This blog is a condensed version of Phil Bowen's essay in the Monument Book 'Crime and Consequence', available for free here.
The need for punishment
When someone is found guilty of committing a criminal offence, there is a clear and widespread public expectation that the person should be punished; that there is an infliction of some kind of pain or loss upon a person for a misdeed. The need to punish can be justified in theory in a number of ways: to incapacitate— to restrict and, at times, deprive an individual of their liberty to avoid further harm; to deter—to both deter that individual from committing a similar act and to deter others from committing similar crimes; to rehabilitate—imposing a punishment may motivate an individual to reconsider their behaviour and choose a new path. All of these justifications— incapacitation, deterrence and rehabilitation— rely on the generation of desirable consequences as their justification for punishment.
Yet, there is another justification for punishment which is not like these: retribution, that punishment should ‘fit’ the crime, and compensate its victims, as a good in itself. For retributionists, setting levels of punishment in order to manage the problem of crime (as required by incapacitation, deterrence and rehabilitation) amounts to using people. Instead, retributionists argue that punishment is a moral duty of society— part of our reciprocal arrangements whereby the duties individuals ought to obey are also the foundation of our rights. Importantly, punishment also provides an avenue for individual expiation--- a way to earn redemption and gain re-acceptance into our shared moral community.
The desire for punishment and the desire for reform
The commonly-observed thirst for punishment among the public can sometimes seem at odds with efforts to reform the criminal justice system. This reforming impulse often translates into making the system less punitive or, in some cases, eschewing the concept of punishment altogether. However, any reforming approach which ignores or dismisses the question of punishment and retribution is likely to be treated with scepticism by the public.
Rethinking retribution and punishment
Taking retributions principles more seriously can actually suggest avenues that are attractive to reformers, especially the idea that people are ends in themselves, not to be used or treated to achieve better outcomes for all. An obvious implication of this position is that innocent people ought not be punished (they have done nothing to deserve it). This strongly suggests that the process by which we determine guilt and innocence ought to be as free of any punitive censure and treatment as possible (and we already know that is often not how most defendants feel currently). It also suggests we need to use incarceration for those awaiting trial as parsimoniously as possible.
Moreover, if retribution implies that offenders should be punished in proportion to their wrongdoing (to do otherwise would be to impose more or less than they deserve), it suggests that we should seriously examine where the line is as to what is a crime (and therefore what warrants punishment) and what isn’t. There is evidence, for example, that there is public support to ensure that TV licence fee evades can’t be imprisoned. Wider in scope, the current debate about the legalisation or, at least, de-criminalisation of drugs such as cannabis reveals opportunities for reformers to re-draw the boundary between what is a crime and what isn’t.
In the same vein, if punishment should be proportionate and provide an avenue for individual expiation, it provokes us to consider whether the collateral consequences we already impose when we sentence people are truly ‘deserved’. When we consider probation and community sentencing, a retributive insistence on punishment as both censure as well as a route to re-acceptance is not only compatible with the moral, legal and social rehabilitation that probation practice emphasises but in fact requires it.
The point has been not to argue from the perspective of retribution alone, but to argue that responses to the punitive turn of the last thirty years may have failed, in part, because they have not taken the moral power and hold of retribution theory on public thinking seriously. Taking retribution seriously has the advantage of meeting some of the public on their own terms. This ought not to be a tactical strategy but a recognition that arriving at agreement about the values of our justice system and the justifications, the experience and the practice of punishment is unavoidably a moral and political argument as much as it is an argument about what is ultimately effective in delivering certain outcomes.