Punishment for crime is a fairly universal concept. Not in the sense of everyone always being punished for every crime; there are many reasons why leniency occurs, ranging from good ones like empathy to bad ones like corruption. And “punishment” is a broad concept (as we’ll see over the next few essays). But the idea that if someone does something wrong, there should be a response? That’s found in societies everywhere.
And for good reason. What the punishment is intended to achieve varies from scenario to scenario, but all of them share an underlying principle: they express and enforce the norms of society. Merely saying “we disapprove of this behavior” does no good if it isn’t backed by consequence; if you want to see that play out on a local scale, just watch a parent with a badly-behaved child. By imposing some kind of response on a criminal, we put muscle behind the idea that You Shouldn’t Do That Sort of Thing.
But that’s rarely the only principle in play — in part because punishment only for the sake of making a statement is somewhat arbitrary. What type of punishment we consider appropriate depends in part on what else we intend it to do.
The simplest impulse is toward retribution: you hurt me, whether directly (e.g. a punch) or indirectly (e.g. breaking my window), and so I want to hurt you back. But as the saying goes, an eye for an eye until everyone is blind . . . When you hear about blood feuds, past or present, that’s the retributive instinct at work. Left unchecked, it piles death upon death until people run out of passion for vengeance, or one side has nobody left standing.
Retribution’s nobler cousin is restitution, though the line between them can be difficult to pinpoint. The aim here is not to hurt the offender, but somehow to heal the target. This works moderately well in the case of property damage: you broke my window, so you bear the cost of repairing it. But how do you make someone whole in the case of murder? You can’t bring the dead back to life (usually; in a Dungeons and Dragons world you totally could, for about 5,000 gold pieces if they haven’t been dead for too long), so the restitution goes instead to the victim’s family. How do you compensate them for that loss? The earning potential of the victim can be measured, but the emotional loss can’t. And yet that doesn’t stop us from trying. Anybody who read Beowulf in school has probably heard of weregild, the Germanic instance of a broader concept known as blood money, payment to the victim’s family. Sometimes it prevents or stops feuds; sometimes it doesn’t.
Most punishments, however, focus on the offender rather than the victim (or their family). Atonement aims to cleanse the offender of their crime through some kind of ritual action — “ritual” here not necessarily meant in a spiritual sense, though we often encounter the notion of atonement in that context, e.g. the penance a Catholic priest may assign after confession. When we speak of a released convict having “paid their debt to society,” that’s an echo of the notion of atonement: by suffering the ritual of imprisonment, they have (theoretically) removed the stain of their misdeeds.
We often look to punishment to act as a deterrent, either in a specific sense, or in a general one. By “specific” I mean that we take some action to prevent a particular offender from committing that crime, or at least to make it harder for them. Imprisonment reduces the opportunity for most crimes; laws prohibiting convicted pedophiles from being around children seek to do the same thing. Cutting off a thief’s hand renders future theft more difficult, while branding a criminal in a visible location means that others will be on guard around them.
General deterrence, on the other hand, is about using harsh punishment to scare people en masse away from committing crimes. The problem with this concept is that it assumes people are always making calculated choices. In some cases that’s true: if the law mandates a more severe punishment for armed robbery than non-armed, a would-be robber may indeed decide to leave their weapon at home. But people also commit crimes out of passion, without any forethought; out of necessity, due to extreme poverty or a need to protect themselves; or out of the belief they’ll never be caught, so who cares what the punishment is?
We’ve actually conducted a large-scale experiment on the effectiveness of general deterrence on crime; it’s called “eighteenth-century England.” By the end of that century, over two hundred crimes were rated as capital offenses, many of them as petty as chipping stone off Westminster Bridge, entering land with intent to kill rabbits, or associating with “gypsies” (Romani). And the methods of execution were grotesque: not just public hanging but drawing and quartering, or (for women) being burned alive. Even children were executed for petty theft. The result? Eighteenth-century England was an astonishingly crime-ridden place. The deterrence effect was nil, and in the meanwhile continental Europeans were appalled by the sadistic pastimes of the English, who considered horrific executions to be great entertainment.
But those executions did feed the retributive instinct. And that same instinct is probably to blame for the difficult in implementing the final principle that can underlie punishment: rehabilitation.
Some of you reading this may have committed a traffic offense in the past, for which you were sentenced to take a defensive driving class. In essence, our response to “you’re a bad driver” is “we’re going to make you become a better one.” Similarly, a judge may order a convicted defendant to take an anger management class. When prisoners receive vocational training or other forms of education, we’re not seeking to make them suffer for what they’ve done; we’re trying to remove the factors that made them do it in the first place, so they won’t do it again. A former convict with a legitimate job will be less motivated to return to their life of crime than one who can’t make ends meet any other way.
The problem with this is, the vindictive monkey in the depths of our brains doesn’t like it. That person did a bad thing; why are we “rewarding” them? The monkey doesn’t care that over time, this will result in fewer bad things happening. It wants the Bad People to suffer. And since it doesn’t really get to see the suffering of being imprisoned, the notion that jail time expunges someone’s debt to society winds up not carrying the weight it’s supposed to — witness how difficult it can be for ex-convicts to get legitimate jobs. (Especially when racial bias stacks on top of that.)
So the history of punishment is one of us struggling against the shrieks of the vindictive monkey. The Code of Hammurabi mandated “an eye for an eye, a tooth for a tooth,” but is that the best way to enforce our societal norms? If the goal truly is to make bad things happen less frequently, and to mitigate the harm done to the victims, then we need to keep other principles in mind.