Feinberg’s question is what distinguishes punishment from mere penalties. His answer is that punishment has an expressive function that penalties lack.
Feinberg then uses the expressive theory to smoke out sneaky attempts to punish people while avoiding the normal legal constraints on doing so, to explain why strict liability is tolerated when fines are the punishments but not when the punishment involves imprisonment, and to solve a problem with the justification of punishment that the retributive theory fails to solve.
One problem with retributive theories of punishment is that it seems to be impossible to meet the necessary condition: only the guilty can be punished. For example, innocent family members are often hurt by punishing the guilty.
The expressive theory can’t remove the harm that the innocent suffer. But it can help us to make progress on the apparent incoherence of punishment. Because we are not expressing our hostility towards the innocent family members, we are not punishing them, even though we do harm them, when we punish the guilty.
So it’s not possible for punishment only to harm the guilty. But it is at least possible for punishment to be restricted to the guilty.
I am not sure if that answers the original point. But it does fill out a point that Gabe made some time ago, namely, that there is a difference in intention between the harm in punishment and the harm suffered by the innocent as a consequence of punishing the guilty. Mollie, on the other hand, thought it would be perverse if the state could, say, put innocent people in jail because it had empty cells to fill. “We’re just harming them, we aren’t punishing them,” would not justify that. Good point!
Feinberg begins with an assumption that fines are not punishments. We spent a lot of time on this point.
Taylor and Izzy both pointed out that fines are a lot like punishments. They aren’t like fees, namely, a price you pay to do something like entering a park. Rather, they are assessed against those who do something that is strictly prohibited. So fines just seem like mild punishments.
On the other hand, Gabe agreed with Feinberg that there is a significant difference between punishments and fines. Ideally, everyone sent to prison will be ashamed of themselves while no one expects such a reaction to a traffic ticket. That isn’t to say that this is how it always works out. The point is that this is what we are trying to express in punishing someone: you did something shameful. We don’t express a similar idea with fines. So even if there is not a logically deep distinction between punishments and fines, there is a socially significant difference. At least, there is according to Gabe and Feinberg.
Here is one bit of evidence in their favor. Some people thought that the bankers whose behavior led to the financial panic of 2008 should have been sent to jail rather fined. Whether they are right or wrong, that shows that there is a recognized difference between punishments and fines.
We spent the rest of our time going through the cases Feinberg gives to illustrate the expressive function of punishment. I added a new one. I said that I could see how it would be important for the University of Oklahoma to punish the students who sang racist songs as a way of expressing its commitment to providing an educational community for everyone. We talked about that quite a bit.