Thanks to everyone who posted a comment about punishment. I'm going to try to explain the difficulties I see with punishment, and then I'll go into what I think a good system of punishment might be. I should stipulate at the outset that I'm mostly talking about societal punishment of criminals. A couple of the comments on the last post were about punishing children, which I hadn't really thought about before, but is a really important arena in which to understand punishment as well. Since the comments on that topic came from actual mothers, I probably won't go into that topic very deeply here for fear of sounding like an idiot.
Difficulties with Punishment
1. Punishment is returning harm for harm. The old adage says that two wrongs don't make a right. On its face this argument is too simplistic, but it's one I've heard. After all, the physical acts themselves--both the criminal's and society's--are harms (say for example, robbing and confining a robber to prison). But the difference between the acts is at a metaphysical level. As we conceptualize it, the robber steals to enrich himself and takes what is not rightfully his (or hers). But confining the robber to prison is done to satisfy justice, deter future crime, rehabilitate the criminal (teach him/her to be a productive member of society), or incapacitate the criminal so that he/she can do no more harm.
But what about the robber who steals food to avoid starvation? What about criminals who were tricked or coerced into committing crime? We still punish these people, reasoning that such people make criminal errors in judgment. But if what justifies society in imposing a harm is its motive, then why can't many crimes be justified because of the criminals' good motives?
2. Problems with Retributivism- I think everyone has a sense of justice. And my heart, my gut, my moral sense--whatever you want to call it--tells me that wrongdoers deserve punishment simply because of their acts and without reference to any future outcome. As Immanuel Kant says, "Juridical punishment can never be administered merely as a means of promoting another good either with regard to the criminal himself or to civil society, but must in all cases be imposed only because the individual on whom it is inflicted has committed a crime. For one man ought never to be dealt with merely as a means subservient to the purpose of another...He must first be found guilty and punishable, before there can be any thought of drawing from his punishment any benefit for himself or his fellow-citizens. The penal law is a categorical imperative; and woe to him who creeps through the serpent-windings of utilitarianism to discover some advantage that may discharge him from the justice of punishment, or even from the due measure of it, according to the Pharisaic maxim: 'it is better that one man should die than that the whole people should perish.' For if justice and righteousness perish, human life would no longer have any value in the world."
Now, I don't fully agree with Kant here, and that's the trouble: Kant's view is pure retributivism. As he says, retributive punishment is punishment because of guilt, and only because of guilt. When asked "Why do we punish the criminal?", the retributivist replies "Because he is guilty." But I don't believe that guilt is the only purpose of punishment. After all, Kant's "Pharisaic maxim" is actually divine reasoning: "it is better that one man should perish than that a nation should dwindle and perish in unbelief" (1 Ne. 4:13).
3. Problems with Utilitarianism- in their pure form, utilitarian justifications for punishment don't work either. Utilitarians hold that punishment can have three purposes, all of which are net positive consequences. First, punishment can serve to deter future crime, both by the criminal punished and by others who would otherwise commit the same crime. Second, punishment can rehabilitate the criminal, helping him/her become a productive member of society. Rehabilitation also serves to deter any future crime the rehabilitated would have committed. Third, punishment can incapacitate the criminal, keeping him/her from committing any future crime.
Theoretically, these are good ideas. But do they work practically? America's efforts at rehabilitation (it was a prominent theory in the 70's) proved costly and ineffective. Also, what if someone commits a crime, then realizes the wrongness of her actions and reforms herself so that she will never commit crime again, and all this without punishment. Then, according to rehabilitation theory, there would be no reason to punish the criminal. But that seems wrong because of the reasons for retributivism. Incapacitation only works if you keep the criminal in custody until he/she can no longer commit crime, which may be until either infirmity or death. Deterrence is more interesting, but leads to questions about what level of severity is necessary to effectively deter. The level of severity required to deter may exceed the level of severity that is proportional to the crime committed. Furthermore, there may be many crimes that no punishment will deter, such as crimes of passion or crimes committed by those who have nothing to lose. In many cases, such crimes are the most violent and most harmful of all. What good is punishment if it cannot deter those crimes?
Beginnings of a Theory
The feeling I've gotten in discussions on punishment in the past is that retributivism and utilitarianism are mutually exclusive, just as deontology and utilitarianism are alternative moral theories that cannot be easily combined. But I see good things in both of them, and I think parts of both are necessary to a good theory of punishment.
I'm tempted to say that utilitarian punishment is good for this life, and we should leave retributive punishment to God, who knows both who deserves punishment and how much punishment is deserved. But isn't there something dangerous about leaving one's moral sense unsatisfied?
There's a lot more to say about this, but I feel like I've said enough that some of you may have thoughts about it that will be valuable to hear before I write any more. Then again, you may all be bored with this by now and ready to move on to something else. But, as you can tell, I'm still not out of the woods on this one, and I would still appreciate your help.
