A discussion on punishment in a recent diary started me thinking about the subject in general, and as some remarks I wanted to make became too unwieldy for the comment section, I decided to express my thoughts here. In particular, arguments about punishment are sometimes a disagreement about the means, but more often than not, are a disagreement about the ends.
Basically, there are two justifications for punishment: the utilitarian and the retributive. The utilitarian justification for punishment appeals to what is best for society in general, and over the long run. This breaks down into three parts: The first is incapacitation. When we put someone in prison, his ability to injure society with further criminal activity is limited. At least as far as society on the outside is concerned, the criminal cannot offend while locked up, and that is a good thing. The second is rehabilitation. The criminal is taught that crime does not pay. The third is deterrence. When the criminal is punished, other people may learn that crime does not pay from his example. To learn from one’s mistakes is good; to learn from the mistakes of others is better.
The utilitarian justification is based on experience. For this reason, statistics measuring such things as recidivism or the incidence of certain crimes are useful in assessing the effectiveness of different kinds of punishment. In particular, one argument against capital punishment is that it does not have any discernible statistical effect on the incidence of murder, thus calling into question its ability to deter. The death penalty does permanently incapacitate the criminal, but so does life without parole, so that seems to be a wash. As for rehabilitation, the remaining utilitarian justification, that does not apply to capital punishment. The criminal facing the death penalty may learn that crime does not pay, but it is a lesson learned too late. The conclusion, then, is that since capital punishment is not useful in producing a better world, it should be abolished.
The retributive justification for punishment is a priori, and thus is unaffected by statistics in particular, or experience in general. It is summed up in the principle that the punishment should fit the crime. A criminal should be punished according to what he deserves, neither more nor less, and what is useful to society is irrelevant. The old saying, “Let justice be done, though the heavens fall,” is an instance of the contempt that retributive justice has for utilitarian considerations.
This is easier to see in the case of more than it is in the case of less. That is to say, we can all agree that no one should be punished more than he deserves, no matter how useful it may be to society to do so. Punishing a thief by cutting off his hand is wrong, for the punishment is too severe for the crime, even if it could be proven that this punishment results in a lower incidence of theft.
What might be more open to contention is the question of whether it is all right to punish someone less than he deserves. This is where the question of mercy comes in. Mercy may be thought of as acting in opposition to justice, or it may be thought of as a more careful application of justice. In the first case, we allow sentiment to prevail over reason, and let the criminal off easy. In the second case, we take into consideration extenuating circumstances. So, if the criminal shows remorse, and it was his first offense, and he just fell in with evil companions, then we opt for a lighter sentence, and that is as it should be. In this case, we realize that he does not deserve to be punished as much as an unrepentant gang leader with a criminal history. Therefore, the first kind of mercy violates the principle of retributive justice, whereas the second kind of mercy allows us to satisfy that principle by taking all the relevant facts into consideration.
At this point, I cannot resist a parenthetical aside. I once had a job working with five convicted felons, and with a woman whose son had been charged with aggravated assault. One of the co-workers had three DWIs, another was a burglar, a third was a drug dealer, and the fourth and fifth were husband and wife, both of whom were guilty of writing hot checks, with the husband having the added offense of assaulting a police officer. All of them were on probation. And they were miserable. The reason for their misery consisted mostly in the fact that they had to take periodic drug tests, and having to be clean for five years or so was more than they could stand. The burglar used to become agitated every time he was due to see his probation officer, for fear he would end up having to serve his full sentence. I liked the burglar. We used to have many enjoyable philosophical discussions, though I cautioned him not to argue that private property was an illegitimate concept within earshot of the boss. The drug dealer, on the other hand, said that having to forgo all drugs, including marijuana, was so onerous a requirement, that some guys would refuse probation and serve out their full sentence instead. You see, a probated sentence is typically longer than the time they would have to spend in prison, so they felt it would be better to do a short stretch and be done with it. He eventually failed his drug test, and had to go to jail for six months. He was not worried. “It’s just county,” he assured me. I was not assured. In a similar vein, the son of the woman I worked with failed five drug tests, and eventually had to serve two years in prison. He said it was a relief to get it over with. The husband and wife team adapted some adult novelty devices to the purpose of faking urination, whereby the urine they would obtain from their five-year-old daughter would end up being the sample instead of their own. It did not always work. The wife was told by her probation officer that something was wrong with her urine. “We don’t know what the trouble is Ma’am,” she said, “but if it happens again, you’re going to have to get in the middle of the room and squat.” The result was that she and her husband applied to transfer their probation office to another county. This involved a longer trip, but since their new probation office did not catch on to their act, they did not have to give up their weed. What I learned from all this was that probation is no mere slap on the wrist. For these felons, asking them to give up smoking pot bordered on cruel and unusual.
Now, let’s see. Where was I? Oh yeah. One of the problems with retributive justice is that it presupposes the existence of free will: only if man has free will can we truly say he deserves punishment. For this reason, those who reject free will, and believe we live in either a deterministic or a tychistic universe, will tend to consider the utilitarian reasons for punishment exclusively. They will agree with David Hume that utility is the sole origin and foundation of justice. On the other hand, those who believe in free will tend to disregard utilitarian considerations, and lean more heavily on the retributive principle instead, since they believe that with free will, one can rise above such things as heredity and environment.
Not believing in free will, utilitarians are likely to believe that crime is a function of societal conditions or mental illness, either of which tends to elicit sympathy for the criminal; and so much so, that of the three types of utility found in punishment, only rehabilitation seems to them to be justified. That is to say, there is a tendency for them to arrive at the conclusion that incapacitation and deterrence are fine, provided they are mere accompaniments to our rehabilitative efforts to reform the criminal. In short, the happiness of society, while not exactly disregarded, becomes secondary to the happiness of the criminal. Those who favor retributive justice, on the other hand, will agree with Immanuel Kant that happiness is not an unqualified good: we want people to be happy only to the extent that they deserve to be happy. For them, rehabilitation is fine, if it can be achieved in the process of making sure the criminal gets what is coming to him. And if as a result, the reformed criminal can make a better life for himself, that is all to the good. But his happiness and well-being are secondary to what is best for the law-abiding members of society, who are more deserving of happiness, and thus come first in our considerations.
When the utilitarian and retributive principles lead us to the same conclusion, that is a most felicitous circumstance; for the fact is that no one can be absolutely certain as to what punishment will be most beneficial to society, and even if we believe in free will, it is hard to say sometimes just what a person deserves. So, when they both point in the same direction, we are confident that we are doing the right thing; when they point in different directions, we find we are filled with doubt. And it is in this latter circumstance that we are likely to encounter strong disagreement.
The obvious example of the utilitarian and retributive forms of justice leading to different conclusions is that of capital punishment. As noted above, utilitarian considerations lead to the conclusion that capital punishment should be abolished, for it does not benefit society, and may even coarsen it. And it is certainly more expensive, though many people incorrectly think otherwise. On the other hand, if a man commits a deliberate, cold-blooded murder, retributive justice demands that he be put to death, for only then will the killer get what he deserves.
It is interesting, as a practical example of this dichotomy, that in Texas, in order for a jury to decide in favor of the death penalty in a murder case, two conditions must be met: (1) The criminal must be regarded as being a continuing threat to society, and (2) the murder must not have been merely intentional, but deliberate. The first condition is clearly a utilitarian one, for the danger to society is taken into account. The second is retributive. An intentional murder is one that is done impulsively, in the heat of the moment; as when a man gets into a fight in a bar, and becomes so angry that he hits someone over the head with a chair and kills him. A deliberate murder is one that is planned and thought out well in advance, before being carried out; as when a man gets tired of waiting for his mother to die in order to inherit her money, and decides to shoot her while she sleeps, hoping to make it look like a burglary.
The reason that the second condition is retributive rather than utilitarian is that there are no statistics showing that people who kill deliberately are more dangerous to society than those who kill intentionally. In fact, people who kill intentionally may actually be more dangerous. The man who is a mean drunk, losing his temper every time he gets liquored up, might kill people on a regular basis, if not restrained by incarceration; while the deliberate murderer might kill just once, collect his inheritance, and never break the law again. No, it is not utility that makes us distinguish between intentional and deliberate murders. Rather, it is that the deliberate murder is the greater evil, and therefore deserving of the greater punishment. Thus it is that in Texas, capital punishment has to be justified on both utilitarian and retributive grounds.
And what is true for capital punishment, is true generally. Even though utilitarian and retributive principles of justice are irreducible and independent of each other; and even though they sometimes lead to conflicting conclusions: we need them both, for we cannot have certainty in these matters, and each one puts a check on the other.