Theory

Punishment: Theory and Practice

In the comments to the post on execution, below, we have had several thoughts on how execution ought to work in theory, and does work in practice. Eric, for example, noted that "I'm not in principle opposed to the DP, but in practice, I find it more trouble than its worth."

In that spirit, I'd like to suggest a discussion of alternatives -- not just to the death penalty, but to the entire punitive system. What I would like to see is an argument from first principles. What should the justice system be attempting to do with criminals, and how can it best accomplish that thing?

This isn't an idle project. Just such a discussion is why we have a prison system at all. We didn't always. In the old days, prisons were normally only used to hold people until trial. If they were convicted, they were dealt with at once and let go: either fined, or subjected to corporal punishment such as whipping, or killed, or exiled. The idea of keeping people housed in a prison for years or decades did not exist, except for certain members of the nobility who were too important to kill, and too dangerous to release.

The prison system grew out of a debate that decided that the goal of the justice system should be "rehabilitation." In the early days of what we have come to call psychology, many believed that people were much more suceptible to conditioning. If, instead of traditional punishments (whipping, execution, fines) you put people in prison, you might be able to reform them. The idea was to confine them, so they would have nothing to do or think about except what you provided. Then, you provided prison guards to serve as an example of all that is best in society: a crisp uniform, a devotion to law and order, good manners. Then, as people began to reform themselves along the lines of the "good example," you could introduce other opportunties -- education, training.

Well, we see how that worked out. Our prisons compare favorably to Egypt's, say, but they are certainly not at all successful at achieving what they were designed to achieve. The rehabilitation model is an almost complete failure.

Maybe it can be done better -- but maybe it can't. Or maybe it shouldn't be the goal of the justice system at all. For example, if we are a society founded on human freedom, we undercut our real goal if we have a justice system that is built upon the idea that certain kinds of thinking and acting ought to be drummed out of you through mental "adjustment." If maximizing human freedom is the goal of the justice system, as it is for the government at large, perhaps we should move to a system based on exile -- what was called "transportation" in the days when the British sent criminals to Australia. Then, we have a system that preserves even criminals' right to think their lives through and live them out as they please -- just, elsewhere.

(Indeed, even the death penalty is better than prison on these grounds. At least when you hang a bandit, you're accepting him for who he is.)

Yet another alternative would be that punishment should be the goal of the justice system. I've heard anti-death penalty arguments arising from this: that the death penalty is too easy, and what folks want is a system that maximizes pain for murderers and other evildoers. This is what Captain Ed proposes as an alternative, for example: "When we have the person locked up, he should stay locked up -- and I mean locked up for good, and none of the Club Fed treatment, either. Three hots and a cot, and anything else depends on how well the prisoner behaves."

I am frankly unsympathetic to that idea. I have no desire to maintain a system meant to maximize human misery, even within the confines of the 8th Amendment. Maximizing misery does not strike me as a proper function for the government (even if it is the most likely function of government, and not just in the prison system).

The system wasn't designed for that purpose anyway. The system we have was designed to improve people, not to hurt them. We're accepting "human misery" as an acceptable goal because rehabilitation failed. Oh, we still make efforts -- we have prison ministries and prison psychologists, and education programs. It doesn't work with any sort of regularity, and we know it. Indeed, it only works on those who personally choose to be rehabilitated. The project of reforming people who do not wish to be reformed has been a complete failure. That says something fine about the strength of human nature, but it leaves us investing ourselves ever more heavily in a system that we know does not work as designed.

So, start from the ground up and tell me what we should do. What should our relation to criminals be? Do we want to try to improve them, or alter them, or simply house them apart? Should we seek their comfort, or their misery? Would it be better to hang the cruel and violent, while simply fining or putting into community service those who commit nonviolent crimes? Are we after punishment, or rehabilitation, or just a society from which those given over to crime have been removed? Once you are sure about what you want, how do we get there?

I look forward to hearing your thoughts.