Friday 25 September 2020

Why We Can Never Have the Moral Right to Punish (2020)

From The Philosopher, Volume CVIII No. 2 Autumn 2020

      Why We Can Never Have the Moral Right to Punish

by Anonymous

It is an alarming and unfortunate reality that most modern states and societies seem to lack the moral right to punish. Cash bail, bias against people of color and of socioeconomic disadvantage, and excessive uses of force in policing are only a few examples of the practices and institutions that I would argue make the practice of punishment morally unjustifiable in the real world.

What may be more disturbing from a philosophical perspective, however, is that it seems that no society can ever have the moral right to punish. This is because the changes and systemic reforms that would be required to make punishment truly justifiable are impossible—even theoretically—to carry out.

Punishment is a social institution, the origins of which can be traced to the dawn of history. Anthropologists consider it a common denominator in all cultures in the ethnographic literature. Punishments have taken—and still take—a variety of forms, including death, exile, imprisonment, physical tortures, and financial penalties. Although the specific practices have varied greatly in different cultures and time periods (for example, the prevalence of the death penalty has varied substantially over time and in different countries), the significance of punishment as an institution in societies has not diminished.

For philosophers, finding a moral justification for legal penalties—especially those that are most severe—is of great importance. Theories have been crafted to support the claim that states really can have the moral authority to punish. One example is retribution, or the ‘eye for an eye’ principle, which is all about ‘payback’ and revenge. This view can be traced back to the first century BCE, and it promises that even a harsh and awful punishment is justifiable because by this very harshness it rights moral wrongs, and restores the moral balance that is disturbed when an immoral act is committed.

Along somewhat similar lines, the deterrence theory—made popular by Cesare Beccaria and Jeremy Bentham in the eighteenth century—suggests that punishment is appropriate when it is designed specifically to prevent future crime from being committed, while the theory of rehabilitation (established in legal practice in the nineteenth century) argues that the only just punishments are those that help offenders undergo some internal moral reform. While retribution, deterrence, and rehabilitation are only three of the many theories, they are representative of the debates about justifications of punishment that have gone on for centuries, with new views being proposed and older theories being revised.

Yet I would argue that the theories advanced, despite offering elaborate and in many respects convincing justifications of punishment, suffer from the same fatal flaw: they are constructed without regard for the nature of the world to which they are supposed to apply. That is, they rely upon assumptions that ultimately render them inapplicable to modern societies. 
Inevitably, in philosophical theorising, those arguing for different conceptions of just punishment make assumptions about the nature of the world and humankind. Although these assumptions are usually made to simplify and tighten the arguments they support, they can steer those same arguments into trouble. One lurking assumption on which these philosophers rely, is that individuals are all protected equally by the laws that govern them. They assume that laws are enforced equally, proportionally and dispassionately, and that people are afforded similar freedoms by these laws and would be punished equally should they break them.

Of course, this view does not reflect the real state of things. In most modern societies, punishments may be heavily influenced by factors such as the race and socioeconomic status of the offender. Black men are more than twice as likely as white men to be killed by police in the United States, American Indian youth are three times more likely than white youth to be held in juvenile detention, and more than half a million people in the United States are currently being held pre-trial simply because they cannot afford to post bail.

Because of the influence of race and class on criminal justice, identical punishments may have drastically different effects on those to whom they are given. After all, a $10,000 fine is a drop in the bucket for a millionaire, but might result in financial collapse for a single, working-class parent. Moreover, practices such as cash bail, which requires that people pay (sometimes substantial) sums of money to free themselves from jail before they can be tried for their crimes, inherently favour the wealthy. Having to raise bail also imposes some form of punishment on people who have not been convicted of crimes and may well be innocent. And of course, the reality that wealthier individuals in many modern societies have the option to hire expensive lawyers and legal teams to help them avoid punishment is a privilege to which few have access, and can result in dramatic reductions in punishments.

One example of this is Ethan Couch, a wealthy 16-year-old from Texas, who killed four people in a drunk driving accident in 2013 and yet was sentenced to a mere 10 years of probation because his expensive defense attorneys argued that due to his wealth, he could not understand the consequences of his actions. Another example is 16-year-old Orachorn Thephasadin Na Ayudhya, who, in 2010, killed nine people in another accident, this time one that involved her texting and driving without a license. She was sentenced to a mere 138 hours of community service because of the defense lawyers her powerful and wealthy family were able to hire. Systems such as cash bail, as well as these examples of wealthy people using their resources to avoid punishment for heinous crimes, demonstrate the ways in which modern societies do not have systems of punishment that protect all people equally.

However, another factor that tends to undermine conventional assumptions has not to do with the punishments that are imposed after offenders are brought into criminal justice systems, but instead arises earlier in the sequence of events, with different approaches to law enforcement. The recent Black Lives Matter demonstrations, which have protested police brutality against people of colour, reveal the extent to which it is commonplace in many modern societies for laws to be enforced unequally and disproportionately, along racial, ethnic, and class-based lines.

Law enforcement officials too often act in ways that betray bias and prejudice, and indeed, some of the tactics used by law enforcement agencies around the world are punishments in themselves. In the United States, police officers routinely make headlines for excessive uses of force that result in serious injury—and even death—on individuals who have not been convicted of crimes and are typically ethnic and racial minorities. For example, Elijah McClain—a 23-year-old Black man—died in August of 2019 after police in Colorado put him in a chokehold (a practice now banned in many police departments). In a similar case in July of 2014, Eric Garner, also Black, was killed by New York City police officers when they suffocated him, again in a chokehold. Another Black man, George Floyd, was killed in May of 2020 by police in Minnesota when an officer placed his knee on the back of Floyd’s neck and held it there for nearly nine minutes. These incidents (which are only a few examples of many) demonstrate the ways in which policing can itself become a form of punishment—one that has no regard for legal proceedings or due process and that disproportionately affects racial and ethnic minorities.

At the same time, another assumption to which the various theories of punishment subscribe is that the negative effects of criminal penalties can be confined to the offenders towards whom they are aimed and also that they are limited to the time in which the punishment itself occurs. It is assumed that when people are punished, only those who are meant to be punished are harmed. And likewise that the punishments last only as long as they are meant to, and that when the period of punishment is over, everything goes back to the way it was before the penalty occurred.

In reality, though, punishments are neither confined to the people on whom they are inflicted nor the time periods in which they are carried out. Punishments in modern societies—and even the smallest ones at that—can have lasting negative effects and can affect more than just the offender toward whom they are targeted. As the legal philosopher Zachary Hoskins puts it, in an article entitled ‘Ex-offender Restrictions’ for the Journal of Apllied Philosophy: “Individuals convicted of crimes are often subject to numerous restrictions—on housing, employment, the vote, public assistance, and other goods—well after they have completed their sentences, and in some cases permanently.” 
Numerous policies exist in parts of North America and Europe that restrict former offenders’ abilities to find jobs, borrow money from banks (even for student loans), and hold public office. In forty-eight U.S. States, convicted felons lose the right to vote while incarcerated, and many companies around the world have adopted policies that prevent the hiring of criminal offenders, even if they have fully served their sentences. Furthermore, these policies, as well as the social stigma associated with criminal punishment, generally cause harm to the families and communities of ex-offenders by limiting individuals’ economic opportunities. Overall, punishments can follow people their whole lives, even after they have ‘paid their debts to society’.

It is clear to see that philosophers’ assumptions about punishment do not play out in reality, and that laws—and the punitive measures taken against those who break them—do not protect all people in a society equally. Because of this, it may be worth thinking about the kinds of reformative policies that would be required (and the barriers that would have to be overcome) to create a society that satisfies that philosophers’ assumptions. It would be in this kind of society that there could presumably be systems of punishment that are indeed just.

The first of these reforms has to do with the policies surrounding economic inequality and individuals’ access to resources and opportunity. After all, much of what causes punishment to be morally unjustifiable is the extent to which people are unequally protected by the law due to socioeconomic disparities. It seems that for punishment to truly be morally justified, societies would have to be designed in such a way that the people living in them would have equal access to resources and opportunities, as this would be perhaps the best way to ensure that crime and punishment would not be influenced by the resources to which a defendant has access.

Philosophers refer to the egalitarian principle that would have to be employed to achieve this kind of equality in society as distributive justice. This principle requires that goods and resources be distributed among members of a society to eliminate unjust inequality. However, although it may sound promising, distributive justice is often seen as restricting of individuals’ rights to property, and is as a result rather politically unpalatable. Moreover, these principles of distributive justice come with their own set of challenges. Even if it were decided that there should indeed be some kind of redistribution of goods or resources, there is little agreement about what should be distributed and how that distribution should take place. Some political philosophers, such as Ronald Dworkin, argue that there should be an “envy free” distribution of resources to achieve equality. Others, such as Richard Arneson, suggest that distribution should aim at “equality of opportunity.”

The result is that although it is certainly tempting to say that distributive justice could solve the social ills that render criminal punishment morally unjustifiable, the reality remains that any attempt at egalitarian distribution would encounter serious social and political opposition, not to mention the challenges of implementation and execution.

An additional barrier standing in the way of just punishment has to do with yet another assumption on which philosophers rely in arguing for their justifications of punishment, which is that people are generally rational, have similar intellectual capabilities, and are mentally competent. Indeed, this is an important component of most punishment theories because for punishment to be formally justified, it must be inflicted on a person who understands the crime she or he has committed, and she or he must have committed it with some rational intent.

It should go without saying that this assumption in no way reflects the real state of things. Millions of individuals suffer from mental illnesses such as anxiety, depression, schizophrenia, and post-traumatic stress disorder, among countless others. These can vary in severity from mild to debilitating, and can often influence peoples’ ‘rational’ capacities. Others are born with intellectual disabilities and disorders such as autism and Down’s syndrome. All of these factors can influence individuals’ decision-making processes and can indeed lead them to commit crimes when they otherwise would not have.

A first response to this challenge might be that justice systems are able to correct for criminals’ intellectual capabilites in assigning punishments; indeed, many courts claim to have adopted this practice. In reality, however, attempts by systems of punishment to account for offenders’ mental capacities have been abysmal. In fact, in the first two decades of the twenty-first century, more than twenty-two mentally ill criminal convicts have been executed in the United States, despite their having been diagnosed by mental health professionals. Moreover, more than 50% of inmates in jails and prisons in the United States have been diagnosed with mental illness, with roughly 20% having severe cases. By comparison only 4% of adults in the United States experience severe mental illness in any given year. It has also been shown that roughly 20% of inmates in jails and prisons experience severe psychological distress while incarcerated, compared to only 5% of the general population. All this demonstrates that criminal justice systems are neither adequately trained on how to take mental illness into account when sentencing, nor prepared to include in punishments measures aimed at treating offenders who may suffer in this capacity.

There is a larger issue here, and it is that there is no consensus in the academic community about what “rationality” truly is. Psychologists’ explanations differ from those of neuroscientists, whose differ from those of philosophers. And of course, there is considerable disagreement about the issue even within these fields. Recently, legal theorists such as Stephen Morse, William Hirstein, and Katrina Sifferd have warned against the urge to incorporate brain science into criminal proceedings due to the uncertainty that surrounds it. Hirstein and Sifferd argue that “prefrontal executive processes”—cognitive functions about which much is still unknown—are given excessive weight when considering issues such as criminals’ awareness of facts of their cases (such as whether a gun was loaded), and also for juvenile offenders, such as seventeen-year-olds who are on trial for murder. The fact of the matter is that even if there existed a reliable, scientifically-informed “standard of rationality” to which criminal offenders could be held, there would be tremendous difficulty in determining whether any given individual meets the standard.

It should also be noted that when it comes to the rational and psychological barriers that stand in the way of morally justifiable punishment, the issues do not only pertain to offenders. Those who write and enforce the laws are subject to rational limitations that impair the ability for any system of criminal justice to punish in a way that is truly just. These limitations take the form of biases, which are psychological processes deeply rooted in humans that provide us with mental shortcuts and allow us to process large amounts of information in a remarkably complex world. For example, we are predisposed to favor others who resemble us or remind us of ourselves, we tend to dislike people in social and political “outgroups,” and we usually only seek out information that confirms or supports our previously held views and beliefs. Bias is a psychological mechanism from which no human can truly “escape,” and while some of these biases are not necessarily “bad” in themselves (they may indeed have provided us with evolutionary advantages over millennia), they make it very hard to evaluate others “objectively,” as it were.

And so I arrive at the unfortunate conclusion that not only can punishment not be justified in the real world today, but it will never be possible to justify completely either. This is because the challenges surrounding equality and distributive justice, while theoretically surmountable, present a large issue with which any society would have to grapple to bring about just punishment. Rational and psychological barriers, on the other hand, are an obstacle that it is categorically impossible to conquer.

So what do we do now? One route might be simply to view true moral justification as a standard to which we should not hold ourselves, and to consider punishment a necessary evil that we must tolerate in order to maintain functioning societies.
However, although such a stance may be realistic as things currently stand, I prefer a more optimistic strategy. I propose that we use the classical philosophical justifications of punishment, and all the assumptions that accompany them, as guiding lights. That is, we should use the theories not in an attempt to morally justify punishment, but instead to inform the policies we implement and decisions we make surrounding punishments in the world in which we live. For example, we might try to limit the extent to which punishments follow those who have paid their dues, and we might eliminate practices that inherently favor wealthy offenders, such as cash bail and privatised criminal defense. The aim would be to use pragmatic, realistic policy mechanisms to reduce the impact of societal inequalities in order that people may benefit more equally from the protection of the law.

This approach would also require unbiased and proportional enforcement of the laws, as well as humane policing practices that are not in themselves punishments. And of course, punishment systems would have to eliminate mechanisms that confer advantages to those in positions of privilege and take steps to limit the negative impact of punishment on offenders who have paid their dues. Because, even if it may be impossible for us to live in a world in which punishment is truly morally justified, it is surely possible, and increasingly necessary, to get much closer to this ideal.

About the author

The author studies and writes on various issues in legal and political philosophy. He is particularly interested in examining the material and empirical implications of classical philosophical theories, notably those pertaining to criminal punishment.

1 comment:

  1. The interestingly provocative title of the essay, Seth, is ‘we can never have moral right to punish’, which is couched as the discussion’s conclusion. The essay goes on to explain, ‘This is because the changes and systemic reforms that would be necessary to make punishment truly justifiable are impossible — even theoretically — to carry out’. That strikes me as absolute resignation, that risks devolving to helplessness and inaction.

    That said, it does seem we might turn the essay’s unequivocal conclusion into a premise, instead, in order to pose a few additional exploratory questions. For instance, do we conclude we can never punish at all (leaving transgressors unpunished), so that society avoids doing something it knows to be immoral? Assuming, that is, societies would prefer to act morally?

    Would, then, the conclusion-turned-premise lead to never controlling wrongdoers? Or do we search for grounds other than morality on which to punish? If society doesn’t punish, we might preserve the purported moral high ground — that is, preserve a high-sounding moral imperative. But might chaos, social disintegration, bad bahaviour, and unaccountability then reign, in the vacuum left by punishment’s absence?

    If, however, we conclude it’s imperative to punish, how might we justify doing so in order to codify and act on that belief, if we’ve struck down the possibility of moral justification? On the grounds of preserving social order, which one might consider a powerful moral imperative on its own grounds?

    In these regards, the essay’s proposals don’t, to my mind, seem to point to measures not already being undertaken by many societies. Specifically, here’s one proposal from the essay: ‘We should use the theories [justifications of punishment] . . . to inform the policies we implement and decisions we make surrounding punishment in the world in which we live’. But I’d claim that’s already being done, despite very-human stumbles, in order to move ever closer to the ‘changes and systemic reforms’ the essay too quickly dismisses.

    And here’s another: ‘The aim would be to use pragmatic, realistic policy mechanisms to reduce the impact of societal inequalities in order that people may benefit more equally from the protection of the law’.

    Again, surely that’s already being done, by legal scholars, civil rights leaders, ethicists, sociologists, economists, criminologists, think-tank pundits, and many others (including advocacy by concerned citizens), with the aim of remediating societies’ models of law-and-order and recourses for holding people responsible and punishing transgressors.

    My point is that I’m not sure where ‘we can never have the moral right to punish’ takes us, short of a potentially bewildering, stymieing impractical unreality.


Our authors very much value feedback from readers. Unfortunately, there is so much spam on the internet now that we now have to moderate posts on the older articles. Please accept our apologies for any extra time this may require of you.