So I've been thinking a little bit about punishment. It's weird how society pairs crimes with punishment. This is something that I read about a while back when I read Foucault's Discipline and Punish. I thought I'd revisit those themes and reflect on them a bit.
What exactly is punishment? As a first pass, it's a type of action performed by a certain individual to a certain individual for a particular reason. This much is obvious. Let's break down these parts.
A particular reason: Punishment occurs as a consequence of some broken rule.
The punisher: The person administering the punishment can be an individual or it can be an organization. One necessary condition is that either the individual or organization plays some kind of recognized role of authority.
The punished: It is assumed that the individual who is justly punished is the one who broke the rule.
The action: The action itself is supposed to be harmful in some way to the punished individual.
What I wonder about is how the action lines up with the infraction. Sometimes we notice a symmetry. Some states still enforce a death penalty. So, if an individual breaks the right kind of rules, usually involving one or more murders, then he is punished by being killed. Kill someone, be killed. Seems pretty symmetric.
However, most punishments administered by a society like the United States come in two forms: forfeiture of property or imprisonment. These sorts of punishments don't seem related at all to the corresponding crimes. For instance, the punishment for distributing a high enough volume of illegal narcotics is some amount of imprisonment. You sell something you're not supposed to, you get locked up in a building for a while. Why does one follow the other?
Foucault has his own theory, which I don't fully understand. It has to do with the connection between the criminal class and social uprising. The idea is that the criminal class can potentially cite revolution and social upheaval, so social authorities (inadvertently?) keep them contained so as to maintain the status quo.
There might be something to that theory. I want to explore other possibilities. One question that we can draw from Foucault's theory is this: What exactly is punishment for? What is it supposed to accomplish?
When you take an intro to political philosophy class. You learn that there are three different views on what punishment is for.
This view states that punishment exists to provide a negative incentive against individuals committing crimes in the future. So, punishment is a preventative act, focusing on future cases.
This view rests on the intuition that there is something like justice in society. The justice understood here is the kind that has to do with a balance between crime and punishment. The basic idea is that if you do something bad to someone, something bad should happen to you, as a way to balance the scales of justice. Notice that this view doesn't take into consideration what happens in the future. It's just about satisfying a certain demand that many think is intuitive about the way that society should work. "An eye for an eye," so to speak.
This is similar to deterrence in that it is future oriented. However instead of focusing on how others will act in response to the punishment, this view focuses on the individual being punished, and how they will behave in the future. It's pretty self-explanatory. The purpose of punishment on this view is to change the individual in some way such that they won't commit the same crimes in the future/
These views aren't mutually exclusive. An act of punishment can satisfy the objectives of all three views. However, they do come apart. For instance, capital punishment might satisfy the goals of deterrence and retribution, but it obviously does not satisfy the objectives of rehabilitation.
Given these views, we might understand a little better the rationale behind the matching of crime and punishment. Take parenting for example. It seems clear that the objectives behind punishment in the context of parenting either fall under deterrence or rehabilitation. It's weird to think of parents punishing their children simply because "they deserved it."
When we look at the aims of society, however, all three views are under consideration. Deterrence and rehabilitation views are, in a sense, empirically verifiable or falsifiable. We can measure the effectiveness of a punishment in deterring future crime and rehabilitating criminals. Do punishments, as they are currently administered in the United States, meet the goals of deterrence and rehabilitation? That's probably a very complex question, and I don't have the answer.
Many think that even if punishment failed the goals of deterrence and rehabilitation, it would still be required to meet the demands of retribution. This view implies that at bottom, punishment is really about balancing the scales of justice. Deterrence and rehabilitation are extras. I'd like to reflect on this for a moment.
What is retribution about? When do we satisfy the demands of retribution? Suppose that someone commits a crime. Let's say that we have someone who stole a car. What kind of punishment would be fittingly retributive and why?
How would a retributive punishment fit the crime? In general, a crime is considered to be type of harm that is done either to an individual or to society in general. Some crimes are obviously harmful, like theft or murder. Other crimes are not so obviously harmful, like speeding or jaywalking. The latter category might be considered a form of harm in that it increases the probability of some harm being done. Speeding might be considered harmful because it increases the likelihood of a car accident, which is clearly harmful. So, it might be plausible to think of all crimes as harms of some sort.
In order to satisfy a general sense of retribution, the punishment must also be a form of harm. Harm must be exchanged for harm in order to balance the scales, so to speak. Is it enough for society to respond to an act of crime by inflicting harm upon the criminal? Or, does the harm inflicted require further specification?
Punishment can be specified along two dimensions, quantitative and qualitative. Quantitative aspects of punishment can include the magnitude of the harm inflicted, or the duration of the harm. For instance, life imprisonment and a year long prison sentence differ in terms of the magnitude of the punishment. Qualitative aspects of punishment can differ across the varieties of conceivable harm. These include physical harm, psychological harm, economic harm, social harm, etc. For instance, execution qualitatively differs as a form of harm from a fine for however much money.
It seems pretty clear that our sense of retribution places constraints on the magnitude of the punishment. The common intuition is that the magnitude of the punishment should at least be approximately proportional to the magnitude of the crime. We would think it unjust if a crime of murder was punished with a ten dollar fine. Likewise, we would find it unjust if a crime of speeding were met with the death penalty. The challenge here is trying to come up with some sense of quantification for all crimes and punishments. Some crimes, like theft, might be relatively easy to quantify, but what about crimes like perjury? How do you attach a number to something like lying under oath? Punishments might be similarly difficult to quantify. Punishments like fines are easy to quantify, but what about punishments like caning, or solitary confinement?
Things get more difficult when we try to match up crime and punishment qualitatively. You'd think that this would be easy to do. If a criminal steals something, then punish him by taking away some of his property or time. But here's where things take an interesting turn. In modern liberal societies like the United States, certain types of punishment are considered unjust, even if they qualitatively fit the crime. Such crimes include the various forms of physical punishment, like caning or whipping, as well as forms of public shame like using those stocks that you see in colonial villages. So even if a crime is something like rape, many think it unjust if the rapist gets raped in return. Why is this? Why do we have a sense of retribution regarding crimes, but at the same time think that the punishment shouldn't fit the crime in some respects? Note that people would probably still disapprove of these types of punishments even if they were effect in rehabilitating the criminal or deterring future crimes.
The sorts of punishments that people disapprove of are usually sorted into the category of "cruel and unusual" punishment. What makes a punishment cruel and unusual. Let's assume that there is no disproportionate magnitude between crime and punishment. Why are we not okay with the punishment qualitatively fitting the crime in certain respects? It seems clear that this sensibility partly explains why most forms of social punishment pretty much come down to either imprisonment or fine of some sort.