Punishment and Incarceration (Part 3)

This post is Part 3 on some new ideas I am developing for a paper on punishment. Part 1 and Part 2 were posted earlier in the year.

Earlier this week I presented this new paper (which is still very much a work in progress) to the political philosophy reading group here at Queen's. So I owe a special thanks to the faculty and grad students in the group for raising a number of interesting criticisms and suggestions. Here I will detail some of the points raised, my thoughts about how to respond, etc. so that I can refer to them at a later stage when I re-work the paper.

I began the session by briefly summarizing my motivation for my writing the paper, and so I want to start by expanding further on some of those points here as they address methodological issues that arose in the discussion period.

Recall from my earlier post, that this paper was part of a workshop on the theme of virtue and law back in May. When I was first invited to participate in that event I thought it would be a good idea to commit myself to writing something on punishment. This is a topic I have not written on before, indeed I had not undertaken any serious research on these issues. As I began to think about the ideas for the paper I realized how immense the undertaking was. Why, I started to wonder, would I agree to write a paper on a topic like punishment, a topic that has become a real cottage industry of scholarship over the last 3 decades? What novel or useful insights could an outsider (or at least real newbie) possibly offer on an issue so exhaustively examined and debated?

But then I realized that, because I was an outsider to such debates, there might actually be useful thoughts I could offer on punishment. An outsider, unlike the insiders, is not bogged down in the intricacies of the nuanced debates. A fresh set of eyes on a debate can be useful if it draws attention to some important considerations that have been lost or bracketed by those focusing on points of greater detail. And in my own case, I truly had an open mind about the issue of punishment. I had no prior theoretical commitment (I'm not a closet Kantian or Hegelian, for example), indeed I didn't have (and in some respects still don't) established moral intuitions about why we should punish and the specific forms state enforced punishment should take. And thus I believe I am more cognizant of certain kinds of considerations than I would have been if I consciously set out to defend or critique a certain account of punishment (rather than my initial starting point, which was-- what do I think about punishment?).

So let me expand a bit further on this methodological point. One could be motivated to write on punishment because one has specific moral intuitions (e.g. wrong doers deserve to suffer in proportion to the severity of the wrong committed) about punishment, and thus one aspires to construct a theoretical/conceptual framework that vindicates those intuitions. Or, one might be motivated to write a paper on these topics because one disagrees with the particular interpretations that have been made of historical figures (e.g. Kant, Hegel or Bentham) who have written on punishment. But these kinds of considerations don't motivate me to want to reflect seriously on any subject matter. What did initially motivate me was the fact that I didn't have any settled ideas or thoughts about punishment, and I thought I should develop some (or at least come up with some good reasons why I had no settled ideas about punishment).

Thus my first question was: where do I start? And I think there were one of two options (which I believe are opposite ends of a "fact-sensitivity" spectrum). I could start at the level of high abstraction-- what are my intuitions about punishment? I did not think this was a prudent starting place. To opt for such an approach would be to risk pursuing a kind of "Nancy Grace" type gloss of the issues raised by criminal justice. Such an approach requires one to envision the most heinous crimes imaginable, and then ponder what the appropriate kind of punishment is for such crimes. I do not think this is a helpful or interesting starting place if we hope to develop some rational and coherent ideas on punishment. So intuitions and knee-jerk emotive responses are not, in my opinion, the proper starting point for a reflective deliberation of punishment.

So where to begin then? My approach was to start with some "on the ground" empirical gathering. Which forms of punishment do liberal democracies typically impose? So my focus turned naturally to incarceration, the primary form of state enforced punishment. And as I did so the United States became my focus as it has the largest prison population in the world. Thus the natural question to ask, in light of the fact that the prison population in America is approximately 2.2 million is - why incarcerate? How could we tell if the story of America's high incarceration rate was a story of success or a story of failure? I also became interested in the impact long-term incarceration has on both the happiness and welfare of inmates. The more I learned about these empirical considerations the more I realized that there are a host of important issues I felt I should work on.

After delving into some psychology (how humans can adapt to adversity, including life in prison), some history (why America "leveled down" with respect to the treatment of criminals while France and Germany "leveled up") I felt I was ready to start to connect some dots concerning the implications these considerations have for the justification of punishment. And then the focus turned to retributivism and the moral education account of punishment. And my argument, very briefly, is that the former helps perpetuate the inefficiencies (huge costs and higher rates of recidivism) as well as harshness (prolonged prison sentences that reduce health and life expectancy, social relationships and dignity of wrongdoers) of American-style criminal justice. And the moral education view of punishment could help steer America away from this grossly unjust approach by (a) depoliticizing the administration of justice and (b) placing a greater emphasis on the prevention of wrongdoing.

Now philosophers might object that the coherence and viability of an account of punishment was nothing whatsoever to do with such empirical factors. The fact that particular attempts to implement retributivist aspirations has problems doesn't mean the theory or account of punishment itself is problematic. This kind of response (which has been made in political philosophy concerning the issue of "ideal theory") has also struck me as puzzling, as if the primary objective of an account of punishment is to detail a purely conceptual account of punishment that coheres with our intuitions. But if you can't implement the theory in practice, the argument goes, that does not undermine the theory as an attractive or viable account of punishment. I have also found this an odd argument (I guess I'm more of an Aristotelian than a Platonist). I take it as self-evident that an account of punishment is inherently practical, We believe it is important to think reflectively and rationally about punishment not because it is an intrinsically interesting puzzle to ponder (which it is), but because it is pressing practical problem in need of solutions. The stakes are high, as the practices in question often involve the curtailment of liberty and can also impact the health, social relationships and dignity of inmates. A theory of punishment that is blind to the complexities involved at the operational level of the theory is, in my view, a severely impaired theory. I can't see what would motivate one to endorse or support such a theory if such considerations are deemed "irrelevant" or merely "asides". My basic point-- human psychology trumps legal theory. The only serious accounts of punishment the theorist should entertain are those that work within the confines of the parameters of human psychology. A theory that assumes that inmates will experience less day-to-day happiness the longer they are in prison contravenes the empirical findings and thus must be revised accordingly.

OK, so to some themes and issues that arose in the discussion period of the reading group.

One point raised concerned the relevance of the empirical findings that, over time, most inmates adapt to life behind bars and thus their levels of happiness actually increase the longer they are in prison. One potential retributive response might be that it is the curtailment of liberty, and only the curtailment of liberty, that is the relevant suffering. The fact that an inmates' happiness is increasing over time while imprisoned doesn't matter because what is good is that the wrongdoer has less liberty.

I suppose my response to this is that there must be an "interest-based" account of the value of liberty lurking behind any plausible defence of this line of retributivist argument. Why is it that the deprivation of liberty (or rather specific liberties, such as freedom of movement and association, etc.) is considered the relevant "suffering" here? I think there are two plausible responses- either we value our liberty because the exercise of liberty makes us happy (increases day-to-day experience of happiness) or the exercise of liberty promotes our welfare by some perfectionist account of well being. What I do not think is a viable move is to say that the deprivation of liberty itself constitutes suffering without saying more details about how this impacts our reported levels of happiness or objective standards of wellbeing (like life expectancy). And when it comes to these two things long-term incarceration has an impact of happiness and welfare that contravene what (at least humanitarian) retributivism prescribes.

Another point raised was the a question about the target of my critique. There are a cluster of retributive theories, am I seeking to refute them all or just some of them? My answer is "NO". I'm not, at least at this stage of things, taking on the ambitious project of refuting all conceivable retributist theories of punishment. What I do want to do is chip some dents in the retributive principle of proportionality by highlighting the fact that inmates often adapt to life in prison (in ways which protects their levels of happiness from humane retributive measures which seek to inflict suffering) AND the deprivation of liberty (at least as practices in American prisons) lowers the life expectancy of inmates, erodes social relationships and damages the dignity of inmates. This means the current state-of-affairs is this odd paradox, where inmates condemned to long-term prison sentences are better off in terms of happiness than what retributivism prescribes but at the same time are much worst-off, in terms of their welfare (e.g. health and social relationships) than what (humane) retributivism maintains. How to resolve this? I suggest we abandon retributivism, at least as a central component of an attractive and viable justification of punishment.

A further point raised concerned my suggestion that the moral education account of punishment is better equipped to tackle the prevention of wrong doing than retributivism. The suggestion was that an advocate of the latter might also be in favour of tackling the causes of wrongdoing, but that would just be a distinct issue from the issue of state punishment. This is certainly true, but I believe what makes the education account of punishment unique is that it does not treat the issue of prevention as a separate or "aside" concern. Because punishment is meant, primarily, to benefit the wrongdoer, according to the moral education view, this means one must understand the *context* within which the wrongdoing took place before determining how offenders could best redress the moral and or epistemic failings. My main point, the moral education view of punishment does not necessarily prioritize the very things that retributivism does- namely, the infliction of suffering on wrongdoing. Recall Hampton's definition of "punishment"- the general “disruption of the freedom to pursue the satisfaction of one's desires” (Hampton, p. 224). We should not automatically assume then that the focus of a theory of punishment ought to be on prisons and fines enforced by the state. Punishment also takes place within the family, and social mores can also function as punishment, etc. This broader lens is, I believe, a distinctive strength of the moral education account over retributivism and its primary concern for the infliction of suffering on wrongdoers.

Some resources others suggested I look up include: this scholar's work on psychopaths, and this paper on retribution.

Last thought I had for me to look up: how popular is retributivism among American law professors? Are there any surveys that compose such data? Check that out, could add some more interesting context to my argument.

Thanks again to the reading group for their helpful comments and suggestions. Plenty to mull over.

Cheers,
Colin