Punishment and Incarceration (Part 1)

Over the coming weeks I hope to post a few substantive items related to a new paper I am writing on the themes of punishment, happiness and incarceration.

Writing this paper is a welcome return for me to themes in law, after being mostly preoccupied with topics in the biomedical sciences for the past few years. And I envision this paper to be an extension of previous work done in the area of extending the virtue ethics tradition to topics in legal theory. So I am keen to make serious progress on this topic over the next few months.

The central impetus for writing this new paper comes from the intriguing empirical findings that incarceration does not, over time, reduce the (hedonic) happiness of inmates (see, for example, here, here, here, here and here).

This fact will surprise, indeed perhaps even outrage, many people. "We should make prison life even more harsh, the problem is we are too soft on criminals!", some might argue. That kind of (popular) attitude is precisely, I will argue, the problem! Indeed, it is the primary reason why we have instituted ineffective, costly and unjust institutions and practices of criminal justice. I believe virtue ethics, especially a paternalistic moral education theory of punishment (à la, Hampton, Morris, and Plato), can offer us some theoretical insights that might help us straighten out this mess. The most central insights are: (1) the primary reason for punishing criminals ought to paternalistic rather than retributive, (2) punishment is a way of teaching ethical knowledge-- so, as Hampton aptly puts the point-- "Wrong occasions punishment not because pain deserves pain, but because evil deserves correction". But a great deal of ground has to be covered before I turn to the benefits of adopting this virtue-oriented paternalist account of punishment.

The first order of business is to focus on the problems of retributivism, and here the findings of hedonic psychology are useful.

What is retributivism? Here are a some prominent answers:

Rawls, "Two Concepts of Rules": It is morally fitting that a person who does wrong should suffer in proportion to his wrongdoing. That a criminal should be punished follows from his guilt, and the severity of the appropriate punishment depends on the depravity of his act. The state of affairs where a wrongdoer suffers punishment is morally better than the state of affairs where he does not; and it is better irrespective of any of the consequences of punishing him.

Moore, "Placing Blame: A General Theory of Criminal Law“: Of the possible functions for criminal law, only the achievement of retributive justice is its actual function. Punishing those who deserve it is good and is the distinctive good that gives the essence, and defines the borders, of criminal law as an area of law.”

Defenders of retributivism often appeal to the alleged "intuitive appeal" of the principle. For example, one often encounters comments like the following-- “The principle that the wrongdoer deserves to suffer seems to accord with our deepest intuitions concerning justice” (source) or " the project of a retributivist is to illustrate that our intuitions and considered judgments about punishment are captured better by the idea that we punish due to moral desert than by the idea that we punish to achieve aims such as deterrence, incapacitation, or rehabilitation." (source)

Retributive theories of punishment are based on the alleged "intuitive appeal" of retributive sensibilities, and thus it represents an a priori account of punishment. This ultimately leads, I believe, to its undoing. Designing institutions and practices of criminal justice predicated on the primal moral sensibilities we have inherited from our Darwinian history is unlikely to lead to the design of fair and effective penal institutions and practices. I hope to make this case by highlighting the problems the adaptive nature of happiness poses for retributivism, and how the paternalistic moral education account of punishment is better equipped to deal with such issues.

It is natural for us to simply assume that being denied liberty (via incarceration) makes the criminal "unhappy". The mere thought of incarceration can make us feel anxious and uncomfortable. So we just assume our predictions about the emotive response to incarceration mirrors the reality of the experience of incarceration. But empirical evidence suggests that humans are in fact very poor at predicting the emotive response of unfamiliar (even many familiar) situations or states. And this includes our predictions about how happy life might be behind bars.

If the empirical evidence does not vindicate the assumption that prolonged incarceration leads to a proportionate diminishment of experienced wellbeing or happiness, what explains why this is the case? Enter the fascinating story of what Gilbert calls our "psychological immune-system". Hedonic happiness is highly adaptive. So the field of hedonic psychology offers fascinating insights into the adaptive nature of subjective wellbeing. Contrary to our intuitions, people who win the lottery or suffer severe disability (e.g. paraplegia) do not, over the long term, report the higher or lower levels of subjective wellbeing we would predict. Furthermore, humans suffer a variety of "prospection errors" that limit our ability to recognize this reality. We often mispredict the emotional impact of unfamiliar circumstances. We assume winning a million dollars will make us much happier because we engage in a "focusing illusion". When thinking about all the things we could do with more money we overestimate the impact that money would have on our day-to-day lives. But once we actually live the life of someone with more money we adapt, and the supply of greater of wealth does not translate into a significant increase in our reported levels of happiness.

The same is true for what is called the "disability paradox".

Incarceration of criminal offenders is the central penal practice for satisfying the demands of retributive justice in liberal democracies. But does sentencing someone to 10 years in prison for a serious offence mean that the offender in question "suffers" much more than someone who is sentenced to say 2 or 3 years? The empirical evidence suggests that the subjective wellbeing of the former is not adversely affected (at least not in the way retributivism prescribes it should be). While long-term incarceration does not bring less happiness, there are other consequences of imprisonment, such as reduced life expectancy, increased risk of death after release from prison, erosion of social relationships (e.g. with spouse and family) and diminished opportunities for employment. These facts, I shall argue, pose significant problems for retributive theories which are committed to prisons and incarceration as the central institutions and practices of punishment for liberal democracies. More to follow...

Cheers,
Colin