Sunday
24May2009

The Problem with Punishment... (Part 2)

DateSunday, May 24, 2009 at 1:21PM
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[picture by public15 from Flickr]

In my last post, I reviewed David Boonin's book The Problem of Punishment, in which he propounds 1) the state is not justified in punishing criminals and 2) restitution is the best alternative to punishment. The usual response (at least among those I have polled) to these positions is that to abolish punishment would be to unleash anarchy. In this post I will summarize Boonin's pure restitution theory (as opposed to punitive restitution theory), and show why the initial negative responses are mistaken. I will also indicate (as per Boonin) exactly what must be proved by the restitution theorist.

Most people agree with the following intuition: if we take something from someone without his consent we harm him, and this taking must be made right by returning whatever was taken, thus restoring the victim to his original position. This basic reciprocal intuition underlies even punishment theory, but punishment theory interprets the tit for tat by focusing on the harm: if Joe Schmoe breaks into your home and steals your watch, he harms you and so we must inflict harm upon him that equals the harm he caused you. But this lex talionis approach goes beyond what is morally justified. What if, instead of harming Joe, we simply make him give back your watch, or something of equal value? If this restores you to your original state, then the matter is ended. Why insist on hurting Joe as well?

This is interesting as a thought experiment because it plumbs our emotions with regard to vengeance and punishment. Suppose it is your watch that has been stolen and the offender, when caught, returns it to you, but shows no remorse for the crime. What is your reaction? You will probably be dissatisfied, but the interesting question is: Why? Is it that you know there is an unrepentant thief still at large who might keep trying to get your watch until he's finally not caught? Or is it that you think he should feel pain for having put you through the anguish of having your watch stolen? Your dissatisfaction indicates you have not been restored to your original state. What would it take for this to happen?

Before we consider these points it will help to make a logical point. Objections to a theory such as restitution theory usually point to an unsavory implication of the theory, for example, "If we embrace restitution theory, then x will happen" (where x is something bad). There are three options available when such an unsavory implication is pointed out. The defender of the theory can:

  1. attempt to show the theory does not have the implication,
  2. attempt to show the theory has the implication, but it is not necessarily unsavory, or
  3. attempt to show that if the theory does have the implication then so does the practice of punishment. (220)

This last point is particularly important, for much time and effort can be wasted on replying to objections that aren't really objections. If there is a particular widely accepted theory, T, used to justify or explain a certain phenomenon and this widely accepted theory has a particular problem P which it manages to work around in various and less than ideal ways, then P cannot be used as an objection to any alternative theory that is proposed to take T's place as long as the alternative handles P at least as well as T. What follows will serve as an example.

The goal of restitution is: restore the victim to the condition she enjoyed before the offense. If this is impossible: restore the victim to a condition equivalent in value to the one she enjoyed before the offense. If this is impossible: restore the victim to a condition that is as close in value as possible to the one she enjoyed before the offense. (223-24) Two objections immediately arise.

  1. It is impossible to restore a victim to her original state.
  2. An offender harms more than just the original victim. It is impossible to make restitution to all those harmed.

These two objections are related, for both attempt to show how restitution theory is impracticable. First, even in the simple case of Joe stealing a watch, restoring the watch doesn't balance the books, because the victim has lost her original mental state of security. She will now be more anxious than before. How can restitution theory handle this? Second, not only does the victim lose peace of mind, but so do those around her, for instance, those in her neighborhood, or her friends and family. How is the offender to make restitution to all these individuals?

These are good questions, but (as per the logical point made above) they are not questions restitution theory must answer exhaustively, since punishment theory is subject to the same objections. We don't discard punishment theory because we cannot agree on exactly how much punishment to inflict upon the rapist, or how to take into account the damage done to society at large by the offender's actions. These are practical questions that the courts must work out to the best of their abilities, and perfection is not to be expected.

Consider serious crimes, usually having to do with physical assault, in which it is impossible for the offender to repair the damage he has caused. There are two answers to this objection, a theoretical and a practical. On a theoretical note, the fact that we may not be able to accomplish something does not necessarily negate the moral principle behind it. If I borrow money from you I have an obligation to pay it back, an obligation based on a general moral principle, and I have this obligation even if I am unable to pay you back. My inability to accomplish repayment does not impugn the moral principle underlying the obligation.

The practical answer is partial restitution. We restore those harmed to their original state to the best of our ability. For example, it might be that the only way to restore mental tranquility in a victim is by restraining the movement of the offender. If a woman has been raped and is now fearful of being raped again, we may not be able to protect her from other rapists, but we can insure she doesn't have to worry about this particular one. We can do this by, say, putting him under house arrest or monitoring his movements electronically. If all else fails, or if this is the only way to restore the victim to a state as close as possible to her original state, we may put him in prison; but this is not to be confused with punishment, for it is not our intention to inflict harm upon the offender. If the victim claims she can only be consoled by the suffering of her attacker, we cannot meet this demand. The desire for vengeance is not a moral motive and so we have no obligation to meet it.

Rape cases are particularly important examples, for in such cases (as in homicides) many find it crass when monetary restitution is offered in place of such personal harms. There are several points to be made here. First, courts often award those harmed in such ways with a sum of money, and this is not seen as reducing human life or emotional harm to a commodity. In restitution theory, money can be used in a variety of ways which might bring consolation to the victim. This brings up a second point, a blatant cash reward is not the only form of restitution; the offender might be ordered to pay for counseling in order to help restore the victim, or moving expenses if they no longer feel safe in their present location, or for the installation of an alarm system. Other than money, as pointed out above, the offender may have to sacrifice his own freedom or perform community services. Finally, punishing the offender does no more (and in fact may do much less) in terms of helping the victim cope with the trauma of a personal crime. Maybe we need to spend more time thinking about what we can do for the victim instead of what we can do to the offender.

Another objection often raised against restitution theory is that it gives the rich an unfair advantage. Suppose a wealthy person enjoys the thrill of breaking and entering. When he is caught he makes full restitution, but since he is wealthy, this doesn't deter him in the least. Interestingly, Boonin points out that the same problem arises with the poor offender; since he is unable to make restitution at all there is similarly no deterrence value. Both of these cases, though, assume that restitution can only be made in monetary terms, and fail to take into account that restitution must be made not only for monetary loss, but also for both objective insecurity and subjective anxiety engendered by the offenses. Thus, the measures taken against the very rich and the very poor may be more extreme, in terms of house arrest, imprisonment or, in the case of the wealthy, monetary reward, if this is what is needed in order to restore the victim to a comparable mental state. Again, this is not to be confused with punishment. We detain (and so harm) individuals by putting them in jail prior to their trial or making them set bail, but they are not being punished by these actions, for our intention is not to harm them, but rather to insure they will be available for trial. So also by invoking harsher measures on certain individuals; our intention is not to harm them, but rather to insure that restitution has been made.

I have tried to give a flavor of how responses might be made to some of the most common objections to restitution theory. Boonin goes into great detail on many specific objections and handles them admirably. His discussions are both informative and thought provoking. The result is that restitution theory becomes more than just a vaguely unsatisfactory notion in the back of our mind, blossoming instead into a practical alternative to punishment. Whether we will ever have a chance to put this theory into practice is another question.

AuthorDavid G. Payne | Comment4 Comments |
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Tuesday
12May2009

The Problem with Punishment... (Part 1)

DateTuesday, May 12, 2009 at 10:19PM
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I first became acquainted with David Boonin (who is an associate professor of philosophy at the University of Colorado, Boulder) when I used the text, What's Wrong?, (which he co-authored with Graham Oddie) in one of my classes. His next book, A Defense of Abortion, is a carefully argued treatise in which he respectfully dismantles the extreme conservative position point by point. I say "respectfully" because he makes every possible accommodation to the conservative position, rejecting easier rebuttals that contain premises unacceptable to the conservative. Having read this book, Boonin was placed on my "must read" list, so I was overjoyed when The Problem of Punishment appeared in 2008, and even more pleased when I saw that within he questioned the validity of punishment.

I'm not going to spoil a great read with detailed argument summaries; rather, I will focus on a few major points and make a few comments on his methodology, for the book is not only a summary and criticism of current work on punishment, it is also a textbook example of how to argue a position. Boonin takes the time not only to carefully explain a position, but also describes exactly how the position can be criticized, burdens of proof, etc. In this part (one) of the review I will focus on the problem of punishment itself and discuss Boonin's definition of 'punishment'. In part two (which I will post in a followup) I will talk about pure restitution theory and how it should be approached based on Boonin's methodology.

Definitions

Boonin's definition of 'punishment', which is carefully crafted in the first chapter, is that a person, P, inflicts an act, a, of legal punishment on person Q for an offense committed by Q if and only if:

  1. P is a legally authorized official acting in his or her official capacity, and
  2. P does a because P correctly believes that Q has committed the offense, and
  3. P does a with the intent of harming Q, and
  4. P's doing a does in fact harm Q, and
  5. P's doing a expresses official disapproval of Q for having committed the offense.

I don't usually like extended definition discussions, but Boonin uses the process to explore some of the various and subtle features of punishment. For example, point 2 raises the question of whether the innocent can be punished. Nothing important hangs on the answer (Boonin offers a weaker definition in which this correct belief is changed to "P believes, perhaps mistakenly"), and yet, in arguing that they cannot, Boonin makes an appeal to the structural symmetry of the two concepts of punishment and reward. Consider:

Suppose that I have lost my beloved dog and have offered a $500 reward for her safe return. As you walk into my front yard for a visit one afternoon, she comes bounding up the steps, and I mistakenly conclude that you have found and returned her. So, I give you the $500. Clearly, what you have received from me is a benefit, and you have received it from me for just this reason. (18)

But surely I didn't reward you! Rather, I think I rewarded you, though you know better. So also with punishment. If we fine or imprison you for something you did not do, then we think we are punishing you, but we are mistaken. The analysis with respect to the concept of reward is enlightening in this and other regards.

Point 4 raises a similar question with what Boonin calls the "masochist objection." What if a person actually enjoys the pain we inflict upon him? Is he still being punished? The objection itself is weak, for masochists generally like pain inflicted in very controlled ways, but the it raises a host of interesting issues concerning what it means to harm a person. I'm reminded here of John Locke's famous example concerning free will in which he imagines a person locked in a room with someone he always wanted to have a conversation with. Locke claims the person is not free because, although he enjoys speaking with the person and has no desire to leave, he couldn't leave if he wanted to--he is externally constrained. So also with the masochist. Even if he enjoys certain aspects of his situation, he has no control. He cannot end it whenever he wishes, and therein lies the harm.

Again, it is useful to appeal to the punishment-reward symmetry: if I give you something to repay you for an act of kindness, and it turns out that this unintentionally causes you harm, then I did not in fact reward you. I attempted to; I intended to; but I did not. So also with punishment. If my action against you does not really harm you then you are not being punished.

A final definitional point. Punishment must involve intentional harm. When we harm someone unintentionally, as in a car accident, we are not punishing them. But though necessary, intentional harm is not sufficient for punishment, for we are intentionally harmed by the state in many ways we do not consider punishment. This discussion sheds light on an important distinction. Consider the following cases:

  1. Larry marries Laverne and is charged a fee for processing his marriage license.
  2. Moe marries both Betty and Veronica and is charged a fine for violating antipolygamy laws.
  3. Curly is found not guilty of murder by reason of insanity and is confined against his will for the rest of his life.
  4. Shemp is found guilty of murder and is confined against his will for the rest of his life. (12)

In all four cases an individual is being intentionally harmed by the state, and yet, while 2 & 4 are clearly cases of punishment, 1 & 3 are clearly not. Boonin's explanation hangs on a more precise look at the intentions behind each of the actions, for in 2 & 4 the explicit intention of the state is to harm the person. In imposing a licensing fee, the intention is to cover various costs involved in the licensing process, and in committing a person found not guilty by reason of insanity the intention is to protect society from the individual. This distinction is further illustrated by a supreme court decision with regard to Megan's law, which authorizes state's to post pictures and information of convicted sex offenders on the internet. The law was challenged on the basis that it imposed an additional punishment on sex offenders over and above the punishment meted out by the courts, but the supreme court deemed the law constitutional on the grounds that, though the offenders were in fact harmed by the law, this was not its intention.

The distinction used here by Boonin is the same distinction used by Gay-Williams and others in the euthanasia debate. Both use it in order to block an implication, the acceptance of which would render a too-broad definition. Boonin needs "intentional harm" in his definition of 'punishment', but must exclude specific cases (licensing fees, etc.). Williams needs "intentional killing" in his definition of 'euthanasia' (which he argues is immoral because of this) but must exclude certain cases (such as cases in which treatment is withheld) which he thinks are moral. The problem is that the use of the distinction is controversial in the euthanasia debate, which means it might also be problematic with respect to punishment. Boonin is silent on this, but what about those who might want to question the distinction on the one hand and allow it on the other?

The answer lies in the fact that Boonin never denies that we intentionally harm Larry and Curly in the above examples; his claim is merely that harming them is not our primary intention. Williams, though, in order to make his point, must deny that we intend to kill by withholding treatment. This is clear in his claim that we no more intend the death of a person by withholding treatment than we intend to influence the GNP by buying a pencil, and it is this that makes his argument disingenuous, for in fact, Boonin's analysis should also be applied to withholding treatment: we do intend to kill the patient, but it is not our primary intention. Indeed, as with harming Larry and Curly, if we could bring about the result in a way in which they were not harmed we would surely do so.

The Problem of Punishment

Inflicting intentional (and not merely foreseen) harm upon individuals, then, is a necessary condition for punishment, and it is this very condition which underlies the "problem" of punishment. Punishment theory has to show how the distinction between offender and nonoffender is "important enough to justify not merely harming those on one side of the line but intentionally harming them." (28-9) Punishment theory allows the state to harm people in ways that would be unacceptable for individuals.

The psychologist Jonathan Haidt has given us the interesting term "moral dumbfounding," to describe a process in which we intuitively label a practice moral or immoral, without knowing exactly why. One of his examples concerns a brother and sister (both on birth control) who decide to have sex one night while on vacation in Europe. Though they enjoy the experience they agree not to repeat it. The reaction to this story is almost always negative, but when asked "Why?" the answers are rather shallow. In other words, there is often a disconnect between our emotional reactions and our deliberations.

Reactions to the concept of punishment are similarly emotional. We humans seem to have a built-in "tit for tat" mechanism. If someone does something either to us or for us, we feel an instinctive obligation to repay in kind. This instinct forms the basis of penal codes dating back to Hammurabi and before, a foundation guaranteeing some sort of lex talionis approach. This knee-jerk reaction forms the basis of many of the justifications of punishment, and is linked to another common justification, the idea that we must punish offenders in order to prevent total anarchy. This brings up pictures of countless movies in which thugs are picking on the helpless who cannot defend themselves until the "hero" arrives and punishes the wrongdoers. We get a huge endorphin rush once the baddies are properly bested and the world is again set right.

All this is pure vengeance: the intentional infliction of harm on another because they did something we think they shouldn't have, or didn't do something we think they should have. Grant that the desire for vengeance is inherent within our nature; is it really the best way to proceed? To paraphrase Hepburn in African Queen, "Our nature, in this case, is what we are meant to rise above."

The two major justifications of punishment theory are derived from the two major ethical systems: consequentialism (utilitarianism) and formalism (retributivism). Boonin spends over 180 pages carefully analyzing these and other proposed solutions to the problem of punishment, but ultimately finds them wanting. If we accept his arguments, and they are compelling, what are we to do with those who break the laws of society and endanger our lives and lifestyles? Boonin thinks restitution is the answer and it is his defense of this theory as an alternative to punishment that I will examine in part two of this review. Stay tuned...

AuthorDavid G. Payne | CommentPost a Comment |
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Tuesday
05May2009

Constraints (2)

DateTuesday, May 5, 2009 at 3:13AM

In a previous post I talked about constraints that give rise to creativity. If you have less to work with you have to work harder and be more innovative. Limitations are the name of the game, and they confront us everywhere. Rules, for example, limit what we are able to do and force us to be more creative in our endeavors. In football, if defensive linemen were allowed to hold or trip their opponents, the quarterback would always have plenty of time to scan the field and find a receiver, so rules are in place that guarantee he will never be able to rest secure. So also, a professional basketball game without a shot clock has the potential to devolve into a mind numbing game of keep-away, which is almost as hard to watch as those interminable contests in which two tired, sweating behemoths clutch-hug each other desperately in the final third of a fifteen round heavyweight boxing match.

Isn't that just like us humans, to reside within the confines of an existential paradox? If we are too confined, we are enslaved; if too free, we are bored, a conundrum pointed out in the story of Zeus and Ganymede. Zeus appeared to the Trojan prince in the form of an eagle. Boy and bird conversed for hours at the vaunted gates of Troy, and Zeus became so enthralled he made the kid immortal and carried him off to Olympus as his cupbearer... and then promptly lost interest in him, for it was the boy's mortal perspective on the world which attracted Zeus, a view no immortal could appreciate. In typical god fashion Zeus destroyed the very thing he was attracted to.

What a bore immortality must be! We humans, we thanatoi, have that one essential limitation—death. We are, in Heidegger's happy phrase, being-toward-death, because everything we do, consciously or not, is done with an eye toward the fact that we will not be here one day. Suffering and death, with their constraints, define us.

Nietzsche once formulated an alternative garden of Eden myth: In six days god created the heavens and the earth, and on the seventh day he rested... in the form of a serpent, beneath the tree of the knowledge of good and evil. Nietzsche was asking us to imagine the mind-numbing boredom of Paradise. Day after day of perfection. No striving for anything, no fulfillment, no desire unmet. Thus does heaven become hell. God then tried to make up for this unforeseen consequence by introducing The Fall, with its penalty, Death, thus giving humans something to strive for. Oddly enough we are then striving for the very thing we were trying to escape—eternal life! Eliot gives this poetic resonance in the Four Quartets (East Coker):

Our only health is the disease
If we obey the dying nurse
Whose constant care is not to please
But to remind of our, and Adam's curse
And that, to be restored, our sickness must grow worse.

The whole earth is our hospital
Endowed by the ruined millionaire,
Wherein, if we do well, we shall
Die of the absolute paternal care
That will not leave us, but prevents us everywhere...

The fact that we have to fall from grace in order to gain it was neither lost on nor explained by the church fathers. Ambrose (in a quote often ascribed to Augustine) wrote:

O certe necessarium Adae peccatum, quod Christi morte deletum est! O felix culpa, quae takem ac tantum meruit habere Redemptorem!

[O truly necessary sin of Adam, which by the death of Christ is done away! O happy fault, which merited such and so great a Redeemer!]

Nietzsche would not be impressed with such blather. If paradise was a bore in the beginning it will be a bore in the end. Putting heavenly bliss in the future like a carrot on a stick degrades the present, for it removes the constraints that make us strive to better this world and turns those who embrace such claims into empty shells like those Olympians of old, who eventually faded into the mists of time without ever contributing anything of value to society.

We humans, like the football quarterback, can never rest secure; death, like a blitzing linebacker, is constantly in our peripheral vision, but in that insecurity lies all the hope and glory of the modern world.

AuthorDavid G. Payne | Comment4 Comments |
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