The Political Philosophy of Punishment

Our team recently had the honour of a visit by Mr Jeffrey Howard, who is currently conducting his PhD at Oxford University (UK) on the morality and philosophy of punishment.

Howard has kindly written an article on the nature of his PhD for the Wits Justice Project. It investigates whether it is rational for individuals to be punished for behaving unjustly when they exist in a society which is unjust in its absolute failure to provide for its citizens.

Why the lives of criminals matter

PUBLIC APATHY TOWARD THE PLIGHT of innocent prisoners is exceeded only by public apathy toward the plight of the guilty. But why should the public exhibit anything other than apathy for the guilty? “Hang ‘em high!” seems to be the judgement of the average law-abiding citizen, be it in South Africa, the United Kingdom, or the United States. In South Africa especially, the fact of widespread experience with crime, and the emotions of fear and anger such experience unsurprisingly engenders, have resulted in a public culture in which the interests of rightly convicted offenders are regarded as having little weight. The worse their life is, people seem to think, the better. Call this the Common Attitude.

I believe the Common Attitude, however, is irrational and immoral. And by seeing why, we can pave the path to a more humane – and effective – penal policy. Let me explain why.

The Common Attitude

John Locke, whose work on individual rights and limited government is central to the liberal tradition in Western political thought, appears to endorse something along the lines of the Common Attitude. He refers to citizens who commit brutal crimes as people who have “quitted Reason,” since he and other Enlightenment philosophers regarded the failure to understand and respect fundamental human rights as itself a failure of rationality. Locke says that such a person:

“renders himself liable to be destroyed by the injur’d person and the rest of mankind, that will joyn with him in the execution of Justice, as any other wild beast, or noxious brute with whom Mankind can have neither Society nor Security.”[1]

Locke thus invites us to regard brutal criminals as “wild beast[s]” that must be treated accordingly, who have, in some sense, forfeited their fundamental rights as a result of their wrongdoing. Note here that Locke is not talking about the moral permissibility of killing a criminal in the process of the crime’s commission, as a means of self-defence; we can agree that this may sometimes be justified. Rather, Locke is referring to how we should regard a criminal after the crime’s commission.

What is wrong with this account? My conviction is that it fails to take seriously the sort of beings that humans all are: fallible people who face temptations to act wrongly at some point or another, who need the assistance of the law’s threats to help us choose not to break the law, and whose likelihood of engaging in criminal conduct is overwhelmingly related to structural features of one’s community – namely, the prevalence or paucity of opportunities to receive quality education and meaningful work. The Common Attitude supposes, falsely, the population is cleanly divisible into two groups: the angelic law-abiders, on the one hand, and the malicious criminals, on the other. But the reality is so much more complex.

When we take seriously the fallibility of all human beings, and the fact that propensity to commit crime is largely structurally indexed, how should we think about the treatment of criminal offenders? This is, stated a bit differently, the ancient question of how to think about the nature and justification of criminal punishment. Because we do not live in a fully just society (no one does), and yet we require a vision of what a fully just society would be like in order to inform and guide our advocacy and reform efforts, let us set aside momentarily the matter of unfair structural arrangements. (Let us also set aside most of the major debates in political philosophy for a moment and simply assume that a just society is one in which basic rights and opportunities are secured for all, and in which the only criminalized actions are those that affront or otherwise undermine the protection of fundamental human rights – so murder and tax-cheating are properly banned, blasphemy is not). For now, focus tightly on the question: how should fallible human beings understand the nature and justification of criminal punishment in a just society?

Punishment in a Just Society

I believe the key to answering this question is to ask what the attitudes of a generally morally motivated but nevertheless fallible person would be toward her own moral failure: both the prospect of it and in the aftermath of it. In a just society, fallible individuals who nevertheless want to do what is right should want assistance in deciding to make the right decision. Given that the force of one’s conscience is often motivationally inadequate to get someone to do what is right, and given that temptations toward crime are often motivated by self-interest, threats of punishment are best conceived as a way that the state assists us in choosing to do what is right, and precisely by making criminal behaviour irrational from a self-interested perspective. As since the state in a just society is the collective agent of all democratic citizens, threats of punishment are therefore properly conceived as threats we jointly make to ourselves, as part of a collective effort to keep faith with our deepest convictions.

That is not, however, the whole story. Sometimes the threats of punishment fail, and people commit crimes. So, suppose I fail to be deterred, and I commit some crime – I make, in other words, a moral mistake. What is the proper attitude I should hold in the wake of my own moral failure? It is this: I ought to apologise to those I have wronged, demonstrate that I take seriously and regret what I have done, and take the necessary steps to explain to others – with all due sincerity and plausibility – that I am prepared to restore my relations with them as a member of full standing in the political community, committed to treating others as free and equal better than I have before. And likewise, the members of the community who have been wronged should provide me with the opportunity to fulfil these aims, seeing me – as their liberal convictions require them to – as someone who retains the potential to learn from my mistakes and do better in the future. Through punishment, my freedom is deprived in exchange for having to think hard about what I have done and, by serving my sentence, demonstrate to my fellow citizens that I have fortified my commitment to doing better in the future and am prepared to move forward on restored terms. All we need to do to see the force of this picture is imagine winding up in circumstances where we ended up making a terrible moral mistake, and then asking how it would be reasonable for others to treat us. And the answer would be: “punish me for what I have done, but do so in a way that does not banish me from the realm of rights; rather, help me to make a moral comeback.”

This account of punishment, which I call “Democratic Coercion”, presents an superior picture of punishment to the Common View. It sees criminals as fellow citizens who have made grave mistakes, mistakes for which some public response – in the form of punishment – is absolutely necessary. But it does not eviscerate their rights in response to their mistakes. It takes seriously their capacity to improve, a capacity that defenders of human rights – committed to respecting the rational powers of every free individual to direct her life as she wills – are bound by our convictions to respect.

Punishment in an Unjust Society

 

It is all too obvious that the vision of punishment urged by Democratic Coercion has little in common with the penal institutions that prevail across most of the world. That is one considerable problem that must be addressed: we must work to make the experience of punishment oriented toward moral apology and restoration. This does not necessarily mean that punishment should be, as critics of prison reform always caricature, all fun and games. Punishment, even in a just society, would very serious. For serious crimes, it should fundamentally disrupt the lives of criminal offenders; deprivations of freedom can be effective ways to induce reflection in criminals on the way that their behaviour has undermined the freedom of others. But its aspiration should be to repair and restore the moral relations of fellow citizens, not to destroy them.

Supposing prisons were suitably reformed, would the ideal of punishment I have sketched be sufficient for unjust societies – societies in which the official legal and political structures work to deprive many citizens of fundamental freedoms and opportunities? Many philosophers have a worry that the answer is no. By enacting gravely unjust policies, the state creates contexts of deprivation in which criminal behaviour is often overwhelmingly rational. Given the lack of employment or opportunity, and the skills necessary to pursue them, people turn to lives of crime in order to secure basic goods of income, security, and – often though joining gangs – a sense of self-respect. Yet the state, after creating these contexts, then turns to punish such citizens when they commit crimes – many of which, we might speculate, would not have even been committed had the state made good on its obligation to treat all citizens with equal concern and respect, working to achieve equality of opportunity for all. Is such punishment justified?

This is an extremely complicated question. First of all, we need to distinguish economic crime from noneconomic crime. Some philosophers would argue that economic crimes, such as theft, are permissible in unjust societies, since we can view them as compensation for wealth that should have been distributed fairly. But let us set aside that thorny issue here and focus on noneconomic crimes, and specifically the set of noneconomic crimes that would also be classified as criminal in a just society: crimes like murder, assault, and rape. Can the state punish victims of its own injustice who then commit such crimes?

This debate is presently raging in contemporary political and legal philosophy. On the one hand are philosophers who say “no”: that the state has lost its moral standing to punish people, by being complicit in creating the conditions that made them more likely to pursue lives of crime in the first place. Others say “yes”: people in communities rattled by injustice are already more likely victims of crime, since they live amongst criminals, and the state that has already failed them would only be turning its back on them further by refusing to enforce the law.

My own position is this. If an unjust state takes reasonable efforts to start undoing the harm it has done – investing in the communities it has shunned, providing quality education and job-training for citizens young and old, and most importantly recognising publically and apologetically that it has failed these communities – then its moral standing to punish is restored, at least partially. If it does not do these things, however – if it continues to smugly perpetuate social injustice – then things are more complicated. In such greatly non-ideal circumstances, I think punishment would, when understood in its deterrent role, be justified: we cannot plausibly say that unjust states shouldn’t try to stop people from murdering and raping innocents, even if it is itself responsible for its citizens becoming the kind of people who murder and rape innocents. However, punishment is only justified in its deterrent capacity; the second bit of the theory of punishment I sketched – concerning restoration – has no place in an unjust society. A state has no business turning to criminal offenders and lecturing them on the wrongs they has done, in an attempt to facilitate moral restoration, when it is itself partly responsible, through its injustices, it making them the kind of people who choose lives of crime. The state, in such case, would have compromised its role as a facilitator of moral restoration and reform.

I am eager to read your comments, suggestions, and objections.

Jeffrey Howard is a Postdoctoral Research Fellow in Political Philosophy in the Department of Government at Essex University. His work has appeared in such journals as Criminal Law and Philosophy. He holds degrees from Harvard and Oxford Universities.


[1]     John Locke, Two Treatises of Government, ed. Peter Laslett (Cambridge: Cambridge University Press, 1988 [1690]), p. 383

Jeffrey Howard is a Postdoctoral Research Fellow in Political Philosophy in the Department of Government at Essex University. His work has appeared in such journals as Criminal Law and Philosophy. He holds degrees from Harvard and Oxford Universities.

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One Response to The Political Philosophy of Punishment

  1. ruth says:

    I follow your reasoning as far as the attribution of responsibility goes to an unjust state for economic crimes of its populace (if there is no equal distribution of wealth then people will steal), but murder and rape: do you think an unjust state actually stimulates those crimes? Do unjust states have any responsibility in the origin/start of these serious transgressions? I can’t see the philosophical or moral argument there, but maybe I haven’t thought it through.

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