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.
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 the state is permitted to do things to them that it would otherwise not be allowed 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.
In the past, students have disagreed with me here. They have said that punishment of the innocent is qualitatively different from excessive punishment for the guilty. If you agree, you probably won’t think it is an advantage of Goldman’s way of doing things that he treats them as being similar.
I plan to raise two questions about the equivalence limitation. The point is 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? That’s a good question.
Suppose we reject the equivalence thesis and hold that criminals may be punished in excess of the costs they impose on their victims. 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. I find that plausible and disturbing.
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.