Monday, March 24, 2008


When somebody does something wrong, we are often prompted to respond. Unjust and harmful acts shouldn't go unopposed. We have an obligation to defy them. Of course, HOW we should defy acts of harm and injustice is a difficult question to answer.

Punishment is one of the options that is often proposed. Punishment typically involves some sort of sacrifice that is imposed on a person who has committed an offense in response to that offense. There do seem to be a variety of moral goals that can be achieved through punishment, which I will list below.


One goal that punishment can achieve is incapacitation. That is, a punishment can be imposed on the offender that will prevent them from committing –- or at least, make it far less likely that they will commit –- another offense or injustice in the future.

Punishments such as the death penalty and jail are often touted for their ability to keep offenders from harming innocents again. Curfews and parole programs also tend to incapacitate offenders. Certainly, many a child has been grounded by their parents in order to "keep them from getting in any more trouble".

Publishing the names of photos of offenders –- for instance, people who have solicited prostitutes or bounced checks -– is often proposed as a way to deprive them of their anonymity, and make it tougher for them to commit the same crime again.

More severely, amputating the hands of thieves has sometimes been proposed as way to keep them from stealing again.


Deterrence, like incapacitation, looks to the future and tries to ensure that future crimes don't occur. But, while incapacitation focuses on the person who committed the crime, deterrence considers the future criminal prospects of everyone, regardless of whether or not they've committed a crime in the past. That is, deterrence asks the question: how can we punish this particular offender in order to deter other people from committing the same crime that he committed?

It's fairly easy to come up with punishments that will make people think twice about committing a certain crime. Swift and certain torture and/or execution would certainly be more than enough to dissuade people from committing crimes. If such punishments were applied to murder, arson, shoplifting and double-parking, the incidence of these crimes would likely go down.

However, punishments that have a strong deterrent effect -– notably, the death penalty, torture, life in prison -– run afoul of retributive concerns (see below). That is, one of the goals we also tend to seek when we punish people is for the punishment to be proportional to the crime. And putting people to death for minor crimes such as double-parking seems overly harsh.

Another issue with deterrence is that – like incapacitation – it involves making predictions about the future, and predictions aren't always accurate. What, exactly, is the deterrent effect of the death penalty? How many murders does it deter? Does it deter murders more than, say, life in prison without parole? These are tough empirical questions. Do we have enough of an understanding of how people respond to different punishments in order to prefer some punishments over others on the grounds of deterrence?

Restitution, Compensation and Reparation

Punishment often aims at repairing the harm done to the victim. That is, we often require the offender to fix the injury that they've done to the victim. Restitution is backward-looking, in the sense that it focuses on the harm done in the past, and how to fix, reverse, or undo it.

This is very common in civil cases, where a court orders someone to pay damages to the injured party. And parents also frequently punish their children with restitution in mind: you broke your friend's toy or the neighbor's window, so now the money to replace it comes out of your allowance.

This sort of punishment may be the most closely linked to earning forgiveness for harming another person. (Which raises the further question: what role does forgiveness play in punishment, and vice versa?)

However, some harms – such as death – are irrevocable. If I kill someone, what on earth could I do to repair that? Even if I could somehow fully compensate the family and loved ones of the victim (which is doubtful), how could I compensate the victim himself? There doesn't seem to be any way of even approaching the goal of restitution. And yet, punishing a murderer is entirely appropriate. So, while restitution does seem to be one legitimate aim of punishment, it can't be the only one.

Reformation, Education and Rehabilitation

Punishments of this sort attempt to change the offender into someone who is less likely to commit crimes or offenses in the future. This is similar to, but not quite like, incapacitation. Reformation is forward-looking (like incapacitation and deterrence), but the punishments it proposes tend toward improving the mindset, motivations and moral character of the offender.

There are several variations on this theme. The focus can be on various things:

  • helping the offender to be a more skilled and productive member of society, so that they do not resort to crime for a living
  • socializing the offender so that they reintegrate and fit into society
  • getting the offender off of drugs, alcohol or gambling, or other harmful substances or activities that often coincide with criminal activity
  • educating the offender to understand the difference between right and wrong, so that they will more often choose the former rather than the latter in the future

As with all the forward-looking goals, predicting what punishments or regimens will be effective is an issue. Some programs may work better than others, and some may not work at all.

And some programs or regimens may only work with some people. For instance, the punishments we apply to misbehaving children often have a significant educative or reformative component. Children often do bad things because they are ignorant about what the right thing to do is. And so we often punish them in ways that will increase their understanding of where the boundaries of acceptable behavior are. Most adults, though, already know largely where those boundaries are. So there is a question of whether or how much we should be applying the same sort of punishments.

Examples of punishments that aim at reformation are parole and other government supervision programs, drug rehabilitation, community service, therapy, job training and activities that provide compensation to the victim.


I leave this punishment goal for last because it is perhaps the least understood one, while at the same time being one that is most often appealed to.

Generally, the retributive goal is summed up by the often-used phrase "let the punishment fit the crime." Retribution is backward-looking, in the sense that it considers the punishment in comparison to the crime that was committed in the past.

We can separate out two distinct principles at work with retribution: First, culpability. The goal is to ensure that only people who are guilty of an offense should be punished. People who are innocent should not be punished. The second principle is proportionality. The punishment should be proportional or commensurate to the crime, harm or injustice that it is in response to.

Culpability may seem obvious, but notice how important and pervasive this retributive consideration is. We could probably deter many crimes by punishing the innocent loved ones of anyone who committed those crimes. For instance, if someone commits a murder, we could go after not just the murderer, but also their parents, children, siblings and so forth, throwing them all in jail or having them all executed. But we generally rule out such punishments, despite their deterrent effect, because we believe that it is wrong to punish innocent people.

Proportionality also carries a lot of weight when it comes to determining punishments. That importance is fairly well enshrined in two quotes:

"Do to him as he intended to do to his brother ... life for life, eye for eye, tooth for tooth, hand for hand, foot for foot." -- Deuteronomy 19:19-21
"Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." -- Eighth Amendment to the U.S. Constitution
Essentially, proportionality demands that we avoid both overpunishment and underpunishment. In other words, punishments go wrong by going too far -- for instance, the death penalty for double-parking – and by not punishing enough -- for instance, a $5 fine for murder. Punishments shouldn't be too harsh, or too lenient. And the reason for this comes down to justice, fairness, people getting what they deserved. People who commit a minor offense don't deserve a harsh punishment, in the same way that people who are innocent of wrongdoing don't deserve any punishment at all. More, people who commit major offenses -- murder or rape -- deserve more than a minor punishment. Murderers shouldn't enjoy the same level of freedom and prosperity that we think non-murderers deserve to have. Nor should they simply get the minor punishments handed down to shoplifters. We treat people who are guilty of crimes differently from people who are innocent of crimes because their behavior is morally different. Likewise, crimes like murder are morally on a different level than crimes like shoplifting, and deserve to be treated differently.

Retributive concerns -- that is to say, concerns about justice and fairness -- pervade our thinking about punishment. Retribution is what we appeal to when we object to innocent people being punished for crimes they didn't commit, or when we say that certain punishments are too cruel for certain crimes (even if they have a great results in terms of deterrence and incapacitation), or when we say that someone has not been punished enough for the crime he committed. When we say that people who commit crimes should not gain an advantage over people who obey the law -- and maybe that they should even suffer a setback -- that is a an appeal to retributive concerns of fairness. Likewise, when we say that law-abiding citizens should not have to give up their freedom for security, that it should instead be people who break the law who should make the necessary sacrifices in freedom (for example, by going to jail), that is also an appeal to retributive concerns.

Who Punishes, and Who Gets Punished?

Another issue concerns who has the authority to hand down certain punishments, and who is the appropriate recipient of those punishments?

Handing down punishments is one of the chief concerns of government, though there is a lot of debate about what kinds of punishments it should be allowed to apply (e.g., the death penalty). Likewise, parents and teachers routinely hand out punishments, though it is controversial whether they should be allowed to apply some punishments (e.g., spanking). Professional associations also frequently punish people for violating their rules (e.g., when a legal association disbars a lawyer).

On the other end, there are controversies regarding whether it is acceptable to apply certain punishments to certain people. Should children or mentally handicapped people be put in jail? How do you punish a 10-year-old who commits murder?

Examples of Punishments

Below is a list of several punishments. What purposes do they serve well, or poorly? What kinds of people should they apply to (if anyone)? What kinds of authorities are fit to hand them down (again, if any)?

  • the swift application, with few appeals, of the death penalty
  • the slow application, with several appeals, of the death penalty
  • a limited time in jail (e.g., 1 year, 5 years, 10 years)
  • a lifetime in jail, but with the possibility of parole
  • a lifetime in jail, without the possibility of parole
  • exile, or banishment from the country (either permanent or for a limited time)
  • being grounded, with a 5PM curfew
  • having to stand in the corner for five minutes
  • a fine (e.g., $50, $1,000, or $1,000,000)
  • corporal punishment (e.g., spanking)
  • 10 years of hard labor
  • torture
  • public shaming (e.g., publicizing the identity of people who have solicited prostitutes)
  • revoking a driver's license


Not every bad action demands a punishment. Some bad actions aren't serious enough to merit a punishment. And some misbehavior punishes itself.

But, often times, punishment is called for. But we often disagree about what goal or goals we should be trying to achieve in punishment. And, even when we do agree what goals we should be seeking, sometimes they come into conflict, and we disagree about which goal takes priority. And of course, there's the matter of trying to predict what the effects of our actions will be (e.g., is the death penalty a better deterrent than life in prison? What punishments are most cost-effective?).

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