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:
Punishment has desirable consequences, such as the deterrence of crime.
Punishment is inflicted only on those who are guilty of violating the law.
As Goldman understands it, this means:
Punishment must have good future effects, such as deterring crime.
Punishment cannot exceed what Goldman calls the equivalence limitation.
Goldman argues that these conditions cannot both be met because the level of punishment that would deter crime exceeds the equivalence limitation.
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. Each of these arguments seems persuasive but, obviously, they cannot both be true.
The first concerns the role of the state.
The state must do what is necessary to protect the public.
Punishment at a level that deters crime is necessary to protect the public.
Therefore, the state must punish at a level that deters crime.
The second concerns the justification of punishment.
Punishment must not exceed the equivalence level of harm.
Punishment deters crime only when it exceeds the equivalence level of harm.
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.
Caroline, on the other hand, thought that there should be a difference between punishing the innocent and giving differential punishments for similar crimes. The former is qualitatively worse than the latter, in her opinion.
Questions about the equivalence limitation
I raised two questions about the equivalence limitation. The point was to challenge Goldman’s contention that the guilty forfeit no more rights than they violated in committing their crimes. Here are two reasons why it at least seems to be acceptable to treat the guilty worse than they treated their victims.
Crimes are wrong because they hurt the innocent. Punishment is different because it hurts the guilty.
Criminals voluntarily take the risk of the announced punishment. Since they have a choice, society does not have to limit itself to equivalent punishments.
We need to be careful with arguments like these. We don’t want “he knew the risks when he committed his crime” to mean it’s OK for society to impose disgusting punishments. We need a line between punishments that are acceptable and those that are not.
Goldman holds the line at the equivalence limitation. Once you say it’s OK to go beyond that, what stops you from approving of wildly disproportionate punishments?
I don’t have a great answer to this question. The best I can do is to try to shift the burden back onto Goldman. Here’s what I mean. Goldman says society cannot punish beyond the equivalence limitation. I said that I think it can. If that meant anything goes, my side of this argument would not be very compelling. But I think that excessive punishments are bad too. I just don’t think that anything beyond the equivalence limitation is excessive. The non-excessive punishments lie somewhere between those allowed by the equivalence limitation and those that are clearly excessive.
I can’t say how to draw the line between excessive and non-excessive punishments. That’s not great for me. But I think Goldman has the same problem. As Sienna pointed out, if we were literal about the equivalence limitation, we would say that it’s OK to have disgusting punishments for disgusting crimes: rape the rapists, gouge the eyes of eye gougers, and so on. I assume that these punishments would not be acceptable. And I assume that Goldman would agree.
If Goldman does agree, then he is doing the same thing I am doing. He’s drawing a line between acceptable and unacceptable punishments that is different than the line between equivalent punishments and non-equivalent punishments.
That doesn’t impugn his argument, in my opinion. It just means that the problem of drawing a line between excessive and non-excessive punishments is one that we both share. If someone shows how to draw the line, that would fix the problem with Goldman’s theory but it would solve my problem too. So I don’t think this problem bears on whether I’m ahead of Goldman or vice versa.
Alternatives to deterrence
Sienna and Caroline both pointed out that the consequentialists do not have to say that punishment is justified only for its deterrent effect. They can say that punishment is useful for incapacitating criminals and for rehabilitating them. Goldman’s argument does not show there is anything paradoxical about these aims for punishment.
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 because we reject the equivalence thesis. 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 us 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. Another thing we could do is address the social conditions that lead to crime.
These are the points that you should know or have an opinion about after today’s class.
The paradox of punishment, according to Goldman.
The equivalence limitation on punishment.
Goldman, Alan H. 1979. “The Paradox of Punishment.” Philosophy & Public Affairs 9 (1): 42–58.