Shame Punishment

Thom Brooks, Thom Brooks

• Éditeur: Routledge
• Année: 2019
• ISBN:
  9781351900614
• Édition: 1
• Sujet: Derecho
• Sous-sujet: Jurisprudencia

Shame punishment has existed for perhaps as long as people have been punished, and the issue has been revisited in recent years to help improve crime reduction efforts. In this collection, shame punishment is examined from various critical perspectives, including its relation with expressivism, the diversity of shame punishment used today, the link between shame punishment and restorative justice, the relationship between dignity and shame punishment, shame punishment and its use for sex offenders, and critics of shame punishment in its different incarnations. The selected essays are from leading experts and represent the most important contributions to scholarly research in the field.

Part I

Shame and Expressivism

[1]

The Expressive Function of Punishment

Joel Feinberg

It might well appear to a moral philosopher absorbed in the classical literature of his discipline, or to a moralist sensitive to injustice and suffering, that recent philosophical discussions of the problem of punishment have somehow missed the point of his interest. Recent influential articles¹ have quite sensibly distinguished between questions of definition and justification, between justifying general rules and particular decisions, between moral and legal guilt. So much is all to the good. When these articles go on to define “punishment,” however, it seems to many that they leave out of their ken altogether the very element that makes punishment theoretically puzzling and morally disquieting. Punishment is defined in effect as the infliction of hard treatment by an authority on a person for his prior failing in some respect (usually an infraction of a rule or command).² There may be a very general sense of the word “punishment” which is well expressed by this definition; but even if that is so, we can distinguish a narrower, more emphatic sense that slips through its meshes. Imprisonment at hard labor for committing a felony is a clear case of punishment in the emphatic sense. But I think we would be less willing to apply that term to parking tickets, offside penalties, sackings, flunkings, and disqualifications. Examples of the latter sort I propose to call penalties (merely), so that I may inquire further what distinguishes punishment, in the strict and narrow sense that interests the moralist, from other kinds of penalties.³

One method of answering this question is to focus one’s attention on the class of nonpunitive penalties in an effort to discover some clearly identifiable characteristic common to them all, and absent from all punishments, on which the distinction between the two might be grounded. The hypotheses yielded by this approach, however, are not likely to survive close scrutiny. One might conclude, for example, that mere penalties are less severe than punishments, but although this is generally true, it is not necessarily and universally so. Again, we might be tempted to interpret penalties as mere “pricetags” attached to certain types of behavior that are generally undesirable, so that only those with especially strong motivation will be willing to pay the price.⁴ In this way deliberate efforts on the part of some Western states to keep roads from urban centers to wilderness areas few in number and poor in quality would be viewed as essentially no different from various parking fines and football penalties. In each case a certain kind of conduct is discouraged without being absolutely prohibited: anyone who desires strongly enough to get to the wilderness (or park overtime, or interfere with a pass) may do so provided he is willing to pay the penalty (price). On this view, penalties are in effect licensing fees, different from other purchased permits in that the price is often paid afterward rather than in advance. Since a similar interpretation of punishments seems implausible, it might be alleged that this is the basis of the distinction between penalties and punishments. However, even though a great number of penalties can no doubt plausibly be treated as retroactive licensing fees, it is hardly possible to view all of them as such. It is certainly not true, for example, of most demotions, firings, and flunkings that they are “prices” paid for some already consumed benefit; and even parking fines are sanctions for rules “meant to be taken seriously as … standard[s] of behavior”⁵ and thus are more than mere public parking fees.

Rather than look for a characteristic common and peculiar to the penalties on which to ground the distinction between penalties and punishments, we would be better advised, I think, to turn our attention to the examples of punishments. Both penalties and punishments are authoritative deprivations for failures; but, apart from these common features, penalties have a miscellaneous character, whereas punishments have an important additional characteristic in common. That characteristic, or specific difference, I shall argue, is a certain expressive function: punishment is a conventional device for the expression of attitudes of resentment and indignation, and of judgments of disapproval and reprobation, on the part either of the punishing authority himself or of those “in whose name” the punishment is inflicted. Punishment, in short, has a symbolic significance largely missing from other kinds of penalties.

The reprobative symbolism of punishment and its character as “hard treatment,” though never separate in reality, must be carefully distinguished for purposes of analysis. Reprobation is itself painful, whether or not it is accompanied by further “hard treatment,” and hard treatment, such as fine or imprisonment, because of its conventional symbolism, can itself be reprobatory. Still, we can conceive of ritualistic condemnation unaccompanied by any further hard treatment, and of inflictions and deprivations which, because of different symbolic conventions, have no reprobative force. It will be my thesis in this essay that (1) both the “hard treatment” aspect of punishment and its reprobative function must be part of the definition of legal punishment, and that (2) each of these aspects raises its own kind of question about the justification of legal punishment as a general practice. I shall argue that some of the jobs punishment does, and some of the conceptual problems it raises, cannot be intelligibly described unless (1) is true, and that the incoherence of a familiar form of the retributive theory results from failure to appreciate the force of (2).

I

That the expression of the community’s condemnation is an essential ingredient in legal punishment is widely acknowledged by legal writers. Henry M. Hart, for example, gives eloquent emphasis to the point:

What distinguishes a criminal from a civil sanction and all that distinguishes it, it is ventured, is the judgment of community condemnation which accompanies … its imposition. As Professor Gardner wrote not long ago, in a distinct but cognate connection:

“The essence of punishment for moral delinquency lies in the criminal conviction itself. One may lose more money on the stock market than in a court-room; a prisoner of war camp may well provide a harsher environment than a state prison; death on the field of battle has the same physical characteristics as death by sentence of law. It is the expression of the community’s hatred, fear, or contempt for the convict which alone characterizes physical hardship as punishment.”

If this is what a “criminal” penalty is, then we can say readily enough what a “crime” is. … It is conduct which, if duly shown to have taken place, will incur a formal and solemn pronouncement of the moral condemnation of the community. … Indeed the condemnation plus the added [unpleasant physical] consequences may well be considered, compendiously, as constituting the punishment.⁶

Professor Hart’s compendious definition needs qualification in one respect. The moral condemnation and the “unpleasant consequences” that he rightly identifies as essential elements of punishment are not as distinct and separate as he suggests. It does not always happen that the convicted prisoner is first solemnly condemned and then subjected to unpleasant physical treatment. It would be more accurate in many cases to say that the unpleasant treatment itself expresses the condemnation, and that this expressive aspect of his incarceration is precisely the element by reason of which it is properly characterized as punishment and not mere penalty. The administrator who regretfully suspends the license of a conscientious but accident-prone driver can inflict a deprivation without any scolding, express or implied; but the reckless motorist who is sent to prison for six months is thereby inevitably subject to shame and ignominy—the very walls of his cell condemn him, and his record becomes a stigma.

To say that the very physical treatment itself expresses condemnation is to say simply that certain forms of hard treatment have become the conventional symbols of public reprobation. This is neither more nor less paradoxical than to say that certain words have become conventional vehicles in our language for the expression of certain attitudes, or that champagne is the alcoholic beverage traditionally used in celebration of great events, or that black is the color of mourning. Moreover, particular kinds of punishment are often used to express quite specific attitudes (loosely speaking, this is part of their “meaning”); note the differences, for example, between beheading a nobleman and hanging a yeoman, burning a heretic and hanging a traitor, hanging an enemy soldier and executing him by firing squad.

It is much easier to show that punishment has a symbolic significance than to state exactly what it is that punishment expresses. At its best, in civilized and democratic countries, punishment surely expresses the community’s strong disapproval of what the criminal did. Indeed, it can be said that punishment expresses the judgment (as distinct from any emotion) of the community that what the criminal did was wrong. I think it is fair to say of our community, however, that punishment generally expresses more than judgments of disapproval; it is also a symbolic way of getting back at the criminal, of expressing a kind of vindictive resentment. To any reader who has in fact spent time in a prison, I venture to say, even Professor Gardner’s strong terms—”hatred, fear, or contempt for the convict”—will not seem too strong an account of what imprisonment is universally taken to express. Not only does the criminal feel the naked hostility of his guards and the outside world—that would be fierce enough—but that hostility is self-righteous as well. His punishment bears the aspect of legitimized vengefulness. Hence there is much truth in J. F. Stephen’s celebrated remark that “The criminal law stands to the passion of revenge in much the same relation as marriage to the sexual appetite.”⁷

If we reserve the less dramatic term “resentment” for the various vengeful attitudes and the term “reprobation” for the stern judgment of disapproval, then perhaps we can characterize condemnation (or denunciation) as a kind of fusing of resentment and reprobation. That these two elements are generally to be found in legal punishment was well understood by the authors of the Report of the Royal Commission on Capital Punishment:

Discussion of the principle of retribution is apt to be confused because the word is not always used in the same sense. Sometimes it is intended to mean vengeance, sometimes reprobation. In the first sense the idea is that of satisfaction by the State of a wronged individual’s desire to be avenged; in the second it is that of the State’s marking its disapproval of the breaking of its laws by a punishment proportionate to the gravity of the offense.⁸

II

The relation of the expressive function of punishment to its various central purposes is not always easy to trace. Symbolic public condemnation added to deprivation may help or hinder deterrence, reform, and rehabilitation—the evidence is not clear. On the other hand, there are other functions of punishment, often lost sight of in the preoccupation with deterrence and reform, that presuppose the expressive function and would be difficult or impossible without it.

Authoritative disavowal. Consider the sta...