The last paper for my MA in Philosophy for this year was about the philosophy of punishment, a subject that I should have something to write about as a lawyer turned philosophy student.
The exact essay questions was: “‘It is a mistake to suggest that methods of punishment must be modified in order to meet a reason constraint. If we are to fully treat persons as persons, we ought not to punish them at all.’ Does this criticism apply to all theories of punishment you have studied?”
Here is what I had to say about this:
Exactly one month ago, riots and looting erupted in Londonand quickly spread to other cities across England. With violence and lawlessness increasing from day to day, England had begun to stare into the abyss of anarchy, but after four days it was all over, as if the country had awoken from a bad dream. That this period of mayhem lasted only four days was good for the country, but on the other hand four days were not enough to understand the causes of the riots and to have a sensible, informed discussion about how to address them. It was hence not at all unexpected that instead of a thorough analysis of what had happened, sadly predictable political reflexes took over: the political left blamed spending cuts and conservatives blamed the loss of values like respect and the decline of nuclear families.
The subsequent discussion in the public and the media concentrated on the criminal law aspect and on the sentencing of those rioters who had been identified, arrested and brought to court. The judges were working overtime and handing down severe sentences, in some cases much harsher sentences than would have been given to similar offenders committing similar offences before the riots of August 20112.
I believe it is safe to assume that the British public would have been just as outraged had the rioters and looters not been punished as they were outraged by the criminal acts themselves. In times like these it is easy to forget, but in the philosophical debate about punishment there are indeed quite a number of voices (called “abolitionists”3) who argue that legal punishment can never be justified and should be abolished4.
This essay sets out do delve into this question, concentrating on the aspect of whether the main theories of punishment can fully accommodate the reason constraint and whether they can respect an offender’s autonomy.
II. The Reason Constraint in the Theory of Punishment
Punishment “is an authority’s infliction of a penalty on an offender”5 and thus at least “appears to involve overriding a person’s autonomy”6. There is the option of solving this problem by not regarding offenders as persons7, but in line with the argument presented in my previous essay about what constitutes a person8, I will continue to hold the conviction that all human beings are persons and are to be treated as such9. Treating someone as a person requires us (and the punishment-issuing authority) to respect that someone’s autonomy10.
I do not accept Rousseau’s argument that offenders should be regarded as persons but have some aspects of their autonomy suspended11 because I see even enemies of the state or enemies in war as persons and because I believe it is imperative not to start differentiating between persons of a first order and persons of a lesser second order.
One attempt to reconcile the coercive nature of punishment and the autonomy of those subjected to punishment is to ensure that the punishment accommodates the reason constraint. The reason constraint requires that we “treat people in a way that engages with their reason rather than, for example, their fears”14. It is probably easiest understood by comparing it with the treatment of an animal which can be trained and conditioned, whereas “persons are rational agents capable of understanding and of choice”15. If a certain behaviour is expected from a person, he or she may be argued and reasoned with16, but the punishing authority must not appeal to that person’s fears or instincts.
III. Different Theories of Punishment and their Accommodation of the Reason Constraint
There are three traditional major theories of the justification of punishment17: deterrence, rehabilitation and retributivism. I will examine these three plus the more recent communicative theory in light of how they accommodate the reason constraint and respect the autonomy of an offender18.
Deterrence and the Reason Constraint
The theory of deterrence is based on the aim of preventing19 or at least reducing future crime20: punishment is justified because or “in as much as it deters people from breaking the law and thus prevents harm in the future”21.
Deterrence consists of two main aspects which face quite different philosophical problems and thus always have to be recognised and discussed as two different aspects:
a) Special deterrence22 aims at the offender himself/herself. The punishment shall serve as a reminder to the offender of the consequences of his or her criminal action for himself/herself and shall thus make him or her refrain from (at least similar) criminal acts in the future23.
b) General deterrence24 seeks to deter potential imitators. The punishment shall serve as a reminder of what the consequence would be for someone else if they were to break the law in a similar way as the offender in question.
One problem with deterrence is that it needs to work in order to justify punishment26. While it might seem logical at first that a sentence deters an offender from re-offending and also makes would-be offenders think twice (thus working like an economic [dis-]incentive27), the evidence is actually not as overwhelming28. One plausible reason for this is that would-be offenders don’t think about the possible punishment at the time of their offence29, for the simple reason that most of them don’t plan to get caught by law enforcement30.
Based on the definition of deterrence as avoidance of a given action through fear of the consequences31, some argue that deterrence violates the reason constraint because behaviour is attempted to be influenced “through threats and coercion”32.
I don’t find this convincing as I cannot see a direct threat or coercion. People are free to choose if they offend or not. In a state governed by the rule of law33 they more or less know what the law is34, they can look it up before deciding whether to offend and they can trust that the law won’t be changed after the fact and applied retroactively. This situation is indeed much better captured by John Rawls’ “price system” model35or as part of the “economic theory of law”36, in which offenders are viewed “as having voluntarily chosen to risk penalties as the price of disobedience”37 and punishment “supplies a motive for avoiding some actions and doing others”38 39. I find this a realistic depiction of most offenders’ thinking, as is demonstrated by research that would-be offenders are not put off by harsh sentences40, but by a high likelihood of being detected and convicted41 or a combination of these two risks. This cannot be compared to animals being trained or conditioned as it still leaves people the choice between obeying or disobeying the law, whereas someone who trains a dog doesn’t want this animal to have a choice and doesn’t want the dog to exercise the canine equivalent of a free will.
If such a thought process as deterrence seeks to achieve, and it is a thought process even if it will work subconsciously most of the time, is deemed to be influenced through threats or coercion, then all (and not only economic) activity would violate the reason constraint. Indeed, me writing this essay would, because I submit it in the face of the threat of failing the course. But unlike a conditioned animal, I can make an informed decision about my priorities (writing this essay versus going to the cinema) and so can the potential offender (weighing up the potential benefits of criminal action versus the risk of getting caught and punished42 and contrasting this with legal means to achieve his ends or – if this seems impossible – substitute ends).
In order for the reason constraint to be satisfied it is enough that potential offenders are treated as rational actors making autonomous decisions about their actions in view of the consequences. It is not necessary that they agree with the content of the law43, they must only know about it.
Rehabilitation and the Reason Constraint
Like deterrence, rehabilitation is a “forward looking” theory of punishment44. Rehabilitationists think that “criminals have gone wrong and that society has a duty to put them right again”45 and draw some support for this theory from statistics that show a correlation of offenders and other social problems like poverty and low educational achievement46 47although I am not sure if this is a sufficient correlation as correlation does not imply causation and there also a great many number of poor
people who do not become criminal as well as a number of wealthy people who become criminal (and often cause more damage than the crimes of poor offenders48). Research also suggests that only a small number of offenders are amenable to rehabilitation49 and that re-offending rates remain frighteningly high despite attempts at rehabilitation50 51.
If we exclude methods of rehabilitation that obviously violate the reason constraint, like chemical castration, drugs, brain surgery54 55, we can imagine rehabilitation being applied in a way that reasons with the offender56. In fact, I believe without the offender being respected as an autonomous person, any attempt at rehabilitation is doomed to fail anyway.
The typical forms of rehabilitation that strive to improve the economic chances and life skills of offenders could only be interpreted as a violation of the reason constraint if offenders were being taught how to read or taught certain job skills in a sneaky attempt to make them less prone to re-offend without them being told of this hope (and thus their reason not being applied to). As long as the objective of rehabilitation is made clear though, the reason constraint seems to be respected as long as the offender is or will be convinced and agrees.
But the real problem with rehabilitation and the reason constraint comes to light when we consider offenders who don’t want to be rehabilitated. It will be rare that an offender will be so open as to disclose this57, but it is not unimaginable, especially if we consider crimes of conscience, for example avoiding a military draft or a steadfast refusal to pay taxes because of certain programmes that the government funds with these tax revenues.
Rehabilitation has no possibility of success in these cases exactly because the offender uses his or her reason. If the offender’s autonomy is to be respected, there is no justification for punishment in these cases if rehabilitation was the sole general justifying aim of punishment.
If the state would in these cases continue to incarcerate offenders and continue to try to reason with them in the belief that the offender would one day “come to reason”, this is no different from the treatment of a dog who is supposed to jump and refuses and the owner then puts a sausage high on a shelf and refuses to provide any other food to the dog. One day, the dog will jump (if it won’t starve before). This would clearly violate the reason constraint. As an additional problem, it would pose an incentive to the offender to lie and to pretend to be open to rehabilitation.
If on the other hand, offenders who are not open to rehabilitation were to be released because of the state’s respect for their autonomous decision, other offenders who would actually be open and willing to being rehabilitated would have an incentive to pretend that they aren’t, in the hope of also being released.
A general justifying aim of punishment which aims at “bringing the offender to a better way of life”58 but is caught having to choose between overriding the reason constraint and the autonomy of some offenders or putting up incentives for groups of offenders to lie has clearly failed.
Retributivism and the Reason Constraint
In contrast to the two previous theories, retributivism is a “backward looking” theory59, according to which “justice is done by giving offenders what they deserve”60. Seeing “that justice is done”61 is therefore the purpose of and the justification for punishment.
While the theories of deterrence and rehabilitation are not beyond criticism, of the theories discussed in this essay it is retributivism that opens up many more questions than it can answer in a satisfying way, although this has not stopped retributivism from becoming the most prominent theory within the philosophy of punishment63.
One could argue that retributivism doesn’t offer a justification for punishment at all. Stating that “the purpose of punishment is to see that justice is done”64 only leads to the next question about what extent of punishment is “just”. The definition does not explain anything. Honderich puts this much more elegantly when he writes: “the supposed reason is identical with the supposed conclusion”65.
Retributivism’s other argument that punishment is necessary to “resolve” the offence is too simplistic and mathematical, as if two minuses make a plus66 67. But “two wrongs don’t make a right”68: punishment does not undo the crime, and it cannot, for the crime happened in the past69.
This arithmetic approach does not even attempt or pretend to reason with the offender. The offender is only regarded as the perpetrator of an offence and as an object of the sentencing to be applied, not as an autonomous person. Retributivism fails to comply with the reason constraint.
The Communicative Theory and the Reason Constraint
The communicative theory is a version of retributivism70 but deserves to be examined separately because its justification for punishment has a different basis: it seeks to “communicate a moral message to the offender”71: “The point of punishing the offender is to strengthen his or her attachment to the human good.”72
The communicative theory claims to treat the offender as an autonomous individual73 and sees a principal justification for punishment in “the potential and actual wrongdoer’s good”74. However, I am intuitively suspicious abut this, maybe because some proponents of the communicative theory draw heavily upon religious ideas and language75 76 and I don’t associate religion with reason.
Similarly as with rehabilitation above77, the real test for the communicative theory has to be performed with the example of the offender who doesn’t want to be “good” or “moral” or who views something else as good because after all “those who are punished may not share the values of the law-abiding”78.
Very similar to how I argued above about the futility of rehabilitation with a refusing offender79, if the sole justifying theory for punishment was the communicative one, no punishment would be justified if the offender made it clear (or if it became obvious in any other way) that his or her opinion about what is good or right won’t change, regardless of how much communication would be directed at him or her80.
On the other hand, the communicative theory offers no justification for punishment with regards to an offender who knows perfectly well what is good, moral or legal and who acknowledges his or her guilt and plausibly vows not to re-offend. According to the communicative theory, nothing more can be achieved and the offender would simply walk free81.
Many proponents of the communicative theory recognise its fallibility82 and try to save it by demanding that censure should be communicated through penal hard treatment83 84“because this will give those who are insufficiently impressed by the moral appeal of censure prudential reason to refrain from crime”85. The moralising, communicative theory reverts to the “brute language of threats”86, thus admitting that without a deterrent element (which in the eyes of the offender might very well outweigh any communicative intent87) this theory is ineffective88. And shy about the use of force the proponents of the communicative theory are not: „The art of punishing is the art of awakening in a criminal, by pain or even death, the desire for pure good“89. The offender is no addressee of reason at all, he or she is being treated as an object whose opinion and moral views need to be broken (the communicative theorists will call it “reformed”), and if necessary the person holding these views needs to be broken with them. The reason constraint could not be violated more clearly.
The judgement that I dare pass on the communicative theory is even more devastating than that on rehabilitation90, because where rehabilitation tries to improve offenders’ lives91, the communicative theory tries to change their opinion, their values, their beliefs. This is something which I think goes beyond the business of the state92. I do agree that the democratically elected majority in a state’s parliament can determine what is a crime93 and what is not, but I do not want to see the state trying to impose its (majority’s) moral beliefs onto each individual citizen. Although it might be ideal if a criminal trial convinces the offender to accept the law94, the law cannot make its acceptance a requirement95 96. This would go beyond the normal realms of law enforcement and cross the threshold to a “thought police”. Neither the state, nor criminal law must be concerned with somebody’s bad morals as long as these do not translate into actions.
Although it seems intuitive to demand that transgressions of the law shall be punished97, even this short essay has hopefully shown that once we delve into the justifications offered for punishment (and justification is required in a liberal state or society for such severe intrusions into a person’s autonomy as imprisonment) many of these justifications fall flat, disappoint and are unconvincing – and we have not even started to look into other problems that all these theories of punishment face, like the means/end constraint, the question of who assumes authority to punish or the question if a society as a whole would need to become more just before any individual punishment can be justified98.
Retributivism and its more modern communicative theory I find wholly unconvincing. They either disregard the offender’s autonomy completely or violate his personhood by trying to make him or her a different person, one with the moral views that happened to be those of the majority at the time. Both these theories do not provide an adequate justification for punishment and would make me an abolitionist if they were the only justifications for punishment brought forward.
Rehabilitation is well-intended but seeks to use the criminal law for purposes which are better achieved with social policies. The case of the offender who is not willing to be rehabilitated has shown that this theory does not respect the offender as a person either.
Based on the premise that in a liberal society, offenders are persons and have to be treated as such, these three theories would therefore result in punishment being unjustified.
Deterrence which respects offenders as economically thinking agents who make decisions based on weighing their options, an interpretation which I find not inappropriate in our (over-)economised societies, does not want to change people’s opinions or minds. It just wants them to know of the consequences of their actions and act accordingly. Deterrence certainly wants to reduce crime, but if somebody chooses to re-offend again and again, it will simply make him or her pay the advertised price and not try to change his personality or make him “repent” or any other semi-religious act.
Of the theories introduced, I deem deterrence the only acceptable one.
8Please see my TMA 1.
47Ashworth in von/Hirsch/Ashworth/Roberts 2009: 2 points out that in continental Europe, rehabilitation is more commonly referred to as “resocialisation“, emphasising the aim of (re)integration into society.
55These methods border on another justification of punishment, incapacitation, which is not treated in this essay because it clearly does not try to reason with the offender. For an introduction to incapacitation, see von Hirsch in von/Hirsch/Ashworth/Roberts 2009: 75-81.
56Ashworth in von/Hirsch/Ashworth/Roberts 2009: 7 is more pessimistic, calling rehabilitation “a form of paternalism“ that „tends to give little or no recognition to the offender as a moral agent and autonomous subject“.
66In this context, the lex talionis is sometimes cited (for example by Matravers 2001: 245): “An eye for an eye, and a tooth for a tooth.“ Oddly enough, one only hears this as a justification for capital punishment in murder cases, but it is never brought up in cases of rape, burglary or tax evasion.
96Taking this thought to its extreme could result in a criminal code that knows only one crime, that of “not accepting the law“, punishable by one uniform penalty. If disobedience of the law is the main trigger for punishment, then one could argue that disobeying a statute against drunk driving is equally bad as disobeying a statute against homicide.
Duff, R. A. and Garland, David (1994) (editors) A Reader on Punishment, Oxford, Oxford University Press
Von Hirsch, Andrew; Ashworth, Andrew and Roberts, Julian (2009) (editors) Principled Sentencing: Readings on Theory and Policy, 3rd edition, Oxford, Hart Publishing
Bentham, Jeremy (1789) “Punishment and Deterrence”, An Introduction to the Principles of Morals and Legislation, chapter 13 (reprinted in von Hirsch/Ashworth/Roberts  and quoted by the chapter and paragraphs of the original edition)
Bottoms, Anthony (2004) “Empirical Research Relevant to Sentencing Frameworks: Reform and Rehabilitation”,Alternatives to Prison: Options for an Insecure Society, edited by Bottoms/Rex/Robinson, Cullompton STATE, Willan Publishing (reprinted in von Hirsch/Ashworth/Roberts  and quoted by the pages of the reprint)
Carlen, Pat (1989) “Crime, Inequality, and Sentencing”, Paying for Crime, Carlen, Pat and Cook, D.(reprinted in Duff, R. A. and Garland, David  and quoted by the pages of the reprint)
Doob, A. N. and Webster, C. M. (2003) “Studies of the Impact of New Harsh Sentencing Regimes” and “Offender’s Thought Processes”, both from Crime and Justice: A Review of Research, edited by Tonry, M., volume 30, Chicago, Illinois, University of Chicago Press (reprinted in von Hirsch/Ashworth/Roberts  and quoted by the pages of the reprint)
Duff, R. A. (1986) “Expression, Penance and Reform”, Trials and Punishments, Cambridge, Cambridge University Press, pp. 233-66 (reprinted as reading 7.2 to accompany the A850 Postgraduate Foundation Module in Philosophy, Milton Keynes, The Open University and quoted by the pages of the reprint)
Duff, R. A. (1999) “Punishment, Communication, and Community”, Punishment and Political Theory, edited my Matravers, M., Oxford, Hart Publishing, pp. 51-60 (reprinted as reading 7.5 to accompany the A850 Postgraduate Foundation Module in Philosophy, Milton Keynes, The Open University and quoted by the pages of the reprint)
Feinberg, Joel (1971) “The Expressive Function of Punishment”, Doing and Deserving, Feinberg, Joel, pp. 95-118 (reprinted in Duff, R. A. and Garland, David  and quoted by the pages of the reprint)
Moore, Michael (1987) “The Moral Worth of Retribution”, Responsibility, Character, and the Emotions: New Essays in Moral Psychology, edited by Schoeman, F., Cambridge, Cambridge University Press (reprinted in von Hirsch/Ashworth/Roberts  and quoted by the pages of the reprint)
Morris, Herbert (1981) “A Paternalistic Theory of Punishment”, American Philosophical Quarterly, Vol. 18, pp. 263-71 (reprinted in Duff, R. A. and Garland, David  and quoted by the pages of the reprint)
Murphy, J. G (1994) “Marxism and Retribution”, A Reader on Punishment, edited by Duff, R. A. and Garland, David, Oxford, Oxford University Press, pp. 47-70 (reprinted as reading 7.6 to accompany the A850 Postgraduate Foundation Module in Philosophy, Milton Keynes, The Open University and quoted by the pages of the reprint)
Posner, Richard (1985) “Optimal Sanctions: Any Upper Limits?”,An Economic Theory of Criminal Law, Posner, Richard, 85 Columbia Law Review 1193 (reprinted in von Hirsch/Ashworth/Roberts  and quoted by the pages of the reprint)
Rawls, John (1967) “Two Concepts of Rules”, Theories of Ethics, edited by Foot, P., Oxford, Oxford University Press, pp. 149-53 (reprinted as reading 7.1 to accompany the A850 Postgraduate Foundation Module in Philosophy, Milton Keynes, The Open University and quoted by the pages of the reprint)
von Hirsch, Andrew (1993) Censure and Sanctions, Oxford, Oxford University Press, pp. 9-14 (reprinted as reading 7.3 to accompany the A850 Postgraduate Foundation Module in Philosophy, Milton Keynes, The Open University and quoted by the pages of the reprint)
von Hirsch, Andrew; Bottoms, Anthony; Burney, Elizabeth; Wikström, Per-Olot (1999) “Deterrent Sentencing as a Crime Prevention Strategy”, Criminal Deterrence and Sentencing Severity: An Analysis of Recent Research, by the same four authors, Oxford, Hart Publishing (reprinted in von Hirsch/Ashworth/Roberts  and quoted by the pages of the reprint)
Walker, N. (1980) “Reductivism and Deterrence”, Punishment, Danger and Stigma, Walker, N. (reprinted in Duff, R. A. and Garland, David  and quoted by the pages of the reprint)
Matravers, Derek (2001) Persons and Punishment, A850 Postgraduate Foundation Module in Philosophy, Chapter 7, pp. 232-58, Milton Keynes, The Open University
Duff, Antony (2008) “Legal Punishment”, The Stanford Encyclopedia of Philosophy (Fall 2008 edition), Edward N. Zalta (editor), http://plato.stanford.edu/archives/fall2008/entries/legal-punishment/
I scored the best grade of all my papers so far. Writing it has made me look forward to next year already, when I will take the module about political philosophy. But first, there’s an exam on 12 October 2011, so I better get back to studying.