The Case Against Punishment

Retribution, Crime Prevention, and the Law

Deirdre Golash

• Publisher: NYU Press
• Year: 2005
• ISBN:
  9780814732694
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

What ends do we expect and hope to serve in punishing criminal wrongdoers? Does the punishment of offenders do more harm than good for American society? In The Case against Punishment, Deirdre Golash addresses these and other questions about the value of punishment in contemporary society.

Drawing on both empirical evidence and philosophical literature, this book argues that the harm done by punishing criminal offenders is ultimately morally unjustified. Asserting that punishment inflicts both intended and unintended harms on offenders, Golash suggests that crime can be reduced by addressing social problems correlated with high crime rates, such as income inequality and local social disorganization. Punishment may reduce crime, but in so doing, causes a comparable amount of harm to offenders. Instead, Golash suggests, we should address criminal acts through trial, conviction, and compensation to the victim, while also providing the criminal with the opportunity to reconcile with society through morally good action rather than punishment.

1
An Institution in Search of a Moral Grounding

As one reads history … one is absolutely sickened not by the crimes the wicked have committed, but by the punishments the good have inflicted.

—Oscar Wilde, “The Soul of Man under Socialism,” 1891

I. Introduction

Punishment, at its core, is the deliberate infliction of harm in response to wrongdoing. As an institution, it is so deeply rooted in history that it is difficult even to imagine a society without it. We have grown up with it, and it seems natural and inevitable to us. At the same time, there is no denying that it is a human creation; we must accept responsibility, collectively and individually, for the harm that we do in punishing: the deprivation of life, liberty, or property, or the infliction of physical pain. We ought not to impose such harm on anyone unless we have a very good reason for doing so. This remark may seem trivially true, but the history of humankind is littered with examples of the deliberate infliction of harm by well-intentioned persons in the vain pursuit of ends which that harm did not further, or in the successful pursuit of questionable ends. These benefactors of humanity sacrificed their fellows to appease mythical gods and tortured them to save their souls from a mythical hell, broke and bound the feet of children to promote their eventual marriageability, beat slow schoolchildren to promote learning and respect for teachers, subjected the sick to leeches to rid them of excess blood, and put suspects to the rack and the thumbscrew in the service of truth. They schooled themselves to feel no pity—to renounce human compassion in the service of a higher end. The deliberate doing of harm in the mistaken belief that it promotes some greater good is the essence of tragedy. We would do well to ask whether the goods we seek in harming offenders are worthwhile, and whether the means we choose will indeed secure them.

In the pages that follow, I shall be arguing for the abolition of punishment, insofar as it involves depriving people of things to which they have a right (typically, life, liberty, or property), either simply in order to deprive them of those things (as retribution), or in order to secure some further end (such as deterrence or incapacitation) to which the deprivation of these rights is essential. I shall distinguish punishment from other practices, such as blaming or formal condemnation (and collateral consequences such as difficulty in obtaining employment), which do not deprive the offender of anything to which he has a right; and from harm-shifting interventions that prevent (through direct intervention) or reverse (through compensation) harm to victims at the offender’s expense. I begin with a brief description of the actual harms that are done by punishment.

II. Harms Done by Punishment

Today, the most common punishments in the Western world are deprivation of liberty or property; only the United States still imposes the death penalty. The debate over the death penalty has made imprisonment look benign, but the harm done by incarceration is not trivial. Imprisonment means, at minimum, the loss of liberty and autonomy, as well as many material comforts, personal security, and access to heterosexual relations. These deprivations, according to Gresham Sykes (who first identified them) “together dealt ‘a profound hurt’ that went to ‘the very foundations of the prisoner’s being.’”¹ But these are only the minimum harms, suffered by the least vulnerable inmates in the best-run prisons. Most prisons are run badly, and in some, conditions are more squalid than in the worst of slums. In the District of Columbia jail, for example, inmates must wash their clothes and sheets in cell toilets because the laundry machines are broken. Vermin and insects infest the building, in which air vents are clogged with decades’ accumulation of dust and grime.² But even inmates in prisons where conditions are sanitary must still face the numbing boredom and emptiness of prison life—a vast desert of wasted days in which little in the way of meaningful activity is possible.

For the more vulnerable, and for those confined in worse prisons, imprisonment often means exposure to predators and an extreme loss of personal security. The rate of victimization—assault, robbery, extortion—of prisoners is much higher than that of the general population. Some studies have reported that more than 10 percent of the prison population has suffered forcible rape, with a much larger number having succumbed to pressure to engage in sex.³ Even more disturbingly, as the prevalence of this form of violence has made its way into the popular imagination, it has become common to hear it referred to as part of the punishment or as a deterrent factor. Although most jokes about rape are excluded from the public forum as in grossly bad taste, a soft drink company recently saw fit to make light of prison rape in a television commercial.⁴

In recent years, sentencing has become harsher, and more and more individuals have been imprisoned. Worldwide, some 8.5 million persons are incarcerated. After staying relatively constant since World War II, the number of persons imprisoned in the United States increased fourfold between 1980 and 2000. Most of this increase resulted from a crackdown on drug offenders. Today, the United States is second only to Russia in per capita incarceration rate (690 per 100,000 as compared to Russia’s 730), while two-thirds of countries have rates below 150 per 100,000.⁵

Increased harshness has resulted in a new coterie of prisoners who began as juvenile offenders and have spent most of their lives in prison. It is no exaggeration to say that punishment has destroyed the souls of these offenders. Jack Abbott, physically beaten and sexually abused in a series of foster homes as a child, was first committed to a juvenile institution at the age of nine. After his release at eighteen he soon found himself back in prison for writing bad checks. He killed another inmate for informing on him and got more time. Later, he managed to escape, robbed a bank, and was sent back with another nineteen years to serve. At the age of forty-five, he described himself as follows:

When I walk past a glass window in the corridor and happen to see my reflection, I get angry on impulse. I feel shame and hatred at such times. When I’m forced by circumstances to be in a crowd of prisoners, it’s all I can do to refrain from attack. I feel such hostility, such hatred, I can’t help this anger. All these years I have felt it. Paranoid. I can control it. I never seek a confrontation. I have to intentionally gauge my voice in a conversation to cover up the anger I feel, the chaos and pain just beneath the surface of what we commonly recognize as reality.⁶

Of his relations with fellow prisoners, he wrote:

You don’t comfort one another; you humor one another. You extend that confusion about this reality of one another by lying to one another. You can’t stand the sight of each other and yet you are doomed to stand and face one another every moment of every day for years without end. You must bathe together, defecate and urinate together, eat and sleep together, talk together, work together.⁷

After his release, Abbott killed a waiter in a restaurant for insulting him and was sent back to prison, where he committed suicide in 2002.⁸ He was an irredeemably violent and destructive man, filled with hate and fear—much of which must be attributed to his almost lifelong imprisonment. Today, there are more such prisoners than ever.⁹

Those we punish have by and large failed to meet the challenges that life has presented them. It is not surprising that they include a large proportion of those who have faced more significant obstacles to success. The probability that a black man born in the United States will be imprisoned at some time in his life is more than five times that for a white man. Prisoners are overwhelmingly drawn from the lower rungs of the socioeconomic ladder. Throughout the world, it is those in marginalized groups who find themselves imprisoned. Also overrepresented in the prison population are persons with little education, mental illness or retardation, and a history of abuse as a child. In punishing, then, we tend to harm those who already bear great burdens.

III. Justifying the Harm of Punishment

These harms, one might think, though regrettable, are not inflicted for no reason; they are necessary, just, right, and proper. At least, this must be true of the minimum harms, if not of the uglier real ones. Philosophers have made many sophisticated arguments to show that this is so. For the most part, these arguments fall under one of three broad positions: that the harm of punishment is outweighed by some greater good; that harming offenders is good in itself; and that punishment is not properly considered a harm to the offender.

Three basic purposes correspond to these three basic forms of justification. To the idea that harming the offender is good corresponds the purpose of giving offenders what they deserve. To the idea that punishment does more good than harm corresponds the purpose of preventing crime. And to the idea that punishment benefits the offender corresponds the purpose of making the offender a better person. Optimists see a happy confluence of these purposes in an institution that simultaneously serves all three. But the appropriateness of punishment to each of these ends has been called into serious question at some period during the history of the institution. If punishment had been thought to serve only one of these ends—no matter which—doubts about its appropriateness would probably have been sufficient to topple the institution. The survival of punishment as a legitimate institution has been facilitated because the continuous defense of any one purpose has not been necessary; when doubts became too strong, it has always been possible to turn attention to one of the other purposes instead. In this chapter I present a brief account of the intellectual history of punishment and suggest that we would do well to give more attention to our uneasiness with each of these purposes—to ask forthrightly whether any of them, seen in light of its weaknesses, is sufficient to support an institution that does so much harm.

The idea that harming offenders is good in itself may be the oldest idea associated with punishment. If this had been thought to be the only underpinning of the institution, it might have been eliminated by Christians, who thought that vengeance was best left to God, or in the early twentieth century, when the consensus among philosophers was that retribution was barbaric and pointless. If instead punishment had been consistently seen simply as a regrettable necessity to promote the good of society, it would have had difficulty withstanding the late twentieth century recognition both of the practical elusiveness of deterrent and rehabilitative goals and of the questionable morality of using individuals to promote social ends. And if we had consistently thought of punishment as something we do to benefit offenders, the stark reality that it typically does the opposite would eventually have forced itself on our attention. Instead, as successive generations have inherited the institution of punishment and found the old rationale wanting, they have found new reasons—or revived older ones—for continuing it.

How did punishment begin? Although it is more prominent in some early civilizations than in others, the idea of justice as served by punishment appears to be as old as civilization itself. Correspondingly, though, the development of civilization is also correlated both with questioning of how and whether justice is so served and with a sense that there must be limits on the scope of punishment. The history of punishment is in some respects like the history of war; it seems to accompany the human condition almost universally, to enjoy periods of glorification, to be commonly regarded as justified in many instances, and yet to run counter to our ultimate vision of what human society should be.

Indeed, it appears likely that punishment in its earliest forms was not distinguishable from warfare. Both, perhaps, arose from the instinct to strike out at those seen as injuring one’s interests, either from simple anger or from a desire for self-protection. Blood feuds, in which the family of the aggrieved person inflicts an equivalent or greater injury on the offender and his family, are found in a number of early societies; it is hard to know whether these are better described as punishment or as warfare. Later societies found cause to reflect on the justification and limits of harm to enemies, on both the individual and the social scale.

In the Iliad (c. 800 B.C.), justice is presented as pure vengeance, as when Agamemnon urges Menelaus not to take pity on his Trojan captives:

This is no time for giving quarter. Has, then, your house fared so well at the hands of the Trojans? Let us not spare a single one of them—not even the child unborn and in its mother’s womb; let not a man of them be left alive, but let all in Ilius perish, unheeded and forgotten.

Thus did he speak, and his brother was persuaded by him, for his words were just.¹⁰

Justice is not limited by personal responsibility or proportionality to the original offense; it is enough that the person on whom vengeance is taken is on the side of the enemy. Agamemnon explicitly rejects any bounds to his vengeance; the wrong done by the Trojans, in his eyes, justifies their annihilation.¹¹

In contrast, in Aeschylus’s fifth-century retelling of Agamemnon’s story in The Oresteia, the Furies, representing the ancient demand for vengeance, seek the death of Orestes for the murder of his mother. Orestes, following the demands of honor as urged by Apollo, had killed his mother to avenge her murdering his father, Agamemnon. The Furies are eventually soothed and persuaded to let him live. The taming of the Furies—following a process in which Orestes is judged by the citizens of Athens—can be seen as representing the sublimation of vengeful emotions into the service of the social ends of justice. Rather than glorifying vengeance, Aeschylus presents it as tragic when carried to extremes. The Furies are brought under control, promised respect, but forced to recognize mitigating factors and to bow to the judgment of the citizens.

In The Oresteia, the value of deterrence is also made explicit, as the Furies appeal to the necessity to punish wrongdoers so that the innocent can live without fear:

So when a terrible disaster strikes
let no one make the old appeal,
“Justice, you Furies—hear me,
you powers on your thrones!”
It may well happen soon—
a father in despair, a mother
in some new catastrophe,
may scream out for pity,
now the house of justice falls.

Sometimes what’s terrible can work
to bring about what’s good.
Such terror needs to sit on guard,
to check the passionate heart.
There is a benefit for men
to learn control through suffering.
For where is there a man or city—
both alike in this regard—
who still respects what’s just
without a heart attuned to fear?¹²

Up to this point, we have seen the infliction of harm in response to wrongdoing as an express...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Dedication
• Contents
• Acknowledgments
• 1 An Institution in Search of Moral Grounding
• 2 Does Punishment Do More Good than Harm?
• 3 Preserving the Moral Order
• 4 Retribution and Social Choice
• 5 Punishment as Self-Defense
• 6 Punishment as Communication
• 7 Is Punishment Justified?
• 8 What if Punishment Is Not Justified?
• Notes
• Bibliography
• Index
• About the Author