Punishment: Definitions, Justifications, Applications
What are we doing when we punish criminals, and how might it be
justified? Must the punishment fit the crime?
John Hanson • Colby College
I. Introduction
The murder of George Floyd in the Summer of 2020 ignited a nationwide wave of protests, riots, and proposed political changes. Among these political reactions was the movement to “defund” the police, related to but distinct from movements to abolish either the police, prisons, or the criminal justice system as a whole. What these movements share is a skepticism of punitive, carceral police power as a way to manage public life and promote security. While little time has passed since and we can therefore not be sure of the political outcome of the protests of the Summer of 2020, it is undeniable that Floyd’s killing threw into sharp relief not just the justice (or lack thereof) of our criminal justice system, but also the objections to that system’s claim to utility. In this paper, I hope to show how the relationship between the ethical values of justice and utility informs how–indeed whether at all–legal punishment can be justly administered. To that end, in this essay I will evaluate ethical accounts of punishment, definitions of punishment, and applications of punishment theory.
Definitions and Terms
I wish to begin with a differentiation between two related but distinct philosophical questions on punishment: first, there are varying legal or definitional accounts of punishment–seeking to explain what it is we are doing when we punish people legally, and how the act of punishment differs from imposition of force or violence more generally. There are also contrasting ethical theories of just punishment, which explore when and how punishment can be just. The former disagree over what constitutes punishment, the latter over what constitutes just punishment. It would be naïve to assume that there is no connection between the questions of what punishment is on the one hand, and when punishment is justified on the other. Therefore, throughout this piece I will evaluate arguments on both issues, being careful all the same not to conflate the two.
To the first question, punishment at the very least “involves the imposition of something that is intended to be burdensome or painful, on a supposed offender for a supposed crime, by a person or body who claims the authority to do so.” The utilitarian punishment theory justifies punishment “as a cost-effective means to certain independently identifiable goods.” Utilitarians typically see deterrence (incentivizing people against committing crimes), incapacitation (incarcerating criminals to prevent them from committing more crimes), and reform (rehabilitating criminals so that they are less likely to offend once freed) as valid functions of punishment.
Utilitarians need not include criminal desert in their calculus; any instance of criminals “getting what they deserve” is incidental. Retributivists disagree. They argue that criminals should receive punishment commensurate with their offense; we can think of retributivists as accepting the premises of the following two questions: “why do the guilty deserve to suffer [. . .] and what do they deserve to suffer?” Finally, prison abolitionists believe legal punishment “cannot be justified and should be abolished.” Far from exhaustive accounts, these encyclopedia definitions only scratch the surface of what is a contentious and evolving debate.
What I Will Argue and How
Punishment theorist and ethicist Steven Sverdlik’s view of punishment, although it sticks to a single definition of punishment, is the most appealing political account because it explains legal punishment without resorting to a preconceived notion of a legal offense. While utilitarian claims make sense on the general aim of punishment as promoting social order and deterring against crime, retributivist arguments on the minimalistic principle–that nobody should be punished more than they deserve to be–are satisfactory for the distribution of punishment among the guilty. In the following sections, I will bring out what I believe to be a good starting-point definition of punishment; I will then examine this definition, noting ways that scholars have convincingly (Sverdlik) or unconvincingly (Feinberg) objected to it. I will also look at a different definition of punishment (McCloskey) which starts from different categorical assumptions on legal punishment specifically. The first set of definitions are paradigmatic insofar as they hold that legal punishment is a special or exemplary case of punishment as a concept, and that all other uses in everyday language are inaccurate. McCloskey’s non-paradigmatic definition, on the other hand, rejects the notion that legal punishment is privileged. I will then move on to discuss retributivist theories of just punishment, and what I perceive to be some faults with those theories. Next I will turn to utilitarian theories of just punishment, and some objections raised to those theories. Throughout the paper I will try and make clear why I subscribe to Steven Sverdlik’s definition of punishment as: harm intentionally inflicted by an authority; on the basis of a harmful act; on the doer of that harmful act; where the actor had both fair opportunity and capacity not to commit the act.
II. On the Nature of Punishment
Surveying various contested definitions and accounts of punishment makes clear the difficulties in positing a rigid conception of punishment. I will try to show how the contested nature of punishment weighs heavily on debates over the justification of punishment, and on real-life applications of those debates. Any thorough definition of punishment must explain the nature of an offense, the nature of an excuse, and the way punishment is imputed. With that in mind, Sverdlik’s representational definition based around harmful acts, allowing for excuse-based exceptions, is the most convincing.
H. L. A. Hart’s Paradigmatic Definition of Punishment
We start with the definition of punishment promulgated by H. L. A. Hart. Seeking to support his thesis that any count of punishment must describe it as a ”compromise between conflicting principles,” Hart’s definition does not point to a necessarily utilitarian or retributivist conclusion. He lists five necessary conditions of punishment: It must consist of unpleasant consequences; It must be for an offense against legal rules; It must be of an actual or supposed offender for their offense; it must be intentionally administered by others; and it must be administered by a legal system or authority against which the offense was committed.
One must then, according to Hart, consider the following cases not to be true punishment, but rather to be “parasitic” on the real meaning of the term: punishment for the breach of “non-legal rules,” that is to say, punishment outside of legal institutions, in the classroom or the family for instance; “vicarious” or “collective” punishment; and punishment of those not supposed to have offended. The latter two cases follow Hart’s contention that punishment is necessarily of the guilty (or supposed to be guilty), and that punishment of those not supposed to be guilty is by definition not punishment. We will see, in criticisms from retributivists and utilitarians alike, that Hart’s is not an exhaustive account of punishment. Take first, from the work of moral philosopher Elizabeth L. Beardsley, the point that we cannot assume that we “suppose” guilty those whom we subject to punishment. Anyone would admit that the history of criminal justice is rife with cases of planted evidence, manipulated testimony, and dubious verdicts and rulings. To that end, Sverdlik adopts Beardsley’s clarification that we “represent” the punished as guilty; we do not necessarily suppose them to be guilty.
Legal philosopher Richard A. Wassterstrom objects to Hart’s account of punishment on the grounds that Hart does not sufficiently address the intuitive distinction between criminal punishment and civil damages or restitution. In the case of the latter, there is not usually an implied desire to punish the defendant except for as a means to make the plaintiff whole. Reflecting a focus on criminal as opposed to civil wrongdoing, Wassterstrom’s definition of punishment lists the following conditions: there must be a “deprivation essential to the act,” that is, the treatment must be unpleasant for unpleasantness’ sake; there must be a supposition (“representation'' if we take Beardsley’s amendment) of wrongdoing; and the criminal must be aware that the unpleasantness is for the wrongdoing. Under this account, the (represented) criminal acts of the punished subject induce the application of punishment for its own sake. Wasserstom’s definition, though it speaks not of the justice of punishment, comes off as retributivist insofar as it makes the descriptive assertion that punishment is necessarily admonishing and therefore never merely instrumental. It is therefore incompatible with utilitarianism, which cannot claim that the harm of punishment is essential to the act. Imagine a utilitarian criminal justice system which only claims to punish criminals, and yet occasionally spares them their punishment, on the condition that the criminals never reveal this secret leniency, so that the deterrent effect of the punishment remains in place. It is unclear how such a system, if maintained, could be said not to promote a greater total good than a system in which punishment is actually carried out. It is clear, then, that the harm of punishment in a utilitarian conception of criminal justice is only ever instrumental, typically as a deterrent against would-be criminals.
Sverdlik’s own definition of punishment, however, pays special attention to the exceptions to general rules of punishment. His first four conditions are reminiscent of the preceding accounts. Sverdlik goes on to add two conditions that address the issue of exceptions to legal rules. The first is that, when X punishes Y, X “represents Y as having had a fair opportunity” to avoid committing the harmful act. Second, in punishing Y, X also “represents Y as having had the capacity” to avoid committing the harmful act. The first of these excuse conditions excludes cases beyond reasonable precaution, where we do not hold people criminally liable for the consequences of their actions they had no fair opportunity to foresee. The second covers longer-term impairments on people’s abilities such as critical-thinking skills or maturity–impairments which we accept as rendering these people (children, the insane, etc.) not responsible for their actions.
Finally, Joel Feinberg’s response to Hart’s account of punishment argues that Hart fails to appropriately distinguish a punishment from a penalty. According to Feinberg there is an intuitive difference between something like a traffic ticket or parking fine on the one hand and the carceral punishment of imprisonment on the other, a difference he seeks to capture through the “condemnatory aspect” of punishment which is absent from a penalty. Punishment contains both a rational judgment that the offender has transgressed a serious norm or rule, what Sverdlik calls the “cognitive,” and the “emotive” reaction–call it contempt, disgust, etc.–that the offense provokes, and which the punishment seeks to communicate. I do not think that punishment is uniquely positioned to communicate that reaction. Criminals are often ostracized socially when their heinous acts are made public, but we do not think of that social backlash as punishment.
It seems difficult to come up with a universal definition of an “offense” other than that class of actions which incite punishment by an authority. Punishment must be for an offense, and offenses are those things by whose commission we expose ourselves to punishment. To his credit, Sverdlik declines to include “offense” in his definition of punishment, opting instead for a “harmful act” and avoiding the redundant statement that a punishment must be for an offense. Yet the substitution of a concept entailing guilt (offense) for one entailing merely harm (“harmful act”) is not entirely satisfactory. We often punish people for victimless crimes, but I do not see an easy way to define “offense” without the concept of punishment other than that it typically involves a harm.
Applications of Sverdlik’s Definition
Having been most convinced by Sverdlik’s definition of punishment, I will now turn to three of its applications to real life. The first is the issue of punishment of innocent people. Using Beardsley’s language of the “representation” of guilt, we see that punishment of the innocent necessarily constitutes fraud by the punishing authority. To knowingly punish the innocent, even if justified by other (utilitarian) considerations, will always mean declaring guilty a victim known not to be guilty. Second comes the issue of punishment on strict liability, which exists where defendants are liable for their actions regardless of intent. How might Sverdlik’s definition cover punishment of people who had no intent to act unlawfully? Would those people have had “fair opportunity” to avoid their offenses? Sverdlik gets around this problem by arguing that the time-scale relevant for “fair opportunity” extends much further back in those instances that typically fall under strict liability than it otherwise does. For example, milk producers are strictly liable for spoiled or otherwise contaminated milk. The fact that this is known to milk producers and to those who wish to become milk producers, however, means that all of us have a fair opportunity to avoid prosecution for selling contaminated milk products–the liability and risks involved are clearly stated.
Finally, Sverdlik tackles the ethical and constitutional discourse over pre-trial detention. Because the Eighth Amendment forbids “cruel and unusual punishment” and is interpreted as requiring conviction before punishment can be inflicted, defining pre-trial detention as punishment would seem to constitutionally forbid the practice. Perhaps to acknowledge the massive utility gained by the state’s ability to incapacitate suspected criminals before they can abscond, U.S. courts have historically declined to label pre-trial detention as punishment. However, upon further inspection, we see that we cannot group pre-trial detention together with those other, non-punitive government policies which take from or otherwise disadvantage the innocent. Conscription in the military and medical quarantine are two examples of government impositions on the innocent. According to Sverdlik, however, these cases are distinguished by the government typically attempting to “make up the losses” incurred by those imposed on. Leaving aside possible exceptions to this trend, we can accept that a government’s direct intent in the draft or in quarantining people is not harmful.
Consider as well the example of taxation, in which the government takes from people on pain of fine or imprisonment. The government does not in fact attempt to “make whole” its taxpayers, and the harm inflicted is sometimes directly intended, in cases of taxes designed to disincentivize certain behaviors (carbon taxes, for example.) In the case of punishment, however, the harm is always directly intended and essential to the act; the legal maxim that no person is to profit from their wrongdoing bears this out, exemplified by murderers being unable to inherit from their victims. Applying the above considerations to pre-trial detention, we do not see any government attempt to “make whole” those it detains before trial; the state does not, for example, compensate on acquittal. This suggests that if pre-trial detention is not punishment, then it is something close to taxation: a government imposition which does not necessarily represent the victim as having done wrong, but which does not attempt to repair the harm it inflicts.
On Sverdlik’s Exceptions and Free Will
At this point I will comment briefly on the relation of Sverdlik’s definition to the topic of free will. Robert Sapolsky recently argued that free will, even in its “mitigated” form, holds little water in light of recent insights from neuroscience which support a deterministic outlook over a metaphysical libertarianism. Similarly, Harry G. Frankfurt’s thought experiments show us that free will cannot always equate to moral responsibility, because we can imagine scenarios in which an agent’s free will and intent do not prevent their actions from being overdetermined. To fit Sapolsky and Frankfurt’s contributions into Sverdlik’s model, let us say that Frankfurt brings up the case of intentional criminal acts without fair opportunity to avoid them, and Sapolsky holds that criminals do not have the capacity to avoid committing their crimes.
I do not think that either of these scholars’ points pose a real problem for Sverdlik’s definition of punishment. The account he gives is descriptive, and says little explicitly about just and unjust punishment. More importantly, the emphasis on “representation” removes any pretense of objective fact from punishment. Even if Sapolsky is correct that free will does not exist, that does not necessarily stop courts from representing it to exist; in order to hold that legal punishment is always unjust, one would have to believe that representing a falsehood–in this case the existence of free will and the criminal’s possessing it–is sufficient to render a punishment unjust. Doing so would require, in other words, a normative judgment, something Sapolsky and Frankfurt’s descriptive accounts of determinism avoid.
H.J. McCloskey’s Non-Paradigmatic Definition of Punishment
Against Hart’s concept of standard (legal) and sub-standard (non-legal) forms of punishment, H. J. McCloskey rejects the idea of a paradigmatic case of punishment. He details the similarities and differences between punishment as it appears in various institutions, including but not prioritizing legal punishment. To take one of McCloskey’s examples, education allows punishment in the absence of a clear, determinate offense. This is because when dealing with children, it is not as if all possible offenses can be announced or indicated in advance. Anybody who has worked with kids of a certain age will tell you that they excel at finding loopholes to any rules spelled out explicitly. In sports and games, the distinction between the penalty and the punishment seems especially relevant. Most sports with officiating have a schedule of offenses, the lower of which barely disrupt gameplay and typically do not come with the condemnation or “emotive aspect” Feinberg discussed. Many sports do, however, have punishments in the form of ejections or technical fouls which clearly do carry some disavowal of the behavior by the referee. McCloskey argues that, concerning Distribution of Amount, sports and games are usually much more concerned with consistency than with commensurability, e. g. we do not assume that ejection from a baseball game is an inherently appropriate punishment proportional to disrespecting the umpire, but we do expect all managers to be held to the same standard of what is and is not grounds for ejection.
McCloskey makes a compelling case for examining more closely the rules of punishment outside the criminal justice system; Sverdlik's account, because it identifies specific procedural conditions of punishment, like the imputation of guilt one the one hand and a specific guilty subject on the other, seems most appropriate for the concept of punishment as a legal phenomenon.
III. On Retributivist Justifications for Punishment
In this section I will present different and contrasting attempts to define retributivism, calling attention to different ideas under the retributivist umbrella. Along with these accounts I will discuss objections to those definitions of retributivism, much as I did with the varying definitions of punishment.
John Cottingham’s work identifying different varieties of retributivism demonstrates the difficulty in pinning down one universal retributivist theory. Of the nine that he catalogs in his list, two spring to mind as especially significant. The first is minimalism, the idea that punishment should never exceed what is warranted by the offense. Minimalism opposes the utilitarian deterrence theory, which in certain situations might call for outsize punishments to deter potential criminals.
The second and more theoretically fraught form of retributivism is unfair-advantage theory, which argues that criminals take an advantage over law-abiding citizens in the commission of crimes, and that punishment ought to nullify this unfair advantage. Michael Davis has proposed one controversial method to index the relative unfair advantage taken in the commission of different crimes. He imagines an auction for licenses to commit certain crimes, where criminals could buy licenses functionally similar to fish and game hunting licenses which make otherwise criminal acts legal. The goal of this thought experiment is that the relative prices of those licenses, determined by the relative demand criminals have for licenses excusing different crimes, would reveal the unfair advantage criminals expect to gain from the commission of those respective crimes. However, Scheid writes, the basic problem with the auction model is that it begs the question of the inherent desert attached to specific crimes. Criminals would only want to buy crime licenses to avoid the punishments that already exist, so the auction model assumes an already-existing schedule of punishment. Since the entire purpose of the model is to determine what punishments ought to be, this question-begging presents a fatal flaw in the unfair-advantage theory of punishment.
Other theorists have tried different concepts of retributivism. David Dolinko distinguishes “bold” retributivism from “modest” retributivism, where the former takes criminal desert and the inherent goodness of punishment as both the moral and rational justification for punishment, and the latter considers criminal desert only the moral justification of punishment, saying nothing about its rational justification. Modest retributivism acknowledges what Dolinko calls the “gap between the inherent goodness of punishment and the permissibility of prosecuting punishment,” in which we accept the fact that criminals deserve to be punished but do not claim we are always justified or permitted to bring about that punishment. Ultimately, I think these retributivist accounts of punishment struggle to avoid confusing retribution with restitution. The unfair advantage theory of punishment suggests that the unfair advantage the criminal takes comes at the expense of law-abiding citizens, but criminal retribution need not have a specific subject who is harmed. Real retributivists must argue the crime is wrong in itself, regardless of the criminal’s gain or the victim’s loss, and are therefore not in a position to account for restitution as a function of punishment.
IV. On Utilitarian Justifications for Punishment
While utilitarians may disagree on the right actions to bring about maximum happiness, there is considerably less theoretical variation than in the retributivist camp; whether for purposes of deterrence, incapacitation, or reform, punishment is viewed by utilitarians with relative consensus compared to retributivists.
Hart’s utilitarian theory of punishment, which takes as the General Justifying Aim of punishment the furtherance of order, safety, and planning for the future, still leaves room for retributivist principles surrounding the severity of punishment for a given crime (Distribution in Amount.) Consider, however, as a different approach to utilitarianism, the summary of deterrence theory offered by David Dolinko: “it’s right to punish criminals because doing so minimizes the net level of suffering.” McCloskey, for his part, thinks that utilitarianism cannot compromise with retributivist ideals.
In his piece “Utilitarian and Retributive Punishment,” McCloskey also argues three inevitable consequences of utilitarianism, the first being that utilitarians may be compelled to punish those not responsible for their actions, if doing so would restore faith in the rule of law. Second, utilitarians may be forced to punish innocent people, if the citizenry prefer that they do so. Lastly, utilitarians may have to give out punishments greater than what is deserved, in order to deter criminals. McCloskey’s criticism is that while utilitarians can recognize the harm brought by these miscarriages of justice, it cannot conceive of them as bad in themselves, just like it cannot conceive of criminal offenses as bad in themselves.
Saul Smilansky levels a similar criticism of utilitarianism as promoting unjust outcomes in punishment, based more on real-life policy issues. Through standards like reasonable doubt, due process, and rules on the admissibility of evidence, our criminal justice system makes it very difficult to convict innocent people, even if doing so results in some guilty criminals walking free. Smilansky takes as his premise that some amount of loosening of these rules of procedure would result in a gain in utility (more criminals are imprisoned, the deterrence against crime is greater, etc.) and also result in a few more innocent people being convicted. A utilitarian, Smilansky argues, would be forced to admit that a policy change that improves overall utility–loosening rules of procedure–would cause unjust outcomes, namely more convictions of innocent people.
V. In Summary
Retributivism and Utilitarianism, however defined and regardless of their internal coherence, provide interesting counterarguments to the idea of criminal justice system abolition, insofar as they propose scenarios in which punishment would be justified. The complexity of punishment also prompts us to reconsider non-legal cases of punishment, institutional or otherwise, and suggests that legal punishment, if not a paradigmatic case, is at least a distinct case of punishment, with its own rules and standards. It invites us to look at family, education, and other social groups through the lens of how they promulgate written or unwritten rules. From this perspective it may even appear plausible that the nature of punishment in a given institution is essential to the nature of that institution—might we say that a family that sets out in writing all its rules and punishments has transgressed against what it means to be a family? Punishment shows itself to be a slippery concept that eludes both definition and justification. Lawmakers, criminologists, and others ought to investigate first their own beliefs about punishment before assuming them to be universal.
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