Correctional Ethics

John Kleinig

• Publisher: Routledge
• Year: 2017
• Print ISBN: 9780754624318
• eBook ISBN: 9781351570930
• Topic: Business
• Subtopic: Business Ethics
• Index: Business

Correctional Ethics gathers the most prominent contributions to this burgeoning field, ranging from the philosophy of punishment through to ethical appraisals of incarceration, the professional responsibilities of prison personnel, and formative work in restorative justice. In addition, it provides an annotated research agenda to help shape the development of a comprehensive correctional ethic. For those working in correctional ethics, this collection provides an essential resource.

Part I
Wrongdoing, Crime and Punishment

[1]
Prolegomenon to the Principles of Punishment

By Professor H. L. A. HART

Introductory

THE main object of this paper is to provide a framework for the discussion of the mounting perplexities which now surround the institution of criminal punishment, and to show that any morally tolerable account of this institution must exhibit it as a compromise between radically distinct and partly conflicting principles.

General interest in the topic of punishment has never been greater than it is at present and I doubt if the public discussion of it has ever been more confused. The interest and the confusion are both in part due to relatively modern scepticism about two elements which have figured as essential parts of the traditionally opposed “ theories” of punishment. On the one hand, the old Benthamite confidence in fear of the penalties threatened by the law as a powerful deterrent, has waned with the growing realisation that the part played by calculation of any sort in anti-social behaviour has been exaggerated. On the other hand a cloud of doubt has settled over the keystone of “ Retributive” theory. Its advocates can no longer speak with the old confidence that statements of the form “ This man who has broken the law could have kept it” had a univocal or agreed meaning; or where scepticism does not attach to the meaning of this form of statement, it has shaken the confidence that we are generally able to distinguish the cases where this form of statement is true from those where it is not.¹

Yet quite apart from the uncertainty engendered by these fundamental doubts, which seem to call in question the accounts given of the efficacy, and the morality of punishment by all the old competing theories, the public utterances of those who conceive themselves to be expounding, as plain men for other plain men, orthodox or common-sense principles, untouched by modern psychological doubts are uneasy. Their words often sound as if the authors had not fully grasped their meaning or did not intend the words to be taken quite literally. A glance at the parliamentary debates or the Report of the Royal Commission on Capital Punishment shows that many are now troubled by the suspicion that the view that there is just one supreme value or objective (e.g., Deterrence, Retribution or Reform) in terms of which all questions about the justification of punishment are to be answered, is somehow wrong: yet, from what is said on such occasions no clear account of what the different values or objectives are, or how they fit together in the justification of punishment, can be extracted.²

No one expects judges or statesmen occupied in the business of sending people to the gallows or prison, or in making (or unmaking) laws which enable this to be done, to have much time for philosophical discussion of the principles which make it morally tolerable to do these things. A judicial bench is not and should not be a professorial chair. Yet what is said in public debates about punishment by those specially concerned with it as judges or legislators is important. Few are likely to be more circumspect, and if what they say seems, as it often does, unclear, one-sided and easily refutable by pointing to some aspect of things which they have overlooked, it is likely that in our inherited ways of talking or thinking about punishment there is some persistent drive towards an over-simplification of multiple issues which require separate consideration. To counter this drive what is most needed is not the simple admission that instead of a single value or aim (Deterrence, Retribution, Reform or any other) a plurality of different values and aims should be given as a conjunctive answer to some single question concerning the justification of punishment. What is needed is the realisation that different principles (each of which may in a sense be called a “justification”) are relevant at different points in any morally acceptable account of punishment. What we should look for are answers to a number of different questions such as: What justifies the general practice of punishment? To whom may punishment be applied? How severely may we punish? In dealing with these and other questions concerning punishment we should bear in mind that in this, as in most other social institutions, the pursuit of one aim may be qualified by or provide an opportunity, not to be missed, for the pursuit of others. Till we have developed this sense of the complexity of punishment (and this prolegomenon aims only to do this) we shall be in no fit state to assess the extent to which the whole institution has been eroded by or needs to be adapted to new beliefs about the human mind.

II
Justifying Aims and Principles of Distribution

There is, I think, an analogy worth considering between the concept of Punishment and that of Property. In both cases we have to do with a social institution of which the centrally important form is a structure of legal rules, though it would be dogmatic to deny the names of Punishment or Property to the similar though more rudimentary rule-regulated practices within groups such as a family, or a school, or in customary societies whose customs may lack some of the standard or salient features of law (e.g., legislation, organised sanctions, courts). In both cases we are confronted by a complex institution presenting different inter-related features calling for separate explanation; or, if the morality of the institution is challenged, for separate justification. In both cases failure to distinguish separate questions or attempting to answer them all by reference to a single principle ends in confusion. Thus in the case of Property we should distinguish between the question of the definition of Property, the question why and in what circumstance it is a good institution to maintain, and the questions in what ways individuals may become entitled to property and how much they should be allowed to acquire. These we may call questions of Definition, General Justifying Aim, and Distribution with the last subdivided into questions of Title and Amount. It is salutary to take some classical exposition of the idea of Property, say Locke’s Chapter ’ Of Property ’ in the Second Treatise,³ and to observe how much darkness is spread by the use of a single notion (in this case “ the labour of (a man’s) body and the work of his hands ”) to answer all these different questions which press upon us when we reflect on the institution of Property. In the case of Punishment the beginning of wisdom (though by no means its end) is to distinguish similar questions and confront them separately.

(a) Definition

Here I shall simply draw upon the recent admirable work scattered through English philosophical⁴ journals and add to it only an admonition of my own against the abuse of definition in the philosophical discussion of punishment. So with Mr. Benn and Professor Flew I shall define the standard or central case of ‘punishment’ in terms of five elements :

1. It must involve pain or other consequences normally considered unpleasant.
2. It must be for an offence against legal rules.
3. It must be of an actual or supposed offender for his offence.
4. It must be intentionally administered by human beings other than the offender.
5. It must be imposed and administered by an authority constituted by a legal system against which the offence is committed.

In calling this the standard or central case of punishment I shall relegate to the position of sub-standard or secondary cases the following among many other possibilities :

1. Punishments for breaches of legal rules imposed or administered otherwise than by officials (decentralised sanctions).
2. Punishments for breaches of non-legal rules or orders (punishments in a family or school).
3. Vicarious or collective punishment of some member of a social group for actions done by others without the former’s authorisation, encouragement, control or permission.
4. Punishment of persons (otherwise than under (c)) who are neither in fact nor supposed to be offenders.

The chief importance of listing these sub-standard cases is to prevent the use of what I shall call the “ definitional stop” in discussions of punishment. This is an abuse of definition especially tempting when use is made of conditions (ii) and (iii) of the standard case against the utilitarian claim that the practice of punishment is justified by the beneficial consequences resulting from the observance of the laws which it secures. Here the stock ‘ retributive ’ argument⁵ is : If this is the justifica-ion of punishment, why not apply it when it pays to do so to those innocent of any crime chosen at random, or to the wife and children of the offender ? And here the wrong reply is : That, by definition, would not be “ punishment” and it is the justification of punishment which is in issue.⁶ Not only will this definitional stop fail to satisfy the advocate of ‘Retribution’; it would prevent us from investigating the very thing which modern scepticism most calls in question: namely the rational and moral status of our preference for a system of punishment under which measures painful to individuals are to be taken against them only when they have committed an offence. Why do we prefer this to other forms of social hygiene which we might employ instead to prevent anti-social behaviour and which we do employ in special circumstances sometimes with reluctance? No account of punishment can afford to dismiss this question with a definition.

(b) The nature of an offence

Before we reach any question of justification we must identify a preliminary question to which the answer is so simple that the question may not appear worth asking; yet it is clear that some curious “ theories” of punishment gain their only plausibility from ignoring it, and others from confusing it with other questions. This question is : Why are certain kinds of action forbidden by law and so made crimes or offences ? The answer is : To announce to society that these actions are not to be done and to secure that fewer of them are done. These are the common immediate aims of making any conduct a criminal offence and until we have laws made with these primary aims we shall lack the notion of a ‘ crime’ and so of a ‘criminal’. Without recourse to the simple idea that the criminal law sets up, in its rules, standards of behaviour to encourage certain types of conduct and discourage others we cannot distinguish a punishment in the form of a fine from a tax on a course of conduct.⁷ This indeed is one grave objection to those theories of law which in the interests of simplicity or uniformity obscure the distinction between primary laws setting standards for behaviour and secondary laws specifying what officials must or may do when they are broken. Such theories insist that all legal rules are “ really” directions to officials to exact “ sanctions” under certain conditions, e.g., if people kill.⁸ Yet only if we keep alive the distinction (which such theories thus obscure) between the primary objective of the law in encouraging or discouraging certain kinds of behaviour and its merely ancillary sanction or remedial steps, can we give sense to the notion of a crime or offence.

It is important however to stress the fact that in thus identifying the immediate aims of the criminal law we have not reached the stage of justification. There are indeed many forms of undesirable behaviour which it would be foolish because ineffective or too costly to attempt to inhibit by use of the law and some of these may be better left to educators, trades unions, churches, marriage guidance councils or other non-legal agencies. Conversely there are some forms of conduct which we believe cannot be effectively inhibited without use of the law. But it is only too plain that in fact the law may make activities criminal which it is morally important to promote and the suppression of these may be quite unjustifiable. Yet confusion between the simple immediate aim of any criminal legislation and the justification of punishment seems to be the most charitable explanation of the claim that punishment is justified as an “ emphatic denunciation by the community of a crime Lord Denning’s⁹ dictum that this is the ultimate justification of punishment can be saved from Mr. Benn’s criticism, noted above, only if it is treated as a blurred statement of the truth that the aim not of punishment, but of criminal legislation is indeed to denounce certain types of conduct as something not to be practised. Conversely the immediate aim of criminal legislation cannot be any of the things which are usually mentioned as justifying punishment: for until it is settled what conduct is to be legally denounced and discouraged we have not settled from what we are to deter people, or who are to be considered criminals from whom we are to exact retribution, or on whom we are to wreak vengeance, or whom we are to reform.

Even those who look upon human law as a mere instrument for enforcing “ morality as such” (itself conceived as the law of God or Nature) and who at the stage of justifying punishment wish to appeal not to socially beneficial consequences but simply to the intrinsic value of inflicting suffering on wrongdoers who have disturbed by their offence the moral order, would not deny that the aim of criminal legislation is to set up types of behaviour (in this case conformity with a pre-existing moral law) as legal standards of behaviour and to secure conformity with them. No doubt in all communities certain moral offences, e.g., killing, will always be selected for suppresion as crimes and it is conceivable that th...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Contents
• Acknowledgements
• Series Preface
• Introduction
• PART I WRONGDOING, CRIME AND PUNISHMENT
• 1 H.L.A. Hart (1959-60), ‘Prolegomenon to the Principles of Punishment’, Proceedings of the Aristotelian Society, 60, pp. 1–26.
• 2 Herbert Morris (1968), ‘Persons and Punishment’, The Monist, 52, pp. 475–501.
• 3 Jeffrie G. Murphy (1973), ‘Marxism and Retribution’, Philosophy and Public Affairs, 2, pp. 217–43.
• 4 Jean Hampton (1984), ‘The Moral Education Theory of Punishment’, Philosophy and Public Affairs, 13, pp. 208–38.
• 5 Jeffrey H. Reiman (1985), ‘Justice, Civilization, and the Death Penalty: Answering van den Haag’, Philosophy and Public Affairs, 14, pp. 115–48.
• 6 Andrew von Hirsch and Martin Wasik (1997), ‘Civil Disqualifications Attending Conviction: A Suggested Conceptual Framework’, Cambridge Law Journal, 56, pp. 599–626.
• PART II PUNISHMENT AND IMPRISONMENT
• 7 Anthony O’Hear (1984), ‘Imprisonment’, in Philosophy, Supplementary Volume 18, A. Phillips Griffiths (ed.), ‘Philosophy and Practice’, pp. 203–20.
• 8 Richard L. Lippke (2003), ‘Retribution and Incarceration’, Public Affairs Quarterly, 17, pp. 29–48.
• PART III THE RESTORATIVE CHALLENGE AND CHALLENGES IN RESTORATION
• 9 Lawrence W. Sherman (2003), ‘Reason for Emotion: Reinventing Justice With Theories, Innovations, and Research’, The American Society of Criminology 2002 Presidential Address, Criminology, 41, pp. 1–36.
• 10 Daniel W. Van Ness (1993), ‘New Wine and Old Wineskins: Four Challenges of Restorative Justice’, Criminal Law Forum, 4, pp. 251–76.
• 11 Antony Duff (2003), ‘Restoration and Retribution’, in Andrew von Hirsch et al. (eds), Restorative Justice and Criminal Justice: Competing or Reconcilable Paradigms?, Oxford: Hart Publishing, pp. 43–59.
• 12 Richard Delgado (2000), ‘Prosecuting Violence: A Colloquy on Race, Community, and Justice’, Stanford Law Review, 52, pp. 751–75.
• 13 John Braithwaite and Stephen Mugford (1994), ‘Conditions of Successful Reintegration Ceremonies: Dealing with Juvenile Offenders’, British Journal of Criminology, 34, pp. 139–71.
• 14 John Braithwaite (2002), ‘Setting Standards for Restorative Justice’, British Journal of Criminology, 42, pp. 563–77.
• PART IV CORRECTIONAL POLICY
• 15 James B. Jacobs (2004), ‘Prison Reform Amid the Ruins of Prisoners’ Rights’, in Michael Tonry (ed.), The Future of Imprisonment, New York: Oxford University Press, pp. 179–96.
• 16 Jess Maghan (1998), ‘Cell Out: Renting Out the Responsibility for the Criminally Confined’, in Jack Kamerman (ed.), Negotiating Responsibility in the Criminal Justice System, Carbondale, IL: Southern Illinois University Press, pp. 49–67.
• 17 John Kleinig (1998), ‘The Hardness of Hard Treatment’, in Andrew Ashworth and Martin Wasik (eds), Fundamentals of Sentencing Theory, Oxford: Clarendon, pp. 273–98.
• 18 Richard Sparks (1996), ‘Penal “Austerity”: The Doctrine of Less Eligibility Reborn?’, in R. Matthews and P. Francis (eds), Prisons 2000: An International Perspective on the Current State and Future of Imprisonment, Basingstoke: Macmillan, pp. 74–93.
• 19 Francis T. Cullen, Jody L. Sundt and John F. Wozniak (2001), ‘The Virtuous Prison: Toward a Restorative Rehabilitation’, in Henry N. Pontell and David Schichor (eds), Contemporary Issues in Crime and Justice: Essays in Honor of Gilbert Geis, Upper Saddle River, NJ: Prentice Hall, pp. 265–86.
• 20 David Duffee (1974), ‘The Correction Officer Subculture and Organizational Change’, Journal of Research in Crime and Delinquency, 11, pp. 155–72.
• PART V CORRECTIONAL ETHICS AS PROFESSIONAL ETHICS
• 21 Alison Liebling, David Price and Charles Elliott (1999), ‘Appreciative Inquiry and Relationships in Prison’, Punishment and Society, 1, pp. 71–98.
• 22 Kenneth Kipnis (2001), ‘Health Care in the Corrections Setting: An Ethical Analysis’, in John Kleinig and Margaret Leland Smith (eds), Discretion, Community and Correctional Ethics, Lanham, MD: Rowman & Littlefield, pp. 113–24.
• 23 John Kleinig (2001), ‘Brokering Correctional Health Care’, in John Kleinig and Margaret Leland Smith (eds), Discretion, Community and Correctional Ethics, Lanham, MD: Rowman & Littlefield, pp. 141–48.
• 24 Kevin Ν. Wright (2001), ‘Management-Staff Relations: Issues in Leadership, Ethics, and Values’, in John Kleinig and Margaret Leland Smith (eds), Discretion, Community and Correctional Ethics, Lanham, MD: Rowman & Littlefield, pp. 203–18.
• 25 Michael Jacobson (2001), ‘The Ethical Dilemmas of Corrections Managers: Confronting Practical and Political Complexity’, in John Kleinig and Margaret Leland Smith (eds), Discretion, Community and Correctional Ethics, Lanham, MD: Rowman & Littlefield, pp. 219–33.
• Name Index