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persons whose suffering should matter to us. Rather than any propositional argu- ment, that ethical demand to explain our actions presupposes that they have a different moral status than rocks and trees, and that we are obligated not to harm them (Levinas 1997, 115–18; Levinas 1998, 94).
Punishment is intentionally imposing burdens on someone because they vio- lated a rule. The consequences of the punishment support the state, so, when the aims of the state are morally justified, the prima facie wrongness of intentional harm is overridden by a more pressing obligation to maintain a just arrangement.
If intentionally harming people is prima facie wrong, however, then the state can impose only the burdens that are necessary to further the state’s aims. Jeremy Bentham puts it simply: “all punishment is mischief: all punishment in itself is evil. … it ought only to be admitted in as far as it promises to exclude some greater evil” (1970, ch. XIII, §2 [p. 158]). Therefore, the prima facie obligation not to cause intentional harm places a side constraint on punishment, even if a more severe punishment would also further the aims of a just state:
2b) State-sponsored punishment is morally justifed only if there is no less harmful alternative that would as effectively maintain the state.
Norval Morris refers to this as the principle of parsimony regarding criminal pun- ishment: the least harm should be imposed that will as effectively achieve the social end that we want to accomplish by means of the punishment (N. Morris 1974, 60–62; N. Morris 1977, 171; Tonry and Morris 1978, 445–46, 447;
N. Morris 1981, 258, 266; N. Morris 1982, 190–91; Morris and Tonry 1990, 104).6 The fact that we could deter stealing by cutting off the hands of convicted thieves does not mean that such an extreme punishment is morally justified. Stiff penalties short of mutilation would probably deter all those who are able to be deterred. And even if some marginal increase in deterrence accrued with such extreme penalties, it would also produce other costs, such as lack of respect for a government that would do such a thing to its people. As Montesquieu says,
“Every penalty that does not derive from necessity is tyrannical.” It treats legal authority as “a pure act of power” rather than a justified attempt to maintain the public order (1989, Bk. XIX, ch. 14 [p. 316]).
The previous two conditions – that punishments should enforce a just system and that they should not be excessive – are each necessary for punishment to be morally justified, and they are jointly sufficient:
2) State-sponsored punishment is morally justifed if and only if (a) the
The rational and the reasonable 63 In short, a system of punishment that effectively maintains a just state with the least amount of harm is morally justified.
Alternatives to punishment
Because the state ought to minimize harm and because punishment is the inten- tional infliction of harm on its citizens, the state is also obligated to use alterna- tives to punishment when it is feasible to do so. For example, if we could prevent criminal behavior more effectively and at a lower cost by providing young people with better public education – Beccaria says that “the surest but hardest way to prevent crime is to improve education” – then we ought to do that (1995, 110).7 Public education serves the positive aim of preparing people to be active citizens and productive members of society, and punishment serves the negative aim of keeping people from being antisocial and disruptive members of society. Like any public policy, consequentialist reasoning would determine the payoff of any potential investment in social services versus punishment.
When responding to wrongdoing, then, the state must consider (1) whether punishment or some other practice, and what degree of punishment or kind of practice, deters more potential criminals from committing crimes; and (2) other social costs and benefits of each, including for the victims. With regard to the first point (1), most theorists assume that people follow the law primar- ily because of incentives and disincentives. On this instrumental view, all of us are potential criminals, and we would be prone to do bad things if there were no law prohibiting them, accompanied by the threat of punishment. Based on an empirical study of people’s attitudes toward and experiences with the law, however, Tom Tyler (1990) shows that most people are not in fact motivated by self-interest when it comes to following the law. Instead, they comply with the law when the legal rules align with their personal values or when the author- ity that makes the law is thought to be legitimate. In general, people comply voluntarily and crime rates drop when there is a normative commitment to the law (see also Robinson and Darley 1997; Robinson 2000; Robinson 2008b, 175–212; and Robinson, Barton, and Lister 2014, 314–30). This is the “con- ditional deterrence” theory, according to which legal punishment is only an effective crime deterrent if it is reinforced by other social institutions (Williams
7 When the state educates its citizens and when it punishes the guilty, it is trying to do the same thing: promote the common good. Plato makes the comparison: punishment is inflicted
for the sake of the future, to prevent either the same man or, by the spectacle of his punish- ment, someone else, from doing wrong again. But to hold such a view amounts to holding that virtue can be instilled by education; at all events the punishment is inflicted as a deter- rent. (1961, 324b [p. 321])
The methods, of course, are different. Punishment is the intentional infliction of suffering in response to wrongdoing. Education is the unintentional infliction of suffering in response to ignorance.
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and Hawkins 1986). As I discuss in Chapter 13, restorative justice practices such as shaming and victim offender conferencing may help to strengthen this commitment.
Point two (2), where we consider overall costs and benefits, takes us beyond criminology to broader public policy and the effects of other social programs.
For example, a robust public education system produces more engaged and informed citizens who participate in the political process, trains people to enter the workforce and contribute to the economy, and is more likely to sustain supportive family structures, while diverting educational funding into punitive measures such as prisons often has the opposite effects. For those who must be punished, correctional educational, vocational, and drug-treatment programs may produce some of the same benefits. In short, punishment is only one way of achieving crime prevention, so social scientists should consider the variety of institutional settings that affect the crime rate, including legal institutions of criminal justice but also communities, families, schools, and labor markets (Sherman 1997).
Any effort to promote the public good is likely to have both costs and benefits.
Constant surveillance and forced behavior modification could achieve a stable social order, and without either allowing victims to be victimized or inflicting the harm of imprisonment on criminals. But, assuming the liberal framework, it would come at the cost of relinquishing most of our basic rights. A system of dis- incentives (as opposed to preventive interference) deters criminal behavior while also respecting people’s freedom to choose. And by punishing only the guilty, we treat people in accordance with their choices rather than treating everyone as a potential criminal who has to be forcibly restrained. Contrary to the therapy model of social control, a liberal system respects criminals’ right to be punished – more on this later (H. Morris 1968).
One theme that runs throughout this book is that a merely punitive approach to criminality is not very effective in maintaining the social order. That does not entail that punishment in general ought to be abandoned. Punishment can also serve a symbolic function in, for example, conveying to people that the state condemns those who violate our shared legal constraints. Punishment rebalances the fair system to which we have agreed. It expresses a shared feeling of resent- ment. All these aims, insofar as they are morally justified, reinforce the legitimacy of the government. I suspect, then, that punishment must be part of any strategy to promote the public good if for no other reason than because of its normative import. The fact that appropriate punishments reinforce the state’s legitimacy, in addition to the fact that some people will be motivated not to commit crimes because of the threat of punishment (which demands deterrence) and some crim- inal activity is inevitable (which demands restraint), means that at least some system of punishment must remain in place.8
8 Hanna (2009a) argues that liberal political philosophies could never give a general justifi- cation of punishment because punishment aims to impose suffering, and there are always
The rational and the reasonable 65 Still, the more we understand the social conditions that affect rates of crimi- nal activity and nonpunitive strategies for rehabilitating offenders, there is likely to be less and less justified punishment. Some abolitionists claim that punish- ment is almost completely ineffective, so we ought to adopt other, nonpunitive strategies in every case.9 My theory of punishment, by justifying the practice on consequentialist grounds, entails that we are obligated to use alternatives to pun- ishment that are more effective than the intentional infliction of harm when such alternatives are available. I doubt that punishment as a whole could be abolished without a net loss to the public good. However, if it could – if abolitionists are correct on this factual issue regarding the greater effectiveness of nonpunitive strategies – then my view would support abolitionism, provided that – and this is an important caveat – it would also allow for the expression of resentment on behalf of the community (see Chapter 4).
Restricted consequentialism
Other caveats are necessary at this point as well. First, the consequentialist reason- ing that I have defended pertains only to punishment. I am making no broader claims about consequentialism as a moral theory that would apply to all actions and policies, and to all agents, including individual agents and collective agents such as the state. Punishment as a public institution serves a specific, unique func- tion: namely, enforcing the law. It is different in this sense from other decisions that a person or even the state may make.
Furthermore, the consequentialist justification of punishment is separate from the justification of the state itself, which need not be justified by its consequences.
If we assume, for example, that the purpose of the state is to protect people’s rights, those rights may be justified on utilitarian grounds (Mill), but they need not be. In fact, they may be justified with reference to a conception of right or justice that is explicitly nonconsequentialist (e.g., Locke, Marx, Rawls, and Nozick). Thus, punishment as an institution is not necessarily justified in terms of how it furthers human happiness. Rather, punishment is justified with reference to the aims of the state, and the aims of the state may or may not be justified with reference to consequences.
nonpunitive alternatives that would support a liberal social arrangement. There are several problems with this claim. For one thing, his view entails that probation and incarceration are not punishments, because their purpose is restraint and not suffering. Thus, he defines suffer- ing too narrowly, rather than seeing it as one kind of burden that is intended to coerce. Hanna also assumes that the aim of punishment is suffering rather than suffering (or burdens) being the means to achieve some desirable end. By defining punishment as the intentional infliction of suffering on the guilty and claiming that suffering would have to be an end in itself, he begs the question against consequentialism.
9 Boonin (2008) has led the recent abolitionist movement among philosophers. He claims that punishment ought to be replaced with pure restitution. Other abolitionists include Mathiesen (1974), Christie (1981), de Haan (1990), Hulsman (1991), Golash (2005), and Hanna (2008, 2009a, 2009b, 2014).
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One may still argue that even this limited kind of consequentialism could lead to immoral punishments. One could imagine a case where a just society would be supported by grossly violating people’s rights. Punishing an innocent person to calm a threatening mob is a common example. I will set that aside at this point because it will be addressed in detail in coming chapters. Here I will say only that any policy regarding punishment is just if it is instituted by a just government, promotes a just arrangement, and causes less harm than the practical alternatives.
The consequentialist justification applies to the institution of punishment and statutory penalties for classes of criminal behavior, not individual accused crimi- nals, whether innocent or not. The distinction between punishment’s general jus- tifying aim and its distribution is crucial for the two-tiered model of punishment.