If people are good only because they fear punishment, and hope for reward, then we are a sorry lot indeed.
[Albert Einstein]
No punishment has ever possessed enough power of deterrence to prevent the commission of crimes. On the contrary, whatever the punishment, once a specific crime has appeared for the first time, its reappearance is more likely than its initial emergence could ever have been. [Hannah Arendt Eichmann in Jerusalem]
All punishment is mischief; all punishment in itself is evil. Upon the principle of utility, if it ought to be at all admitted, it only ought to be admitted insofar as it promises to exclude some greater evil. [Jeremy Bentham An Introduction to the Principles of Morals and Legislation]
Punish: c. 1300, from Old French puniss-, extended present participle stem of punir "to punish," from Latin punire "punish, correct, chastise; take vengeance for; inflict a penalty on, cause pain for some offense," earlier poenire, from poena "penalty, punishment".
Lex talionis—an eye for an eye, a tooth for a tooth. Proportionality. The punishment must fit, be proportionate or equivalent to the crime. Those criminals must get what’s coming to them.
In the Divine Comedy the Italian poet of the Middle Ages, Dante Alighieri, imagines himself taking a journey through Hell, Purgatory and Heaven. He sees the sinners; he witnesses divine punishment and the possibility of redemption. Moving through the nine circles of Hell are the opportunists, those beneath contempt, eternally stung by insects, the lustful, trapped in a great storm, the flatterers covered in excrement, the murderers frozen in ice to their necks, the greedy forced to battle incessantly against each other, the violent condemned to lie in a river of blood—oh yes, and the lawyers covered in boiling pitch, poked at with pitchforks by demons! Even those heathen philosophers don’t get off the hook—true, they don’t go to hell. They sit and wait in Limbo, denied the light of God. Perhaps, only an all-knowing, all-powerful and wholly good God has any right to mete out punishment without also needing to justify the latter, or provide reasons for their judgments.
However, we fallible, finite, wilful human beings are not gods. The intentional infliction of social deprivation, coercion, separation, pain, suffering or death cries out for justification. What could the philosophical or ethical grounds be that would serve to justify such appalling treatment? Moreover, what manner of punishment should be considered appropriate or proportional in any given case, and who should be allowed to decide this?
Is punishment about restoring some notion of legal or moral balance that has been disturbed through transgression? What, precisely, is being violated, such that punishment is called for: Law and order? Morality? Social Harmony? Property rights?
Is punishment about vengeance—about harming those who have harmed us? Is it based on the assumption that we cannot have civilization unless we are willing to denounce, shame, separate and differentiate those who break the law from those who are ‘law-abiding’? Or is it that we believe that punishment deters or reduces the frequency or likelihood of future offenses? All of these have been offered as justifications. Do they stand up to critical scrutiny?Or again, is it acceptable to punish children and animals? What about war criminals, world leaders, or entire populations? What is really achieved by punishing someone? Does punishment ‘prevent’ crime? Does it have an ideological function? Is punishment different for those who have status, belong to a privileged class, are wealthy, or of a particular race?
I think these are questions we must continually ask ourselves and those political representatives who cry out for 'law and order' in order to appease those who seek vengeance. I have often wondered whether it is even possible to punish someone without harming them are society at large. I'm not even sure if wanting to punish is not more about us than the wrongdoer—about the gratification—the sense of reciprocity and perhaps even the pleasure, that we righteous ones take in knowing that wrongdoers are suffering and deserve to suffer. If so, are we really bettered as human beings when we indulge such a pleasure, or experience a sense of gratification when someone suffers? And even if the answer is, yes, might we still not ask whether we have done anything concrete to actually change the conditions of possibility that gave rise to the behaviour of the wrongdoer?
There is more than enough empirical evidence that making someone suffer whether through incarceration, flogging, deprivation actually works. If it doesn’t really work, then what have we achieved except a rather pathological sense of personal satisfaction? Some will claim there is no choice—we must punish. They would say we just don't have a choice if we have a stake in anything like a 'civilized' world.
This brings to mind Anthony Burgess’s great dystopian novel ‘A Clockwork Orange’. The title of the book was taken from an old Cockney slang phrase, implying queerness or madness—for Burgess it represented the forced marriage of an organism to a mechanism, a living thing to an object or technology.
The anti-hero, Alex, appears as an incorrigible young thug—a law unto himself, a person without moral scruples. He has no hesitation about beating the helpless, stealing cars, fighting in the streets or even rape. He terrorizes the streets of his city in the dark of night. He also happens to loves language, beauty and music—particularly Beethoven—this fact that will later become important. Alex is eventually is arrested and punished, but the government of the day feels that punishment is simply not enough to deter crime. They decide to enlist Alex in a form of aversion therapy they believe will eliminate his criminal tendencies.
He is injected with a noxious substance that brings on extreme nausea while he is exposed to extremely violent films. When he is released back into the world, every time he has a violent thought, witnesses or undergoes violence, he becomes extremely sick. Inevitably the government changes and a new more ‘liberal’ government decides Alex should be de-conditioned by yet another form of hypnopaedic therapy that restores him to his old self. Here’s Anthony Burgess speaking of his reason for writing A Clockwork Orange:
“What I was trying to say was that it is better to be bad of one’s own free will than to be good through scientific brainwashing. When Alex has the power of choice, he chooses only violence. But, as his love of music shows, there are other areas of choice. In the British edition of the book—though not in the American, nor in the film—there is an epilogue that shows Alex growing up, learning distaste for his old way of life, thinking of love as more than a mode of violence, even foreseeing himself as a husband and father. The way has always been open; at last he chooses to take it. He has been a sour orange; now he is filling with something like decent human sweetness.”
The therapy here is based on a B.F. Skinner’s behaviorist conditioning model—that we can be conditioned, by certain repeated stimuli to respond in particular ways. Conditioning removes choice.
Are there other models?
Sweden and Norway teach us is that showing prisoners compassion may actually be more effective than wreaking vengeance. I think they have a better way of understanding how to restore the peace without stripping persons of dignity. No doubt there are those who must be separated from society, but there are so many more (mostly black and brown) that suffer needlessly behind bars. As a result of 'tough on crime' and the so called 'war on drugs' polices, there are today in 2020 around 2.3 million people in prison in the US--the most per capita in the world. This is due, in no small part because the prison-industrial system in the US has increasingly become a privatized for-profit venture. Making a profit from human misery--the American way. Half of these souls are incarcerated for non-violent offenses, and about 20% are incarcerated for drug offenses--many are in jail because they could not afford a proper and reasonable defense. That is how a society criminalizes race and poverty.
What about Canada? In spite of what are deemed to be 'progressive' legal decisions (R. v. Gladue) Indigenous people in this country account for roughly five per cent of our population in Canada, and 30 per cent of the federal inmate population. The numbers are not going down, but up. If that is not systemic discrimination, I just don't know what might qualify. But it is not just systemic discrimination in carceral terms. It is discrimination that goes all the way down--to the core of how Canada has consistently lied to, ignored, evaded responsibility and undermined the dignity of indigenous peoples.
In the end, any criteria given to justify punishment must contend with how governments treat people as a whole--whether they see them as citizens with inherent rights and dignity, or suspects and, indeed, enemy combatants. The measure of any just society is, in other words, precisely how it treats 'the least of these'.