What’s the point of sending someone to prison? Is it wrong to punish juveniles? Should we execute child sex offenders? These are the kinds of questions addressed by the ethics of punishment. Before we can answer such questions, however, we need to first be clear about what punishment is and how it’s morally justified.
What is Punishment?
‘Punishment’ can refer to all kinds of things. A teacher might punish their student with detention, a parent might punish their child by grounding them, a spouse might punish their partner with silent treatment. This discussion, however, is focused on legal punishment – that is, cases where the state intentionally harms an offender in order to express disapproval of their (illegal) behavior.
But there’s a problem. Usually, it’s wrong to harm others. This means that punishment requires us to treat certain people (criminals) in ways that it would clearly be wrong to treat others. What we need, then, is a way of describing how that harm is morally justified.
How is Punishment Morally Justified?
There are two general ways in which we can go about morally justifying the harm of punishment. The first is backwards-looking, and says that the harm of punishment is justified merely by the fact that someone did something wrong in the past. We call this Retributivism. The second approach is instead forwards-looking, and instead says that the harm of punishment is justified by the greater good it’ll bring about. We call this Consequentialism. Let’s consider both approaches in turn.
How Does Consequentialism Justify Punishment?
A lot of good can come from punishment. The most obvious of these goods is a reduction in the total number of crimes committed. This is because punishment (when its working properly) deters. This deterrence is two-fold. First, punishment can teach the criminal a lesson, and deter them from committing a crime again. Second, the punishment of a criminal is instructive for other members of society – deterring them in the process too. When someone is pulled over for speeding, this doesn’t just deter that driver, but also makes the rest of us more hesitant to break the law in the same way.
In this way, the Consequentialist argues that the harm of punishment is massively outweighed by the greater goods it achieves via deterrence.
The Consequentialist approach may seem appealing, but it soon runs into challenges. If the harm of punishment can be justified by a greater good, then it seems that it would be morally permissible to punish an entirely innocent person in certain circumstances. Suppose, for example, that a spate of car thefts is plaguing a small town. Try as she might, the local Sheriff has been unable to locate the offenders. She has good reason to believe, however, that if she frames and severely punishes one innocent local, this will deter the real car thieves from ever striking again. In this case, it seems the Consequentialist may endorse punishing the innocent.
How Does Retributivism Justify Punishment?
Concerns with a Consequentialist approach to punishment might motivate us to instead consider a Retributivist justification. There are several different ways in which a Retributivist approach might be fleshed out, but the most common is to say that it is morally permissible to punish someone where they deserve to be punished – that is, where they’ve done something morally wrong. This approach avoids problems like the car theft case above. While punishing an innocent person might be for the greater good, it remains impermissible because this patsy doesn’t deserve to be punished.
But Retributivism runs into its own problems. There are plenty of things that are morally reprehensible, yet which aren’t illegal: lying to a friend; cheating on your spouse; saying mean things to small children. Retributivism would seem to endorse the legal punishment of people who do these things, even though they’ve broken no law. This problem extends in the opposite direction, too. There are plenty of things that are illegal, but morally unproblematic: driving (safely) without a license; failing to file your taxes; jaywalking when no one else is around. Desert-Based Retributivism is unable to endorse punishing people who do these things, even though they’ve clearly broken the law.
Why Not Both?
Given the concerns with both Consequentialist and Retributivist, we might be tempted to adopt an approach that uses both. But this option isn’t open to us. Why not? Because the two theories will often come to contradictory conclusions.
Imagine, for example, that I’m caught speeding while rushing my friend to the emergency room – saving their life in the process. Suppose, however, that severely punishing me for this will have a huge deterrent effect – scaring most other motorists into driving more safely, and thus reducing the number of fatal accidents. Should I be punished? The Consequentialist will most likely respond with a resounding “Yes.” The Retributivist, on the other hand, will struggle to endorse my punishment. While I might’ve broken the law, I nevertheless did the right thing. As such, I do not deserve to be punished.
Or consider another example. Imagine that someone is apprehended spray-painting bigoted slogans on a shop window. Suppose, however, that punishing this person will fail to create any kind of deterrent effect. It will, in fact, incite their supporters to go out and commit the very same crime in protest. Should this person be punished? The Retributivist will say clearly says “Yes.” Not only has this person broken the law, but they’ve also done something morally reprehensible. They deserve to be punished. But the Consequentialist will disagree. There’s no greater good to be had by punishing the bigot. In fact, their punishment might lead to more harm than good.
Is Punishment Morally Justifiable?
Philosophers working in the ethics of punishment try to bolster either the Consequentialist or Retributivist approach to avoid problems like those raised above. But what if both theories ultimately fail? What then? Well, this might mean that punishment is, in fact, morally impermissible. Would this require us to simply let criminals get away with their crimes? Not necessarily. It simply means that we’d be unable to harm them in response. But there are many other ways of responding to wrongdoing that don’t necessarily involve harm: things like rehabilitation, restitution, and restorative justice. The ethics of punishment, then, also involves a discussion of alternative responses to wrongdoing.