Goldman believes that mixed theories of punishment like Hart’s are internally contradictory. Mixed theories hold that there are two necessary conditions that must be satisfied for punishment to be justified:
Goldman argues that these conditions cannot both be met because the level punishment needed to deter crime exceeds the equivalence limitation.
One way of taking Goldman’s point is that it says that we cannot punish. There are two necessary conditions for punishment to be justified, those conditions cannot both be met, therefore, punishment cannot be justified.
I think he has something even more disturbing up his sleeve, however. I think that something like this is on his mind.
That’s a real paradox: the state is both required to punish and required not to punish. Yikes!
Criminals forfeit their rights. That is why society is permitted to do things to them that it would otherwise not be permitted to do, like locking them up. How many rights do criminals forfeit? Goldman claims they forfeit rights equivalent to those that they violated in committing their crimes.
if we ask which rights are forfeited in violating rights of others, it is plausible to answer just those rights that one violates (or an equivalent set). One continues to enjoy rights only as long as one respects those rights in others: violation constitutes forfeiture. But one retains those rights which one has continued to respect in others. Since deprivation of those particular rights violated is often impracticable, we are justified in depriving a wrongdoer of some equivalent set, or in inflicting harm equivalent to that which would be suffered in losing those same rights (for example, rights to fifty dollars of one's own and not to suffer the trauma of being a victim of theft). (Goldman 1979, 46)
Punishment beyond the equivalence level would violate the criminal’s rights, much as punishing the innocent does. The innocent forfeit no rights, so punishing them at any level is unjust. The guilty forfeit some rights: petty thieves forfeit fewer rights than murderers. Punishing a petty thief like a murderer violates the thief’s rights. That is the idea behind the equivalence limitation (Goldman 1979, 51).
Leo and I were suspicious of the attempt to maintain equivalence between what may be done to criminals and what the criminals did to their victims. After all, there is an important difference between the two cases: crime hurts the innocent whereas punishment involves hurting the guilty. In addition, punishment is a consequence of what criminals chose to do, knowing the consequences. The victims of crime, by contrast, are usually hurt unwillingly.
We had trouble formulating the point in a way that seemed fully satisfactory. Unfortunately, I can’t recall exactly what the problem was except that it involved rights. Maybe Leo remembers.
It may not matter much in the end. Even if a society is allowed to punish beyond the equivalence limitation, Goldman is surely right to say that there are some limits to what it may do to criminals. And I strongly suspect he is right to suggest that deterrence requires punishment that exceeds those limits. Here is why I think that.
I only really know the United States but that is a very discouraging case. In the US, they punish frequently and very harshly. Yet there is still a lot of crime. I shudder to think of what level of punishment would be required to really reduce crime to more tolerable levels. It seems pretty obvious to me that we need some alternative for dealing with anti-social behavior but, at the same time, I don’t have the foggiest idea of what that would be. So I am willing to believe that his dilemma is accurate, even if I have some quibbles about the details.
I like to make outlines identifying the broad chunks in an article. It helps to keep me oriented. Here’s how I see the Goldman article breaking down (page numbers in parentheses).
Target: views that hold punishment must be both deserved and beneficial. (42)
The version of retributivism that he likes. This involves a mild forfeiture view. The most important part is what he calls the equivalence limitation. It holds that justified punishment involves inflicting no more than an amount of harm on the criminal that is equivalent to the harm the criminal inflicted on others (see p. 46). (43–47).
The paradox. In order to deter crime, we have to punish in excess of what is permitted by the equivalence limitation: we have to inflict more harm on the criminal than the criminal inflicted on others. This is the central part of his argument and it is the most important section. (47–49)
Everything else in the article will be concerned with objections to this part. The objections will either try to show that the level of punishment needed to deter crime is acceptable (meaning the equivalence limitation is wrong) or that it is possible to have deterrence in a system of punishment that respects the equivalence limitation. Goldman answers each one as it comes up.
Objection: punishment beyond the equivalence limitation is OK if it is needed for deterrence, preventing the violation of other people’s rights. (52–54)
Objection: the guilty voluntarily accept punishment. That means it doesn’t have to be equivalent. (54–55)
Objection: excessive punishment is the lesser of two evils, where the other evil would be vigilante justice. (56–57)
Alternative: increase the probability of punishment. That would deter crime even if the punishment itself satisfied the equivalence limitation. (58)
Alternative: improve social conditions so there is less incentive for crime. (58)
Goldman, Alan H. 1979. “The Paradox of Punishment.” Philosophy & Public Affairs 9 (1): 42–58.