New Worlds: Why Punishment

(This post is part of my Patreon-supported New Worlds series.)

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.

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New Worlds: Why Punishment — 11 Comments

  1. For an example of a prison/punishment regime that is geared toward rehabilitation rather than retribution, take a look at the prison system in Norway: https://youtu.be/zNpehw-Yjvs

    You don’t want to turn a rebellious or unruly teenager into a hardened criminal; you want them to grow out of this difficult phase of their lives and become productive members of society. That means rehabilitative justice is extremely important for younger offenders, and I expect many more societies will recognise that.
    That principle certainly underlies the justice system for children and youths in the Netherlands. Kids up to 18 years old tend to get restitution-type tasks or learning objectives, rather than fines or incarceration (under 12s no fines or detention at all); and if detention is necessary for older teenagers they prefer to give only nighttime detention, so the kids can still go to school. The judge can also choose to extend this youth-justice to offenders up to 23 years old, if the youngster’s development warrants doing so.

    From a pragmatic viewpoint, the very vindictive system in the US and other places makes no sense – keeping people locked up costs society a lot of money, while rehabilitating them means they start contributing to society instead of being a burden.
    But the confounding factor in this, from what I can see, is the US system of for-profit prisons and extremely lowpaid prison work: one dollar for a day’s work (or two for fighting wildfires in California), which the prisoner then needs to spend in the prison ‘company store’ for things like soap and hygiene products. It has in practise turned the prison population into a slave labor population, creating wealth for the prison owners, while still being a burden on society.
    Society’s taxes pay the prison corporations to guard, house, feed and clothe the prisoners – often without setting adequate minimum standards for things like food, hygiene products, and access to medical care, so sheriffs like Arpaio and the prison corporations can put any money they save on those (by feeding the prisoners slop, or housing them in tents and cages) in their own pockets.
    The wealth these prisoners then generate for the private prison corporations buys the owners political influence to keep the system going.

    Privatise the gains, socialise the costs, leads to very biased decision making by those who stand to gain. And the vindictiveness hyped up towards anyone who can be branded a ‘criminal’ appears to make the rest of society turn a blind eye to their maltreatment, or even approve of it.

    I have wondered at this wide streak of vindictiveness which appears to permeate the US discourse on politics and societal reforms, where it seems to trump both logis and facts, and common human decency towards one’s fellow humans. Could it, like the extra strong bent towards religiousness, be partially caused by the existential uncertainty so many Americans face? Missing the kind of financial security offered by the northwest European social democracies appears to make US people more inclined to think “if I don’t have it, you shouldn’t be allowed to have it either”.

    • I wouldn’t blame it on “religiousness”, which is a complex topic, especially as there is at least as much quietly effective social justice outreach on the part of various American religious institutions as there are the hypocritical “Kill them all and let God sort them out” types that the media love, because it sells copy. Churches that collect food and clothes for the homeless are boring, no one wants to hear about them.

      I do, however, think there is a strain of the Puritan ethic that drove the early foundations of white people’s efforts to remake this portion of North America into their image still remaining today in conservative circles. The word ‘God’ and other Christian terms are bandied about as part of political rhetoric. The way these guys live and think makes it clear that no part of any moral or ethical, much less religious, thinking ever enters their heads.

      • I didn’t intend to imply the religiousness was a cause of the vindictiveness.

        What I meant was that there are indications that if people feel more secure in their life and their future, populations can become less religious.
        Comparing Europe and North-America, the countries where people have to worry less that losing a job or getting sick will mean a personal and/or familial (financial) catastrophe are also countries where less people consider themselves affiliated with a particular religion, and more people consider themselves agnostic or atheist.

        Partially this is for very pragmatic reasons; as you say, many churches organise charities that can partially compensate for the lack of a collective governmental safety net – if you want to be able to count on those church communities helping you when you need it, it helps to be part of that community. Not that everyone makes this decision on overt “mercenary” grounds, but the need to belong to a community you can count on in adversity is a very visceral human one, and when one’s state or country can supply that need, there may be less pressure to find it elsewhere.
        And maybe, if they’re not that worried about their personal future, some people also feel less of a need to pray.

        I just wondered if the pervading “subterranean” sense of being under pressure, not being able to count on being taken care of when things go wrong, can have a similar effect on the sense of proportionality and punitiveness in punishments as it has on religiousness.

        If you’re not sure you will be able to provide a home and food and medical care for your family, despite working hard at your job(s), you might get the visceral sense that there are not enough resources for everyone in the community, and so the group cannot afford to spend resources on those who don’t contribute or have transgressed against the group – they should be ‘banished’ (to long, even life terms in jail, where as little money as possible is spent on them) for the good of the community in-group.

        Whereas if you are sure you, your family and everyone you care about will be taken care of if bad things happen, that sense of security/abundance could spill over into spending some resources on trying to rehabilitate those who have transgressed, as a viable long-term strategy to make the whole community better, stronger and more resilient.

        I don’t know, it’s just a correlation I’ve noticed in several countries, and it made me wonder.

        • I tend to think” fewer people who have enough to eat and a secure place to live will be religious” is a tad simplistic, but that is not really germane to the discussion.

          My main objection was to what I thought was a blanket statement pointing toward “All religious people are stupid/evil/in favor of horrific government,” which, if you substitute any other group in place of religious, would fire up many of my fellow leftists to howl about bigotry. And we’ve already got enough divisiveness in this country. Sure don’t need more.

    • From an outsider perspective, I would tend to agree that a for-profit prison system combined with a measure of Puritan-laced vengefulness, systemic racism, and the resultant (à la 18th-century Britain) over-criminalisation of behaviour—note the “three strikes and you’re out” laws in certain States—have produced the distressing state of incarceration in the US.

      Certain conservative politicians in Canada have toyed with the idea of for-profit prisons (and—shudder—chain gangs), but thankfully so far there is no appetite here for such “reforms.” That said, our system here is by no means perfect. As a purported cost-cutting measure, our previous federal government shut down a burgeoning agricultural program in one of our largest prisons, in which inmates grew vegetables and were taught practical skills that they could take with them into the job market when they rejoined mainstream society. There’s nothing more restorative than growing one’s own food, but no—can’t have those nasty criminals doing anything productive. The desire for retributive-justice-and-nothing-but is such a difficult mindset to dislodge.

      Interestingly enough, I just came across the article below a few days ago, which is very germane to Marie’s discussion.

      https://thewalrus.ca/did-prisons-ever-work/

    • It has in practise turned the prison population into a slave labor population, creating wealth for the prison owners

      Which is almost certainly what it was meant to do. It’s no accident that the U.S. has gone from slave-owning to Jim Crow to our current carceral system, which oh so coincidentally hits non-white populations far harder than white ones. It’s not about religiosity (except insofar as a strain of white American Christianity dedicated itself hardcore to first justifying slavery and then, later, opposing the Civil Rights Movement); it’s about racism.

    • The idea of for-profit prisons is horrible, but they’re still a small portion of the US judicial system, and there’s backlash against them. I think the power of prison guard unions of public prisons is a bigger political problem. Poorly paid semi-voluntary prison labor gets used by public prisons, too, even by some ‘blue’ states — you mentioned California firefighters, but I was told that Massachusetts Medicaid glasses are ground by prisoners.

  2. It has been both educational and disturbing to compare more-rigidly-disciplined areas within a society to “general” society. Consider, for example, the US court-martial system… as it differed in practice before and after the Draft. There is now, in the era of the all-volunteer force, an extreme reluctance to proceed to court-martial for offenses that would have been handled via court-martial in WW2, Korea, and pre-1968 Vietnam (when the current structure of courts martial was adopted, in part due to prior abuses and in part because the prior structure didn’t do its job — maintaining good order and discipline — very well). Even in the late 1980s, there were problems getting new JAG officers enough court time to qualify as “trial counsel,” which in turn harmed their career prospects (and led to a chronic shortage of qualified defense counsel that has only gotten worse since the first Gulf War).

    In any event, the military system (in all countries) adds an element that civilian systems generally deemphasize or even reject: Banishment. This is similar to the “incapacitation” concept behind long-term imprisonment — that while in prison, the dastardly men can no longer harm the general public (all sexist tropes both historically accurate and intentional) — but more permanent. A punitive discharge (or, for the more gentlemanly officer corps, dismissal from the service) makes the dastardly men someone else’s problem. Permanently. But without the moral, social, and practical consequences of capital punishment, or need for certainty (for whatever definition of that applies) before imposing an irreversible consequence.

    In the US, banishment from the nation is unconstitutional (see Trop v. Dulles, 386 U.S. 86 (1958)), and many state constitutions and statutes prohibit banishment within the US. True, a sex offender can be “banished” from being within 1,000 feet of a school or daycare center; but doing much more than that starts edging into Eighth Amendment (“cruel or unusual”) territory. The US view, however, is far from universal at present; just last year, Singapore banished three activists, and the less said about what is happening in China right now the less shrieking from all points of view will drown out the rest of the topic.

    • Heh heh—isn’t Banishment largely how we ended up with Australia?

      Banishment is (or was, before ruinous colonial interference) widely practised in many North American indigenous communities; mind, it consists more of shunning than actual expulsion. They also—quite successfully—use healing circles as a form of rehabilitation and reconciliation. These things are harder to accomplish in larger populations that rely on bureaucratic systems to establish and enforce the law—much to everyone’s detriment.

      And of course, there aren’t too many unstaked (at least, in the eyes of the interlopers) territories left in the world to which a nation can offload its unwanted criminal element, without eliciting a combative response from the already-established inhabitants. Deportation is only really an option for those who have citizenship elsewhere in the world.

      • Interestingly, part of the reason for the upswing in transportation (banishment) as a sentence was because judges didn’t want to execute the convicted prisoners. That was the more humane alternative.

        And yes, the justice system of a small, close-knit community is often very different from that of a larger and more fragmented society. They have to be different; what works at one scale does not work at the other.

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