the plan for the future

Revolutionary Ideas: An Introduction to Legal and Political Philosophy


9. Prisons and Punishment

9.1. Introduction

enforcement of the law
This final unit deals with the question of the enforcement of the law, particularly the enforcement of the law against particular individuals. This discussion focuses on one particular domain of enforcement of general laws against particular individuals, the criminal law domain.

criminal law
It's worth noting at the outset that there're many other domains in which general laws are applied to particular individuals and can be applied against those individuals in ways that have great consequences for those individuals.

For example, immigration restrictions are imposed against particular individuals. Other bodies of law, family law, contract law, property law, environmental law, corporate law, can all in some cases be applied against particular individuals, sometimes at the initiative of the state, sometimes at the initiative of private individuals suing one another.

Davis' view
As the brilliant and provocative philosopher Angela Davis has noted, and this is a quotation, she says in most parts of the world it is taken for granted that whoever is convicted of a serious crime will be sent to prison. An important question is why that might be, whether that might makes sense, or is morally justified, and what alternatives may be out there?

oppression or deviance
There are two important features of modern practises of punishment. The first is deviance, or what ends up being criminalised and punished, and how these things relate to issues like class, culture, and mental health. On the other hand there are concerns about oppression, or how race and class interact with punishment and interact with so-called criminal justice systems.

The legal academic Michelle Alexander has argued that one can trace a direct line from racial slavery in the United States to Jim Crow laws, which kept black of citizens the United States relegated to a kind of second-class status, denying then access to many political institutions, requiring segregated public facilities, and disenfranchising black citizens through racially-enforced poll taxes and literacy requirement. This Jim Crow world existed after slavery and before the civil rights movement in the 1960s.

Alexander's view
She argues that we can see the extension of this from slavery to Jim Crow to what she calls the new Jim Crow, institutions that centre around crimes and imprisonment, but are really accompanied by all these collateral consequences with respect to employment, housing, education, voting rights, and jury service. Alexander says, the stark racial disparities in prison populations cannot be explained by rates of drug crime. Studies show that people of all colours use and sell illegal drugs at remarkably similar rates. If there are significant differences in the surveys to be found, they frequently suggest that whites, particularly white youth, are more likely to engage in drug crime than people of colour.

Alexander's view
That is not what one would guess, however, when entering our nation's prisons and prisons, which are overflowing with black and brown drug offenders. In some states, black men have been admitted to prison on drug charges at rates twenty to fifty times greater than those of white men. And in major cities, wracked by the drug war, as many as 80 percent of young African American men now have criminal records and are thus subject to legalised discrimination for the rest of their lives.

Alexander's view
These young men are part of a growing undercaste, permanently locked up and locked out of mainstream society. Michelle Alexander argues that the mass incarceration trend of the past 40 years in the United States is not just a side effect of poverty or limited educational opportunities, but is instead a consequence of purposeful governmental policies, and that it's essentially, a comprehensive and well-disguised system of racial control that functions in a manner strikingly similar to Jim Crow.

Perhaps most strikingly, the rise in mass incarceration is not a response to increased crime-rate. Indeed, as Alexander notes, between 1960 and 1990 official crime rates in Finland, Germany, and the United States were close to identical, yet US incarceration rates quadrupled, the Finnish rate fell by 60%, and the German rate was stable in that period.

Tonry's view
This brings out something very striking. There's no straightforward relationship between crime and punishment. In particular, societies can differ very much on how much punishment there is while having very similar levels of crime. As the criminologist Michael Tonry put the point in his book, Thinking About Crime, governments decide how much punishment they want, and these decisions are in no simple way related to crime rates.

questions on criminalising
This is easy to see, if we imagine an example in terms of prison sentences. Two societies may have very similar crime rates, but they'll quickly come to radically different incarceration rates, if in the one society people are given just one year prison sentences for all crimes, and in the other society people are given 20 year prison sentences, at least if the incarceration levels don't affect the crime levels, and there's a great deal of debate about this. There's a lot of evidence that incarceration rates don't affect crime rates. Then very quickly, the second society with these 20-year sentences, will have a much higher incarceration rate as more and more people start getting these 20-year sentences.

questions on punishment
With regard to the issues of criminalisation and punishment a number of questions can be asked. With respect to criminalisation, we can think about what it is that should be criminalised: actions, intentions, thoughts, some combination of these. We can also ask what justifies criminalising anything at all.

We can discuss what the scope of criminal law should be, whether there are any limits to it, and in particular, what the relationship between criminality and immorality is.

why prisons
There are some philosophical issues related to punishment. We can ask when punishment is morally justified, what the purpose of punishment is and should be, and what forms of punishment are morally permissible and morally optimal for achieving the proper purposes of punishment? One consistent question that we can ask is why prisons?

Alexander's view
One of the more striking things that Alexander notes in her book is that, as recently as the mid-1970s, the most well-respected criminologists were predicting that the prison system would soon fade away. She continues, prison did not deter crime significantly, many experts concluded. Those who had meaningful economic and social opportunities were unlikely to commit crimes regardless of the penalty, while those who went to prison were far more likely to commit crimes again in the future.

In 1973, the National Advisory Commission on Criminal Justice Standards and Goals manifested this expert consensus when it issued a recommendation, that no new institutions for adults should be built and existing institutions for juveniles should be closed.

the advisory commission's view
This recommendation was based on their findings that the prison, the reformatory, and the prison have achieved only a shocking record of failure. There's overwhelming evidence that these institutions create crime rather than prevent it. It also stated that it's clear that a dramatic realignment of correctional methods is called for. It's essential to abate use of these institutions. These changes must not be made out of sympathy for the criminal, or disregard of the threat of crime to society. It must be precisely because that threat is too serious to be countered by ineffective methods.

It seems surprising then, that in United States and the rest of the world, things have gone the exact opposite direction over the past 40 years since that report was issued. Rather than closing down prisons and thinking about alternatives to incarceration, the number of incarcerated persons in the United States has increased five fold. This unit considers the question why prisons? What, if anything, are they for? What should we think of them from a moral perspective? Why do we have them, and what might alternatives to prison look like?

9.2. What is crime? What should be criminalised?

theories of criminalisation
Theories of criminalisation are distinct from theories of punishment. In discussing criminalisation, we'll focus on three questions. What in general should be subject to criminal sanction? What in particular should be criminalised? And what's the relationship between criminality and immorality?

what is criminal
If these questions are answered then there going to be distinct questions about what should be done when people commit crimes. There are distinct questions about how, whether and why they should be punished. Questions of criminalisation focus on this first set of questions, what should be made criminal and why? Questions about punishment come later.

The question of what in general should be subject to criminal sanction has been answered pretty much uniformly in most modern jurisdictions. Almost everywhere crimes are defined in terms of elements, which are the conditions that must be satisfied for a person to be convicted. There would be a list, maybe two or three or four elements of the crime.

conditions for conviction
Almost everywhere for almost every crime, there will be both the conduct element and a mental element. In many jurisdictions, these will be specified in precise detail by the relevant statutes. The conduct element is often referred to as the actus reus, Latin for the guilty act. Sometimes this is called the external element. This is the thing that one does that's visible to the world. Along with the actus reus, there's what's called the mens rea, which is Latin for the guilty mind. This is also sometimes called the internal element.

guilty act
The conduct element may have different parts, which are different actions one must have taken to satisfy the full conduct element. You might have to do A and B and C and D.

The mental element will typically apply to one or some of these parts, so that one must have taken the action, while having a certain mental state. This is not always true. There are some strict liability offences that don't require that one have had any particular mental state while performing any of the actions that constitute the elements of the crime.

guilty mind
Often there must be something going on with you, mentally speaking, when you performed the relevant actions for it to be a crime. So for example, the guilty act might be entering a prohibited place, but there will be a question of what was going on in your mind when you did this.

specific intention
You might have had a specific intention to enter a prohibited place, or you might have just intended to enter this place and it turns out that entering this place was prohibited. You might have entered a prohibited space recklessly or negligently so that you were paying inadequate attention to whether the place you were going was off limits or not. It might also just be a strict liability offence, so that the mere fact that you did in fact enter the prohibited place, is itself a crime.

So it also might be that all of these are criminal offences, but with varying degrees of seriousness. So one might be a more serious crime than another, or it might be that only some of them count as crimes.

It's worth noting at the outset of our discussion that there's a lot of convergence on generally having both the conduct element and a mental element. We care about what people actually do, but we also are interested in what was going on in their heads when they acted. We're not robots or machines.

liability offence
Sometimes we'll treat two apparently identical external actions differently because of what the perpetrators had going on in their heads. So we care about not just what people do, but also about how their intentions and thoughts reflect or don't reflect proper concern for other people.

There are many interesting complexities regarding these issues. There's a lot of great science fiction that concerns the future in which we can police thought crimes of one kind or another, but for the most part that's not the world we live in. So with this general picture of the kind of thing that can be a crime, namely conduct accompanied by some mental state, there's going to be a question of more specifically which things should be crimes.

why the nature of crime is not an entirely democratic question
On a very expansive view, we might say that anything could be a crime if a democratic community decides that it ought to be a crime. There are reasons to reject this view, particularly with respect to various kinds of rights that we might want to protect, for example in constitutions.

harm principle
First, it's plausible that there are many areas of life in which we don't want the state to regulate our conduct or to limit what we can do, and it's plausible that in these areas we have a right to negative freedom with respect to this conduct. This stems from concerns about freedom. We don't want the state involved in some aspects of our lives.

There are going to be hard questions about exactly how to draw these boundaries, how to decide what rights we have and what cannot permissibly be criminalised even by a democratic government. One theory is John Stuart Mill's Harm Principle, which suggested that the state shouldn't intervene except in those instances in which an individual's conduct was going to be harmful to other people.

H.L.A. Hart's view
A similar idea was endorsed later by the legal philosopher H.L.A. Hart in his book Law, Liberty and Morality. He considered the question of whether it was permissible to make something a crime simply because it was immoral, or to put it a bit more precisely whether the fact that some conduct was immoral was a sufficient condition to make it morally permissible for the state to make that conduct a crime.

Hart was writing in a context in England in which this question was being hotly debated. In the mid 1950s, there began to be a reassessment of what were called victimless crimes in both the United States and England. There were a lot of crimes on the books that didn't really have victims. There wasn't a clear person who was harmed.

Wolfenden Report
In the United States, the drafters of the Model Penal Code, which is often used as a kind of blueprint for state level criminal law, proposed in 1955 to decriminalise all sexual practises not involving force, adult corruption of minors or public offence. In England, the Wolfenden Committee in 1957 recommended that homosexual relations between consenting adults in private no longer be a crime under English law.

The report said about the purpose of the criminal law, its function, as we see it, is to preserve public order and decency, to protect the citizen from what is offensive or injurious, and to provide sufficient safeguards against exploitation and corruption of others, particularly those who are especially vulnerable because they are young, weak in body or mind, inexperienced or in a state of special physical, official, or economic dependence. The report explicitly said it is not the duty of the law to concern itself with immorality as such.

In response to this report, the legal theorist Sir Patrick Devlin offered a series of lectures and articles arguing that it was permissible to criminalise conduct that was immoral, even if that conduct poses no threat of social harm. H.L.A. Hart responded to Devlin at every turn, in a number of lectures, articles, and even books of his own. The Hart-Devlin Debate is one of the most central debates in legal philosophy of the 20th century. It has echoes with debates between John Stuart Mill and James Fitzjames Stephen that took place in the 19th century. This debate remains one of the central issues in thinking about what may permissibly be criminalised, and on the other hand what should perhaps remain outside the reach of the state.

9.3. What can be criminalised? The Hart-Devlin debate

criminalising harm or immorality
A central issue in the philosophy of criminalisation is the question whether we have certain rights that should limit what can be criminalised. Mill's harm principle and variances on that theme suggest that conduct should not be criminalised if that conduct doesn’t in any way harm other people. More recent versions of this discussion have concerned whether the fact that some conduct is immoral is sufficient grounds on which to criminalise that conduct if a democratic community wants to criminalise that conduct.

Devlin's questions
In the middle of the 20th century there was a significant debate on this issue between Sir Patrick Devlin and H.L.A. Hart, two big figures in legal philosophy in England. Devlin argued that it was at least sometimes permissible to make some conduct illegal because the community believed it to be immoral. Even if there was no harm to others from that conduct.

Devlin started out by asking several questions. First he asked whether society had the right to pass judgement at all on matters of morals. In other words, ought there to be a public morality or are morals always a matter for private judgement? Second, he asked whether if society has the right to pass judgement and also has the right to use the weapon of the law to enforce it. Finally, he asked whether if so, society ought to use that weapon in all cases or only in some cases, and if only in some cases, on what principle should it distinguish? And why should it sometimes enforce morality and sometimes not?

Devlin's questions
There are some initial questions, even with how Devlin is setting a lot of these ideas up. What does he mean by society when we consider the idea of public morality or some set of community-wide beliefs or values? How are we going to imagine the society expressing a view about these issues? Are we imagining this by taking a vote or through some other kind of collective behaviour? Does it matter if absolutely everyone agrees? What happens if it's only something like a 60/40 split on an issue?

Devlin's view
Looking at a variety of Devlin's lectures and articles we can offer a reconstruction of his basic argument. The argument he offers to engage with the questions, and the general question of legislating morality. A reconstruction of his basic argument might look like this. The first premise is that every society has a moral structure that we might call its public morality. The second premise is that a society is held together by bonds of common thought, including the thought about morality that constitutes the public morality.

The third premise is that a society can be disintegrated by alteration or erosion of the public morality. The fourth premise is that the public morality is the moral view of the reasonable person, the view that any randomly chosen 12 people from the society would have unanimously, after being brought together to discuss the issue. Premise five is that if a society is threatened with disintegration because of some practises that threatens to erode or alter the public morality, then that society can morally permissibly legislate against that practise, although this should be done while tolerating as much individual freedom as possible and respecting privacy as much as possible.

Devlin's view
Premise six is that for our society (Devlin's 1960s England), homosexual activity, prostitution, gambling, drunkenness, and adultery threaten to erode or alter the public morality. The conclusion is that we therefore can morally permissibly legislate against homosexual activity or prostitution, or gambling, or drunkenness, or adultery.

Devlin's society
Almost every premise of this argument can be questioned, and indeed, Hart and others challenged almost every premise. So what do we make of premise one and two? The first question is, what does Devlin mean by society here?

We could imagine a minimal or sort of geographic definition, where a society is just all of the people who live in some relatively shared space. In that minimal understanding of society it seems false to assume either that a society has a moral structure or that a society is held together by bonds of common thought. There might be some overlap in what we think about morality, and there're certainly going to be some views that are widely held, but it seems a stretch to say that this is what holds society together or that these bonds need to be completely agreed upon in order for this society to be held together.

Devlin might have had a more robust understanding of society in mind, not just a group of people who live near each other, but a group of people with some shared set of ideas about politics or morality. We can call this the shared morality definition of society. But then it seems that we might see an ambiguity in how society is being used in the first two premises and how it's used in premise five, where Devlin argues that a society can legislate to enforce the current public morality.

So if a society is as a matter of definition just a set of people with some particular set of shared ideas about morality, then any change in a society's shared views will by definition cause the extinction of that society and the creation of a new society with somewhat different shared views. But then it's unclear why we should care about this kind of change or this kind of extinction and creation of societies since we've said nothing at all so far about whether or not the changes in a good direction or a bad direction. If we go for this shared morality definition of a society, it's unclear why we should care about any particular society being disintegrated. So we'd have no reason to think that premise five is true.

Premise three says that a society can be disintegrated by alteration or erosion of the public morality. If we're just defining a society in terms of it's shared morality, then it might be true that if we alter the morality that society goes away because it is no longer true that these people all share this moral view. If a society is defined in terms of a geographic community, it's not at all clear that this premise is going to be true. After all, we see great kinds of change within geographic communities. They certainly seem to be able to tolerate a lot of social change without it leading to societal extinction or to total social breakdown. There's a specific idea of society working in the background that makes some of the premises plausible, but only on this understanding of society.

Devlin's view
Premise four is the idea that the public morality is the moral view of the reasonable person. There's going to be an initial issue of whether there is any such public morality in many places. Devlin says that immorality then, for the purpose of the law, is what every right-minded person is presumed to consider to be immoral.

We can ask, who are the right-minded people? Are those who are not right minded still a part of our society? It certainly seems that for most issues of this sort, concerning things like sexual morality, reproductive choice, the appropriateness of various forms of punishment, or even things like the proper balance between freedom and equality or freedom and security, there's a great deal of moral disagreement within any given society.

Indeed, one of the large concerns that Hart and others have, is that we don't all agree on issues of morality. We needn't be relativists about morality or to think that all opinions are equally valid. We just have to note that there is disagreement and then note that people are entitled to have different views, and that we shouldn't enforce our particular moral views on other people, particularly in cases where there's no harm occurring. Hart stresses that it's a mistake to think we have this kind of shared morality.

Devlin's view
Premise five suggests a kind of self defence principle for society. To defend the society we can outlaw certain things. This argument is somewhat familiar to the cultural preservation arguments made with respect to having permissible immigration restrictions. Again there's a worry about defending the existing society.

Devlin writes, there are no theoretical limits to the power of the State to legislate against treason and sedition, and likewise I think there can be no theoretical limits to legislation against immorality. He leans on the idea of self defence. We might see it as trying to fit within something like Mill's harm principle by suggesting that society will be harmed if we don't outlaw certain things.

It's unclear why we should care about disintegration of society if this just means that alteration or change in the moral views of some community, particularly if there's not even any suggestion that this alteration or change will be in a morally bad direction. Otherwise it seems that changes to public morality don't really threaten society in a more robust sense of society. This is different than the ways in which war or treason might threaten the continuing existence of an independent nation state. The self defence analogy doesn't really seem to fit. Moral change or social change over time within a society doesn't seem to limit anyone's positive or negative freedom or cause harm to anyone in a more straightforward way.

Professor Guerrero thinks that there are good reasons that Devlin takes this strategy, since there's in fact widespread disagreement about morality. This is one of the themes of Jeremy Waldron's work and the work of John Rawls. Both of these figures stressed the fact of reasonable pluralism or reasonable disagreement about morality within a political community. As a result, although there are still some debates about this issue of whether we can criminalise something just because we think it's immoral, many now see harm to others as a kind of necessary condition for criminalising some conduct. Then of course there are difficult debates as to what constitutes harm.

9.4. Theories of punishment

the system question
H.L.A. Hart argued that in the philosophy of crime and punishment there were three related questions that we have to ask.

First is the system question. What, if anything, justifies the creation and maintenance of a system of crime and punishment? We can also think of this as the why should we criminalise and why should we punish questions.

targeting question
Second, there's the targeting question. What principles or aims should determine which individuals get punished? We can also think of this is the who should be punished question.

Finally there's the quantity question. How should the kind and amount of punishment be determined? How much punishment should be applied in particular cases? We could also think of this as the how much punishment question.

the quantity question
Ideally those questions would all be given answers by a unified theory providing a unified explanation of punishment, and a unified justification for the system of criminalisation and punishment.

We can't assume that we're going to find such a theory, but in philosophy, in this area, that's one of the things people are trying to do. There are some more widespread views about these issues and some attempts to answer these questions.

There is the philosophical view of abolitionism with respect to crime and punishment. The strong abolitionist thesis is that nothing does or could justify a system of crime and punishment, given that punishment involves the intentional infliction of burden or pain.

A weaker abolitionist view is that our current system, and perhaps most actual systems of crime and punishment is not justified given the details either of how or what we criminalise or punish.

We could be abolitionists about punishment without being abolitionists about criminalisation. We could think that punishment is all unjustifiable but still think that it is acceptable to mark out some activity as criminal. We might ask, what would be the point in doing that? Why criminalise without punishing?

One reason might be as a way of marketing out socially and democratically agreed upon norms. Another might be because criminalising some conduct is just as effective a deterrent in practise as criminalising that conduct and then punishing it.

weaker abolitionism
It might strike many people as absurd to think that that would actually come out that way, that mere criminalisation was inadequate, but the deterrence record for most punishment is quite mixed. So what might motivate the strong abolitionist idea?

One view is what we might call a deontological pacifism, which is a strong view that we should do no harm combined with a distinction between doing harm and allowing harm. In this view there might be a focus on repairing harm and the causes of crime and criminality.

deontological pacifism
The aim would be a deep deterrence of crime so that we prevent it from happening in the first place, or at least of the crimes that can be deterred. One can look at the social and economic conditions that lead to crime, if there are such conditions.

Another kind of motivation for the strong abolitionist view is the idea that individuals have rights that cannot be waived so that everyone has a right not to be intentionally made to suffer, even they are violating the rights of others. One of the natural justifications of punishment is that when people commit criminal acts they waive rights against certain kinds of treatment and punishment of them. If you hurt somebody else then you make yourself liable to being hurt through punishment. One might reject the view that these rights can be waived simply in this way.

Finally, one might endorse something like a utilitarian or a consequentialist view, and end up as an abolitionist of the weaker variety because of claims that punishment always causes harms, and that it very rarely effectively deters people, so that the net effects of punishment are negative. We might also think that the weak abolitionists claim is motivated by looking at the history of our actual practises with respect to crime and punishment, and noting how often it seems that crime and punishment have been used as crude forms of social control, particularly control of certain racial or socioeconomic groups or people that have mental health problems. The French philosopher Michel Foucault gives a diagnosis in this regard in his book Discipline and Punish.

consequentionalist justification for punishment
We might be sceptical of a lot of our actual crime and punishment practises and that might motivate a kind of weak abolitionism, so we shouldn't assume at the outset that we can justify criminalising conduct and then punishing people for engaging in that conduct. There are a few views that attempt to offer justifications for this. The first view is the utilitarian or consequentialist view, which has the benefit of being a truly unified theory with respect to all three questions.

With regard to the system question, what if anything justifies the creation and maintenance of a system of crime and punishment, the utilitarian consequentialist view says that a system of crime and punishment is justified if it brings about benefits that are greater than the adverse consequences it brings about.

With regard to the targeting question, who may be properly punished, it says that individuals may be punished if and only if punishing those individuals brings about greater consequences than not doing so. And with regard to the quantity question, how much punishment and what kind of punishment, it says that the amount of punishment should be calibrated to bring about the greatest consequences possible. This is a consistent position where we think about the best possible consequences.

In discussions of consequentialist views, there's almost always a focus on deterrence, using the idea of punishment harming people, but it can deter people from doing more bad things than it causes by itself. There is a distinction between general deterrence which includes deterrence of everyone, and specific deterrence, which focuses on deterring a particular individual being punished.

consequentionalist justification for punishment
One way of specifically deterring a particular individual is through what's referred to as incapacitation, so making it impossible for that individual to commit a crime, for example by putting that person in prison. It's worth noting that we can't just say that we should have punishment at a level that optimises crime deterrence until or unless we've settled upon what constitutes crime.

We could get optimal crime deterrence by decriminalising everything. If nothing is defined as a crime, then there'll be no crime at all in our society. That wouldn't be a good way of defending a deterrence approach. Ultimately for consequentialist approach we'll need some theory of goodness, a theory of how to rank consequences or states of affairs, and then after that we can define what we should criminalise.

In terms of their relation to this goodness, whatever it ends up being, we'll say that we criminalise which takes us away from the good. We might, for example, adopt Bentham's hedonic view, which focuses on pleasure and pain, and then we'd think about what conduct actually leads to pain, and criminalise that conduct. Alternatively we might embrace some other account of the good. Unfortunately, although consequentialist utilitarian views have this nice theoretical simplicity, it's hard for them to avoid what appear to be a number of serious objections.

First, as with utilitarianism in general, there's going to be a worry about punishing the innocent person to quell the mob. A certain kind of secret punishment of the innocent is not ruled out adequately on a simple utilitarian view, which seems to generate problems as a theory of punishment. We tend to think that you can't be permissibly punished unless you've done something wrong. In a utilitarian view that just might produce great benefits, even though you didn't do anything wrong.

Similarly, there doesn't seem to be any objection to pre-punishment in the utilitarian view, where pre-punishment is punishment of people before they commit crimes, if that would be a useful way of specifically deterring them from committing crimes. If you could identify that some person was very likely to commit a crime, the utilitarian view might well justify punishment of that person.

There's also nothing to rule out non-proportionality in terms of punishments. In general we think that the punishment should fit the crime, and that means at least that the punishment should not be grossly disproportionate to the crime. But from a utilitarian perspective or a perspective focused on deterrents, it might well be best to punish in incredibly severe ways every now and then to make an example out of people. That might all be very good from a deterrence point of view. The utilitarian will say, well look but that has certain really bad consequences, but there could be cases where it would bring good enough deterrence to make it seem justified.

Finally, a related problem is that we might get a great deal of inequality in terms of the punishment between people who commit the same crime. For example, one might get a much greater deterrent effect from punishing a celebrity. Everyone would see that this person was being punished. This might have a really useful deterrent effect, but it would violate norms of equal treatment to vary punishments on factors such as these. For all of these reasons, consequentialists and utilitarian views of punishment seem to have significant problems. They have merits but Professor Guerrero thinks that they run into objections.

9.5. Theories of punishment: Retributivism

three questions
There are three central questions for a philosophical theory of crime and punishment. First there was the system question, what if anything justifies the creation and maintenance of the system of crime and punishment? Second, there's the targeting question, who may be properly punished? Finally, there's the quantity question, how much punishment should be applied in particular cases?

The utilitarian or consequentialist theory attempts to answer all of these questions. This view ran into a number of problems. First, it doesn't rule out punishing the innocent. Second, it seems to permit pre-punishment. Third, it doesn't rule out non-proportional or disproportionate punishment. Finally, it seems to allow wide variation in punishments between otherwise similar cases depending on the future effects of those punishments.

Many of the problems with consequentialist theories stem from the fact that they are forward looking. They look at the good that criminalising and punishing actions will do going forward in the future. Backward looking views take into account what's already been done, what's already happened.

It seems that we want a theory of punishment that has more of a backward looking component. A theory that does better along a number of these dimensions is retributivism. The basic idea behind retributivism is that punishment is justified and morally appropriate if, and only if, it is deserved.

sufficient necessary
This view sets out moral desert. Desert of punishment has both the necessary condition for punishment being appropriate, but also a sufficient condition for punishment being appropriate. One of the places that the utilitarian view gets into trouble is that it doesn't have a direct way of treating desert as a necessary condition for punishment. This makes it permissible to punish the innocent.

The retributivist view goes further, saying that if a person deserves punishment, then that's sufficient reason to punish them, regardless of whether the consequences of doing so would be good or not.

Indeed, the most common kind of retributivist view says that there's a positive moral duty to punish the guilty. The retributivist view is an action matching view. So if you do something bad, then it's just when bad things happen to you.

why retributivism
From the retributivist viewpoint, it's important both have a clear idea on what constitutes punishment and on what constitutes desert of the kind that would make it appropriate for people to be punished. One motivation for the retributivist picture is that crime involves taking an unfair advantage over the law abiding, and that punishment will remove that unfair advantage.

This picture can be related to the social contract ideas discussed earlier in the course. If we've all agreed to a social contract in some sense, and then you violate the terms of that contract, then it might seem appropriate for you to be punished, to sort of get back in line with the rest of us who're abiding by the contract. Another related idea is that if we've all agreed to some terms, then it's cheating not to abide by them. Punishment then would be a way of taking away the advantage that a person has unfairly gained.

why retributivism
There're a few problems with this idea. First, there are many crimes for which committing those crimes doesn't really seem like taking unfair advantage. It might seem appropriate when dealing with crimes like theft of property, fraud, or other kinds of economic crime. For many other crimes this does not apply, for example personal drug use or murder in a moment of rage.

It doesn't seem that captures whatever the problem is supposed to be with this kind of conduct. It's hardly as if for most of us, what we really like to be able to do is to act violently, but we rein ourselves in because of the law. It doesn't seem like we'd all take this kind of unfair advantage if only we could. It seems to miss what's really wrong about murder, rape or assault.

There's a much more basic explanation stemming from unjustifiable harm violating other people's rights of bodily integrity. That seems the kind of explanation we should give. So in many ways a more plausible justification for retributivism and for the view that there's a tight connection between appropriate punishment and moral desert, is the idea that crime makes certain kinds of emotional kinds of responses. Particularly anger and resentment and then guilt on the part of the perpetrator makes those kinds of emotional response appropriate.

In addition to these types emotional responses being appropriate ones to feel the further retributivist claim is that punishment is an appropriate expression of those emotional responses, or an appropriate way of communicating censure or condemnation for those who have broken the law. Again we might ask, is this kind of story going to make sense for every kind of crime? Imagine a billionaire stealing more billions of dollars versus a person who steals money to feed his or her family. It doesn't seem that we'd feel the same kind of rage in both situations. We might end up feeling the retributivist account is plausible but only if we restrict what we're criminalising in the first place, so as to line up with these ideas of when we think resentment and anger and condemnation are appropriate.

We might also ask why certain kinds of punishment, namely the use of the prison, predominate, if punishment is mostly about expressing these emotional attitudes that we appropriately hold toward people that have committed crimes. Is that the best way to communicate this kind of response? Finally, we might also ask about whether these kinds of emotional reactions, in particularly various kinds of punishing responses connected to the emotional reaction, are really appropriate once we see some of the causes of criminal behaviour.

So, if someone commits a crime because he or she is mentality ill or desperately poor or addicted to drugs, this might affect how we feel about such individuals. It seems more appropriate in a lot of these cases to help the person, rather than punishing him or her, and that our ultimate aim should be to reduce the number of people who are afflicted in this way. These questions take us to the basic ideas of punishment and moral desert.

We can ask, what is punishment? In a very general sense, punishment is characterised as having three main elements. First, it must impose a harm or cost or hardship of some kind on an individual. Second, this harm or cost must be imposed intentionally. Third, the harm or cost must be imposed on the individual intentionally in response to what's believed to be inappropriate or wrongful conduct on the part of the person who's being punished.

Some think that a fourth element must also be present for punishment, the idea that the harm's being imposed, at least in part, as a way of communicating to the individual and to the broader community that the person being punished has behaved inappropriately or wrongly. That's obviously an essential part of the retributivist view, but Professor Guerrero thinks that there's something of a more specific kind of commitment about punishment in general. Maybe for the retributivist, this is an important part of punishment, but maybe not for all views of punishment. This general template of punishment leaves open quite a bit in terms of what might actually be done to people as a way of punishing them.

moral desert
The other key idea in the background is moral desert. The idea of desert or deserving something is familiar, but it's also a little mysterious. In philosophical discussions, desert is thought of as being a three part relationship including, first, the person who deserves something, second the thing that she deserves and then third that in virtue of which she deserves it.

Although we speak of deserving good things and deserving bad things, in this context we're focused on deserving punishment. That makes it relatively simple in terms of who the person is who is deserves something. That's going to be the person convicted of the crime. The thing she deserves is punishment, but here we get into some complications. What exactly does she deserve and what's the exact desert basis that in virtue of which she deserves punishment?

The first question, what does the wrongdoer deserve, is a particularly difficult one. One good thing about the retributivist account is that it puts this question squarely in view and it makes particularly salient ideas about what's called proportionality. It's because desert figures in that we must think about whether the punishment or the treatment received is proportional to the offence. One difficulty is in coming up with a suitably broad account of the desert basis that matches up with what we actually criminalise.

moral desert
It might seem that people who intentionally do really terrible things to other people and for no good reason and with no apparent excuse or justification, those people might deserve punishment because they have intentionally violated the rights of others, or have disrespected others, or have been reckless or callously indifferent to the suffering of others, but much criminal activity doesn't seem to be like this.

Often there is some kind of explanation or excuse or no actual harm to others occurred or was intended. In cases like this, it seems that either a very different kind of punishment would be deserved or no punishment is deserved. Criminal law can take this into account in various ways in giving people different sentences or in allowing that certain factors can serve as defences or excuses toward what would otherwise be wrongful conduct.

The important point here is just that we need to scrutinise whether all criminal wrongdoing is the same in this regard, whether it all has the same desert basis, so that something like prison would be the appropriate response for all crimes or for most crimes. Or on the other hand, if we think it does look pretty different in different cases, then we'll need to think about alternatives in which the background desert basis seems appropriately different.

Another issue with the retributivist account that, even if we think that it's appropriate to punish someone only if he or she deserves it, we might still think that this is just a necessary condition for punishment, but not a sufficient condition. After all, why should we get involved in intentionally harming someone in this way? A natural response looks to ideas of deterrence. Maybe we should get involved to deter other people from doing this or deter this person from committing a crime again. That's a very different kind of idea than the retributivist one.

9.6. Retributivism reconsidered

H.L.A. Hart's view
There are worries about the generality of the retributivist view. There might be lots of crimes for which we don't really feel that intentional affliction of harm is the appropriate response. There are also issues with the idea that desert is a sufficient condition for punishment. As H.L.A. Hart has put it, the retributive idea of justice appears to be a mysterious piece of moral alchemy in which the combination of the two evils of moral wickedness and suffering are transmuted into good.

Many people might start with retributivist inclinations, but that if one becomes acquainted with most actual criminal justice systems, and the many different people that actually fall within their boundaries, one might start to think that the retributivist motivation is natural but misguided. This view might serve as a reason to restrict what's criminalised to a much smaller set of things, only those that are really harmful and are done by people who are clearly fully morally responsible for doing them. This would leave out much of what's currently criminalised.

hybrid theory
Retributivism does seem to get something right though. It's the idea that some kind of moral desert is a necessary condition of punishment is very plausible. It's a useful corrective to the consequentialist picture of crime and punishment, which seems to, at least in its very crude versions, just to ignore that fact.

This has led some to embrace what might be called hybrid views or side-constrained consequentialist views. The basic idea is to start or think about a consequentialist theory, but then add in rights or constraints that limit what options can be taken whatever the good consequences might be that would follow if one took those options.

In the punishment realm, this kind of view would say that moral desert is a necessary condition for justifiable punishment, that proportionality is a necessary condition for justifiable punishment, and that equal treatment is a necessary condition of justifiable punishment. There'd be these three kinds of necessary conditions and then we could be consequentialist. This kind of view would say then if these three conditions are satisfied, then we could look to the consequences of punishment, and then we'd make a judgement about whether imposing that punishment or having a system that imposes punishment in cases like those would produce better consequences than not doing so. There's a consequentialist dimension that comes in only after these other conditions are satisfied.

There are going to be worries here about equality and implementation. So if some of the good consequences stem from the potential deterrent effects, there might be significant variation amongst otherwise very similar cases. For example, if you had high profile individuals, or if there were people who are very hard to deter, or very easy to deter, all of this would seem to affect the consequentialist calculation, even after we've identified these three conditions being satisfied without affecting the desert, or the proportionality, or the equality analysis. So these three restrictions might end up being very significant restrictions from the consequentialist's point of view.

H.L.A. Hart's view
In doing the full consequentialist analysis, one has to look not just at the potential deterrent benefits, if there are any, but also at the full range of costs of the system of criminalisation and punishment. We can consider what punishment is actually like and the harms it actually has, not just on the people convicted of crimes, but also on the families and communities that they leave behind, and perhaps, in most cases, eventually return to.

We should also take into account the incredible cost of punishment in monetary terms. In a 2010 Vera Institute of Justice study that covered 40 of the states in the United States, the total per inmate cost per year average $31,286, and range from as low as $14,000 in Kentucky to $60,000 a year in New York. We might do other things with that person for $60,000 a year, for example send him or her to the most expensive college in the world.

This also raises the question of what we're actually doing in terms of punishment and the full costs of what we are doing. The general template for what punishment is leaves a lot open. A lot of different things fit under the heading of intentional infliction of harm or cost as a response to what's believed to be wrongdoing on the part of the person punished. If we look throughout human history, many different things have been tried. Michel Foucault gives a philosophical chronicle of this development over time in his book Discipline and Punish.

There are some broad trends. First, it used to be relatively common to have various kinds of intentional physical harms, including death, forms of torture, or cutting off of limbs. There was often a public spectacle made of this. The general tendency has been away from anything intentionally physical and away from anything intentionally public. This was seen at the time as a civilising development or a development in a morally good direction. One animating idea was that we should do something with people who had committed crimes that would both help them see the wrong in what they had done and help them become people who would not commit such wrongs in the future.

hidden costs
This led to the development of things called penitentiaries, places for people to go to be penitent, to think and repent on what they had done, or reformatories, or houses of correction, places where deviants would come to be corrected. With this development there was a sense in which a harm was still being intentionally inflicted, but this was the harm of having one's liberty restricted and the harm of being forced to confront one's wrongdoing.

There's a worry that we switched from overt public infliction of pain and suffering to a more hidden, in some ways more terrible and even more brutal infliction of pain and suffering, first by taking many years of people's life away behind prison bars, and second, by stripping away almost all elements of education and reform to that experience. It's really not the idea, at least not in the United States, of this sort of reform or house of correction with lots of educational opportunities and opportunities for people to reflect and think about what they have done.

violence rampant
Finally, the experience has become increasingly brutal and violent and degrading in its own right, not as part of the intentional sentence, but as part of the things that actually happen in prison. In the United States, studies estimate that between 10 and 20% of people in prison will be raped while they are there, that prison violence is rampant in many facilities due to overcrowding and insufficient staff. In many places it's common to use solitary confinement in a way that amounts to literal psychological torture. So, the cost we're imposing on individuals is very high while they're in prison. This is something that goes into the consequentialist's analysis.

After people have completed their sentences, there are still tremendous so-called collateral consequences of having a conviction on one's record. Often, ex-convicts are barred from getting financial aid for going to school, barred from getting various kinds of occupational licences even for things unrelated to one's offence, barred from getting health benefits or food benefits, and barred from various forms of political service, such as voting or serving on a jury. Furthermore, they can routinely be discriminated against in all kinds of employment contexts. These are all huge costs on individuals and on their families and the communities from which they come and to which they return. It's very hard to integrate such people back into the community.

Furthermore, and perhaps most striking, despite all of these terrible conditions and the huge consequences for individuals, the United States system has routinely proven to be a very ineffective deterrent to crime. This is relevant for the consequentialist calculation as a key potential benefit of punishment is deterrence. As noted earlier, crime rates and incarceration rates have often been unrelated to each other, with incarceration rates increasing dramatically in the United States while going down in other places, all while the crime rate remained relatively constant. Furthermore, many reports suggest that prison remains an ineffective deterrent and that these collateral consequences add nothing to the actual deterrent effects, while these institutions actually promote recidivism.

It might make us wonder about the causes of criminal conduct. In particular, it seems that whatever is causing the behaviour is a relatively powerful force, one that seems insensitive to the particular stick that we're using as our deterrent. Given the sharply racial and class-based character of who ends up actually going to prison, as distinct from who actually commits crimes, we might worry about the claims that these people actually deserve this treatment. Both of these factors suggest that we should reassess whether the desert condition is really satisfied, and whether proportionality and equality constraints are satisfied.

9.7. Alternatives to incarceration: Restorative justice

restorative justice
The basic idea of restorative justice is that punishment is justified if and only if it promotes restoration. This theory, that is developed by many over the last several decades, but particular by Howard Zehr, begins with noting that crime, or at least some criminal activities, creates division and rifts in the social fabric, and that these rifts and divisions require repair.

restorative justice
It might be a necessary condition that a person has committed an offence, but there's no claim that this person deserves to be harmed. Instead, the person that has committed the offence can help to repair the rift since only that person can offer penance or apology, or be appropriately required to make the victim whole or restored in various respects.

One of the other key ideas is that more attention should be paid to repairing the actual harm caused by criminal activity. In the current system, victims of crime are left almost entirely out of the picture, and few efforts are made to repair or restore victims to the state they were in before the crime occurred. That's very different in the restorative justice model.

reparative justice
Cooperative processes might be important, ones that include all stakeholders, including the victims, family of the victims, family of the offenders, and the broader community. The practises and institutions in this system will aim to identify and take steps to repair harm, to include all stakeholders, and to transform the traditional relationship between communities and the government in responding to crime.

Some of the institutional proposals include things like mediation and conferencing that includes victims, offenders and other individuals with some stake in the case. In some cases, explicit efforts are required to assist victims, to make the offender make restitution to the individual who was harmed or to the community, and then to work to reintegrate the offender back into the community. Throughout, the focus is on restoration.

In this view, justice requires that we work to restore those who've been injured and harmed, that those most directly affected by crime should have the opportunity to participate fully in the response to that crime if they wish to do so. The government's role is to preserve a just public order, whereas the community's role is to build and maintain a just peace.

four elements
There are four key values to restorative justice. First, encounter, which is creating opportunities for victims, offenders and community members who want to do so to meet to discuss the crime and its aftermath. Second, amends, which means that offenders will take steps to repair the harm they have caused. Third, reintegration, which means restoring both victims and offenders to being whole, contributing members of society. Finally, inclusion, which means that those affected by a specific crime, including the community, should have an opportunity to participate in its resolution.

arguments in favour of restorative justice
Some of the arguments made on behalf of the theory are that it does better than alternatives. For instance, it takes into account victims' interests. Research has shown that victims generally don't have retributive vengeance-seeking attitudes.

They want information about their cases and often want to participate in their cases. They often want emotional restoration and apology, and in some cases they want material reparation from the offender. These are empirical claims about what victims actually want, and they might differ depending on the details of the crime. The current system does very little to address any of these interests of victims.

arguments in favour of restorative justice
A second argument made on behalf of restorative justice is that it's better at promoting repair and transformation in offenders. It allows for more opportunity for offenders to reintegrate, to process the emotions that are related to the offence, and to restore a sense of self-respect and respect from others. A third related argument in favour of restorative justice is that empirical work suggests that those institutions practising restorative justice do very well at reducing recidivism.

arguments in favour of restorative justice
That isn't surprising, as addressing the emotional side of offending, as well as promoting reintegration and community involvement, seem important components of reducing recidivism. A more complicated argument made on behalf of restorative justice institutions and institutions designed on these principles is that they're actually better at preventing crime.

This might be counterintuitive since one of the main worries expressed about these institutions is that they're too soft to serve the purposes of deterring crime, but in the full analysis of crime prevention, there are two dimensions. First, there's the deterrence of potential offenders, and then second, there's the deterrence of previous offenders, preventing recidivism.

Prisons do really poorly at actually deterring potential offenders. The suggestion is that restorative justice does quite well at preventing recidivism, so as long as restorative justice institutions do no worse than prisons or not much worse than prisons at deterring potential offenders, they might well come out ahead. The underlying causes of crime don't have anything to do with people thinking about the future and what punishment they might face. That's only a small part of the calculation of people who engage in criminal activity, if it's any part of that calculation.

arguments in favour of restorative justice
Finally, given that they're often very different kinds of sentences coming out of restorative justice institutions, with long-term prison sentences being the exception, these institutions end up being much cheaper. It's a much more cost-effective crime prevention. If we prevent crime at a similar rate, but it's much cheaper, then it's much more cost-effective. There might be some crimes that wouldn't be at all appropriate for this approach, and there would definitely need to be room for victims to opt out. A rape victim might never want to encounter the offender.

There'll also be worries about the details of implementation and the way in which different victims might react to different offenders based on factors like race and class and age. Therefore, we need to have some mechanisms that think about the equity of the response and biases of various kinds. Relative to the current system in the United States, where race and class currently play a large role, restorative justice still might come out ahead.

Finally, it's worth thinking about restorative justice and restorative justice mechanisms and institutions as one possible part of a new kind of response to crime. We might not have one single solution. We might instead have some restorative justice institutions, which means organised mediation and conflict resolution in response to some kinds of crimes, based on restorative principles where the offender is required to do certain things for the victim.

Angela Davis' view
Apart from that, there might be need for drug courts, where people with drug problems are connected with drug treatment, or improved mental health treatment and supervision.

As Angela Y. Davis puts it, rather than try to imagine one single alternative to the existing system of incarceration, we might envision an array of alternatives that will require radical transformations of many aspects of our society. She suggests, for example, rethinking the criminalisation of drug use and instead promoting greater access to drug treatment programmes, which currently are expensive and largely unavailable to the broader population.