do not have to want to undertake the responsibility in order to consent to it. There may be all manner of factors that make it the rational thing to do, even though I do not like it. I may even believe that the contract will never be enforced, or that the conditions for my undertaking the responsibility will never arise. For example, a man agrees to join the army reserves. Should the country be invaded by a foreign power, he is committed to join the army, to fight, and to run the risk of dying in battle. He doesn't want to do this (he is basically peaceful), and he doesn't think it will ever happen (no foreign powers look like invading any time soon), but he undertakes it because he is patriotic and believes it is right. The point is that the method by which he consents to this is any action that could be implied as consent. He could nod emphatically, sign a piece of paper, or say "Yes". Applying this to crime and punishment we can say that if an offender commits a crime knowing full well the consequences of that action - i.e. that he faces punishment if caught - then we are justified in inferring from his action that he consents to the risk of punishment. Is implicit consent theory plausible, or can a counter example be imagined where consent is implied but in fact not intended? This would be the case if, for example, the person performing the act was only joking. Even in this case though we could argue that we are still justified in inferring consent and would be within our rights to enforce it. For our present purposes however we can simply cut off this line of attack by strengthening the implicit consent definition to insist not only that the person knows the action will imply consent, but that he accepts that it will imply consent. On committing a crime, does the offender really imply consent to the risk of punishment? The crime must be voluntary, but as we are only focussing on the rational offender we know that it is. The offender must also know and accept that the crime will imply consent. The rational offender is fully informed, and so is fully aware of the risk of punishment. He knows what the punishment would be, and he also knows the approximate likelihood of the punishment being applied. Thus we know he accepts the risks, but does acceptance equate to consent? If we return briefly to contracts we can see that accepting the terms of the contract does indeed equate to consent to the terms of the contract. This argument is perhaps vulnerable to accusations of equivocation over usage of "accepts". As an alternative, I shall point out that in this imaginary society where the offender is planning to commit his crime, punishment is being justified with reference to the implied consent theory. The offender knows this, and thus he knows that his committing the crime will imply consent to the risk of punishment. This might appear circular, but it is no more circular than me telling you "If you raise your hand, I will interpret it to mean you consent", and then using this to justify inferring your consent when you do raise your hand. So, if we accept implicit consent theory as a theory of punishment justification, we must subject it to the same scrutiny as the others we have considered. It adheres to the reason constraint, as we are insisting that implicit consent requires an informed and voluntary act. The means/end constraint is less obvious, as it is not clear what (if anything) is the end and what (if anything) is the means to that end. However, as everything that is required for implied consent is carried out by the offender, it is hard to see how anyone could be using him as a means. The main objection however is that there is an important difference between justifying the enforcement of a contract, and justifying the contract in the first place. In our example, even if the army is justified in enforcing the man's commitment to fight and risk death, this does not in itself justify war (Nino, p9). Thus, we may have justified the enforcement of punishment, but not the institution of punishment. This is where we return to the modified deterrence theory discussed earlier. There we demonstrated how deterrence justifies the threat of punishment but not the application. We've now seen how implicit consent justifies the application but not the threat. Therefore, by advocating a two-part theory combining both of these we arrive at a theory that justifies punishment of the rational offender. ConclusionsWhat I hope I have shown is that all the theories of punishment struggle to cope with the concept of the wholly informed and rational offender. I accept that if this concept can be shown to be logically incoherent then most or all of my arguments will instantly collapse. However, my claim is that the rational offender is not only logically possible, but possible and plausible in reality. The other prime vulnerability is my claim that punishment must be justifiable for the rational offender, or it cannot be justified at all. This perhaps presents more of an opportunity for opponents, as my claim that all other offenders have mitigating factors that make them less deserving of punishment seems to clash with using mitigating factors to show that doing harm to another can be rational. This attack could be seen off with a more robust defence of the rationality of harm. If these points withstand criticism, then we can conclude that punishment can only ever be justified in parts. Deterrence theory serves to justify the threat of punishment on the grounds that it deters potential offenders from committing crimes. Implied consent theory serves to justify the implementation of punishment on the grounds that the act of offending implies consenting to the risk of being punished. Together they provide a complete justification. Therefore punishment can be justified. Notes
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