In the last few months, Secretary for Justice Michael Gove has announced various plans for prison reforms. He advocates various policies to shorten sentences and deport foreign prisoners in order to reduce the overall number of inmates. Alongside this, he plans to give more power to prison governors, and put a much greater focus on the education of prisoners. This looks to be the biggest reform of the penal system in the UK in a generation.
Of course, alongside this, it goes without mentioning there are numerous stories in the news every day of people facing or appealing various punishments for various different crimes. In all of these cases, we may often hear others expressing views that punishments are too harsh, or too lenient. But what are they judging this on?
Quite a few people see the worth or the suitability of a particular punishment by the supposed consequences of it – normally that it reduces and prevents crime. The idea that the rightness or wrongness of something is determined by its consequences forms the basis of a moral theory called ‘consequentialism’. I’m going to look at whether there is a plausible consequentialist theory for punishment.
Is there a plausible consequentialist theory of punishment?
Punishment is a phenomenon that is a social norm in every civilized society that we see today, and indeed, it is the view of all but a few extreme thinkers that societies would not be able to function without it (Skinner, for example, thought that punishment was not a necessary pursuit, and only positive reinforcement should be encouraged). Although it is possible to criticize the legitimacy or appropriateness of various punitive acts – many are no doubt excessive, brutal and undeserved – the practice of punishment is widely accepted to be clearly justified by the norms of a liberal, constitutional democracy (although this is not a fool-proof argument – it wasn’t so long ago that slavery was the norm in liberal, constitutional democracies around the world). Not only is punishment something imposed by law, and the governments that control society on a large scale, but also on a smaller, more personal basis – something used by teachers in school, parents on their children – all the way down to petty punishments amongst friends and acquaintances, who may with-hold their friendship or act a bit colder towards someone, to “teach them a lesson”. Everywhere we look we see countless examples of punishment in practice. But what is punishment exactly?
Before we define punishment, I must point out an important distinction that can sometimes be forgotten – that the definition of punishment is an extremely different notion from the justification of punishment. There is such a thing as an unjust punishment.
With that clarified, the Stanford Encyclopaedia of Philosophy defines punishment as having seven qualities. The first of these is that it is an authorized act, not an incidental or accidental harm. Secondly, it is constituted by imposing some burden or form of deprivation or by withholding some benefit, which could also be seen as a deprivation of ‘rights’ (the definition of rights is an essay of its own). Thirdly, punishment is a human institution. If a wrong-doer breaks his leg, this is not punishment, as it is not afflicted by human agency. Fourthly, punishment is only imposed on people who are believed to have acted wrongly. Fifthly, no single explicit purpose or aim is built by definition into the practice of punishment. Nietzsche theorized that punishment is consistent with several functions or purposes, yet not consistent with having no function or purpose. Sixthly, not all socially authorized deprivations are punishment – only those which are imposed in the consequence of finding criminal guilt (e.g. a fine, as oppose to a rise income tax). And, lastly, ‘authorized deprivation’ must be taken to include parental or other forms of punishment, not just punishment by law.
The two main theories on punishment are known as “consequentialism” and “retributivism”. This is, fundamentally, a deontological vs. teleological debate – is punishment good, or necessary, within itself – a practice required by justice? Or is the point of punishment simply to increase the overall net social welfare by reducing and ideally preventing crime?
In this essay, I will be assessing the arguments for and against a consequentialist theory of punishment. Duff describes the main principle which consequentialism rests upon as being “a practice is justified if and only if its consequences are at least as good as any alternative.” So, the practice of punishment achieves whatever end-state justifies it, which consequentialists may believe to be public interest, general welfare, or the common good. In this case, we may see punishment being a necessity in crime prevention, or that private retaliation may be pre-empted by confidence in punishment by law, or even simply to protect and vindicate rights of individuals. It may even be useful in itself as a technique of social control.
There are some major downsides to a consequentialist theory of punishment. Firstly, there are the complications of making consequentialist calculations. Taking into consideration all the variables, and therefore working out which overall outcome and therefore which punishment is most preferable, is currently impossible. There are simply too many variables, and too many unknowns, to ever know how a situation will turn out, not mind judge from that which outcome would be the best. A situation with an immediately positive outcome might later turn hugely negative – for example, people might rejoice and feel safe again if they thought the rapist and murderer terrorizing their street had been imprisoned, but when they found out he was in an innocent man, they would be shocked and outraged, and lose all faith in the government – they may not be so quick to rejoice if the real culprit really was caught. Therefore it may be said that a consequentialist theory is simply too ambitious to apply to punishment.
The unjust punishment of an innocent person as a scapegoat is also a problem for consequentialists. Hard consequentialists would have to concede that, if the overall good was an increased, an innocent man should be punished for a crime that he did not commit. This seems extremely counter-intuitive. However, the consequentialists have something on their side here – that which was their flaw in my last point. The complexity of consequentialism means that a consequentialist could say ‘in theory, you should kill the innocent person, but that would never happen in real life.’ As there are no certainties in how a real-life situation will turn out, it is always better not to risk the punishment of an innocent, because of the horrendous impacts it would have upon society if the truth was revealed – and there is never any complete inevitability that it won’t be.
On a similar note, it appears that consequentialism also justifies the excessively harsh punishment of the guilty, if this is what the majority of society calls for. This could happen in the case of a well-known criminal receiving a lot of media attention and therefore a particular government being swayed by public opinion in punishing the accused more harshly than they deserved. This may also happen if the government is trying to deter others from acting in the same way, or trying to send out a particular message in society. For example, in the 2011 riots around England, people were punished for minor crimes like petty theft, or minor cases of vandalism, with punishments that did not fit the crime, and were even as extreme as imprisonment. This was not due to the nature of the individual crimes, but instead the message of absolute intolerance that the government in power wanted to portray.
There is a semantic point to be made here, that we can call a punishment “unjust” even if it is consequentially beneficial – for example, scapegoating an innocent man. If to justify a punishment is for it to cause a primarily positive outcome, then this statement would be a contradiction in itself. We may use this as an argument to suggest that a solely consequentialist theory of punishment may not stand up – it may be necessary, but not sufficient.
There are also some obvious benefits to consequentialism. Firstly – the reduction of crime. This would be the ultimate aim of punishment, to a consequentialist, so any system that worked best for this would be acceptable. Punishment can reduce crime by incapacitating, reforming, or deterring potential offenders. However, the success of punishment is nearly impossible to test, as it all works upon theories, such as who would probably have committed a crime if they hadn’t been punished – there are no certainties. Also, if we do take evidence to be convincing, it doesn’t look like punishment really does serve as an adequate deterrent. For example, the murder rate is just as high in countries where capital punishment is practiced as where it isn’t – there is no evidence to suggest it is a deterrent at all. And there are no examples where everyone who doesn’t murder is rewarded, as opposed to everyone who did being punished (this would be positive reinforcement taken to the extreme). For all we know (as unlikely as it seems) this system might work equally well, if not better. Aside from deterring crime, there is another issue consequentialists face with the aims of ‘incapacitation’ and ‘reformation’. Would it not be a more effective method of crime prevention, if that is the ultimate aim, to punish those who are judged most likely to commit crimes if left free – whether this is due to their characteristics, background or past behaviour? Yet this seems to go against everything that we feel is ethical about punishment. It appears that we think the right of the innocent not to be punished for crimes they have not committed is an intrinsic and fundamental demand of justice.
To conclude, I do not think a consequentialist theory of punishment can be complete in itself. It appears that there is no plausible consequentialist theory of punishment that does not have a flaw somewhere within it, or that goes in the opposite direction to our instincts. I do not, however, think consequentialist theories and retributivist theories should stand alone and opposing, and in the case of punishment, I think there is something to be said for both of them, and the best theory of punishment would accept that both are necessary, but not sufficient alone.