The Routledge Handbook of the Philosophy and Science of Punishment

Farah Focquaert, Elizabeth Shaw, Bruce N. Waller, Farah Focquaert, Elizabeth Shaw, Bruce N. Waller

• Publisher: Routledge
• Year: 2020
• Print ISBN: 9781138580626
• eBook ISBN: 9780429016646
• Topic: Philosophy
• Subtopic: Ethics & Moral Philosophy

Philosophers, legal scholars, criminologists, psychiatrists, and psychologists have long asked important questions about punishment: What is its purpose? What theories help us better understand its nature? Is punishment just? Are there effective alternatives to punishment? How can empirical data from the sciences help us better understand punishment? What are the relationships between punishment and our biology, psychology, and social environment? How is punishment understood and administered differently in different societies? The Routledge Handbook of the Philosophy and Science of Punishment is the first major reference work to address these and other important questions in detail, offering 31 chapters from an international and interdisciplinary team of experts in a single, comprehensive volume. It covers the major theoretical approaches to punishment and its alternatives; emerging research from biology, psychology, and social neuroscience; and important special issues like the side-effects of punishment and solitary confinement, racism and stigmatization, the risk and protective factors for antisocial behavior, and victims' rights and needs.

The Handbook is conveniently organized into four sections:

I. Theories of Punishment and Contemporary Perspectives

II. Philosophical Perspectives on Punishment

III. Sciences, Prevention, and Punishment

IV. Alternatives to Current Punishment Practices

A volume introduction and a comprehensive index help make The Routledge Handbook of the Philosophy and Science of Punishment essential reading for upper-undergraduate and postgraduate students in disciplines such as philosophy, law, criminology, psychology, and forensic psychiatry, and highly relevant to a variety of other disciplines such as political and social sciences, behavioral and neurosciences, and global ethics. It is also an ideal resource for anyone interested in current theories, research, and programs dealing with the problem of punishment.

Part I

Theories of Punishment and Contemporary Perspectives

1

Theories of Punishment

Robert Canton

Introduction: What Is a Theory of Punishment?

This chapter begins by asking what a theory of punishment might be and proposes two kinds of theoretical inquiry. The first of these seeks to understand why punishment takes place at all and why it takes the forms that it does at particular times and places. This, at least in principle, involves empirical investigations. The second project is a normative inquiry, asking about the morality of punishment. The chapter concludes with some reflections on the connection between these two projects of inquiry. Looking through a wider lens than some other contributions to this volume, this chapter does not look to defend any particular account; the attempt rather is to clarify some questions and to uncover some of the assumptions underlying these debates.

What, then, is a “theory of punishment”? The job of any theory is to explain or at least to illuminate something that is incompletely understood. What is to be expected of a theory of punishment is therefore likely to depend on what is found to be problematic or puzzling about it and, since the practices of punishment in any society constitute a complex social institution (Garland 1990), there are puzzles in abundance. Nor are these merely abstract or scholarly concerns: the attempt to understand punishment is also often prompted by practical concerns about crime and about justice.

Forms of punishment vary across time and place. Among the any number of ways in which societies have punished wrongdoers are the death penalty, corporal punishments (tortures, mutilations, brandings, whippings), banishment (exile or transportation), enslavement, shackling and other restraints, imprisonment, confiscations, fines and other financial deprivations. These most obviously constitute the “hard treatment” (Feinberg 1965) that are part of almost all definitions of punishment. But account must also be taken of several other types of sanction, including probation, community service/unpaid work, requirements to participate in various kinds of treatment programme, exclusion from specified places, disqualifications, curfews and electronic monitoring. We should also think of cautions, warnings, formal reprimands, conditional and suspended sentences. To come to understand why some of these responses to wrongdoing are favoured or rejected at particular times and in certain places, an empirical investigation is required, calling for the skills of the social sciences – especially psychology, sociology and anthropology.

Yet punishment also raises complex moral problems. The imposition of hard treatment is not normally what is expected of the state, which is supposed to defend and uphold the liberties of its citizens and others under its authority. How the moral dimensions of punishment are to be appraised, then, is our second inquiry – a normative exploration, requiring the methods of analysis and the perspectives of moral philosophy. Yet while the distinction between these two inquiries is useful for exposition, we shall see that there are important connections between the projects: most theories of punishment include both empirical and normative claims, even though these are not always made explicit.

Why Punish? An Empirical Inquiry

Perhaps the prior question is why we punish at all. In a study looking for values that might be common to all human societies (as a possible basis for international human rights standards that transcend different cultures), Alison Dundes Renteln (1990) found that, almost always and everywhere, people recognise and often act in accordance with the feeling that wrongs call for a retributive response, an urge to return harm for harm. There may be other countervailing sentiments, as we shall see, but retributive emotions are ubiquitous and maybe universal. These sentiments are – and once again almost always and everywhere – accompanied by a conviction that the punishment should be in proportion to the offence. The wrong has thrown a balance out of kilter and this must be redressed: the scales of justice are a widespread motif, found in many cultures (Atwood 2008).

Yet what counts as proportionate punishment and what it takes to restore the balance vary across time and place, with any number of cultural variations. One of the best known guiding principles is often referred to as the lex talionis, most familiar from the Book of Exodus:

… and if any mischief follow, then thou shalt give life for life, eye for eye, tooth for tooth, hand for hand, foot for foot, burning for burning, wound for wound, stripe for stripe.

(Exodus 21: 23–25, King James Version)

The principle is to be found in one of the earliest legal texts, the (Babylonian) Code of Hammurabi, although there are aspects here to the idea of just punishment that are strikingly at odds with modern conceptions of proportion. For example:

If a builder build a house for someone, and does not construct it properly, and the house which he built fall in and kill its owner, then that builder shall be put to death. If it kill the son of the owner, the son of that builder shall be put to death.

(Code of Hammurabi, 229–230)

Even if there is a sense in which we can recognise that the exact same pain (the death of a son) is being imposed on the offender, that the son of the builder should be put to death for the mistakes of his father is deeply offensive to modern sensibilities, including ideas of retributive justice. The Code reveals something important not only about conceptions of justice, but also about status and power. Throughout the Code there are examples of offences where the specified punishment depends on the standing of the offender and the victim: social status, freeman or slave, age and gender may all make a difference to the stipulated response.

Conceptions of proportion, then, may vary, even if insistence upon this as a principle of justice is widespread. Reflecting on the ubiquity of retribution tied to proportion, Margaret Atwood remarks that “... the older a recognisable pattern of behaviour is – the longer it’s demonstrably been with us – the more integral it must be to our human-ness and the more cultural variations on it will be in evidence” (2008: 11). Renteln argues that proportionate retribution limits violence: a cycle of retaliation, vendetta or feud is otherwise probable. The state therefore seeks to establish a monopoly in imposing punishment for the most serious wrongdoings. It is not that societies necessarily deliberate about this; rather, those societies that find regulated and orderly ways of responding to wrongs can avoid the destructive effects of feuding and blood revenge and, to this extent, are more likely to prosper. As Pinker has put it, “the disinterested justice of a decent Leviathan induces citizens to curb their impulse for revenge before it spirals into a destructive cycle” (Pinker 2011: 541). It is to be noted, though, that the urge for retribution persists and people feel let down if the state does not vindicate wrongs against them, even if this is now formalised and managed by an impartial authority.

The temptation to say that this effect of limiting violence is in some sense “the purpose” of punishment should be resisted. Punishment does not and could not have a purpose over and above the several (and often conflicting) purposes that people set for it. The term “function” can also mislead, importing unwanted connotations of deliberate design or intention. Many penal practices and institutions are not designed: rather they evolve and, like evolution in the natural world, are shaped by their history and by the need to adapt to changing circumstances. “Function” is also associated with a particular way of understanding society, where institutions and practices work harmoniously to sustain the well-being of the whole, like the organs in a healthy body. But societies are marked by relationships of power as well as cooperation, and may be riven by differences of interest and conflicts. These tensions may be reflected in the practices of punishment. Punishment indeed has several effects or consequences, but only some of them (and just to some extent) are part of anybody’s design or intent. As we shall see, some ethical defences of punishment rest on assumptions about its effects, but not only are these effects not always as supposed, but other consequences may be ignored.

Quite as ubiquitous as retributive responses are efforts to reconcile after wrongdoing, to repair broken relationships, to extend and to accept apology, to explore ways in which amends can be made or to bring about changes in the wrongdoer’s behaviour or attitudes (McCullough 2008). It seems that both retribution and reconciliation – and indeed the tensions between them – are essential to social cooperation (Fehr and Gächter 2002; McCullough 2008; Greene 2013). Often the institutions and practices of punishment may manifest this ambivalence (Duncan 1996). Some penal practices can represent both hard treatment and an attempt to change people for the better. The prison is the most obvious example. Although there is room for scepticism about the possibility of improving people in the oppressive and squalid conditions that characterise so many prisons, the ambition to design regimes and programmes to facilitate personal change is a persistent aspiration throughout the history of the prison (Morris and Rothman 1995).

What Shapes the Practices of Punishment?

Even if we are content to conclude that retributive emotions are “integral … to our human-ness”, there remain questions about why the punishments they are taken to call for vary in form and “weight”. Some of the most instructive attempts to fathom these complex matters are discussed by David Garland in his magisterial Punishment and Modern Society (1980). Garland’s exposition involves a critical summary of the works of many of the most influential thinkers about punishment – some of whom have addressed the matter directly and explicitly; some paying less attention to criminal justice specifically but offering a broader understanding of the social order that has inspired others to apply their perspective to punishment. Emile Durkheim, for example, understood punishment as an emotional reaction to the violation of a community’s shared values represented by the crime. Forms and amounts of punishment will be determined by characteristics of the wider society, the complexity of the social order, the associated aspects of divisions of labour and “solidarity”, and by cultural conceptions of what is fitting (for an overview, see Lukes and Scull 2013).

Norbert Elias emphasised changes in manners and customs generally. In the domain of punishment, corporal and capital punishments gradually, though variably and unevenly, came to be unacceptable to public sensibilities. In England, for example, after the excesses of the eighteenth (and indeed early nineteenth) century, most capital statutes were repealed by 1837. The hanging of murderers in public was abandoned in 1868. Subsequently the bloody code, prescribing the death penalty for a wide range of offences, was remembered as something remote and dreadful, its rejection taken as a sign of moral progress (Gatrell 1994). In general, the ways in which cultural and emotional sensibilities influence penal change are illuminatingly discussed by Philip Smith (2008). Among his insights is the thought that:

Punishment … is only partly about program efficiency, inky statutes, or the armatures of power for it is also a form of expressive, communicative, ritualistic activity whose reach and grasp are shaped in decisive ways by meaning.

(Smith 2008: 169; my emphasis)

The development of modern, bureaucratic institutions constitute another influence. Garland draws on Weber to show how professionalisation, bureaucratisation, centralisation, and a move towards uniformity did not just represent attempts to enhance efficiency, but altered the cultural meaning of sanctions: the penal system came to stand between the offender and the expression of public sentiment, so that punishment ceased to be social and became technical and professional instead.

The Marxist tradition emphasises the economic order and the relationships of power that will shape the criminal law and the forms that punishment is likely to take. While this tradition draws particular attention to social class, gender, race and other dimensions of difference also affect punishment. Oppressed and disadvantaged groups are always strongly over-represented in penal populations and there are times and places where the criminal law (and/or its practices of enforcement) ignore the wrongdoings of the rich and powerful in their preoccupation with the misbehaviour of the powerless and the poor (Muller and Wildeman 2013; Reiman and Leighton 2013)

The contribution of Michel Foucault has been especially influential in recent discussions of punishment. Discipline and Punish (Foucault 1977) begins with a description of the crude and gory efforts to execute the would-be regicide Robert-François Damiens in Paris in 1757. This is juxtaposed with a description of the meticulously ordered disciplines of the regime at Pentonville in London at the time of its opening in 1842. Foucault proposes that this should not be understood as a move towards greater humanity – to punish less – but as part of a project to “punish better”. The aspiration was no longer to inflict bodily suffering, but to manage the body in order to change the mind.

At the centre of Foucault’s work is an examination of how the human sciences – for example, medicine, psychiatry, criminology – and the social institutions with which they are deeply interdependent – hospitals, asylums, prisons – contribute to the control and “discipline” of modern societies. Apart from those who are altogether intractable, offenders should be “normalised”.

The normal child, the healthy body, the stable mind, the good citizen, the perfect wife and the proper man – such concepts haunt our ideas about ourselves, and are reproduced and legitimated through the practices of teachers, social workers, doctors, judges, policemen and administrators.

(Philp 1985: 67)

At the same time, the area of deviance is demarcated and becomes a subje...

Table of contents

• Cover
• Half Title
• Series Information
• Title Page
• Copyright Page
• Table of Contents
• List of Contributors
• Introduction
• Part I Theories of Punishment and Contemporary Perspectives
• Part II Philosophical Perspectives on Punishment
• Part III Sciences, Prevention, and Punishment
• Part IV Alternatives to Current Punishment Practices
• Index