In this episode, David discusses the legal practice of punishing people for misbehaving or breaking laws. He explores the justifications for the practice on a legal, practical, and moral level, and looks at possible ways that punishment could be replaced with better approaches.
Contents:
- Overview and definition of punishment
- Philosophy of punishment
- Justifications for punishment
- Alternatives and ways forward
- Justice
- Reform
- Restorative justice
My email address:
david.tonner2010@gmail.com
Links:
Pragmatic ethics:
https://en.wikipedia.org/wiki/Pragmatic_ethics
Restorative justice:
https://en.wikipedia.org/wiki/Restorative_justice
Best book on punishment I've read:
David Boonin – The Problem of Punishment
https://www.amazon.ca/Problem-Punishment-David-Boonin/dp/052170961X
In this episode, David discusses the legal practice of punishing people for misbehaving or breaking laws. He explores the justifications for the practice on a legal, practical, and moral level, and looks at possible ways that punishment could be replaced with better approaches.
Contents:
- Overview and definition of punishment
- Philosophy of punishment
- Justifications for punishment
- Alternatives and ways forward
- Justice
- Reform
- Restorative justice
My email address:
david.tonner2010@gmail.com
Links:
Pragmatic ethics:
https://en.wikipedia.org/wiki/Pragmatic_ethics
Restorative justice:
https://en.wikipedia.org/wiki/Restorative_justice
Best book on punishment I've read:
David Boonin – The Problem of Punishment
https://www.amazon.ca/Problem-Punishment-David-Boonin/dp/052170961X
Punishment (part 1)
Welcome to the Reasoned Intuitions podcast. My name is David Tonner, and I discuss personal ideas on moral issues in modern society and try to come up with improved ways of thinking and behaving, in the hopes of becoming a better person and causing the least amount of harm. As a disclaimer, I'd like to state that I am not an expert in either philosophy, psychology, or anything else, for that matter.
My opinions and positions are provisional and open to change with new information or an improved understanding of the issues I discuss. My intent is not to provide definitive rules or to tell anyone how they should live their life. I merely want to share my ideas and insights, in the hopes that they can be inspirational or in some way helpful.
I employ pragmatic ethics and try to reason from as broad and objective a perspective as possible. Some of my basic assumptions are that unchosen suffering is bad, and we should strive to minimize it. Joy is the most pleasurable sensation, and thus we should strive to maximize it. Empathy is universal, with some exceptions, and it should be the starting point of any good ethical system.
If you would like to support my podcast, the best way to do that is by either giving it a rating or reviewing it, and you can do that on Spotify, Google Podcasts, or Apple Podcasts.
Welcome to another episode of Reasoned Intuitions. I'm your host, David Tonner, and today I want to talk about punishment. In a previous episode, I touched on this topic when I talked about whether or not “bad people” deserve to be happy. The context was that if someone has committed a wrong act, if they have harmed another person or society as a whole, they deserve punishment, but does that exclude their right to also be happy at the same time?
In that episode, I concluded that people do deserve to be happy, even when they have misbehaved. Today, I want to delve deeper into the topic of punishment itself. As this is a rather intricate subject, I'm going to split it into two separate episodes. In this one, I'll provide a general description and background. I’ll look at common justifications, my own objections to them, as well as some possible ways forward. In the second part, I'll talk about one recent instance of grossly disproportionate punishment, how legal penalties can ruin a person's life, the types of mistakes people make in moments of emotional overload, the way that punishment, just like an act of unpremeditated violence, has an instinctive basis, and the difference between punishment and consequences, among other things.
I've spent a significant amount of time thinking and reading about punishment as a concept, and I'm currently of the opinion that not only is punishment not beneficial to anyone, be they victim or perpetrator, but it is an unethical recourse in almost any category of scenarios. For those who haven't heard my previous episode or do not recall my reasoning on this topic, please note that my conclusions are founded on the fact that I am an atheist, and therefore I do not subscribe to any religious notions of retribution, penitence, or just desert. Additionally, I consider myself to be a causal determinist, meaning that I do not believe in free will or agency, and this means that while I'm in favour of holding people responsible for their actions for practical reasons, I don't think that people are morally responsible for their actions.
Okay, let's start by defining punishment and looking at its intended purpose, as well as the psychological motivations underpinning it. Here's my quotable definition of the concept: “Punishment is the infliction of proportional suffering meted out by a person or body in a position of power or authority”.
Punishment can happen on an official and unofficial level. It can be fair or unfair, and it can also be warranted or unwarranted. In a hierarchical situation where a person or body has authority over others, such as a law enforcement organization holding jurisdiction over citizens, or a parent having authority over a child, punishment can be considered official in the sense that its source is accepted as having the right to administer so-called “correction”. In other situations, a group of people, or even a single individual can take it upon themselves to deliver “justice”, so to speak, in the form of punishment.
In theory, punishment is intended to be proportional to the offense committed, in which case it can be said to be fair. When the comeuppance is disproportionate or exceeds the offending act, then it is unfair.
Lastly, according to the underlying notion of justice, if a person has done wrong, they deserve punishment, but sometimes penalties are inflicted on the wrong person or simply without cause, in which case they are unwarranted.
So, what is the underlying philosophy behind punishment?
Please note that for the rest of this episode, I will focus on legal punishment. I'll address the kinds of discipline meted out to children in the latter half of this two-part episode.
In a rational interpretation, when someone commits an act that either creates an imbalance in what society considers to be fair, between individuals or on a group level, then in order to re-establish that balance, the individual has to be censured. What I mean by re-establishing balance has a threefold objective:
1. To appease the victim, essentially reassuring them that what was done is not acceptable and also going a certain way towards compensating them for their loss.
2. To let the perpetrator know that their actions are not admissible within the society where they live, so essentially teaching them a lesson, and this is why we call it “correction”. Additionally, when it comes to prison sentences, there exists to this day the misconceived notion that a long period of time spent in the midst of what may be the worst role models for moral behaviour, the penitent will have sufficient time to reflect on his or her misdeeds and become reformed.
3. And three, letting the rest of society know that this type of action or behaviour is not permitted, according to communal standards, and thus not only confirming to all concerned that theirs is a just and fair society, but also warning them against behaving in that way themselves.
As is the case with many instances of contemporary standards and practices, the way we justify them, within the context of a rational society that operates according to legal frameworks, is to a large degree a post-hoc rationalization of an earlier, more instinctive and emotion-driven behaviour. A post-hoc rationalization simply means that we perform an action without being sure why in the moment and if asked later, we create a justification, even if that wasn't our reason in the first place. I believe that punishment is just such an example.
According to anthropological and evolutionary psychology research, from a young age, humans have an innate sense of fairness that informs our behaviour, guides us in dealing with people around us and also serves the evolutionary purpose of forming and maintaining strong cooperative bonds with other members of our community.
While we do our best to cloak the practice of punishment in a legal and rationally defensible guise, from a philosophical perspective, punishment is very difficult to defend as an ethical practice. It is nearly impossible to maintain the argument that punishment has a corrective purpose, and even the premise of deterrence is often shaky.
This leaves us with the conclusion that as an evolutionary trait that is primarily seated within human instinct, it has little, if any, rational grounding. Let's explore three problematic justifications for punishment, why they do not stand up to scrutiny, and how we can reshape our approach to injustice and lawbreaking in a way that does not cause further harm.
The first justification centers around the victim. Let's use murder as an example: someone has broken into your home and taken the life of your child, whom you adored more than anything else in the world. You experience a turmoil of emotions, starting with anger, sorrow, and perhaps a lasting depression that follows. Your anger, nay, rage, strips you of restraint, compassion, and rationality, and compels you to seek revenge. You wish for your child's murderer not only to die, you want him—and let's be honest, it's probably a him not a her—to suffer at least as much as your child suffered and as you are currently suffering. You feel sorrow at the terrible loss you are experiencing—the most precious thing in the world taken away from you, never to be returned. Finally, the ensuing desolation leads you to conclude that the world is an unfair place. Why did this happen to you, of all people?
The second justification relates to the perpetrator of the crime, in this case, a child murderer. Society simply cannot tolerate an individual going around and wantonly, needlessly, and indiscriminately killing others, especially innocent children. Even if this is an isolated incident, and this butcher never strikes again, how can the community feel safe in this state of uncertainty? Additionally, such an egregious breach of justice, such a horrible infliction of unwarranted suffering simply cannot be ignored or allowed to occur without consequence. The perpetrator must not believe that he has gotten away with this barbaric act.
Lastly, if this unjustified act of bloodshed goes unpunished, besides the fact that the scales of justice, the framework that permits the community to operate in a harmonious manner, are not righted, then what prevents other bloodthirsty and perverse individuals from committing similar acts, simply on a whim? The surest way of preventing this, of deterring similar acts by others, is to show, in no uncertain terms, that society does not abide such actions and will treat offenders in a manner that is harsh and leaves no doubt about the unacceptable nature of their actions.
Okay, now let's look at alternatives and possible ways forward.
The first instance focuses on the victim of a crime. The fact of losing a loved one, especially to an unnatural cause, is unquestionably a devastating occurrence. This has never happened to me, so I can only relate to it through empathy rather than direct experience, but I have no doubt that it is emotionally excruciating. In situations where it is possible to attribute the cause of this loss to a volitional agent, specifically another human being, this permits the victim a sort of catharsis through the act of vengeance and righting of a wrong.
When the suffering individual is permitted to act on their vengeful impulse, or as a proxy, a legal sentence is administered, the victim has the opportunity to gain psychological compensation and relief for their loss, and in this way, they are better able to go on with their life than if no consequence followed the murder, and the perpetrator was allowed to get away scot-free.
This seems reasonable and justifiable, and I do believe that it is important for victims of injustice to get a satisfactory degree of closure. I do not think, however, that this condones punishment.
At one point in time in human history, when one person transgressed against another, the punishment was quite severe, often involving death or ostracism. In a time when community was what kept a person alive, the alternative being life in the wilderness, ostracism was often equivalent to death. As the type and scale of human society changed, so did the methods with which we punish transgressions. At a certain point, imprisonment became the norm, and it continues even to this day, though, of course, in some parts of the world, corporal punishment is still practiced, and even execution isn't uncommon. In developed, democratic nations, citizens can reasonably expect a lawbreaker to either receive a financial fine or to serve jail time as punishment for their crime.
This suggests that over the course of human history, not only have we transformed the methods that we use to punish people, but we have also shifted the types of expectations we have for the consequences that follow a crime. In this case, a person whose loved one has been murdered must be satisfied with the type of sentence passed down by a court of law, whether they consider it to be fair or appropriate, and they must move on with their life, one way or another. This suggests to me that in a similar way, gradually, it would be possible to shift people's expectations yet again as we eliminate punishment as a judicial consequence of wrong actions, and instead we put in place practical, but humane measures for dealing with aberrant behavior.
Next, let's look at the perpetrator of a crime. If we accept my previously elaborated premise that nobody is ultimately responsible for their actions—and by the way, for those of you who aren't familiar with my position on this, I encourage you to listen to my podcast episode titled “Does Everyone Deserve to Be Happy?”, and for those who disagree, I invite you to share your thoughts and feedback with me. So, if nobody is causally responsible for their actions, good or bad, while it's practically useful to reinforce good actions and to correct bad ones, punishment is a form of suffering that we inflict on wrongdoers based on the belief that this is the right thing to do. My thoughts on unchosen suffering, as you already know, are that it is objectively the worst possible thing for a sentient organism to experience, and therefore, it is morally wrong for us to inflict it upon others, regardless of our motives. So, if punishing someone for acting cruelly is the wrong thing to do, how should we deal with them instead?
I can think of a few approaches that could be taken, though I'll admit that I'm not well versed in the topic of education, criminal psychology, or techniques that can be used to alter or improve patterns of behaviour. On a superficial level, I like the idea of restorative justice, which is something often associated with Indigenous American cultures, and it seems to be a practice many of them use within their own communities.
Basically, without having the ability to get technical, what I'll say is that I'm convinced there must be ways of holding a person responsible for their actions, including ways in which they could make restitution, both to the direct and indirect victims of their actions, without causing them suffering or applying measures that are motivated by belief systems rather than practical and rational considerations. I'm not sure what that might look like at this stage, as that is not my area of expertise, but I'd be surprised if there weren't already good ideas out there for how this could be done.
Of course, there are individuals who, for various psychological reasons, including dark personality traits like psychopathy or a severe mental illness, simply cannot be reasoned with or reformed. Such persons must be restrained in order to protect the rest of society from their predation, but even this type of restraint, which would be a form of incarceration, has to be done in a humane manner that causes no unnecessary suffering, treats the individual like a human being, just like anyone else, with rights and privileges, needs and desires, and which assures that only the most necessary forms of restraint are applied to their freedom.
So, we've addressed the topic of closure for the victim as well as appropriate measures to take with respect to those who offend against us. What about crime prevention and deterrence? Does discouraging would-be criminals from causing harm justify inflicting suffering on one person? It seems like a question that a good utilitarian would say “yes” to. Personally, I'm not so sure.
The evidence that I have looked at so far would suggest that when it comes to minor infractions, the threat of punishment does in fact deter others from breaking the law. Speeding is an example: when you receive a traffic ticket, not only are you less likely to speed again—unless you're someone who can afford to pay countless fines without feeling it in your pocketbook—but the knowledge that the threat is real also discourages others from speeding.
Discerning listeners will notice a subtle difference here, however: in the speeding example, it isn't the fact that others are being punished that deters you from exceeding the speed limit, but rather the real risk of punishment inflicted upon you that causes you to ease up on the gas. This appears to be the case in most scenarios where deterrence is effective, so it strikes me that causing someone else suffering is unnecessary in situations such as this one. Instead, the legal consequence to each one of us is entirely sufficient to reduce petty crimes not committed under duress, emotional overload, or the suspension of normal moral values. To be clear, these legal consequences do not have to be intended as punitive ones, but rather as restitutive or precautionary ones.
When it comes to major crimes, the evidence would suggest that punishment is an ineffective form of deterrence. Take murder, for example: the majority of homicides are not premeditated but rather performed with minimal planning, usually in a state of heightened emotion. This can include being surprised, drawing a weapon, and inadvertently killing your assailant, or tracking someone down in a fit of rage and taking their life.
Premeditated murders, on the other hand, are relatively rare. If you think about it though, both planned and unplanned killings occur within circumstances where an individual is unlikely to be deterred by the threat of punishment. After all, a man in a fit of rage who has just found his wife in bed with another man is unlikely to stop and consider the consequences of his actions before pouncing. Alternatively, a hired killer, a mobster, or someone else who masterminds another's death is likely to be fully aware of the consequences of getting caught.
How then does punishing one person for murder deter others from similar actions? I don't think it does, but in this instance, what society is essentially doing is inflicting suffering on one person in order to use them as an example and prevent the potential of future suffering to others. The goal may be noble, but in my view, the morality of it is dubious.
It seems to me then that just about any crime can be dealt with in a satisfactory manner that leaves victims with a reasonable amount of peace of mind, prevents bad actors from re-offending, and creates sufficient deterrents and safeguards to prevent indiscriminate lawbreaking, under the false belief that these acts go unaddressed, without resorting to further acts of suffering.
But wait, I hear some of you object; what about justice? Isn't punishment appropriate because justice calls for it? My short answer to that is no, it isn't. Well, why not? Well, what is justice? Is it some kind of absolute rule or entity that exists separate of human reasoning, like a law of physics or nature, which must be followed simply because it is present?
I don't think so. Justice is not one of the four fundamental forces of physics. It doesn't appear to be a law that operates within nature—again, outside of human conception—so it seems obvious to me that justice is something humans have invented. It has certainly been a useful tool for us throughout history and to a great degree, as a heuristic, it continues to be so, but what this also means is that justice is what we determine it to be. At one point in time, justice meant that you would die for committing an offense—and yes, in some parts of the world, it still does. These days, justice means you get a milder form of punishment, usually involving prison time. Can we not envision a reality where justice does not involve punishment at all? I certainly can.
Another point I anticipate hearing about is the concept of reform. This seems to be one of the major motivating factors behind prison sentences, with the idea being that by spending time behind bars or in confinement, an individual has the opportunity to reflect upon the hurt they've caused and to reform their character.
However, the reality quite clearly indicates that this happens very rarely in our contemporary penal system. Instead of leading to correction and reform, much more often, incarceration reinforces existing psychological and behavioural patterns and increases the risk of repeat offenses, because not only have the underlying reasons for the original crime gone untreated, but now the individual has been exposed to many others just like him or her, so the attitudes and patterns are strengthened. And not coincidentally, in jail, new connections to organized crime can be formed, and this cyclically perpetuates the problem and increases rates of recidivism among criminals.
Lastly, I want to get back to a point I briefly introduced earlier in the podcast, that of restorative justice. I'll provide a brief description of it here: in this type of practice, instead of a trial, the victim and offender meet, usually in the company of other representatives of their community, and by sharing their respective experiences of the event that took place as well as its background and motivation, and by acknowledging the other person's experience, they can reach agreement on how to move forward. This usually involves some type of restitution and apology to the victim from the offender, in addition to a plan for preventing similar incidents in the future. The aim is to help offenders take responsibility for their actions, understand the harm they've caused, and give them an opportunity to redeem themselves. For the victim, the goal is to have an active role in the process of restoring justice, reducing their sense of powerlessness, and gaining closure, so that they themselves can move forward. Equally, when a resolution is achieved, the community can rest assured that justice has been restored to a reasonable degree. Obviously, this process doesn't work in every situation, it isn't perfect, and it may need to be implemented in conjunction with other practices in order to be most effective.
Well, that wraps up this episode. As I've mentioned, I'll talk more about specific aspects of punishment in the next one in two weeks, and that will be the season finale. Thank you, as always, for listening, and I look forward to your feedback.