Philosophy of Law Spring 2018

Criticism of Combined Views

Overview

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:

  1. Punishment cannot exceed what Goldman calls the equivalence limitation.
  2. Punishment must have good future effects, such as deterring crime.

Goldman argues that these conditions cannot both be met because the level of punishment that would deter crime exceeds the equivalence limitation.

Incidentally, if you found Goldman’s article hard to follow, I have an outline at the bottom of this page.

What is the paradox?

One way of taking Goldman’s point is that it shows that punishment cannot be justified: there are two necessary conditions for punishment to be justified, those conditions cannot both be met, therefore, punishment cannot be justified.

However, I think he has something more disturbing on his mind.

  1. The state must do what is necessary to protect the public.
  2. Punishment at a level that deters crime is necessary to protect the public.
  3. Therefore, the state must punish at a level that deters crime.
  4. Punishment must not exceed the equivalence level of harm.
  5. Punishment deters crime only when it exceeds the equivalence level of harm.
  6. Therefore, the state must not punish at a level that deters crime.

That’s a real paradox: the state is both required to punish and required not to punish. Since the argument seems to be pretty good, that has me worried.

The equivalence limitation

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. Which rights do criminals forfeit? Goldman claims they forfeit rights that are equivalent to those that they violated when they committed 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)

The innocent forfeit no rights, so punishing them at any level is unjust. The guilty forfeit some rights. Petty thieves forfeit less important rights than murderers do. Punishing a petty thief like a murderer violates the thief’s rights, much as punishing an innocent person would. That is the idea behind the equivalence limitation (Goldman 1979, 51).

This way of thinking about punishment handles what is wrong with both excessive punishment and punishing the innocent in one shot. I think that’s pretty clever.

Questions about the equivalence limitation

Molly and I had some questions about the equivalence limitation. Specifically, we wondered why it was obviously wrong to think that the guilty forfeit more of their own rights than they violated when committing their crimes. We thought of two reasons why this at least looks acceptable.

  1. Crimes are wrong because they hurt the innocent. Punishment isn’t wrong because it hurts the guilty. (This was my point.)

  2. Criminals voluntarily take the risk of the announced punishment. Since they have a choice, society does not have to limit itself to equivalent punishments. (Molly got this one.)

On the other hand, Niyati said that she thought that what counts as an equivalent punishment should be balanced against both the harm done to the victim and the harm done to the state. Adam and Daisy agreed. If we calculate equivalence in this way, the criminal’s punishment will be heavier than the loss suffered by the victim. As Adam argued this would address some of the concerns Molly and I have while retaining the original idea of looking for an equivalence between the rights that the criminal forfeits and the rights that the criminal violated.

Our discussion was much more extensive than this: I wrote a lot on the board. But that was a week ago and while I remember points by Joon, Camilla, and others, I can’t put it all together again. It was good! I know that.

Is there still a problem?

Suppose this is all correct and that criminals may be punished in excess of the costs they impose on their victims, either because we reject the equivalence thesis (as Molly and I want to do) or because the equivalence thesis allows more punishment than it appears to (as Niyati, Adam, and Daisy suggest). Goldman’s problem may still be there. What we need to show is that society is permitted to punish at a level that deters crime.

Given how inefficient we are at catching criminals, Goldman thinks it is unlikely that any system of proportionate punishment could be effective in deterring crime. So for all we have said, it may well be that deterrence requires punishment at a level that none of use (me, Molly, Niyati, Adam, or Daisy) would stomach.

If we would rather not face the hard choice between keeping people safe and avoiding barbaric punishments, one thing we could do is get more efficient at catching criminals. As punishment for crime becomes more likely to happen, it is does not have to be as severe in order to have a deterrent effect.

Main points

These are the points that you should know or have an opinion about after today’s class.

  1. The paradox of punishment, according to Goldman.
  2. The equivalence limitation on punishment.

Outline

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).

  1. Target: views that hold punishment must be both deserved and beneficial. (42)

  2. The version of retributivism that he likes: criminals may be punished because they forfeit their rights against being harmed. The most important part of this is what he calls the equivalence limitation. It holds that the rights criminals forfeit is equivalent to the rights violated by their crimes. It follows that punishment cannot inflict harm on the criminal that exceeds the harm the criminal inflicted on others (see p. 46). (43–47).

  3. 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.

  4. Objection: punishment beyond the equivalence limitation is OK if it is needed for deterrence, preventing the violation of other people’s rights. (52–54)

  5. Objection: the guilty voluntarily accept punishment. That means it doesn’t have to be equivalent. (54–55)

  6. Objection: excessive punishment is the lesser of two evils, where the other evil would be vigilante justice. (56–57)

  7. Alternative: increase the probability of punishment. That would deter crime even if the punishment itself satisfied the equivalence limitation. (58)

  8. Alternative: improve social conditions so there is less incentive for crime. (58)

References

Goldman, Alan H. 1979. “The Paradox of Punishment.” Philosophy & Public Affairs 9 (1): 42–58.