Punishment Notes for April 21

Main points

Today’s class involved comparing the two standard kinds of justification for punishment: retributivism and utilitarianism. Retributivists hold that punishment is justified because it is deserved. Utilitarians hold that punishment is justified because it produces better overall results than the alternatives.

The basic problem with utilitarianism is that it punishes too much. Punishing the innocent, or punishing the guilty very harshly, might have better overall consequences than giving people only what they deserve.

Retributivism faces a similar problem. It recommends punishment as a response to moral bad behavior, regardless of whether punishment does any good (aside from whatever good comes from giving people what they deserve).

Neither view is committed to defending the system of punishment that is currently practiced in the United States. In fact, each one would presumably lead to reform if taken seriously.

Objections to retributivism

I rolled out three cases in which, I said, retributivists would demand more punishment than we currently dole out.

  1. Failed attempts. I try to kill my uncle but fail. I’m just as bad as a person who successfully kills his uncle. But failures are punished less stringently in our society.
  2. Moral luck. Liz and I are equally negligent, but I run someone over and she doesn’t. I’m the only one who is punished, even though she is equally bad.
  3. Personal immorality. I’m about as mean as Livia Soprano. I traumatize people I break up with, I manipulate my friends, I stir up bad blood, and I spread lies about people. I do these things on my good days. You don’t want to hear about the bad. I’m not punished for any of this. If Mr. Goodman steals food for his family, though, that’s a crime, despite the fact he’s a great guy with motives that anyone with a heart would understand.

Fowler said that he thought punishment was appropriate in the first two cases. It isn’t appropriate in the third because I don’t violate anyone’s rights. Fred added (briefly) that I will certainly be subject to punishment by my peers rather than the state in the third case.

Fred added more pain by drawing a distinction between the parts of Feinberg’s three point representation of retributivism on p. 625 that I hadn’t seen. The first two points are about moral guilt: retributivists think that moral guilt is a necessary and a sufficient condition for punishment, Feinberg says. But the third point, about the proper amount of punishment, is about the “moral gravity” of the offense.

Fred used his distinction to rip right through my cases. The bad people who didn’t cause harm in the first two cases are just as morally guilty as the ones who did, but the moral gravity of the relevant acts differs. It’s a morally grave thing to drive drunk and I will be punished if I’m caught. But it’s a more morally grave thing to drive drunk and run someone over. So if that happens, I’m punished even more.

Fred let me get away with the third point, but I think his brief point would have caused me trouble there too. Bad people are appropriately punished, just not by the state.

In short, I was hit with two different responses to my cases that I had not anticipated. And I got the worst of it. Well done, gents! But don’t do it again.

What I wanted to say

Well, that’s what you get when you freelance. If I had just stuck with Feinberg, here’s what I would have had.

  1. Utilitarians are willing to punish the innocent. And they’re willing to punish the guilty more than they deserve.
  2. Retributivists are willing to punish even when doing so does no good and so seems pointless. Except to hardened retributivists, of course.

Note that Feinberg did not give any examples of pointless punishment. That’s what my three cases were supposed to provide. So let’s try again.

Here is an easier case. We find that an old man is guilty of a crime long ago and, despite the fact that he has lived an exemplary life ever since, we punish him to give him what he deserves. Punishment in this sort of case strikes me as pointless.

Here is a more controversial case. Most of the punishment we mete out as part of our war on drugs strikes me as excessive. It does no discernible good and a tremendous amount of harm. But drug offenders are guilty of violating the law and they usually commit a variety of property and public nuisance crimes to boot.

So those are two cases in which, it appears, retributivism would lead to pointless or excessively costly punishment.

The thing is, few of us are pure retributivists. Almost none of us are straight utilitarians, but most of us think that the utilitarians are onto something: the costs of punishment should not outweigh the benefits. How do we reconcile that with our retributivist beliefs that punishment is about giving people what they deserve?

Here’s my answer. If you ask “when is punishment justified?” I will say you are really asking two questions, a moral question and a political question.

  1. When are we morally justified in punishing someone?
  2. When should the state punish someone?

The answer to the moral question is that punishment is justified only when it is deserved. The answer to the political question is that the state should punish people only when the benefits of doing so outweigh the costs.

Retributivism is the partial answer to the moral question and utilitarianism is the partial answer to the political question. They are only partial answers because each view was intended to give both necessary and sufficient conditions for the justification of punishment. I stripped the sufficient condition out. When I use retributivism to answer the moral question, it is to give a necessary condition for justified punishment, not a sufficient condition. Similarly, when I use utilitarianism to answer the political question, it is to give a necessary, but not a sufficient, condition of justified punishment.

The reason why I did that is this. If you allow either retributivism or utilitarianism to provide a sufficient condition for the justification of punishment, it will wipe out the other view’s necessary condition. That is the source of the problem with each view. Utilitarians think the fact that we could get a lot of good out of punishing Mr. Innocent is a sufficient condition of being justified in doing so, despite the fact that Mr. Innocent doesn’t deserve it. Retributivists want to punish Mr. Guilty despite the fact that the costs will outweigh the gains because they think moral guilt is a sufficient condition for punishment and ignore the utilitarian necessary condition.

Punishment in our society

This is only indirectly related to the philosophical discussion of punishment that I have just gone over. But it’s important enough to be worth mentioning. The United States punishes a lot of people, almost certainly more than it makes sense to punish. As Mike Huckabee put it, “We lock up a lot of people we are mad at rather than the ones we are really afraid of. We incarcerate more people than anybody on earth.”** Interview with Michael Scherer, Salon, March 5, 2007.

Huckabee wasn’t kidding. According to a recent story in the New York Times, “The United States has less than 5 percent of the world’s population. But it has almost a quarter of the world’s prisoners.”†† “Inmate Count in U.S. Dwarfs Other Nations’,” New York Times April 23, 2008. As that article points out, the US has an unusually low crime rate. It’s reasonable to suppose that the harshness of its punishments has something to do with that. But the system exacts a very high price. This is made clear in an article reviewing recent scholarly books on imprisonment. Here are a few of the lowlights:

[Bruce] Western [a sociology professor at Princeton] … identifies mass incarceration as a major cause of modern inequality, with large and uncounted collateral effects. Imprisonment does more than reflect the divides of race and class. It deepens those divides—walling off the disadvantaged, especially unskilled black men, from the promise of American life. While violent criminals belong in jail, more than half of state and federal inmates are in for nonviolent crimes, especially selling drugs. Their long sentences deprive women of potential husbands, children of fathers, and convicts of a later chance at a decent job. …

The 1990s were said to be a time when rising tides finally did lift all boats. Western warns that part of the reason, statistically speaking, is that many poor men have been thrown overboard—the government omits prisoners when calculating unemployment and poverty rates. Add them in, as Western does, and joblessness swells. For young black men it grows by more than a third. For young black dropouts, the jobless rate leaps from 41 percent to 65 percent. “Only by counting the penal population do we see that fully two out of three young black male dropouts were not working at the height of the 1990s economic expansion,” Western warns. Count inmates and you also erase three quarters of the apparent progress in closing the wage gap between blacks and whites. …

The Commission on Safety and Abuse in America's Prisons was presented as a left–right affair, with Nicholas de B. Katzenbach, the former attorney general, occupying the Democratic half of the co-chairmanship, in partnership with John J. Gibbons, a Republican and former federal appeals court judge. … The report tells us that America's prisons are dangerously overcrowded, unnecessarily violent, excessively reliant on physical segregation, breeding grounds of infectious disease, lacking in meaningful programs for inmates, and staffed by underpaid and undertrained guards in a culture that promotes abuse. What is more, prisoners' ability to legally challenge their living conditions has been curtailed by a congressional roadblock called the Prison Litigation Reform Act of 1996, which has cut in half the number of inmates filing civil rights complaints. …

Jeff Manza and Christopher Uggen … follow the story out of the cell and into the voting booth. Locked Out examines how the disenfranchisement of felons shapes American democracy …

By denying the vote to felons, the average state disenfranchises 2.4 percent of its voting-age population—but 8.4 percent of its voting-age blacks. In fourteen states, the share of blacks stripped of the vote exceeds 10 percent. And in five states (including Kentucky), it exceeds 20 percent. Focusing on black men, Marc Mauer has estimated that felony laws keep nearly one in seven from voting nationwide. …

If felons were allowed to vote, the United States would have a different president. Disproportionately poor and black, felons choose Democrats in overwhelming numbers —giving them between 70 percent and 85 percent of their votes in presidential elections. Had they been allowed to vote in 2000, the authors estimate, Al Gore's margin in the popular vote would have doubled to a million. If Florida had allowed just ex-felons to vote—those who can claim to have paid their debt to society—Gore would have carried the state by 30,000 votes and with it the electoral college.‡‡ Jason DeParle, “America’s Prison Nightmare,” New York Review of Books, April 12, 2007.

Finally, I would like to toss in a link about another society: the mountain areas of New Guinea. The Highlanders of New Guinea have an elaborate system for exacting vengeance. Jared Diamond, the renowned anthropologist, wrote a short piece describing the advantages and disadvantages of this system.§§ Jared Diamond, “Annals of Antropology: Vengeance is Ours.” The New Yorker, April 21, 2008. I think it helps to show the inevitability of vindictiveness, the view of punishment that comes up briefly at the end of Feinberg’s article.

This page was written by Michael Green for Philosophy of Law, Philosophy 34, Spring 2008. It was posted April 27, 2008.
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