Mitchell N. Berman
The philosophy of criminal law is a rich and varied domain of legal philosophy, one that both draws upon and contributes to developments in other philosophical subfields ranging from the philosophy of mind and of action to moral and political theory. Among the topics that philosophers of criminal law explore are the character of culpable acts and the relationship between acts and omissions; the nature of intention and its connection to other mental states (and pseudo mental states) such as knowledge and negligence; the metaphysics of causation and the problem of moral luck; the differences between justification and excuse; the moral bearing of insanity and psychopathy; and the principles governing fair ascription of responsibility for acts of others. And this is just a very partial list.
Traditionally, however, one concern has dominated the others: to explain how, if at all, the state is morally justified in subjecting an individual to criminal punishment. Although the precise contours or constituents of criminal punishment are debated, it indisputably involves the intentional infliction of hard treatment or the deprivation of substantial liberties. Because ordinary moral rules dictate that we should not treat one another in such ways, the practice is said to stand in need of justification. And criminal law theorists have long seen the challenge of supplying such justification as their central task. The answers they provide routinely travel under the heading of “theories of punishment,” but “justifications for punishment” would be more apt.
This chapter critically reviews the most important justificatory accounts in the literature and offers thoughts regarding where debates over the justification of punishment might profitably turn in the near future. It proceeds in five sections. The first sets the stage by explicating what punishment is—or, as I will argue is the better way to understand the problem, what is meant by “punishment” for purposes of debates regarding its justifiability. Although theorists have proposed and defended a staggering variety of particularistic accounts designed to meet this justificatory challenge, it is conventional to group them into two camps: consequentialism and retributivism. The second section introduces and sketches these two broad schools, while the third notes some recent doubts about this way of classifying proposed justifications for punishment, but explains why the two-part consequentialist/retributivist framework remains generally sound and helpful. The fourth section reviews the dominant challenges to consequentialist and retributivist justifications, along with the predominant responses offered to those challenges. It also shows how consequentialist and retributivist approaches have come close to converging on a desert-constrained pluralism. The final section suggests that, in the face of something approaching a consensus regarding the pluralistic justifiability of punishment, an important philosophical challenge going forward is to explicate and better defend the constraints on punishment that all retributivists and most consequentialists endorse.
What Is Punishment?
Whatever else criminal punishment may be, it is disagreeable to the person punished—far more than usually, if not invariably. But the state does many things to individuals that they find disagreeable: it imposes taxes and quarantines, orders deportation, condemns property and so on. None of these practices is termed “punishment.” More importantly, even to the extent that we reasonably question the propriety or permissibility of some of these other practices, we tend to think that the demand that punishment be justified is somehow special—more pressing and harder to satisfy. So this practice—punishment—that we aim to justify must be something more or other than the state’s imposition of disagreeable consequences upon individuals. Many theorists, therefore, have attempted to identify the necessary and sufficient conditions for an imposition to count as punishment.
For half a century, the dominant view has been that the search for a true definition of punishment is either futile or unnecessary. Accordingly, many commentators follow H. L. A. Hart in focusing instead on the central or standard case, which Hart, building on the work of Anthony Flew and Stanley Benn, identified as consisting of five conditions:
(i)It must involve pain or other consequences normally considered unpleasant.
(ii)It must be for an offense against legal rules.
(iii)It must be of an actual or supposed offender for his offense.
(iv)It must be intentionally administered by human beings other than the offender.
(v)It must be imposed and administered by an authority constituted by a legal system against which the offense is committed.
(Hart 1968: 4–5)
Despite its influence, the Flew-Benn-Hart account is criticized on two basic grounds. Some commentators maintain that it includes too many conditions. For example, conditions (ii) and (v) limit the account to punishment imposed by the state—“legal punishment” or “criminal punishment”—whereas some argue that punishment is a more general concept, one we can better understand by working with a definition that encompasses punishment in extralegal contexts, like the discipline that parents mete out to their children (e.g., Zaibert ( 2006: 7–37). Other theorists argue that the Flew-Benn-Hart account includes too few conditions. Many follow Joel Feinberg in believing that an additional standard feature of punishment—that it be intended to communicate moral condemnation—is either a necessary condition or at least a marker of the central case (Feinberg 1970).
We can gain a better handle on the definitional debates by recalling the question that brings us here. One possible question arises from a classificatory concern. We observe some practice that appears, pretheoretically, to be a possible or borderline case of punishment—say, imposition of a fine on a corporation, or continued preventive detention of a sex offender after he has served his full sentence—and want to know whether it qualifies as punishment or not. This type of interest might reasonably cause us to ask, “What is the concept of punishment?” If we can answer this question satisfactorily, we will then be much better able to determine whether some possibly borderline case falls within the contours of the concept.
Our concern, however, is not classificatory, but justificatory. That is, we observe, or call to mind, some actual impositions of criminal punishment—say, execution or flogging or incarceration—and ask: “What, if anything, could justifythis?” We might then generalize our question to “What justifies criminal punishment?” And when we do, we can be led to think that we must identify precisely that which we seek to justify, and thus must answer the classificatory question. That is the mistake I wish to counsel against. Rather, our need is to identify the characteristics of the standard or central case of criminal punishment that are responsible for causing us to think its justifiability significantly in doubt. Put another way, precisely because (or insofar as) we believe that criminal punishment faces a more challenging demand for justification than do other state practices that impose disagreeable consequences on individuals, we want to identify the particular features that render a range of salient legal practices that we customarily term “punishment” in especially demanding need of moral justification.
Once we appreciate the different goals of justificatory and classificatory inquiries, it is easier to see what it is about focal punishment practices that makes them especially worrisome from a moral point of view. Condition (iv) in the Flew-Benn-Hart account of the standard case specifies that punishment must be “intentionally administered.” This is potentially ambiguous. It seems probable that any concrete instantiation of punishment—a particular course of floggings or a particular act of imprisonment, say—is administered intentionally, not accidentally. More important is that the authorities who intentionally administer that treatment intend that it cause the subject of that treatment pain or suffering. That is, the practices and actions that forcefully provoke philosophers’ worries when they ask “Can punishment be justified?” involve the intentional infliction of hard treatment, or the deprivation of substantial liberties, or both, because of, and not despite, the expectation that the person subjected to the treatment would suffer as a result. (Quibbles can and have been raised against this claim. I believe that they can be met, but elaboration would consume more space than is warranted.) One need not fully endorse the doctrine of double effect (a principle that, somewhat simplified, recognizes a firm moral difference between causing harm intentionally and knowingly) to believe that inflicting suffering purposefully is in need of especially strong moral justification, and none of the other practices that also produce suffering has suffering as a goal or aim, whether ultimate or intermediate.
The justificatory question, then, plausibly becomes this: what justifies the state in inflicting hard treatment on people for their supposed or claimed wrongdoing with the intention that that treatment cause the supposed or claimed wrongdoer to suffer? When, for simplicity, we ask what justifies the state in inflicting punishment, the term “punishment,” in the question and in proposed answers, is a placeholder for hard treatment intended to cause suffering.
If the difference between classificatory and justificatory enterprises is not yet fully clear, imagine a practice of social discipline in which persons found to have violated the criminal law are flogged with utmost politeness and with conspicuous disavowals of any condemnatory intent. Because the element of moral condemnation is absent, punishment theorists who take themselves to be engaged in a classificatory inquiry might puzzle over whether such treatment counts as punishment. Punishment theorists who are interested in the justificatory inquiry need not be bothered by any uncertainty over the concept: whether or not such a practice is properly deemed punishment, it is properly subjected to a stringent demand for moral justification, and it is the theorists’ task either to meet the demand or to show why it cannot be met.
Two Types of Answers: Consequentialism and Retributivism
Although philosophers writing in the Western tradition have endeavored to justify criminal punishment against moral objections since ancient Greece, the dominant contemporary views trace mostly to thinkers from the eighteenth and early nineteenth centuries. Drawing on the work of giants like Bentham and Beccaria, Kant and Hegel, punishment theorists writing in the early years of the twentieth century distinguished among a small handful of proposed justifications, running under such headings as deterrence theory, retribution, annulment theory, denunciation theory, reform and rehabilitation. By mid-century, however, commentators had generally folded this myriad of justifications into a simple dichotomy that more or less persists to this day: consequentialism and retributivism.
Very precise definitions of these alternative, and possibly competing, theories of punishment would beg many important debates. Consequentialist theories of punishment maintain that the intentional infliction of suffering or hard treatment can be justified by the good states of affairs that the practice produces or may reasonably be expected to produce. Retributivists, in contrast, would justify punishment on the grounds that it is deserved or otherwise fitting, right or appropriate, and not in terms of any good consequences that individual acts of punishment or the general practice may cause to be realized. Consequentialist justifications are said to be “forward looking” because they depend upon claims about the states of affairs that are to be produced as a result of punishment. Retributivist justifications are deemed “backward looking” because they depend only upon claims about facts and relationships that exist before punishment is imposed. Both approaches, it bears emphasis, are in-principle justifications: they aim to explain what could justify some forms of punishment under certain circumstances, but not to establish that punishment practices in any actual jurisdiction are in fact morally justified.
Because it is customary to classify moral theories—theories regarding what is morally right, wrong and permissible—as either consequentialist or deontological, it is tempting to suppose that consequentialist theories of punishment must be committed to a consequentialist ethic. The unfortunate habit of many writers to affix the “utilitarian” label to what this chapter, following the more common line, terms consequentialist theories of punishment, strengthens that temptation, for utilitarianism is a familiar comprehensive moral theory. However, the mapping of consequentialist theories of punishment onto consequentialist moral theories is too facile. To be sure, consequentialists about ethics believe, almost inescapably, that punishment, if it can be justified at all, can be justified only by reference to the good it produces. But the converse does not hold. Consequentialism in punishment theory is a view regarding how the intentional infliction of suffering for wrongdoing can be morally justified; it is not a view about value or right action more generally. That is, not only can consequentialists about punishment adopt just about any theory of value, they need not even commit to the core principle of consequentialist ethics that the rightness of any action is determined solely by its consequences (actual or expected). Consequentialists about punishment (what this chapter henceforth means by “consequentialist” and its variants, when unmodified) argue that, in principle, the intentional infliction of suffering can be justified by the net good consequences the practice produces. They need not commit to any more comprehensive theory of rightness. Simply put, it is untrue, as one respected commentator has observed, that consequentialist justifications for punishment “shar[e] with all consequentialist theories the belief that ultimately the only morally significant features of an act are the good and bad consequences produced by it” (Ten 1987: 3).
The heart of consequentialism is sometimes called deterrence theory—the compound claim that credible conditional threats to inflict punishment for specified types of wrongdoing (paradigmatically, acts of antisocial aggression) will reduce their incidence, and that the actual imposition of punishment is (reasonably) necessary to make such threats credible. Insofar as the punishment of one wrongdoer deters other potential offenders from offending, the mechanism is termed “general deterrence”; insofar as the experience of having been punished deters the offender himself from reoffending, the mechanism is “specific deterrence.”
Deterrence theory, in both general and specific forms, involves both a view about the good state of affairs that punishment can produce—namely, the state in which there are fewer acts of antisocial violence or rights violations than would otherwise obtain—and a view about the mechanism by which punishment produces that state—namely, by bolstering the credibility of conditional threats. But deterrence is not the only means by which punishment might cause a reduction in antisocial aggression and the like. For one thing, punishment can incapacitate offenders from reoffending, either permanently (say, by execution) or for a time (by incarceration)—though incarceration in practice might do more to shift the incidence of violence and aggression, from the general community to the prison population, than to substantially reduce the total number of harmful or wrongful acts. Also, punishment might in theory reduce violence and aggression by reducing offenders’ inclinations to offend, by reforming their character, strengthening their attachment to moral or legal norms and even by providing them with job-related skills. These mechanisms, especially the last, are what people have in mind when they invoke “rehabilitation” as a justification for punishment. (It is worth noting, though, that a wrongdoer does not likely develop socially productive skills as a consequence of punishment itself, but as a consequence of whatever training prison officials can provide auxiliary to an offender’s punishment.) Relatedly, if punishment can deter what we might call initiatory aggression, it can also deter retaliatory aggression—aggression by victims and their families against initial offenders—by assuring victims that the wrongs they have suffered will be vindicated.
All the foregoing causal mechanisms that consequentialists frequently endorse—deterrence, incapacitation, reform and discouraging private vengeance—are means to bring about the same general type of good—what we might loosely describe as a reduction in harms. But just as consequentialists can and do emphasize different causal mechanisms by which punishment can realize good states of affairs (including the reduction of bad states of affairs), they also focus on disparate goods at which punishment should aim.
For example, just as it is good that people enjoy their rights to property and bodily integrity free from interference by others (i.e., it is bad when they suffer “harm”), it is also good, ceteris paribus, that their preferences be satisfied. We will see that the core claim of retributivism is that offenders deserve to suffer or to be punished, and therefore that punishment is right, or just, or obligatory. Whether or not this is so, many members of society, not only victims, believe