are you now or have you ever...

Saturday, September 26, 2015

Why Punish Wrongdoing? (with addendum)

Traditionally, what reasons justify punishing wrongdoing, such as criminal behaviour? 

(1) Retribution; 
(2) Specific deterrence or incapacitation (i.e., deterring the wrongdoer); 
(3) General deterrence (i.e., deterring third-parties); 
(4) Rehabilitation; and, 
(5) Restitution. 

Modern intellectual discourse favours the latter 4 justifications. Retribution is seen by many criminologists as primitive, if not irrational. But may a society -- i.e., a society aiming to be a just or good society -- impose punishment absent some strong conception of retribution? I am not so sure. Here is why: 
[F]ar from pretending that retribution should have no place in our penal system, Mr. [] should recognize that it is logically impossible to remove it. If it were removed, all punishment would be rendered unjust. What could be more immoral than to inflict imprisonment on a criminal for the sake of deterring others if he does not deserve it? Or would it be justified to subject him to a compulsory attempt at reform which includes a denial of liberty unless, again, he deserves it?
--Letter to the Editor, from the Reverend A. M. Roff, Vicar of Longton, Lancashire, The Times (London), Dec. 24, 1977, at  page 13. 
Perhaps, one might go further than the Vicar and say that if society imposes punishment as a technical fix, absent a thick concept of desert, then the criminal moves from criminal to victim status (and, perhaps, to hero). In such a world, society and its criminal justice system become the aggressor-wrongdoer. Pace Kubrick's A Clockwork Orange (1971). 

You will not find the Vicar of Longton's insight quoted in any British judicial decision or, alas, in any American one. But it was quoted by the Supreme Court of India. See Singh v. State of Punjab, All India Reports [1980] Supreme Court 898. And we call them third world!

Seth Barrett Tillman
Twitter:  ( @SethBTillman )

PS: My prior post is: Seth Barrett Tillman, Tillman on Values and Dignity, The New Reform Club (July 3, 2015, 5:57 PM),

PPS: Thank you Instapundit. See Glenn Reynolds, Seth Barrett Tillman: Why Punish Wrongdoing?, Instapundit (Sept. 27, 2015, 2:00 PM), 

Addendum: I agree with the commenters below who suggested that pacification of third parties (including victims, and friends and families of victims) is an independent ground to punish wrongdoers.


Anonymous said...

I believe you have left out at least one motivation for punishment, which is pacification, or "If the state does not do something, the mob will take the law into its own hands." This doesn't seem often to be advanced as a primary theory, but it's latent in much of existing practice.

As a libertarian, I used to be a strong advocate of restitution, with a side helping of incapacitation. I still see restitution as having some value. But I've thought for some time that retribution is the theory that actually makes sense. "I want you not to injure me, so I will inflict harms on you if you do" has the same logic as "I want you to benefit me, so I will offer you benefits to do so."

takirks said...

The real reason?

To encourage others to participate in the formal justice system. Take the case of one Mr. Jerry Active. Mr. Active was a parolee, who killed two grandparents and raped a two-year old girl in the course of a home invasion. He was found in a bedroom with the victims, by the parents.

The only reason people participate in a system where men like Mr. Active get arrested and taken off for adjudication instead of extensively tortured and/or torn apart by mobs is that the general public has faith that justice will be served. Convince enough people that it won't be, and you're not going to have a justice system anymore. Which is why the bleeding hearts who get these animals off are really murdering others, when they do so--Examine the details of Mr. Active's case, and follow what his current lawyer has said in open court, virtually threatening the judge with insinuated harm by Mr. Active in the future.

The thing this lawyer doesn't seem to grasp is that by getting this specific creature a better deal, or getting him off, what he's really doing is sentencing a host of others to a horrible death in that future, as well--Because, when the public reaches the conclusion that their bargain to give up their right for private revenge and justice is a bad one, creatures like Mr. Active are going to wind up buried in some unidentified shallow grave after suffering horribly. I don't necessarily have a problem with that, but the innocent men who get caught up in similar circumstances certainly will, as should we all.

The legal system only works so long as the grand bargain between the citizen and the state holds true. That bargain amounts to each member of society surrendering their right to revenge for private wrongs, in return for which they expect that justice will be rendered. When the state one-sidedly abrogates that bargain, bad things happen, in that the fabric of society breaks down, and vigilantism takes over. Where that ends? We really don't want to go there...

Marty Murphy said...

“Although justice must be tempered with mercy, it must still maintain a sense of retribution.”
- Ben Stone, Law & Order

Lileks said...

Small note: it's Anthony Burgess' "A Clockwork Orange," filmed by Kubrick.

DaveK said...

Marty Murphy said...

“Although justice must be tempered with mercy, it must still maintain a sense of retribution.”
- Ben Stone, Law & Order

I'd change that quote a little...

Justice must be tempered with mercy, but mercy must also be tempered with justice.

Anonymous said...

C.S. Lewis presaged the vicar by two or three decades (see essay "The humanitarian theory of punishment" or the book The Problem of Pain).

What's interesting is the implications of turning the corner into non-retributive "justice," not just the logical problem with it. Once you've turned some corners in "civilization," things can get really scary in unexpected ways.

Tim Kowal said...

if society imposes punishment as a technical fix, absent a thick concept of desert, then the criminal moves from criminal to victim status (and, perhaps, to hero). In such a world, society and its criminal justice system become the aggressor-wrongdoer.

Quite right. Retribution simply *is* justice; you cannot long fake the recovery without imbibing the elixir.

As Tom and I once discussed, however, retribution takes a toll.
Tom pointed out the letter from half a dozen prison wardens to Georgia Governor Nathan Deal to reconsider his denial of clemency to Troy Davis, citing the toll justice takes on those humans who must carry out its grisly work: "No one has the right to ask a public servant to take on a lifelong sentence of nagging doubt, and for some of us, shame and guilt." I think it is not possible to philosophize away these very real concerns, particularly when the philosopher declines to apply for the job of hangman.

Still, I do think retribution is the precondition to justice. As Prof. Tillman says, you cannot even get to deterrence without a justification -- a moral reason why the act is malum in se and worthy of singling out its perpetrator for, if not the stocks etc., then whatever nicer form of reprogramming the progressive has in mind. Such reasoning looks most like retribution.

And for the reasons given by Messrs. whswhs and takirks, if the punishment is not something more than simply restoring the status quo, it is unlikely to attract buy in. As Adam Smith said, "Mercy to the guilty is cruelty to the innocent." And Hamilton: "If there be no penalty annexed to disobedience, the resolutions or commands which pretend to be laws will, in fact, amount to nothing more than advice or recommendation." Federalist 15, 1787. And James Wilson: "A punishment is the infliction of that evil, superadded to the reparation, which the crime, superadded to the injury, renders necessary, for the purposes of a wise and good administration of government."

Consider, for instance, the man punished with a money judgment for defrauding his victim: when the sheriff levies his bank account to recover the stolen funds, the wrongdoer has lost nothing to which he had any moral right when he set out: the wrongdoer's loss is mere opportunity cost. Similarly, a man who is convicted of crimes of violence had forfeited his moral right to liberty by agressing against an innocent, and thus the jailer deprives him of nothing by putting him in a cage.

But again, such judgments and sentences only go toward restoring the status quo, and without more, do not move the needle in the way even of deterrence, let alone retribution. Add to that the insult under the American rule of justice in which the victim also must suffer his own attorneys' fees unless the legislature has provided some dispensation to make him whole, and he begins to see all too clearly that, in the main, the secular sterilization of virtue and squeamishness toward shaming -- or even acknowledging the concepts of wrongdoing and desert -- have very generously improved the lot of the professional scoundrel.

Jonathan Rowe said...

People should get what they deserve in the criminal justice system. Even if we knew to a moral certainty that we could impose some kind of "A Clockwork Orange" remedy that would reform and restrain an individual (not "signal" to other criminals that you could get away with it and therefore remove the deterrent effect) we still want people to pay the price for what they do.

As a libertarian, though I see this more through the lens of individualism. It's to the victim and his or her family that the debt is owed, more than to the society.