What is the Function of Punishment?

Mike Brookes. 3rd year Philosophy (Applied Philosophy)

"Justice must not only be done but seen to be done". Most would agree with this statement - the wicked must surely be punished (or should they? - do two wrongs make a right?) but why is it so important that the punishment must be seen to be done? To the utilitarian the answer is simple - punishment must be witnessed in order to deter others from committing the same act. Thus, to a utilitarian the perception of punishment is seen as the main, or even the sole, justification for punishment. Of course, if the wrongdoer is sent to prison for any length of time he is incapacitated, and thus excluded from doing further harm. Further, while being punished there may be at least the hope that the wrongdoer repents and reforms. Both these consequences are compatible with utilitarian principles as they both serve to reduce the harm caused by anti-social behaviour. Seen in this way punishment can be said to have a tripartite function - to deter, to reform, and to incapacitate. The extent to which any of these functions are successful is a matter of debate, as is the extent to which any one of these functions should take priority. Although the length of this essay precludes any real discussion on this subject, it would perhaps be as well to mention that broadly speaking those that stress the importance of reform tend to be of the liberal disposition, whereas conservatives tend to put more emphasis on the deterrent aspect of punishment. Both perspectives however are essentially utilitarian as they both see the function of punishment as being to minimise the overall quantity of suffering . Also it would perhaps be true to say that liberals generally tend to view the function of punishment as maintaining morality in society, whereas conservatives are perhaps more likely to argue of the importance of maintaining order in society.

Taking that, by definition, punishment involves inflicting some kind of pain on the offender, the ideas of reform and incapacitation are largely seen as secondary to the main purpose of punishment - to deter. The most well known proponents of utilitarianism have almost always justified punishment in terms of its deterrent effect. Bentham, for example, argued that apparent justice was everything, and real justice was essentially irrelevant. And John Stuart Mill, in defending the death penalty, stated that "to deter by suffering by inflicting suffering is not only possible, but the very purpose of penal Justice. (Mill 1868). This leads to one of the main criticisms of the utilitarian argument, namely the denial that there is any moral justification for punishment other than preventing further suffering. This argument seems counter intuitive - surely the wrongdoer must get his just deserts? What would justice mean if some wrongdoers were to go unpunished simply because no deterrent effect could be demonstrated? Conversely, and more seriously, there would certainly be occasions when innocent men would have to be punished for the sake of the greater good - for example, in that case where an atrocious crime has been committed and the authorities failed to find the perpetrator (This scenario is by no means hypothetical - the “Birmingham Six” is just one example). One may only speculate as to how many miscarriages of justice there have been for the sake of maintaining “apparent justice”. Thus, there appears to be a real conflict between the utilitarian justification for punishment and the common concept of justice.

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Retributive theorists, on the other hand, place the emphasis on the punishment “being done” rather than “being seen to be done”. They claim that inflicting some form of harm to the offender is the primary concern of punishment. We may hope that punishment reforms and deters but these at secondary benefits, not reasons for punishment. This view is epitomised in Kant's assertion that even if civil society were to dissolve itself then the last murderer lying in the prison should still be executed for no other reason than because he has acted criminally. More recently Mabbott (1939) has argued against the idea that punishment should be inflicted for moral wrongdoing. Only God, he claims has the status necessary to punish on these grounds. Our sole concern should be to enforce the law. The problem with Mabbott's argument is that it is open to the same kind of criticism levied against the utilitarian i.e. it sacrifices Justice in the name of some greater good - surely Mabbott is arguing for a greater good just as the utilitarians do? The only difference seems to be that while utilitarians view the greater good as being the maximum happiness, Mabbott sees it as being the maximum social order. It is debatable that Mabbott's claim to be a retributivist can be maintained. In essence Mabbott view it is essentially the Hobbesian view - an argument for social cohesion through social order.

The problem with retributive theorists is that they are caught in a bind. To justify punishment they need to show the positive benifits, which means that they have the same problem as the utilitarians (the greater good is often incompatible with justice). On the other hand, to advocate retribution without pointing to some tangible benefit means that they are left with having to explain how retribution can be distinguished from mere vengeance. According to Robert Soloman (1990) this problem stems from the fact that our concept of justice has been overly influence by Kant's philosophical thinking. He argues that Kant was obsessed with rational principles and failed to recognise that humans are psychosocial beings - they are influence by personal relations as well as social standards set by the community. This has led to the justice system ignoring the victim’s emotions, assuming that they are uncontrollable and irrational. Consequently, to a large extent, the justice system insulates wrongdoers from the human impact of their crimes. This leads to a completely different interpretation of why justice needs to be "seen to be done". Under this view, justice must be seen not in order to deter but to meet our psychological and social needs (especially the needs of the victim)

It is this dissatisfaction within the justice system that has led in recent years to the victim's rights movement, And with it theories that define retribution in more rational terms. One of the main criticisms of retributive theory is that retribution is in itself a kind of crime - mere vengefulness. After all, isn't this why civilisation needed laws in the first place - to prevent an endless spiral of revenge and disorder? However, there is a world of difference between preventing people from taking the law into their own hands and completely ignoring the needs of the victim. Supporters of the victims rights movement complain that if justice is not seen to be done by the victim then this is adding a further crime of to the one already committed.

In "Freedom and Resentment" (1982) P. F. Strawson gives an account of justice in terms of our psychological and social needs. Strawson points to the need to express condemnation - a need of which originates in the emotions of experience when harm is done. The tendency for the justice system to be disparaging of these emotions is a failure to distinguish resentment, which is a perfectly valid moral sentiment, from vengefulness, which is a raw emotion and subjected to inappropriate intensity. Strawson argues that, as human beings, operating in a social environment, it matters a great deal to us whether the actions of other people reflect attitudes towards us of good will, affection, respect and esteem. On the other hand if indifference, contempt or malevolence are expresed then we feel affronted. Social practices such as disapproval, condemnation, punishing etc are legitimate expressions when we feel that our moral demands have not been met. Thus, for Strawson punishment is seen as an attempt to communicate our retributive sentiments - the victim’s resentments and the community's moral indignation. Also from the wrongdoer's perspective (providing he repents) he is given the opportunity to communicate his guilt and remorse.

Strawson also gives insight into the moral psychology of offenders. Offenders are seen to justify their wrongdoing by denying injury, or objectifying, blaming, or devaluing the victim. In part, the justice system should reflect the victims, and the communities need to communicate to the offender the error in his thought process. Justice is done not only when the offender is punished but also when the reasons for punishment are correctly communicated. This is seen not only as a benefit to the victim and community, but also to the offender - giving him every chance to understand the wrongs of his behaviour and to express the appropriate remorse.

One of the main reasons for punishment, argued by both utilitarian and retributivists is the need to maintain law and order. Many argue that it is better to have bad laws than no laws at all. This may be true but it does not follow that lawmakers should abandon their responsibility to punish justly and fairly. If the concept of wrongdoing is to be associated exclusively with law breaking then clearly this is problematic - what if the lawmakers are tyrannical or simply wrong? It seems that any concept of punishment which does not include the concept of justice is self invalidating, otherwise we are simply using punishment as a means to an end, and this will never do because there is always a conflict of interests as to what ends are most beneficial, and for who. Mabbott argues that we cannot justify punishment on moral grounds because of the subjective nature of morality. While it may be true that ideas of right and wrong are culturally and historically subjective, it surely does not follow that we should refrain from making moral judgements. To do this would be to question our capacity to be moral agents at all, which would be an extraordinary indictment of human nature. Incorporated in any concept of punishment must be the concept of justice, and as Strawson points out, incorporated in the concept of justice is the psychological needs of society and especially of the victim. Thus, the purpose of punishment should not only include Justice but must be Justice.

References

Mabbott (1956) Punishment - reprinted from Mind and Philosophy

(April 1956) publisher not known – lecture handout.

Mill.J.S. (1868) Cited in Singer - Applied Ethics (1986) Oxford University press

Strawson P.F (1982) Freedom and Resentment - cited in Whitely D (1998) The victim and the Justification of Punishment. Gale Group.

Solomon R. (1990) A Passion for Justice - cited in Whitely D.(1998) The Victim and the Justification of Punishment. Gale Group.