Punishment

SIGNIFICANCE: Because punishment of criminal offenders usually involves inflicting harm on them in ways that would be considered unacceptable or immoral in other circumstances, competing theories attempt to justify or abolish the practice.

Punishment in the modern United States is a massive and costly enterprise. In 2021, approximately 2.9 million people were serving time in prison or jail, a 500 percent increase over the previous forty years. The Sentencing Project reports that changes in sentencing laws, and not crime rates, have driven up the US incarceration rate. The United States spends about $80 billion per year on incarceration. Moreover, that figure does not include money spent on providing police protection and the court system.

In 2022, the United States had more than 1,230,100 individuals incarcerated in state and federal prisons, a 2 percent increase from 2021. This can also be expressed as 355 per 100,000 people being incarcerated in 2022. According to Prison Policy Initiative, the United States incarcerates more of its population than any other nation, even those with similar crime rates. Despite the fact that US incarceration rates are so disproportionately high compared to the rates of other countries, the United States experiences far more violent crime per capita than other high-income democracies. In 2022, the reported homicide rate was approximately 7.5 per 100,000 population for in the United States; in Western and Central European countries, the murder rates are often below 1 per 100,000.

Meanwhile, the United States invests more in punishing offenders than any other nation—both in financial outlays and in the loss of freedom for millions of incarcerated convicts—but even this price has not made for a safer society. All these disparities between crime and punishment rates raise fundamental questions about punishment: What justifies it? What are its objectives? How can those objectives be achieved? Finally, how important are those objectives compared to others, such as the preservation of civil liberties?

Philosophical Bases for Punishment

Until the eighteenth century, punishments for criminal offenses in Western societies typically consisted of sporadic public displays of spectacular corporal violence. Some of these punishments would now be considered forms of torture. A particularly gruesome example was known as “drawing and quartering”: Ropes attached to each of a convicted criminal’s limbs were tied to four draft animals, which pulled them in four different directions, eventually tearing the convict into four parts, hence, the “quartering.” Severe punishments such as that served several objectives. They demonstrated the authority of the state, exacted revenge on criminal offenders, and issued warning to all those who might be considering committing similar offenses.

Punishment did not become a subject of serious systematic study until the mid-eighteenth century, when Cesare Beccaria published On Crimes and Punishments (1764). Beccaria argued that deterring offenders was the only legitimate function of punishment and it was best accomplished by standardizing penalties, publicizing them so that everyone understood and had notice of the harm they could suffer, and enforcing sanctions regularly and fairly. Beccaria further claimed that excessive punishments were inhumane and unnecessary to deter.

The late eighteenth-early nineteenth century English philosopher and reformer Jeremy Bentham developed Beccaria’s insights into a comprehensive theory of law governed by the central premise of what has come to be known as utilitarianism. He argued that legislation should promote the greatest good, or utility, and the least suffering for the greatest number of people. According to his utilitarian philosophy, punishment should be forward-looking because its only legitimate purpose is preventing future crimes. From this perspective, three possible justifications for punishment arise: deterrence, incapacitation, and rehabilitation.

Deterrence functions as a disincentive to committing a crime. For example, it may be in the interest of students to steal books from libraries because they prefer having them exclusively to themselves and prefer not to have to return them. If no penalty exists for stealing books, the students have little reason not to steal them, other than their moral convictions. However, utilitarians believe it is foolish to rely on people’s moral beliefs to prevent them from doing things that benefit themselves but decrease overall happiness for others. For utilitarians, threats of punishment shift the balance of incentives. If the book-stealing students risk paying burdensome fines or facing jail time, they are much less likely to steal books to avoid the minor inconvenience of having to return them. Criminal sanctions therefore alter incentive structures so that it becomes in each individual’s best interest to obey the law. Breaking the law thus becomes unworthy of the risk.

To maintain this risk/reward deterrent ratio, the public must understand the laws and their sanctions, believe there is an adequate degree of likelihood that they will be apprehended and subjected to punishment, and agree that the punishment is not so extreme that its application would produce suffering that outweighs the happiness or utility it is intended to promote. For this latter reason, punishments designed to deter must not be too harsh—what in American constitutional language would be considered cruel and unusual—and must not violate rights of offenders by denying them due process of law or equal protection under the law. The punishments must be proportionate to the crimes that are committed, so that perpetrators of more serious crimes receive more severe punishments. Finally, they must only be as severe as is required to accomplish the penological objective and therefore not be excessive. This argument presumes that a substantial portion of potential offenders engage in rational cost-benefit analyses to determine whether criminal activity is worth the risk of punishment, and some critics doubt whether potential criminals engage in such deliberations.

The Rationale for Incapacitation

Utilitarianism also regards incapacitation as a legitimate strategy for reducing crime. Incapacitation renders convicts incapable of committing further crimes against the general public, either by incarcerating the convicts or physically debilitating them. These ends may be achieved by such means as capital punishment for murderers and chemical or surgical castration for sex offenders. The belief that individuals who commit crimes will continue to commit them unless incapacitated underlies this theory, which is the basis of recidivist statutes, such as “three-strikes” laws, that impose more severe punishments for repeat offenders.

The value of incapacitation is undermined if serving time actually increases the likelihood of the convicts committing more crimes upon their release. That might happen, for example, if their experiences of living among other convicts in prison conditions them to think of themselves as career criminals. Released convicts might also turn back to crime if they find that their opportunities for success in noncriminal life are worse after their release than they were before they entered the criminal justice system, such as higher rates of unemployment due to having a criminal record.

To some degree, warehousing convicts in prisons does prevent them from committing offenses against society. However, it is widely acknowledged that crime rates within prisons are higher than crime rates outside them. A consistent utilitarian cannot discount the pain caused by offenses committed inside prisons; however, most advocates of incapacitating criminals pay little attention to the consequences of segregating the most troubled populations in such arrangements. Moreover, in the light of the fact that African American men are nearly six times more likely than White men to be incarcerated, this concentration of violence raises troubling questions about fairness and discrimination.

The Goal of Rehabilitation

Rehabilitation is another legitimate means of preventing crime for utilitarians. It seeks to reform offenders so they no longer commit crimes, and under this theory, sentences may seem more like treatments than punishment. Rehabilitation can take many forms, including substance abuse therapy, vocational training, and education. Instead of conceiving of prison as a depository for offenders, rehabilitative theory seeks to use sentences as occasions to remove offenders who had strayed from law-abiding life from whatever social forces had corrupted them.

Early prisons practicing the rehabilitative model, such as those at Auburn and Sing Sing, New York, and Pittsburgh, Pennsylvania, during the 1820s, therefore isolated inmates from one another to prevent them from tempting one another to deviate from their paths toward the straight and narrow. Left to hard work, their conscience, and the Bible, reformers believed that the inmates’ good natures would return. Rehabilitative ideals are committed to a belief that humans are good, equal, and redeemable and deserve the opportunity to correct their lives and restore their full citizenship. According to this position, governments are responsible for helping their citizens along this path.

In addition to rehabilitating individual offenders, utilitarianism also attempts to prevent crime by addressing the social causes of crime and “rehabilitate” the broader culture as well as individuals. If drug abuse, poverty, unemployment, or racial discrimination cause crime, utilitarians would seek to uproot criminal behavior by eliminating the cultural forces that generate millions of criminals rather than simply incarcerating all of these criminals once they commit offenses. In this sense, utilitarian rehabilitation attempts to diagnose and cure the social diseases that cause crime rather than simply treating individuals once they have symptoms of criminal behavior.

Critics of the rehabilitative model question its effectiveness, doubting whether even the most thorough therapeutic treatment can reform incorrigible criminals. Others find rehabilitative objectives vague and difficult to measure, leaving too much of sentencing indeterminate and subjective. Further, some fear that rehabilitation blurs the line between treatment and punishment and thus results in extended criminal detention of those needing only therapy. Many individuals with mental illness, for example, have difficulty ever leaving the criminal justice system.

Retributivist Theories

The most trenchant criticism of rehabilitation is leveled by those who disagree with the entire utilitarian view of punishment and find that “coddling” prisoners with psychological treatment and education in this way suffers from a fundamental confusion: Criminals simply deserve to suffer punishment. By this view, it is morally imperative to punish murderers, for example, regardless of whether doing so might reduce crime rates.

The word “retribution,” from a Latin word for paying back, traces its Western origins to the biblical lex talionis or “eye for an eye.” Unlike the forward-looking orientation of utilitarianism, retributivism seeks to address the wrongs of the past by forcing offenders to pay their debts to victims and society. In other words, the retributivist believes that punishment should balance the scales of justice by causing offenders to suffer pain commensurate with that of their victims. In this sense, retribution exacts revenge in proportion to the moral desert of the offenders.

Immanuel Kant’s late-eighteenth-century ethical writings provide the philosophical underpinnings for modern retributivism. The human ability to reason, Kant claimed, enables each person to think freely and understand universal moral truths. By determining what is right from one’s own reasoning, rather than from the authority of another, employing one’s will to rise above the corrupting influences of culture and desire, and performing the good, one becomes self-governing and free. This understanding of humanity, wherein people use their reason to realize and live by objective ethical truth, provides the foundation for the Enlightenment’s secular conception of human dignity. Because humans have dignity, Kant argued, they must always be treated as ends in themselves, rather than as mere means. He named this requirement that people not use others exclusively as tools the “practical imperative.”

Utilitarian justifications of punishment violate the practical imperative because they use offenders merely to reduce crime rates. To preserve offenders’ dignity, the justice system must hold them responsible for their crimes and treat them as if they were capable of freely making moral choices. Although this may seem odd, from a Kantian perspective offenders have a right to be punished. Otherwise they are but children or animals. In all utilitarian forms of punishment, offenders are denied dignity in this respect: rehabilitation seeks to cure them of their disease, deterrence treats them as rats that need shocks to keep them from eating cheese, and incapacitation simply denies them any ability to make moral choices. Anthony Burgess’s novel A Clockwork Orange (1962), which was made into a 1971 film by Stanley Kubrick, dramatically explores these tensions between freedom and crime prevention.

Retributivists also claim that because preventing crime is the sole objective of utilitarian punishment, utilitarians would permit grievous injustices such as framing innocent people if such sacrifices furthered that goal. Although commentators repeat this criticism in most discussions about justifications of punishment, it does not appear to raise serious problems. Utilitarianism originated as a legal theory that demanded several institutional conditions for the public pursuit of utility, including security of person and property, legality, legislative supremacy, democratic accountability, publicity, and transparency. These utilitarian political procedures would preclude framing an innocent person.

Critics of retributivism find that its refusal to consider the objective of reducing future crime contradicts the most basic practical justification for punishment. Parents punish children, for example, to foster their development into moral citizens, rather than to balance metaphysical scales of justice. Society would surely find it reprehensible if parents were to assault a child physically and explain that they have administered corporal punishment as a vendetta because the child “deserves to suffer.” Retributivism thus appears to offend the intuitive maxim that “two wrongs do not make a right.”

To many, the retributive demand for “just deserts” provides a thinly veiled excuse for a lust for vengeance similar to the righteous indignation accompanying violence committed in the name of religion. As the Indian nationalist leader Mohandas K. Gandhi warned in his pacifist philosophy, “an eye for an eye makes the whole world blind.” In addition, retributive theories claim that punishment must be proportionate with the offense, yet they offer no convincing explanation for how to go about matching offenses with crimes other than the bare assertion of lex talionis.

Sentencing decisions also raise problems of incommensurability. In what sense, for example, is any prison term proportionate with a drug offense? Even if society executes a murderer, the murderer’s death is not in any meaningful way equivalent to the death of a particular victim. Death, suffering, and loss endure regardless of the pain that is inflicted on an offender.

Hybrid Theories

Debates between utilitarian and retributive theories of punishment have led some to adopt hybrid theories. The most common such theory calls for a consequentialism constrained by deontological boundaries. Attempts to synthesize the best of both theories, however, fail to resolve their incompatible foundations.

The “restorative justice” movement has recently been offered as a progressive alternative to retribution, as it emphasizes repairing the damaged relationships between offenders and victims through reconciliation programs rather than punishment. Still others advance the increasingly popular “restitution” theory of punishment. Following the principles advanced by the law and economics movement, it argues that offenders should pay their debts to society and their victims financially rather than through conventional penalties such as prison sentences. Some take the radical position that attempts to justify punishment will fail because such state-sanctioned violence is ultimately unjustifiable. The fact that punishment may make human affairs more orderly does not necessarily mean that it necessarily has ethical foundations, and if it does not, it should be abolished. In its place, abolitionists would understand crime as conflicts requiring resolution rather than the infliction of more pain. Abolitionists share many ideological commitments with pacifists and are subjected to similar criticisms, including the charge that abolishing punishments would fail to protect victims from aggressors.

Social scientists have become increasingly skeptical of the ability to deter or rehabilitate with punishment. This has led to a rebirth in the popularity of retributive arguments, which were thought to be barbaric only a few generations ago. This rise of retributivism, coupled with the brute efficacy of incarceration, has created a culture in which offenders are thought to deserve long sentences. The US Sentencing Guidelines formalized these trends, requiring longer sentences and removing much of the discretion previously granted to judges to tailor individual sentences. Add to this situation lengthy mandatory sentences for drug offenders—who already constitute 40 percent of US federal prison populations and 15.7 percent of US state prison populations—and the staggering incarceration rates continue to grow.

Bibliography

Beccaria, Cesare. On Crimes and Punishments. Indianapolis: Bobbs-Merrill, 1963. Print.

Bentham, Jeremy. Introduction to the Principles of Morals and Legislation. New York: Hafner, 1961. Print.

Bianchi, J., and P. Pettit, eds. Abolitionism: Towards a Non-Repressive Approach to Crime. Amsterdam: Free UP, 1986. Print.

Binder, Guyora, and Nick Smith. “Framed: Utilitarianism and Punishment of the Innocent.” Rutgers Law Journal 32 (2000): 115. Print.

Bryant, Erica. "Why Punishing People in Jail and Prison Isn't Working." Vera, 24 Oct. 2023, www.vera.org/news/why-punishing-people-in-jail-and-prison-isnt-working. Accessed 15 July 2024.

Clear, Todd R., Michael D. Reisig, and George F. Cole. American Corrections. 11th ed. Boston: Cengage, 2016. Print.

Duff, R. A. Trials and Punishments. Cambridge: Cambridge UP, 1986. Print.

Duff, R. A., and David Garland, eds. A Reader on Punishment. Oxford,: Oxford UP, 1994. Print.

Fact Sheet: Trends in U.S. Corrections. Washington, DC: Sentencing Project, Dec. 2015. PDF file.

Foucault, Michel. Discipline and Punish: The Birth of the Prison. Trans. Alan Sheridan. New York: Vintage, 1995. Print.

Garland, David. Punishment and Modern Society: A Study in Social Theory. Oxford: Oxford UP. 1993. Print.

Hatch, Virginia Leigh, and Anthony Walsh. Capital Punishment: Theory and Practice of the Ultimate Penalty. Oxford: Oxford UP, 2015. Print.

Honderich, T. Punishment: The Supposed Justifications. Harmondsworth: Penguin, 1984. Print.

Kant, Immanuel. Foundations of the Metaphysics of Morals. Trans. Lewis White Beck. Indianapolis: Bobbs-Merrill, 1959. Print.

Kaplan, John, Robert Weisberg, and Guyora Binder, eds. Criminal Law: Cases and Materials. 6th ed. New York: Aspen, 2008. Print.

Primoratz, Igor. Justify Legal Punishment. Atlantic Highlands: Humanities, 1989. Print.

"Prisoners in 2022, Statistical Tables." Bureau of Justice Statistics, 30 Nov. 2023, bjs.ojp.gov/library/publications/prisoners-2022-statistical-tables. Accessed 9 July 2024.

Sawyer, Wendy and Peter Wagner. "Mass Incarceration: The Whole Pie 2024." Prison Policy Initiative, 14 Mar. 2024, www.prisonpolicy.org/reports/pie2024.html. Accessed 15 July 2024.