i. Punishment involves ‘hard treatment’
At first sight, hard treatment seems a necessary condition of being a punishment. At various times, people have been punished by death, tortures, mutilations and brandings, by expulsion, exile and transportation; they have been confined in chains, held in dungeons and prisons and enslaved; they have been deprived of civic rights, had property confiscated and made to make financial payments. Yet some sentences of a modern criminal court are better understood as warnings or threats (discharges, suspended sentences) rather than hard treatment in themselves – although perhaps a persistent looming threat is in itself hard treatment (McNeill 2018). Other sanctions (for example, probation supervision) may be meant to be – and are at least sometimes experienced as – supportive and helpful. These sanctions involve imposition and even hardship or pains (Durnescu 2011), but often probation agencies do all they can to mitigate these burdens. And if a response to wrongdoing is not meant as punishment by those who decide upon it or those who carry it out, variably felt as a punishment by those who experience it and not regarded as a punishment at all by others – a common criticism of non-custodial sanctions – it is not easy to see the sense in which it is a punishment. One response might be to argue that these sentences are indeed not punishment, but while it is sometimes necessary to distinguish them from the imposition of hard treatment intended as such, any account of punishment must have regard to sanctions of this type.
ii. It must be for an offence and iii. It must be imposed on the offender
Punishment, the definition insists, is for an offence and of an offender. It is possible to speak of the punishment of an innocent person, but if someone was not believed to be guilty or even a pretence of their guilt made, this would be more like oppression or persecution. This, then, seems a necessary condition for punishment. Yet perhaps there are exceptions or at least circumstances in which the relationship between offence and punishment is less clear. Probably more than 3 million people worldwide (some 25 per cent of the world’s prison population) are held ‘on remand’, awaiting trial or definitive sentence (Coyle, Fair, Jacobson and Walmsley 2016). Here it is legally inaccurate to speak of being punished for an offence: legal codes and human rights conventions affirm a presumption of innocence and in most cases no offence has been established. The allegation is the occasion for the detention, but the individual is detained to ensure they come to trial (and various other procedural safeguards) not ‘for an offence’. Yet pre-trial detention and more generally the experiences of suspects and defendants are typically painful and burdensome to the extent that ‘the process is the punishment’ (Feeley 1992). It seems contrived to argue that this is not punishment: it is experienced as punishment and, at least in some countries, implemented as punishment by prison or jail staff who do not feel much need to distinguish between remand and convicted prisoners in their day-to-day practices and attitudes.
If remand is punishment before punishment, there are also examples of continuing punitive effects that persist beyond the allocated sentence – punishment after punishment, as it were. Those detained for public protection are a prominent example (Jacobson and Hough 2010). These are people who have committed offences (often, though by no means always, grave ones), but have now served the ‘tariff’ – the deserved minimum term awarded by the judge. Once that time has been served, they are no longer being punished ‘for’ the offence, but detained to prevent further offences. The uncertainties they experience, bewildered about how they might go about demonstrating that they are fit for release, add to the pains that beset other prisoners (Crewe 2011; Warr 2016). It is implausible to suggest that they are no longer being punished, a claim that would only be made in defence of the conventional definition.
Nor is it only in prison that such punitive hardships are experienced. There are a number of community measures where the rationale and justification are preventive, but which are nonetheless experienced as punishment. Parole and other forms of post-custodial supervision can be presented and defended as a continuation of punishment and/or as measures of prevention, but in either case are often experienced as punishment. An example is the supervision of sex offenders where measures to prevent reoffending, however justifiable, involve punitive restrictions and intrusions (Hudson and Henley 2015). More generally, the extended reach of the state in the cause of public protection has led to several measures and interventions that entail hardships and deprivations that are felt as – and at least sometimes meant as – punishment (Ashworth, Zedner and Tomlin 2013). This extension brings changes to the character and meaning of the criminal law, while some measures are put into effect outside the systems of due legal process and consequently lack the safeguards these normally provide (Hayes 2019: ch. 2). While a crime prevention strategy is presented politically as morally unimpeachable, ‘Resort to the de-moralized language of prevention does not mean that a measure ceases to be stigmatic, burdensome, or punitive’ (Ashworth and Zedner 2008: 41).
The detention of foreign nationals also calls into question the association between a punishment and an offence (Bosworth 2012). In many places, immigration detainees are held in confinement and experience their detention as punishment. Some have done nothing wrong at all (unsuccessful applicants for asylum) and others have committed no offence beyond unlawful entry into the country or over-staying, being held ostensibly because of concerns they may abscond (Guardian 2018). Some have been convicted of criminal offences, but nevertheless remain detained in the same conditions after the full sentence has been served. Many certainly regard this continuing detention as punishment – and perhaps a worse imposition than the sentence that constituted the original penalty (Warr 2016).
Nor is punishment confined to offenders. Innocent people routinely endure hardship as a direct result of punishment imposed on others. Most obviously, the partners and families of prisoners suffer the pains of punishment – notably, children whose mothers are imprisoned commonly suffer sadness and deprivation (Comfort 2007, 2009; Minson 2018). Walker (1991) described this as ‘obiter’ punishment. These hardships are not meant to be punishment, but they may be experienced in this way nevertheless. Collective punishment should also be considered. The punishment of groups (in response to actions carried out by one or more of their members) is contrary to most human rights conventions and, in war time, is a violation of Article 33 of the Fourth Geneva Convention. Fabricant (2010) likened some intensive policing, involving indiscriminate aggressive actions against poor communities, to collective punishment. Didier Fassin provides powerful examples from the Philippines, where police have shot and killed numbers of people believed to be dealing drugs. Similar actions have been taken in Brazil as part of the ‘pacification’ of the favelas (Fassin 2018: 40). Punitive police raids in many countries are made against groups, sometimes in the firm belief that these are people who have done bad things but not been caught or, if caught, inadequately punished or simply inherently punishable. This is meant as punishment, experienced as punishment, regarded by the public and countenanced by the authorities as punishment. Again, the only reason to refuse to count this as punishment would be to defend the conventional definition.
v. Punishment is an act of censure or blaming
If the first four elements of the definition turn out to be a bit more complicated than anticipated, the fifth criterion – that punishment is always and unavoidably an act of censure or blaming – seems altogether necessary. Punishments can be envisaged that fail to meet one or more of the other conditions, but nothing could be punishment unless it expressed disapproval. Punishment declares that an act (or omission) is not to be done and that the responsibility for the wrong belongs to the punished. This has been conceptualised as censure, a central concept in modern punishment theory (von Hirsch 1993; Duff 2001; Bennett 2008; Du Bois-Pedain and Bottoms 2019). Censure is more than mere rebuke: it calls upon offenders to acknowledge their wrongdoing, perhaps to feel remorse and to do better in future. Punishment also attempts to communicate to others: a fitting punishment tells the victim that their experience is recognised and vindicated; a wider community is made aware such behaviour is wrong and punishment awaits those who offend.
Generally, the material form of the punishment ought to be intrinsically fitting to its communicative aim: ‘Punishment speaks to the offender, not just through the words that are said to her, but through the material forms that it takes’ (Duff 2001: 222).
Communications, however, can go (sometimes badly) wrong (Smith 2008). Sometimes the form of the punishment radically subverts the intended message:
It is all very well to say that punishment affirms community values, but this piece of apriorism tends to shut out questions as to the material nature of the punishment and its relation to what it is supposed to be expressing. What if the punishment form, the medium, is cruel, degrading, corrupting, wasteful and divisive? What if its actual communication is in direct contradiction to the putative message? ‘(Whack!) Don’t hit children smaller than you!’; ‘Execute him! We must show the value we place on human life.’
(Skillen 1980: 521)
Dissonance between what is meant and what expressed is more than ever likely when there are many audiences and the ‘message’ can try to carry several, complex and even perhaps mutually incompatible meanings. A sentencer may, for example, want to denounce a crime, to warn others against offending, and to try to effect positive change in the individual. Yet none of this may be what is understood by those who are subject to the punishment, while victims and their families and the general public may take other meanings besides. Nor is the message restricted to the formal pronouncement of sentence: how it is subsequently put into effect can variously support or undermine the sentencer’s intention, although these further messages are normally only received by the offender. Skillen again draws attention to the hazards and limitations here
[Hard treatment] ‘expresses’ a distorted sense of what is important. As far as the person punished is concerned, the ‘hard treatment’ rapidly becomes itself the focus of attention, an object of resentment and hostility. Remorse, which is pain at the wrong done, is overridden by pain at the treatment being received. What ‘gets across’, then, is a demoralizing sense of isolation, however this may ‘work’ as a det...
