MUCH HAS BEEN WRITTEN comparing the morality of retribution to the other major justification for punishment which is that of the utilitarians.(1) However, none of those discussions has been informed as to the range of pains that are available to punish, nor has there been any concerted attempt to define exactly what the word "pain" means. We shall see in the following chapters that much of the discussion and research on deterrence (a particular branch of the utilitarian justification) reviews the research on corporal punishment in a biased way.
In addition, while the infliction of pain is essential to the retributive point of view, it is not essential to some forms of utilitarian argument which rely on a rehabilitation or medical treatment ideology. Retributivists do not shy away from pain as though it were inherently evil, whereas utilitarians begin with the assumption that pain is evil in and of itself. As a result, they feel obliged to demonstrate that the consequences of their punishments outweigh the "damage" done by the pain they apply as punishment.
We shall see in the next few chapters that the utilitarians are in a very bad position on all points. Pain cannot be assumed to be evil in and of itself, and they have difficulty demonstrating that the claimed beneficial consequences of their punishments (such as deterrence of rehabilitation) actually occur.
The most common forum for utilitarian discussions among researchers and philosophers of punishment is in regard to the theory of deterrence, which is also the more popularly stated reason by judges, prosecutors and legislators for inflicting criminal punishment.(2)
The position of deterrence advocates is, generally, that criminal punishment is justified provided it is used with the view to stopping or (less grandly) reducing the crime rate. This may be achieved by the following process:
1. The criminal who is punished learns from the punishment that he must not commit the act again, and so desists. This is called individual or special deterrence.
2. Others who are contemplating crime (it is usually assumed that this includes us all), will be scared off by the public pronouncement of the punishment of criminals for particular crimes. This is called general deterrence.
There are many moral problems with this deterrence philosophy which have been covered in other books such as The Punishment Response. For our purposes it will be sufficient to cover some of the main defects of the utilitarian philosophy. We may usefully begin with the standard (and most intractable) problem in all utilitarian philosophy: it treats individuals as means, not ends.
Justice is Never Having to Sacrifice the Individual
Our friend Dante reserved the 8th circle of Hell for the utilitarians of history. This is one circle removed from the worst punishment which was reserved for traitors. The punishment for the utilitarian who would make a man suffer for the peoples' sake was an aptly reflecting punishment:
This was the punishment for Caiaphas who had advocated that it was expedient for Jesus to die to save the nation. Caiaphas was to be crucified to the ground across the road where people could not help stepping on his body as they passed through. The logic of the punishment is indeed satisfying: the body is used by others as a means to go somewhere. Indeed it is treated as such a means that it is not recognized as a person's body at all. This punitive expression of the crime lays bare the basic injustice of the utilitarian philosophy: it treats men as means rather than ends.
In contrast, the philosophy of retribution requires that the individual be treated quite strictly as an end-and this applies both to the "old" retributivists (or the secular retributivists as we later called them) and to the religious retributivists.(1) It is less clear, though, whether it applies to the "new" retributivists.(4) The reasons are as follows:
1. Only a guilty person may be punished. All forms of retribution hold this view, although the definition of guilt may vary a little from one to the other.
When we say that a just punishment must be a punishment that is deserved, we usually mean that the punishment of an innocent person is an unjust punishment, and can never be just under any circumstances. Or, put another way, a just punishment is one that punishes a person for having broken a rule, essentially a legitimate rule, but usually any rule or law that is part and parcel of a functioning society. Certainly it would appear unjust to punish a person who was innocent (this is, in fact, what one might call sacrifice).
There are some circumstances when this practice is defended on utilitarian grounds, such as the punishment of an innocent person to satisfy the blood lust of a riotous mob and so save many more lives. Or, more commonly, the denial of bail (that is, detention in jail without trial) on the grounds that the individual, if released, will commit further crimes. The retributive view could never justify such a practice because it amounts to punishing an innocent person (that is, one who has not been found guilty-even though there may be grounds for supposing that he is guilty). It is obvious that the retributivist takes the rights of individuals much more seriously than does the utilitarian.
(One might defend the utilitarian position on the grounds of incapacitation-but this has additional problems as we shall see below).
To be punished justly, therefore, it is a necessary pre-condition that one has broken a law. We saw in Chapter 6 that this principle even applies when the law that is broken is an illegitimate or unfair law. Such laws are often broken by persons because of the very fact that they are unjust.
Civil disobedience would not be possible without this basic fact of legal punishment. The retributive argument is that it would be a disservice to those who break the law (for whatever reason-civil disobedience or crime) not to punish them. The idea is that people have a right to break the law, and it is only by recognizing this right that unjust laws will be eventually questioned and changed.
The clear logic of lawbreaking is that it be followed by punishment. If this were not the case, we would have no way of knowing what was a law and what was not, since it is by punishment of the infractions that the laws become apparent. Punishment is the clear signal of law.
In contrast, if we punished persons without any reference to the laws they had broken, there would be no way of telling what the laws were, or how seriously they were to be taken. Punishment for rule breaking clarifies what would otherwise be a very murky situation. It follows, by the way, that the simpler and clearer the punishment, the greater its signal effect. This is another good reason for the clear and unequivocal use of pain as punishment.
2. It is the dictum of the retributivists that punishment is inherent in the notion of rules themselves. The utilitarians argue that punishment is necessary to "uphold society" or "to prevent others from breaking the rules. " Retributivists simply say that it makes inherently logical and satisfying sense that a crime must be punished.(5) This is an historical and psychological fact: it is inconceivable that we could leave crimes unpunished-or even reward them, to make the logic even more stark. This is not to say that some crimes (such as white collar crimes) are not rewarded, but simply to observe that the general principle of rewarding a crime is nonsensical.
3. Penance is an "end" not a treatment. While the secular retributivists are those most concerned with individual rights, and with treating individuals as ends in themselves, the religious retributivists also treat the offender as an end in himself. By taking his criminality seriously, the offender is made the repository of painful punishment, and it is only the criminal himself, through the process of pain, who can come to any "rehabilitation."(6) We use this word not in the medical sense of the modern penologists, but in the sense that, through a sufficient amount of suffering, the offender can come to understand the evil of his offense. This does not mean that he has been "corrected" in the sense that he will not commit his offense again, but rather that he has come to terms with his crime, having fully suffered for the evil he has committed. There is no guarantee, nor should there be, that the criminal will not commit the offense again. This should never be the criterion on which the "success" of the prison experience is measured. As we shall see, this is the mistake that the deterrence theorists make in trying to demonstrate that the consequences of the punishment are worth the pains that they inflict.
4. Punishing prior offenses and blame. The new retributivists are on more shaky ground here, and to some extent this difficulty also applies to the religious retributivists when it comes to punishing for prior offenses. A lot of bickering has occurred recently as to whether this amounts to a utilitarian import of the view that the individual is being punished for the kind of person he is, rather than for his actual criminal act.(7) The utilitarian has long defended this approach, but we have seen that the strict retributive position cannot support punishing a person for his past as well as present acts, since it amounts to punishing for the same acts more than once.
The new retributivist position is almost identical to the utilitarian. The religious retributivist view is a "softer" version, since it treats the individual as a "receptacle" of punishment as described above. Thus, although the individual is close to being perceived as a "bad person," the punishment process nevertheless is focused entirely on him, and there are no ulterior goals such as setting examples to others or predicting his future dangerousness.
Specific Defects of Deterrence Morality
1. It is based on fear. Deterrence works as a threat, and it is the threat that is supposed to be sufficient to deter most people from committing crimes. The notion of threat, effective threat, implies that it must invoke some kind of reaction in the person who is planning to commit a crime, or who, without planning, feels like committing a crime. That reaction is fear.
One can immediately see the difficulty with this justification for punishment. We do not like the idea of a society based on fear, and certainly those who subscribe to the kind of democracy we have in the United States would consider it a travesty if one suggested it was a society based on fear-at least not such a raw and blatant fear. And of course it is not, because punishment works in other ways to educate people away from crime. Punishment by example need not necessarily threaten or scare people. In fact a truly exemplary punishment as we saw in Chapter 7 is a retributive punishment, emphasizing the educative function of retribution.
Although much has been written about punishment's educative function, mainly by Professor Andenaes of Scandinavia, this work has never been taken seriously.(8) If it were, attention would be given to just exactly what would make up a truly exemplary punishment which would teach would-be offenders-that is, the public-about the crime that was committed. Retribution requires that a crime be punished, not by any old punishment, but by a particular punishment, one that is capable of expressing the crime.
One's crime does not simply deserve a punishment. Rather, each crime or class of crimes deserves a particular punishment in terms of quality and amount. This reciprocity, as it has been termed, formed the genius of Dante's system of punishments. They have inherent emotional and logical appeal, and through this they educate.
This has not happened in the 20th century. Instead, the exemplary punishment is transformed into a numerical value of so many years in prison, and this amount is varied according to the extent to which the sentencing judge wants to "set an example" for the rest of society-but what he really means by this is that he wants to "scare them straight."
This is the thinking that underlies the periodic cries for special punishments of those offenses committed with a gun. But what is the solution offered as a deterrent? Instead of a punishment that fits qualitatively with the crime, the vacuous solution is to advocate mandatory prison terms for such crimes. Should these laws be enacted, we will undoubtedly see the prison population rise at an even faster rate than it is now, and if previous research is any pointer at all, the rate of gun-related crimes will continue unabated. This leads to another moral defect of deterrence.
2. Deterrence is disposed to excess. The Rockefeller Drug Legislation of 1973 in New York State is an excellent example of the excesses that result from an ardent deterrent policy. The Rockefeller laws increased the severity of sanctions drastically for all levels of drug offenses, but especially for selling. Life sentences, such as a minimum of 15 years to life for a class A felony violation of selling drugs, are just one example of these severe laws. Reduction in these sentences was also forbidden in certain circumstances.
The New York State Bar Association conducted an evaluation of this legislation, but the methodological difficulties and political interests in the outcome of the evaluation have made it virtually impossible to tell what effect the laws have had.(9)
It is likely that the laws have had one effect: a drastic increase in the prison population. As always, the legislature used the only available severe punishment as a means to increase the severity of the punishment for drug offenses: prison. New York State is now faced with a terrible overcrowding problem in its prisons.
It is an irony that the same state that suffered so badly as a result of the Attica prison revolt should create the conditions for more of the same.
What is especially noteworthy about this case of too much deterrence is that the advocates of this drug law used arguments that sounded like retribution: less discretion, no plea bargaining, mandatory prison terms, equal punishment for equal crime and so on. But the end result, whether the advocates of these laws actually intended it or not, was to use the principles of retribution for utilitarian purposes.
3. Deterrence research has failed to demonstrate the "greater good". Unlike the just deserts model, the intended effect of the deterrence model is not to inflict pain, but to reduce the crime rate, the latter being the justification for punishing criminals. Yet the general conclusion from the large amount of research on general deterrence is, and let it be said loud and clear: increases in punishment for criminal offenses have not been scientifically demonstrated to have any effect on the crime rates.
We need not review all the research on this question because the National Research Council of the National Academy of Sciences has recently evaluated most of the research on general deterrence. In 1978 the Council conducted a state-of-the-art investigation, reviewing many studies on the effects of general deterrence on the crime rates. As far as the effects of criminal punishments on various crime rates were concerned, they concluded:
... despite the intensity of the research effort, the empirical evidence is still not sufficient for providing a rigorous confirmation of the existence of a deterrent effect.(10)
The types of punishments that the group examined for their deterrent effects were prison and fines. So we may conclude that these punishments which cannot be demonstrated to have a deterrent effect are unjust because they do not fulfill the utilitarian dictum that the consequences must justify the punishment.
The claim that deterrence is a "scientific" theory and that retribution in contrast is some kind of religious belief is also clearly wrong. Deterrence only appears scientific because it has been subjected to considerable empirical investigation. But the failures of deterrence research suggest that retribution as a justification for punishment is no bigger leap of faith than is the utilitarian ethic.
4. Deterrence both enhances and distorts the State's role in punishment. Because the individual is treated as a means rather than an end, the question naturally arises: as a means to whose end? The only possible answer to this difficult question that the utilitarians may give is to say that it is the end of the State that is important, and that individuals are therefore subjected to punishment for this purpose. We see here the contrast between the utilitarian preoccupation with obedience to the laws, and the retributive concern with merely punishing rule-breaking, taking no account of whether the individual is becoming obedient (that is, by not punishing for prior offenses).
In addition, deterrence philosophy further distorts the process of punishment in ways that make punishment appear as though it is an inherently evil and totalitarian function:
Alex is held down by six muscle-bound attendants while a nurse gives him his daily injection which is guaranteed to produce an unbearable nausea. He is wheeled into the studio where he is shown movies of "ultra violence," as Alex calls them. They are movies filled with unspeakable horror and brutality.
After a couple of weeks of this treatment the injections are terminated and Alex is led back to the studio. Yet he still becomes nauseous when he sees the ultra violence. Dr. Brodsky pronounces him cured, ready to be released into society as a "decent lad."
This anecdote comes from the book A Clockwork Orange, toted on the dust jacket as, "the most cogent and most terrifying vision of the future since George Orwell's 1984."
It attests to the artistry of the author, Anthony Burgess, that he was able to pull off this amazing illusion of misplaced sentiment for the brutal juvenile delinquent, Alex. The book was taken as a portent of the tyranny of Big Brother, as though it were the use of physically painful punishments that were the cause of the tyranny, rather than the fact that Alex, who had maliciously assaulted and injured innocent people, actually deserved every painful treatment he got.
The use of corporal punishment on Alex occurred within a prison situation, and it was only through the total command over the whole of Alex's life for the period in which he was incarcerated that the punishment was effective. But because physical punishments are more concrete than prison, they were used to convey to the public the idea that what the government did to Alex was somehow symptomatic of a greater evil. This is indeed the case: the evil of deterrence.
Unfortunately, the message that it is the deterrence process that is evil, rather than the pain administered, does not come through clearly, and in fact cannot get through when punishments are publicized in such a one-sided way. The tyranny of those who punish is portrayed in such a way as to create revulsion in us for the actual form of punishment-which was very painful-but at the same time to cause us to be terrified by this not-too-subtle portrayal of the State as totalitarian.
The result is that the punishment of Alex comes over as somehow "unjust" because it creates such revulsion in us, when in fact the pains that Alex suffered were deserved as much or more by the despicable violent crimes he committed.
We have also seen the same process occur in the prison setting, where inmates have been allowed to get away with the morality scam (described in Chapter 7) that, because prisons are totalitarian places, this is an argument that excuses their crimes.
Admittedly, this is a general problem of all punishments that are made public, in that the public only sees one side of the violence-that of the State's. It rarely gets a glimpse of the violence committed by the offender, except through second hand accounts in the media. Thus, there is the one-sided impression that only the State is perpetrating the violence.
To be fair though, the great utilitarian, Jeremy Bentham, was most explicit about the publicity of punishment-that it should be very public, and the crimes for which the punishment was being administered made very clear. The utilitarians of today have not lived up to that expectation of their old master.
The principle of deserts is thus undermined. By conveying criminal punishment as somehow "wrong" (that is, like the torture of Alex), ordinary people are "scared straight" all right, but at the same time they feel that if they do get caught for something, they don't deserve to be punished. There is the feeling that they have been "victimized" by the criminal justice system. "Why me?" they say. Who has not had this feeling on being pulled over for a traffic violation?
Incapacitation: the Last Defense
If all else fails, the utilitarians fall back on the most easily defensible argument for the use of criminal punishment, which is that of incapacitation.
Incapacitation refers to "simply isolating identified offenders from the larger society." The National Research Council study applied a number of tests of the effectiveness of this incapacitative claim of prisons.(11)
The problem for the researchers was first to figure out how much crime those who had been incapacitated would have committed had they not been imprisoned. The research results as reviewed by the National Research Council are not very encouraging. They were unable to conclude either that prison has an appreciable effect on the crime rates, or that a large increase in prison would affect crime rates in any substantial way.
It is a perplexing question as to why this should be so, since one would have thought that there are only so many Lemuel Smiths around. But we do know that a great deal of crime goes unreported, and that much of the crime rate also depends on police activity and reporting procedures. It may be that there are plenty of Lemuel Smiths and that the police simply do not have time to search them all out.
In any event, if we take the research findings of the National Research Council as they stand, they mean that there is no assurance at all that, if we put more criminals in prison, we will be any safer on the streets than before-and that, surely, is what we aim for when we punish for the purpose of incapacitation.
In short, there appears to be no scientific basis for the use of prison as an incapacitatory punishment.
There is a further difficulty with the idea of incapacitation, to which the National Research Council gave only passing attention: prisons in a number of special ways actually create more crime!
What Incapacitation Really Means
When we take the criminal off the streets, this does not mean that he is stopped from committing more crimes. In fact, he may even become more violent, may take more drugs, commit more thefts. What we do mean, and this is all the ordinary person cares about, is that the criminal is locked up somewhere, we care not where, so that he cannot roam the streets and mug us.
Should we not care that crime continues inside prison walls as well as outside? One might argue that it doesn't matter so much, because the criminals have behaved in such a way that they deserve to live in an environment where we don't care about the incidence of crime. In a neat way, criminals in prison get the environment they deserve, and this idea certainly fits, in principle, with the just deserts model. However, we saw in Chapter 7 that the use of prison as punishment in this way is far too vague and that the retributive pains of prison need to be tailored to each inmate or class of inmates according to his crime or crimes. Some do not deserve to suffer the violence of prison. Some do.
Prisons Create Crime
It is a very old idea that prisons are "schools for crime," and there is undoubtedly some truth in this belief. But more importantly, prisons provide a social world in which crime is actually expected. A number of preliminary studies have suggested that the homicide rate in prisons is substantially higher than that outside prison, even in some cases compared with the same geographical or urban areas from which the offenders come. For example, Lee Bowker in his book, Prison Victimization reported that although the national homicide rate was about the same in prisons as out of prisons for both state and federal institutions, there were wide differences according to particular states. In a study reported in 1972, for example, the prison homicide rate in one state was 617 per 100,000 persons compared with a rate for the nation as a whole of II.
There is plenty of evidence to suggest that violence is rife in prisons, especially homosexual rape which rarely occurs outside prison. Indeed, one might say that this crime is one that is almost totally generated by the criminal punishment of prison. Yet the utilitarian defenders of the criminal punishment of prison claim that its main purpose is to stop crime!
The Result: More Fear
We must be very clear that incapacitation does not stop crime to any appreciable extent, and in fact increases both the amount and types of crimes within prison. Nor can it be shown to make our lives all that much safer from dangerous criminals.
Yet it provides us with the promise that those criminals whom we think of as dangerous or scary, are not free to inflict their crimes on US.
Not all criminals are like Lemuel Smith, but because of the constancy with which the press reports such crimes, it is very likely the image that many people have of all criminals.(12) This has the effect of instilling into the hearts of people a terrible fear that they will be mugged, raped or robbed at any minute of the day. Yet the statistical probabilities of being run down by a car are far greater than being victimized by a criminal. (Of course, there are certain sections of many large cities that one would not want to walk down, and where the chances of being criminally victimized are much higher).
The point to understand is that fear is a very effective motivator, and it is this fear of crime in the streets that lies at the bottom of a strong societal pressure that all criminals be put behind bars. It is very likely that this fear of criminals roaming the streets accounts for our obsession with one form of criminal punishment today: prison.
We see that the main arguments used by the utilitarians to justify criminal punishment are largely irrationally based, are inclined to justify punitive excess, and cannot be supported by the very scientific standards that they themselves adhere to.
Retribution still stands as the more morally justifiable reason to punish, even though it requires one to affirm the positive nature of pain.
It is now time for us to meet head-on the utilitarian belief that pain is in and of itself evil. If this can be demonstrated, the retributive position would be untenable, since pain is at the crux of its moral philosophy.
I . The various justifications of criminal punishment have been compared in greater detail in The Punishment Response, and in an excellent collection of articles edited by R. Gerber and P. McAnany, Contemporary Punishment (London: University of Notre Dame Press, 1972).
2. For a detailed treatment of deterrence theory see: F. Zimring and
G. Hawkins, Deterrence (Chicago: University of Chicago Press, 1973).
3. Dante, Inferno.
4. This view is popularly attributed to Kant, but it can be traced much further back than that. See G. Ezorsky ed., Philosophical Perspectives on Punishment (Albany, New York: State University of New York Press, 1972).
5. See R. G. Singer, Just Deserts: Sentencing Based on Equality and Desert (Cambridge, Mass.: Ballinger, 1979).
6. For a concise statement on this point see: Pope Pius XII, "Crime and Punishment," Catholic Lawyer 6 (1960): 92.
7. See A. Von Hirsch, "Prediction of Criminal Conduct and Preventive Confinement of Convicted Persons," Buffalo Law Review 21 (1972): 717-758.
8. J. Andenaes, Punishment and Deterrence (Ann Arbor, Michigan: University of Michigan Press, 1974).
9. Association of the Bar of the City of New York, The Nation's Toughest Drug Law: Evaluating the New York Experience (1977).
10. National Research Council, Deterrence and Incapacitation. The research group was careful not to make any absolute statements. While it recognized that prisons probably have some base-line deterrent effect (which none of the research it reviewed was able to measure) it did however, say that increases in criminal punishment could not be shown to have any effect on crime rates.
12. See D. Graber, Crime News and the Public (New York: Praeger, 1981).