I’ve found the recent debates about punishment and retribution very interesting — I may actually see whether there’s anything left to write on the subject (despite the centuries of philosophy and legal thinking on the matter). This really is terribly important stuff. It’s important if we retributivists are right (regardless of whether the retribution should come in the form of prison terms, death, pain, or whatever else), and it’s important if we’re wrong: Either sort of error may cause lots of needless suffering, whether to the criminals or to their victims.
For now, let me note one brief observation, which again is present even if one sets aside the death penalty, painless or painful. Many people have argued that it’s wrong to derive pleasure from others’ suffering, and I suppose I agree under some definitions of pleasure — we shouldn’t take out the popcorn and settle in for a fun evening of contemplating the suffering inflicted on others. But I think that under many necessary and proper theories of punishment, it’s quite proper to derive satisfaction from criminals’ suffering. That sounds cruel, but it seems to me quite right, and here’s why.
We can identify six main theories of punishment, though I’m sure there are others, and other ways of categorizing these ones:
1. Incapacitation: Lock someone up so he can’t commit the crime again (or chemically castrate him or whatever else). I think this is quite right, though there may be limits on how long it’s fair to lock people up. And this doesn’t require that the person suffer: If we could cheaply incapacitate someone in ways that are perfectly pleasant for him, we’d still be fulfilling the goal of incapacitation. But incapacitation can’t be the whole story; I take it, for instance, that if a rapist gets into a car accident after the rape and becomes paraplegic and practically highly unlikely to rape, we wouldn’t just let him out.
2. Restitution: Make the person pay for the damage he did. This too is good, and it doesn’t require that the person suffer. (The payment may make him suffer, but it need not; if Winona Ryder shoplifts something and then has to pay for it, the payment probably isn’t enough to make her suffer, and yet the restitution function is entirely satisfied.) But while this can work well for purely financial crimes, it’s much less satisfying for other crimes, and often the criminal doesn’t have the money to pay.
3. Rehabilitation: Make the criminal change his ways. “Nice work if you can get it,” I say — from what I hear, no-one quite knows how to do this reliably, and even the programs that seem to work the best tend not to be that effective. Still, in principle, if this were possible, it could be doable without the person’s suffering (unless the rehabilitative technique relies on the person’s suffering).
4. Norm-setting: Send a message to the public that something is wrong, and affect their moral judgments (and not just their cost-benefit analysis). Locking up drunk drivers, for instance, might lead people to recognize how bad this behavior is; some people hope that hate crimes laws may have a similar effect. Likewise, sternly punishing date rape might open some other people’s eyes to how awful this crime is. It may do little to the serious sociopaths, but it may affect some people who have decent impulses as well as evil ones. And punishment of 60-year-old Nazis might serve as a reminder to the public about how evil Nazism is.
This, I think, generally requires that the punishment involve some suffering, precisely because the infliction of suffering is what helps set the norm. Just saying “drunk driving is bad” or “date rape is bad” might do something, but not much; the government says similar things all the time (“literring is bad”), and people tend to tune them out. I think that what makes the prosecution of these criminals noteworthy, and norm-reinforcing, is that the legal system finds the crime so serious that it’s willing to inflict suffering as a result.
Again, consider the thought experiment from item 1: Imagine that one could come up with a “punishment” that inflicted no suffering; for instance, say that drunk drivers could be given a pill that keeps them from getting drunk (and assume that for most people that wouldn’t cause suffering). The resulting penalty may make for quite effective incapacitation, but I doubt that such a suffering-free punishment would much affect moral norms.
5. Deterrence: Increase the cost of crime to the criminals, and thus scare them away from the crime. Now this necessarily involves inflicting suffering; if the punishment didn’t include suffering of some sort, then criminals wouldn’t be deterred by it.
What’s more, if we take a deterrence perspective — or, say, a deterrence-incapacitation perspective, or some other mix that includes deterrence — then we should derive satisfaction from knowing that criminals will suffer. The satisfaction may be tinged with sorrow, regret, or even disgust at the suffering. Locking someone up for the rest of his life, or even for several years, is surely a harsh and even brutal punishment, and would be even if we eliminated the risk of prisoner-prisoner violence.
Nonetheless, if we believe in deterrence, we are deriving a benefit from this suffering: It is this suffering of the criminals that is making us and our children safer. And as a result we must presumably derive some (though not unmixed) satisfaction, as we would from anything that we think makes us safer, and is morally justified.
6. Retaliation: Punish criminals because they deserve to be punished for the evil things they did. This, as I’ve argued before, is the best explanation for the understandable and laudable campaign to punish 70-year-old Nazis.
Likewise, say that there were some entirely suffering-free way to incapacitate and deter rapists: For instance, assume for the sake of argument that there’s a cheap (and constitutionally and morally permissible) form of chemical castration that can for some period of time take away their sex drive — which means that they won’t even miss sex, forced or unforced — and say that reliable comparative studies show that this deters rape as well as other punishment does. (For instance, say that uncastrated men really don’t want to be chemically castrated, but once they are they don’t really suffer much, setting aside for a moment any possible social shame that might come from being uninterested in sex.) Would we think this is really enough? If the rape victim came to us and said, “So the trial was yesterday, and today I saw the man who brutally raped me walking down the street whistling,” would we think that justice had been done?
If we wouldn’t think so — if we think that justice requires some retaliatory punishment here, or as to the Nazis — then we are demanding that the criminal be made to suffer, even if just through the loss of liberty. And thus presumably when we hear about old Nazis or young rapists being convicted and thrown in prison, we derive satisfaction from knowing that the person is suffering.
So it seems to me that if we endorse theories 4, 5, or 6, or some mix of them and other theories (and I think most of us do endorse such a mix), we support deliberately inflicting suffering on criminals, and derive benefit and satisfaction from this infliction. Again, doubtless some moral rules limit the type and amount of suffering we can inflict on people for certain crimes. (Even if we really want to deter pickpockets, and the death penalty deterred them, I don’t think the penalty would be a suitable punishment, though I won’t go into the reasoning for that here.) And perhaps some moral rules categorically limit the type and amount of suffering we can inflict on people for any crime. Perhaps, for instance, it’s proper to derive satisfaction from deprivation of liberty but categorically improper to derive satisfaction from deprivation of life or infliction of physical pain.
But unless we limit ourselves to theories 1, 2, and 3 — unless we renounce not only retribution but also deterrence and probably norm-setting — we must acknowledge that our criminal justice system is largely based on the infliction of suffering, and rightly so; and that we are therefore right to derive satisfaction (though not unmixed with regret and other emotions) from knowing that criminals are being made to suffer precisely for the sake of the moral and practical benefits that this suffering causes us. Maybe that’s a reason to utterly reject deterrence and retaliation. But if we accept them, then what I say here seems to follow, not just as a matter of my moral judgment but as a matter of logic.
UPDATE: A reader writes, “[I]t seems to me that you can change the phrase ‘suffering’ to a less emotive phrase such as ‘deprivation of liberty and/or property’ and not change your analysis one whit. The problem with using ‘suffering’, as I see it, is that ‘suffering’ is usually equated to ‘physical suffering’, which evokes images of whips or torturing, etc., and the very idea of possibly being thought inhumane is anathema to the psyche of modern-day Liberals. Thus the use of the word ‘suffering’ clouds the minds of many people and inhibits rational analysis.”
But I’m deliberately trying to draw the analogy. We’re not talking about some abstract legal machinations, which is likely the first image that “deprivation of liberty and/or property” (especially with the “and/or”) creates. Nor are we talking simply about deprivation of liberty and/or property — as I mentioned in my discussion of the first three reasons for punishment, we can imagine deprivations of liberty that are set up to minimize suffering. To take a noncriminal example, if I’m quarantined because of a contagious illness — a form of incapacitation, since my isolation will prevent me from inadvertently doing harm — I hope the government will try to ease my suffering as much as possible.
Rather, I’m talking about inflicting suffering on people, suffering that may cause a great deal of psychic pain, and that is inflicted *precisely in order to inflict such pain*. Now maybe infliction of psychic suffering by locking people up is legitimate, and infliction of physical suffering by flogging them is illegitimate. But to clear our minds and engage in rational analysis, we have to acknowledge, I think, that both are forms of deliberately inflicted suffering.
Comments are closed.