Main points
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 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:
As Goldman understands it, this means:
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.
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 second concerns the justification of punishment.
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.
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.
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 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 spent a lot of time talking about these points, but especially the second. As Dan and Jonathan pointed out, we don’t want “he knew the risks when he committed his crime” to mean it’s OK for society to impose disgusting punishments. 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. I assume that there are some crimes that are so awful that society would not be justified in doing the equivalent thing to the person who committed them. We don’t rape rapists or torture torturers. Where is the line between strictly equivalent punishments that Goldman would tolerate and those that he would regard as beyond the pale? I doubt he has a better answer than I do. 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.
We also talked a lot about how to determine what punishments are equivalents to particular crimes. The thing that worried us the most was how to accommodate subjective losses: how much does someone’s feelings about a crime matter in determining how bad it was? Rafael gave us some particularly dramatic fictional examples drawn from his experience working on divorce cases. These convinced me that people often have completely unrealistic understandings of the losses they have suffered. So we can’t take the victim’s point of view at face value. At the same time, we wouldn’t want the equivalence level to be set according to the cash value of what was lost in the crime. If someone steals your car, it’s a lot worse than just losing your car; it’s a violation and an inconvenience, among other things. It makes sense that we should want the criminal’s punishment to reflect the cost imposed on victims and that should include the feelings of vulnerability, resentment, and violation that victims feel. How do we do that without falling into the absurdities that Rafael entertained us with? I don’t know. I would suggest looking at how these sorts of questions are handled in tort law. How are damages assigned in wrongful death suits, for instance? I’m sure that lawyers have encountered this problem repeatedly. If anyone has an intelligent way to think about it, my money is on them.
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.
These are the points that you should know or have an opinion about after today’s class.
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: 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).
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)