Crime and Human Rights (13): What’s the Use of Criminal Punishment?

Criminal punishment, even in our non-medieval and so-called Enlightened societies, is the deliberate, intentional and organized imposition of harm on those we believe to be guilty of a crime. That remains the case even if we assume that those who are punished are in general guilty and that all necessary preconditions for criminal punishment are present (for example, that people are punished only after a fair trial, conducted by those authorized to conduct it; or that only those people aware of the moral significance of their actions are punished).

Given this imposition of harm, it’s important to be able to justify our systems of criminal punishment. Usually, but not always, the justifications people offer invoke the need to protect the rights of victims – actual or potential – but it’s far from certain that any justification can withstand even superficial criticism. Let’s look at the different justifications in turn. I think we can distinguish at least 5 common types of justification:

  1. Internalization
  2. Deterrence
  3. Rehabilitation
  4. Incapacitation
  5. Retribution

I’ll first offer a more or less neutral description of these different justifications, before criticizing them.

Justifications of criminal punishment

1. Internalization

The system of criminal punishment is justified because it is an expressive affirmation of shared values within a community (in other words, it’s a form of signaling). This affirmation serves to internalize shared values. When the members of the community have successfully internalized the shared values of the community, it’s assumed that crime will occur less frequently.

2. Deterrence

According to this second type of justification, criminal punishment is justified when it can be shown that the threat and practice of punishment is necessary for the prevention of future crimes, not through internalization of the norms expressed in punishment, but through fear of punishment. Punishment is supposed to reduce the prevalence of crime because it works as a threat. It’s assumed that most rational people who perceive this threat engage in risk analysis, weigh the possible costs and benefits of an intended crime, and conclude that the costs outweigh the benefits (the cost evaluation is a combination of likelihood of the threat – i.e. enforcement – plus severity of the threat). As a result, people reduce their willingness to carry out the crime.

3. Rehabilitation

Unlike internalization (1) and deterrence (2), this third type of justification does not aim at a general prevention or decrease in crime. Criminal punishment is justified because it prevents a particular criminal from engaging in future crimes. Prevention occurs because it’s believed to be possible to change the criminal’s propensity for crime through rehabilitative efforts within the penal system.

4. Incapacitation

This fourth type of justification also doesn’t aim at a general prevention or decrease of crime. Punishment is justified because it prevents a particular criminal from engaging in future crimes, not by way of rehabilitation but by way of incapacitation, which means either incarceration or execution.

5. Retribution

Criminal punishment is justified because criminals deserve to be punished in a certain way.

Consequentialism and deontology

Justifications 1 to 4 are consequentialist in nature: punishment is justified because of the good consequences that result from it, or because of the bad consequence that would result from our failure to punish. They all assume that punishment can prevent crime and hence protect victims – real or possible victims. Justification 5 is of a more deontological nature: punishment is a good in itself in the sense that it is required by justice irrespective of the likely consequences.

Contradictions between justifications

Notice how these different justifications may be incompatible.

Contradiction between (3) and (5)

Rehabilitation (3) means, by definition, flexible sentencing. Penal officials and judges need to have discretion, otherwise they can’t differentiate between successfully rehabilitated prisoners and others. Such discretion typically invokes anger among those who adopt a retributivist justification (5). Retributivism focuses on just desert in sentencing: a criminal should get the sentence he or she deserves, and usually this means a sentence that is in some way proportional to the gravity of the crime and to the harm done to the victim and to society. That is why retributivists demand uniformity in sentencing, and sometimes even mandatory sentencing. The discretion inherent in rehabilitation provokes feelings of unfairness among retributivists.

Contradiction between (4) and (5)

But also incapacitation (4) is often at odds with retributivism (5). For example, incapacitation in the form of incarceration may be less than what the criminal is supposed to deserve. Perhaps the criminal deserves to die according to the retributivist.

Contradiction between (2) and (5)

Retribution (5) can be incompatible with deterrence (2) because effective deterrence may require punishment that is more severe than the punishment that the criminal deserves. For example, there’s no reason why those who believe in deterrence should reject capital punishment for petty theft if it can be shown that such a punishment effectively deters this crime and that the benefits of deterrence outweigh the harm done by the execution. Something more is required to reject such a punishment, and that’s where retribution comes in. Retributivists would claim that petty thieves don’t deserve to die.

Contradiction between (3) and (4)

And a last example of a contradiction between different types of justification of criminal punishment: incapacitation (4) may make rehabilitation (3) more difficult. After all, it’s not obvious that prison is the best locus for rehabilitation. On the contrary, it’s often argued that prison is a school for criminals. Rehabilitation may then require a sentence such as a fine or GPS tracking.

A scale of decreasing ambition

We can view justifications 1 to 5 as being on a scale from most to least ambitious.

1. Internalization

Internalization (1) is obviously the most ambitious since it promises moral education of the citizenry and moral compliance with the law. The obvious problem here is that the desired outcome is highly uncertain, perhaps even utopian. It’s not sure that this uncertain objective justifies the very real harm imposed by criminal punishment.

2. Deterrence

Deterrence (2) is somewhat less ambitious since it discards the educational function of punishment as highly unlikely and aims instead at grudging compliance based on fear (as opposed to moral compliance based on conviction). Still, it’s relatively ambitious since it expects a society wide reduction in crime resulting from fear and rational risk analysis on the part of potential criminals. The data have shown that deterrence as well is overambitious.

3. Rehabilitation

Rehabilitation (3) in turn discards some of the unrealistic assumptions of deterrence (2), such as rationality on the part of future criminals and strict enforcement of the law, and tries to avoid some of the counterintuitive consequences of deterrence (2), such as the tendency to increase the severity of punishments resulting from the need to tip the scale in the risk analysis of criminals. It also tries to avoid the immoral instrumentalization inherent in deterrence. Moreover, it’s not clear that deterrence works, empirically.

Rehabilitation (3) is less ambitious than internalization or deterrence because it focuses on preventing only certain particular criminals from engaging in further crimes. There’s no society wide ambition anymore. However, the success of rehabilitative efforts during the past decades, as measured by reductions in recidivism, is mixed, to say the least. It’s correct to say that most criminologists have become somewhat disenchanted with rehabilitation. And there’s also some doubt about the morality of some rehabilitation techniques (especially those that have been lampooned in A Clockwork Orange). Which is why many have scaled back their ambitions even more and now focus on incapacitation (4).

4. Incapacitation

Let’s limit our discussion of incapacitation (4) to incarceration, since capital punishment is fraught with many other problems that have been widely discussed before on this blog. The problem with incapacitation is that it doesn’t have a clear boundary. Taken by itself, incapacitation theory could justify life imprisonment for petty crimes. In fact, the whole tough on crime philosophy can be seen as an exaggeration of incapacitation theory following the perceived failure of rehabilitation.

5. Retribution

This lack of a boundary in incapacitation theory (4) has led people to fall back on perhaps the oldest and least ambitious justification of criminal punishment, namely retribution (5). Retribution can be seen as a type of justification of criminal punishment that is entirely without ambition: punishment is inflicted for its own sake, not for the possible benefits it can produce. Criminals should be punished because it’s the right thing to do and because they deserve it, not because some aim or purpose can be served by it. This element of desert allows us to avoid both punishment that is viewed as being too severe – as in incapacitation (4) and deterrence (2) – and punishment that is viewed as being too lenient – as in rehabilitation (3).

Retributivism in fact abandons the pretense that punishment has a purpose, that it can achieve a desired objective and that no other, less severe means are available for this objective. However, retributivism isn’t a solid justification of criminal punishment either. It has proven to be impossible to know what exactly it is that the guilty deserve. Lex talionis is the easy answer, but it’s no longer a convincing one in modern societies. Proportionality is the difficult answer: severity in punishment should be proportional to the gravity of the offense. That’s the difficult answer because it leaves us with a system that is inherently imprecise and arbitrary. An infinite number of punishments are consistent with this justification. Hence it’s not really a justification at all.

No justification?

So, where does this leave us? It seems like criminal punishment is not justifiable. And indeed, there’s a long tradition in philosophy that views punishment as nothing more than rationalized anger, revenge and domination. Michel Foucault for example has analyzed criminal punishment as a cogwheel in the continuation of social power relations. The fact that there are so many African Americans in U.S. prisons and in execution statistics can be viewed as a symptom of continued racist domination. Nietzsche has described criminal punishment as being motivated solely by a deep natural desire to punish, subordinate and coerce. And indeed, if you want to punish someone for a crime, you first need to establish control over the would-be punishee. All systems of criminal punishment seems to be doomed to failure if there isn’t a prior system of control. This would indicate that there is already a prior system of control operating in society before criminal punishment takes effect, which in turn seems to indicate that systems of criminal punishment are merely the strong arm of deeper systems of control.

On the other hand, it seems difficult for anyone who’s serious about human rights to simply abandon criminal punishment. Without criminal punishment, we in fact expect victims of crime to either fend for themselves or undergo their suffering and rights violations. Neither outcome would be just.

The Causes of Human Rights Violations (18): Stereotype Threat and Michel Foucault

There’s an interesting phenomenon called the stereotype threat, or, in other words, the threat of stereotypes about one’s capacity to succeed at something: when the belief that people like you (African-Americans, women, etc) are worse at a particular task than the comparison group (whites, men, etc) is made prominent, you perform worse at that task. (Some say that this is a type of confirmation bias, a tendency for people to prefer information that confirms their existing preconceptions – they selectively collect new evidence, interpret evidence in a biased way or selectively recall information from memory. But I’m not convinced).

A typical example of stereotype threat manifests itself when a categorical group is told or shown that their group’s performance is worse than other groups before giving them a test; the test results are often abnormally lower than for control groups. For example, on a mathematics test, if you remind a group of girls that boys tend to do better on this type of test, it is likely that the girls will do more poorly on the test than they would have had they not been told. (source)

Here’s another example:

[Irwin] Katz found that Blacks were able to score better on an IQ test, if the test was presented as a test of eye-hand coordination. Blacks also scored higher on an IQ test when they believed the test would be compared to that of other blacks. Katz concluded that his subjects were thoroughly aware of the judgment of intellectual inferiority held by many white Americans. With little expectation of overruling this judgment, their motivation was low, and so were their scores. (source)

Indeed, that could be one explanation of the stereotype threat. Or it could simply be that people score worse because they are anxious about confirming the stereotype, and that this anxiety provokes stress because of the will to do well and prove that the prejudice is wrong. Ironically, they score worse: this anxiety and stress makes them less able to perform at normal levels. Or it could be something more sinister: something like internalization of oppression. People who suffered prejudice for centuries can perhaps convince themselves of their group’s inferiority. When this inferiority is made explicit beforehand, they are reminded of it, and somehow their recollected feelings of inferiority tweak their performance.

So inferior test results – compared to control groups who haven’t been exposed to explicit stereotypes before the test – can be caused by

  • a lack of motivation to disprove entrenched and difficult to change prejudices
  • stress and anxiety, or
  • recollected feelings of inferiority.

Or perhaps something else I’m not thinking of at the moment.

Some say that this is all crap, and an extreme example of the file drawer effect or publication bias: those studies that find positive results are more likely to be published, the others stay in the file drawer. I don’t know. I do think it’s true that whatever the reality of the stereotype threat, talk about it can have perverse effects: differences in test scores are considered to be wholly explained by the threat, and real education discrimination or differences in economic opportunities are removed from the picture. In that way, the stereotype threat functions as a solidifier of prejudice and stereotype, quite the opposite of what was intended.

Assuming the threat is real, Michel Foucault comes to mind. Foucault wrote about power and the different ways it operates. Rather than just force or the threat of force, he found “an explosion of numerous and diverse techniques for achieving subjugation”. If you can convince people of their own inferiority you don’t have to do anything else. They will take themselves down. Or at least you may be able to convince people that it’s useless to struggle against prejudice because it’s so entrenched that you may as well adapt your behavior and confirm it. Also, Foucault’s claim that “power is everywhere” can be used here: power over people is even in their own minds. For Foucault,

power is not enforcement, but ways of making people by themselves behave in other ways than they else would have done. … Foucault claims belief systems gain momentum (and hence power) as more people come to accept the particular views associated with that belief system as common knowledge. Such belief systems define their figures of authority, such as medical doctors or priests in a church. Within such a belief system—or discourse—ideas crystallize as to what is right and what is wrong, what is normal and what is deviant. Within a particular belief system certain views, thoughts or actions become unthinkable. These ideas, being considered undeniable “truths”, come to define a particular way of seeing the world, and the particular way of life associated with such “truths” becomes normalized. (source)

The stereotype threat is a good example of a system that makes people behave in other ways, and of a belief system (based on prejudice) that becomes common knowledge, even among those targeted by the prejudice. Even they see it as unthinkable that their own inferiority is prejudice rather than knowledge.