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.
Feinberg begins with an assumption that fines are not punishments. We spent a lot of time on this point.
Adrian and Matthew both thought there was something to this distinction. Matthew pointed out that your traffic tickets do not follow you through the rest of your life in the way that a criminal record does. Adrian said that people who are punished are expected to feel guilty but that no one has a similar expectation for things like traffic tickets. (I’m sure some people do feel guilty, but that would be a very unusual case.)
Samuel disagreed. He thought the only difference is in the degree of punishment inflicted. There is not a difference in kind between punishments and penalties like fines.
Abby had some interesting cases. On the one hand, she said that we fine people who park in handicapped spots even though many of us wish to express the feelings of resentment that characterize punishment, according to Feinberg. Does this show that fines can be punishments in special cases, that there should be something additional done to people who park in handicapped spots to make our feelings line up with our behavior, or that the distinction between fines and punishments is not a significant as Feinberg thinks it is?
Another case Abby brought up is the dean of the law school at UC Berkeley. He had his pay docked, apparently as a consequence of sexual harassment complaints. If you think that isn’t enough, and that he deserves to be punished (assuming he is guilty, of course), then your reactions suggest that you might accept Feinberg’s distinction.
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.
Maybe if we add this to Adrián’s suggestion several weeks ago that any harm suffered by the family are the responsibility of the criminal, rather than the state, we could understand how it might be possible to have punishment that is limited to the guilty.
Feinberg, Joel. 1965. “The Expressive Function of Punishment.” The Monist 49 (3): 397–423.