Goldman believes that mixed theories of punishment, such as those offered by Hart, Grotius, Hobbes, and Locke, 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 of harm needed to deter crime exceeds the equivalence level.
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!
The equivalence limitation says that criminals can only be harmed at a level equivalent to the harm they inflicted on their victims (see Goldman 1979, 46).
Bogdan and I raised a couple of questions about the equivalence limitation. I said that I thought it was OK to harm criminals more than they harm their victims. I gave two reasons why: criminals hurt the innocent while punishers hurt the guilty and criminals choose to commit their crimes knowing what the penalties are.
Bogdan said that in calculating how much harm criminals inflict on their victims, you have to take more into account than just their tangible losses in property or physical injury; if you do that, giving criminals the equivalent harm will often look like inflicting more harm than the victim suffered (though it really isn’t).
(I’m going to compress an excellent discussion here, so I’m passing over really good points made by Michael, Graham, Brittany, and Patrick. Everyone involved, pat yourselves on the back.)
Goldman has a response to my point. He says that these considerations cannot mean that there are no limits at all on how criminals may be punished. The state can’t announce that it will execute all jaywalkers and then say “well, they knew that was the penalty” when called on to justify it.
I think Goldman’s response is correct, but I don’t think it is enough to make the point. There are some penalties that are obviously excessive, there are the equivalence level penalties, and there are some penalties that are in between the two. You can think that society should never inflict obviously excessive penalties without necessarily thinking it cannot exceed the equivalence level. What we need to know is whether the punishments needed to deter crime are below the obviously excessive level, not whether they are above the equivalence level.
Sydney said I was begging the question against Goldman. Goldman has a reason for limiting punishments to the equivalence level. As he sees it, anything above that is excessive. You won’t be surprised to hear that I don’t exactly see it that way. I think I showed that we have no reason for finding the equivalence level significant in the first place. Sydney doesn’t think I did that. She thinks I only seemed to do so because I assumed he was wrong at an important point in my argument: that is why she accused me of begging the question.
But leaving this disagreement aside, I think Sydney has a point. Goldman’s broad claim is that society cannot deter crime without using excessive punishments. I disagreed with his way of drawing the line between excessive and permitted punishments. But that is not the same thing as showing that some punishments are both permissible and adequate to deter crime. So for all I have said it is still possible that Goldman is right about the most important question.
In fact, as I said at the very end, I suspect that Goldman is right. I only really know the United States but that is a very discouraging case. In the US, they punish a lot and pretty 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.
Patrick had a good idea. Suppose Goldman is right that the “natural” right to punish only allows for punishment up to the equivalence level. When criminals violate the rights of others, they forfeit rights to be free from an equivalent level of harm. And suppose he is also right when he says that this is not enough to deter crime.
One obvious solution is to say that people have to surrender the right to be free of punishment above the equivalence level in exchange for the benefits of social life. One way to do this is to insist on something like a literal social contract: people entering the state voluntarily agree that they can be punished at this higher level. A more plausible way would be to say that liability to punishment at the higher level is a fair price to pay for the benefits of living in a society with a tolerable level of crime. I think this is something like what Hart was getting at towards the end of his article (Hart 1959, 21–22).
We did not have time to fully discuss this, but I think it’s a very promising idea. We would have to be careful about Sydney’s point. Our understanding of just what constitutes a “fair price” is pretty fuzzy. We would not want to wind up giving a rationalization for horrific abuse. At least, I would not want to give anyone cover to say something like, “losing your hand for jaywalking sounds harsh, but it’s a fair price to pay for living in a decent society!”
And there is still the very basic problem that I noted at the end of the last section. I’m not sure we know how to have a system of punishment that is both humane (perhaps I should say “fair”) and effective. I don’t know that a social contract story would get us out of that dilemma. I don’t mean to shut anything off: maybe it would. But even while I feel the attraction of that story, I still find Goldman’s argument disconcerting.
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 and Public Affairs 9 (1): 42–58. http://www.jstor.org/stable/2264866.
Hart, H. L. A. 1959. “Prolegomenon to the Principles of Punishment.” Proceedings of the Aristotelian Society, New series, 60: 1–26. http://www.jstor.org/stable/4544619.