Punishment
Introduction
Why are people who break the law punished? What, ultimately, is the rationale for punishing criminals? We will consider the two main theories for justifying punishment the utilitarian theory and the retributive theory. The aim of a theory of punishment is to explain and justify why a person should be punished for breaking the law.
1. The utilitarian theory
A utilitarian theory of punishment aims to justify the punishing of criminals purely in terms of the consequences of punishment. For a utilitarian the practice of punishing criminals is justified only if the overall benefits of punishment outweigh the harms of punishment. Nothing else matters. According to the utilitarian theory there are three reasons why we punish criminals.
- Deterrence: The deterrent effect of punishment works in two ways firstly by deterring the offender, and secondly by deterring other would be offenders
- Rehabilitation: Punishment serves as rehabilitation if it successfully reforms criminals. Rehabilitation involves things like treatment and re-education programs for drug and sex offenders.
- Protection of society: Offenders are punished so as to keep them out of society - dangerous criminals such as murderers, rapists and armed robbers pose a threat and have to be imprisoned to protect law-abiding citizens.
Is the utilitarian theory plausible? The rehabilitation element of the theory is the weakest. Most prisoners re-offend. There are approximately 25 000 prisoners in Australian jails and more than half of them have been in prison before. Also, prisons are very tough places and can have the effect of hardening criminals rather than rehabilitating them.
However the main criticism of the utilitarian theory is that it seems to leave out the vital ingredient of punishment, namely retribution. The main idea here is that people who do something wrong should be punished because they deserve it they get what's coming to them. After a particularly brutal murderer is captured, tried and convicted then the community demands justice. The murderer has to pay for his or her crimes. And it is this notion of punishment as retribution that is left out of the utilitarian account. This leads us directly to the second of the theories.
2. The retributive theory
As mentioned above, the retributive theory of punishment asserts that the main reason for punishing criminals is retribution. In other words, if you do something wrong then you deserve to be punished. Of course the retributivist will agree with the utilitarian that punishment deters, protects and perhaps rehabilitates. But this is not the central justification of punishment. The central idea involves retribution for a wrong done.
This is a common idea when victim's families are interviewed on TV after the offender has been sentenced, they often express anger at what they regard as an over lenient sentence. And what usually lies behind this anger is the feeling that the offender did not get what he or she deserved. Thus, in contrast to the utilitarian theory, retributivism justifies punishment in terms of the notion of just deserts. For the retributivist this justification is sufficient.
The consequences of punishment deterrence, rehabilitation and protection are additional benefits of punishment but do not go to the heart of why criminals should be punished. The heart of the matter is retribution.
One issue which highlights the difference between the two theories is capital punishment. Retributivists would tend to support it, on the grounds that particularly brutal murders, for example, deserve particularly harsh punishment. Nothing short of execution will do, retributivists argue Brutal murderers deserve to die”. In contrast, a utilitarian who defends the need for rehabilitation as part of punishment must reject capital punishment. However, the lines are not clearly drawn.
A utilitarian who has given up on rehabilitation may support capital punishment, and a retributivist may believe that a life sentence is a sufficient form of punishment for even the worst crimes. Nevertheless, it is probably true that most of the supporters of capital punishment are retributivists. One problem for retributivism lies in the notion of desert. Who deserves what? Here is a particularly graphic case.
Consider, to begin, the particularly lamentable case of Robert Alton Harris. On July 5, 1978, Robert and his brother Daniel attempted to hotwire a car they intended to use in a bank robbery. Unable to start the car, Robert Harris decided to steal another car in which two youths- John Mayeski and Michael Baker-were eating lunch. Harris approached the car and pointed a Luger at Mayeski's head. Then he climbed into the back seat and instructed the boys to drive east. Daniel followed in the Harrises' car. Both vehicles drove to a secluded canyon area. There Harris told the boys about the upcoming robbery and assured them that they would not be hurt. Indeed, he even offered to leave some of the stolen money in the car to pay for the use of it. The four then agreed that the Harris brothers would leave to rob the bank and that Mayeski and Baker would walk back into town and report the car stolen.
As the two boys walked away, Harris slowly raised the Luger and shot Mayeski in the back, Daniel said. Mayeski yelled:
"Oh, God", and slumped to the ground. Harris chased Baker down a hill into a little valley and shot him four times. Mayeski was still alive when Harris climbed back up the hill, Daniel said. Harris walked over to the boy, knelt down, put the Luger to his head and fired.Recalling the aftermath of the shooting, Daniel said,
"[Robert] was swinging the rifle and pistol in the air and laughing. God, that laugh made blood and bone freeze in me."After the shooting, Harris drove to a friend's house. There, no more than fifteen minutes after killing two sixteen-year-old boys, Harris took out the remainder of the slain youths' lunch and began eating one of their hamburgers. [Robert] offered his brother an apple turnover, and Daniel became nauseated and ran to the bathroom.
"Robert laughed at me,"Daniel said."He said I was weak; he called me a sissy and said I didn't have the stomach for it."Harris was in an almost light-hearted mood. He smiled and told Daniel that it would be amusing if the two of them were to pose as police officers and inform the parents that their sons had been killed. . . .
. . . [Later, as they prepared to rob the bank,] Harris pulled out the Luger, noticed the blood stains and remnants of flesh on the barrel as a result of the point-blank shot and said, "I really blew that guy's brains out... And then again, he started to laugh. . . .
Harris was given the death penalty. He has refused all requests for interviews since the conviction. "He just doesn't see the point of talking," said a sister, . . . who has visited him three times since he has been on Death Row. "He told me he had his chance, he took the road to hell and there's nothing more to say."
Given the brutality of his deeds, Harris seems a prime candidate for the moral community's full indignation, resentment, and blame. As State Deputy Attorney General Michael D. Wellington argued during an appeal, "If this isn't the kind of defendant that justifies the death penalty, is there ever going to be one?" Richard (Chic) Mroczko, Harris's Death Row neighbour at San Quentin, summed up his feelings a bit more bluntly: "The guy's a misery, a total scumbag; we're going to party when he goes."
The cold-blooded murder of two innocent youths should clearly inspire moral outrage, but the act alone does not explain the vehemence of these reactions to Harris. Harris's crime is terrible, but the real source of our reactions lies neither exclusively nor even primarily in the crime itself, but in the manner in which the crime was performed. It does not seem merely incidental that Harris snacked on his victims' hamburgers only fifteen minutes after the crime, nor that he light-heartedly joked about blowing Mayeski's brains out.
Our full outrage is triggered by Harris's cavalier attitude after the crime, an attitude that seems to drive home his callousness and his utter lack of remorse. Harris appears to be wholeheartedly evil, and this fuels our moral outrage and desire for vengeance. But now consider the following account of Harris's childhood. It is not a pleasant account. Reflecting on her brother's past in an interview, Harris's sister Barbara put her palms over her eyes and said softly,
“I saw every grain of sweetness, pity and goodness in him destroyed. It was a long and ugly journey before he reached that point”.Here's a description of Robert's day of birth offered by his sister in court declaration.
"Mother was bathing [two other children] in the bathtub, and father came in and started kicking her in the abdomen, screaming that it was not his baby, and she fell into the bathtub. He then kicked her in the crotch with his combat boots on, and she began hemorrhaging. He kicked her several more times."Thus Robert was born, three months premature. Mom was drunk like dad, and the fetal alcohol had taken its toll. Robert had tremors and sleep disorders.From the start, he was beaten by both parents virtually every day. Mom preferred bamboo sticks. Dad just used his knuckles. The sister described it this way:
"Robert couldn't walk into a room without father kicking or beating him. Sitting at the table, if [Robert] reached out for something without father's permission, he would end up with a fork in the back of his hand."At age 1, Robert's jaw was broken.The father remains convinced that Robert was sired by another man. When Robert would seek affection by rubbing against his mother's leg, dad would beat both Robert and the mother. In this family everyone got beaten by dad. Sometimes, for no apparent reason, dad would load his guns and tell his loved ones they had 30 minutes to hide outside the house. He then hunted his family like animals, promising to shoot anyone he found.
Here is a list of drugs, divided by ingestion technique, taken by Robert from age 6 through adolescence. Sniffing: airplane glue, gasoline, oven cleaner, paint, typewriter correction fluid. Injection: cocaine, heroine. Oral: Seconal, methamphetamine, PCP, LSD. Robert had no friends, did poorly in school, and received no help for his problems. Before he was a teen-ager, he revealed the pattern that would dominate his life. He started killing neighbourhood pets. The need to hurt and destroy was directed at everything, even himself. Once mom told Robert and a brother to go get switches so she could beat them. The brother brought back a small twig. Robert brought back a club.
(From Miles Corwin, Icy Killer's Life Steeped in Violence, Los Angeles Times, May 16, 1982. Copyright, 1982, Los Angeles Times. Reprinted by permission. As cited in Gary Watson, Responsibility and the Limits of Evil: Variations on a Strawsonian Theme, this volume. Our discussion of this case borrows extensively from Watson's chapter.)
What does this case show? At least this much. Even if we hold Harris morally responsible for his actions, his horrendous family history should affect our attitude to his crime. It seems clear from the description of his upbringing that he would have at the very least a distorted sense of right and wrong. While this does not excuse his action it does raise doubts about what exactly he can be said to deserve. How would most people have survived his upbringing? With an upbringing like that how do you think that you would have turned out? Harris's childhood had brutalised him. There was a total lack of normal moral development i.e. he was not given the opportunity to acquire a basic consideration, respect and concern for other people.
Obviously he had to be punished and kept out of society for a very long time, perhaps for the rest of his life. But cases like this should make us less confident about moralistic judgements regarding what people deserve. Of course this is an extreme case but its difference from a vast number of other cases is, I think, only a matter of degree. There are a huge number of factors which influence the way we act and these factors should affect judgements about desert.
Some principles about punishment
The American philosopher James Rachels has outlined four principles which any theory of punishment should accommodate.
- Only guilty people should be punished.
- Equal punishments for equal crimes.
- The punishment should fit the crime.
- People with good excuses should either not be punished at all, or at least punished less severely.
The question is to what extent utilitarian and retributive theories take account of these principles. Which theory shapes up better in the light of these principles? For example, consider (1). According to the retributivist this is a sound principle because only guilty people deserve to be punished. Innocent people have done nothing wrong so deserve no punishment. It seems, however, that the utilitarian theory has a problem with (1). If there are situations where the benefits of punishing innocent people outweighed the harms, then perhaps it is morally OK to do it. Imagine a case where failing to find and punish a vicious murderer will lead to an outbreak of mob violence. If, we calculate, the benefits of punishing an innocent person in this situation outweigh the harms, does the utilitarian theory justify this? If not, why not? Which of the two theories do you think is the more plausible?
R. Neurath