‘As one reads history … one is absolutely sickened, not by the crimes that the wicked have committed, but by the punishments that the good have inflicted; and a community is infinitely more brutalized by the habitual employment of punishment than it is by the occasional occurrence of crime.’ In the jaunty guise of Marxist aesthete in The Soul of Man under Socialism (1891), Oscar Wilde elegantly captures what is perhaps the central paradox of society’s uneasy relationship with crime and punishment. In meting out punishment and inflicting harm, the state’s representatives knowingly cross normal ethical boundaries and in some sense emulate the depravity of the punished. In so doing, they apparently risk sullying the very name of civilization.
A central function of civilized society, most would agree, is to defend the rights of its citizens: to protect them from arbitrary treatment and harm, to allow them full political expression, to guarantee their freedom of speech and movement, and so on. So what business is it of society to deliberately inflict harm on its citizens, to exclude them from the political process, and to restrict their liberty to speak and move freely? For this is the prerogative that the state takes upon itself when it punishes its citizens for breaching the rules that it has itself, willy-nilly, imposed upon them.
From a philosophical point of view, then, the problem of punishment is to explain and justify the state apparently stooping to the level of the criminal in the very act of punishing him. In addressing this question, penologists generally follow two quite distinct lines of argument. Some stress the beneficial consequences that follow from punishing wrongdoers, such as deterrence and protection of society. Others argue that punishment is a good thing in itself, as a form of retribution or as a statement of society’s disapproval, irrespective of other benefits it may bring.
Just deserts It is a commonly held view that people should get what they deserve: just as they should benefit from behaving well, so they should suffer for behaving badly. The idea of retribution – that people should pay a price (for instance, in loss of liberty) for their wrongdoing – sits comfortably with this intuition. There may also be a perception that wrongdoing creates a kind of imbalance in society and that the moral equilibrium is restored by the wrongdoer ‘repaying his debt’ to the state. An offender is under an obligation not to break society’s rules in order to gain an unfair advantage, and by doing so he incurs a penalty (a debt or due) which must be paid. The financial metaphor can neatly be extended to demand a fair transaction – that the severity of the penalty should match the severity of the crime.
‘If he who breaks the law is not punished, he who obeys it is cheated. This, and this alone, is why lawbreakers ought to be punished: to authenticate as good, and to encourage as useful, law-abiding behaviour.’
Thomas Szasz, 1974
The idea that ‘the punishment should fit the crime’ gets support from the lex talionis (law of retaliation) of the Hebrew bible: ‘an eye for an eye, a tooth for a tooth’. This implies that crime and punishment should be equivalent not only in severity but also in kind. Defenders of the death penalty, for instance, often plead that the only proper reparation for the taking of life is the loss of life. The point is less persuasive in the case of some other crimes, and few would suggest that rapists, for instance, should be raped (though in practice many are). This biblical support for the retributive theory gets to the heart of the main problem that it must address: the lex talionis is explicitly the work of a ‘vengeful God’, but in order to keep a footing on the moral high ground, the retributivist must prevent retribution sliding into revenge. The idea that some crimes ‘cry out’ for punishment is sometimes dressed up as the notion that punishment expresses society’s disgust or outrage at a particular act, but when retribution is thus stripped down to little more than an urge for vengeance, it scarcely appears adequate as a justification for punishment.
‘Does capital punishment tend to the security of the people? By no means. It hardens the hearts of men, and makes the loss of life appear light to them.’
Elizabeth Fry, 1848
A necessary evil The idea that punishment is in any absolute sense a good thing is denied by those who focus instead on its social consequences. Indeed, Jeremy Bentham, the pioneer of classical utilitarianism, writing towards the end of the 18th century, was in no doubt that it is a thoroughly bad thing: ‘All punishment is mischief: all punishment in itself is evil.’ From his perspective, punishment is at best a necessary evil: bad because it adds to the sum of human unhappiness; justified only in so far as the benefits it brings outweigh the unhappiness it causes. Nor is this a purely theoretical position, as the eminently practical 19th-century prison reformer Elizabeth Fry makes clear: ‘Punishment is not for revenge, but to lessen crime and reform the criminal.’
In the case of serious offences, where public safety is at risk, the need for punishment in the form of incapacitation is hard to contest. To give an obvious example, a murderer who is incarcerated will not reoffend so long as he remains locked up. Another utilitarian ground on which punishment is supposedly justified is deterrence, but the case for this is not so easily made. On the face of it, it seems perverse to say that someone should be punished, not for the crime he has committed, but in order to deter others from offending in a similar way. There are also doubts over its effectiveness, in that studies suggest that the principal deterrent is not punishment but fear of capture.
The other main strand in utilitarian thinking about punishment is reform or rehabilitation of the criminal. There is an obvious attraction, to the liberal-minded at least, in the idea of seeing punishment as a form of therapy whereby offenders are re-educated and reformed in such a way that they can become full and useful members of society. Incentives for prisoners to behave well, such as the parole system, are examples of this kind of thinking in practice, but in general there are serious doubts over the ability of penal systems – most current systems, at least – to achieve this kind of benign outcome.
It is easy to pick holes in theories of punishment that invoke specific beneficial consequences – to cite cases where an offender does not present a danger to the public or does not need reform, or whose punishment would not have any deterrent value. Utilitarian theorists tend to adopt an inclusive approach, proposing a range of possible benefits that punishment may bring, without suggesting that all of them apply in every case. A few have gone even further and produced truly hybrid accounts, in which some space is also allowed for some element of retribution.
the condensed idea
A necessary evil?