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Is judicial punishment justified?
I will argue for a consequentialist account of punishment that naturally limits itself.
The justification for punishment, and the reason to use hard treatment, is to prevent
crimes in future. This follows from the underlying justifying aim: in this essay I will
consider utilitarianism: what should be done to ensure the greatest happiness.
Various claims are made against consequentialism. First, that it violates the ‘reason
constraint’, which states that punishment should appeal to offenders’ reason instead of
attempting to condition or coerce them. Consequentialism, it is said, uses punishment
as conditioning. I will not deny that consequentialism is guilty of bypassing the
offender’s reason, but instead say that retributivist accounts are also guilty of this, and
it is no argument against consequentialism specifically. The second argument against
consequentialism is that is does not limit the punishments it might bestow on either
the guilty or innocent; I will attack that claim by arguing that limiting the punishments
and only punishing the guilty does have the best consequences. The final argument I
will consider is that a consequential account treats offenders as mere means, and not
ends, as Kant would have us do. Here I will take up Walker’s defence of
consequentialism, that we do respect offenders as rational agents, and thus as ends in
themselves, when we advertise punishments and follow through on them.
I will begin by examining the retributivist theories of Morris and Duff, concluding
that they are both flawed, and that the use of hard treatment in both theories violates
the reason constraint.
Morris says that the General Justifying Aim (GJA) of punishment is the offender’s
moral good. Morris argues that there is a common morality in the state, that the state
should concern itself with the morality of its citizens, and that the appropriate
response to a violation of the state’s morality is hard treatment. Offending, in this
view, separates the offender from the good and punishment is the only means of
healing that breach.
Morris’ theory has many of the standard features of a retributivist account, and as
such is open to the standard arguments against that position, the first being, is the state
justified in concerning itself with our moral good? A common analogy here is with an
abbot in a monastery. The monks have entrusted their moral good to him. If a monk
sins, he has separated himself from the good and, if he does not repent and undertake
penance on his own, the abbot may impose a penance on him so that he may find
repentance and make his way back to the good. But while this is a fine ideal for
punishment, the analogy here is weak: the monks have consciously chosen a moral
code and voluntarily assigned their moral good to the abbot. By contrast, individuals
in a state have not volunteered their moral good, nor chosen its laws. This is a central
point, because without an individual’s consent punishment under this theory violates
that individual’s autonomy. It could be argued that in a democracy you can affect
laws, and that if you disagree with a law you should campaign against it, or that laws
are what individuals would ‘rationally will’1. Morris, however, relies on a shared
conception of an abstract good. This is a vague idea, and can be criticized for
1
Murphy, 1973, p56
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assigning a morality to people that is not their own, thus denying their autonomy. This
point will be revisited.
Additionally, the state is unlike a monastery as it is a default that individuals do not
volunteer for. We have not chosen to live by the morality of the state, we are born into
it. Morris notes that we would want the chance to be forgiven if we committed a
crime, and that this is what the penal system gives us. But since we have not explicitly
agreed to this morality, we may feel there is nothing to forgive. If we are being true to
a moral code, just not the state’s, repentance is all but impossible and we may be seen
as incorrigible.
Incorrigible offenders are another problem for Morris’ theory as this means there are
offenders who will not be moved toward the good by hard treatment, and therefore we
are not justified in punishing them. This allows the most hardened and serial offenders
to walk free, while meeker criminals are locked up. Morris accepts the criticism that
he cannot justify punishment for incorrigible offenders2, but instead says that this
theory is an ideal, and that society is not at a stage where punishments can be
justified. In particular, Morris says that the lack of equal opportunities to be law
abiding undermines the whole penal system. Without an equal chance in the world,
we cannot justify hard treatment for one person, when the only difference between
them and someone walking free might be the situation they were in, and that is no
basis for deciding who to punish.
As plausible as it is to appeal to an ideal society, I don’t think it solves Morris’
problem with respect to incorrigible offenders. Even in a society with equal
opportunities to follow the law, there could still be incorrigible offenders who do not
follow the morality of society. Morris would still be in the paradoxical position of
punishing only minor offenders, whose separation to the good might be repaired, but
letting serial offenders walk free.
This problem arises, I think, from the deeper flaw in Morris’ theory: that it assumes a
common, shared morality. That will simply never be the case in society, nor should it
be an ideal we aim for. Every morality will have opponents, and as long as there are
those who do not agree on the state’s definition of good, there will always be
incorrigible offenders. If the state then acts to correct them it denies their autonomy
and their right to make moral choices. If the state claims that it is acting for the
offender’s good, even if the offender does not realise, it denies autonomy in exactly
the same way, only now with the veneer of a specious self-righteousness.
Punishment must be for the offender’s good in rights-based accounts of punishment,
since punishment violates an offender’s rights, and can best be justified by saying the
offender has willed their punishment and voluntarily given up their rights. However,
since punishment must inherently pain the offender, it seems obvious that punishment
is not for the offender’s good, especially when it appeals to someone else’s moral
code. Offenders have clearly not given up their right to freedom, except in the tiny
percentage of cases where the offender is truly repentant. Punishment causes pain,
anger and suffering, and any theory claiming it is for an offender’s own good is
flawed, and denies the offender’s autonomy to choose what is best for themselves.
2
Morris, 1981, p106/7
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I have argued against Morris’ first two premisses, that there could be a common
morality in the state, and that the state should concern itself with the morality of its
citizens. I will now turn to the third premiss: that the appropriate response to a
violation of the state’s morality is hard treatment. I will look at the arguments Morris
gives for this, and consider their criticisms before looking specifically at whether his
account violates the reason constraint.
Punishment, Morris says, has a communicative aspect in that it lets individuals know
the relative seriousness of different crimes. That cannot be all its entire reason,
however, as the seriousness of crime could be communicated just as clearly, and with
much more detail, by using words, such as the words of the conviction. Morris points
out that convictions alone, without hard treatment, wouldn’t have the same
seriousness, so that is one reason for using it. Morris also has the retributivist opinion
that punishment ‘rights the wrong’3 caused by the crime. This is an intuitive feeling
about crime but, as Walker points out4, there is a gap between the psychological
necessity and the moral necessity to punish. Other than underlying the seriousness of
the censure, Morris does not back his claim of why hard treatment is justified.
More important, for the purposes of my argument, is to show that Morris’ use of hard
treatment violates the reason constraint. This is apparent at various points during his
exposition. Firstly, his theory is called paternalistic. He is explicitly not treating
offenders as mature, rational beings, but is instead taking his model from punishment
of children in a family. This is demonstrated in the case of an already repentant
offender. They will still be punished, as Morris holds that only hard treatment can
relieve guilt, ‘right the wrong’, and restore the offender’s relationships with those
around him. As the offender in this case has already, in his rational mind, accepted his
guilt, these reasons for punishing him do not appeal to his reason. Hard treatment is
instead ‘logically connected’5 somehow to the crime, and must be carried out
regardless of the rational state of the individual’s mind. This one case demonstrates
that punishment is independent of the ration feelings of an individual, and hence that
punishment in the general case of unrepentant offenders must also be independent of
rationality.
I will now turn to a subtly different retributive theory provided by Duff. Duff argues
that the GJA of punishment is ‘penitential reform’6. For him, punishment and hard
treatment are ideally like that found in the model of a monastery, with monks being
guided by their abbot. An errant monk, after committing a crime, should acknowledge
his wrongdoing and take on penance of his own freewill, with no need for the abbot at
all. One might wonder why penance (hard treatment) is necessary, if the monk is
already repentant. Duff points out that the penance will show the true sincerity of the
monk’s repentance, that his understanding of his wrongdoing will be strengthened,
that it will lead to self-reform which will remove his vice, and most particularly that it
will restore his relationships to those around him.
3
Morris, ibid., p102
Walker, course notes, p249
5
Morris, ibid., p101
6
Duff, 1986, 7.2.22
4
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Unlike Morris, an individual’s relationship to the surrounding community is central to
Duff’s account. A community is made up of shared values, that is essential to its
being a community at all. The laws of that community should enforce those values, to
keep the community intact. Each individual, as a social being, has their relationship to
the society central to their ‘true spiritual well-being’7. Any crime is a crime against
the community, and hence injurious to the criminal himself as he has separated
himself from the community. Again, the religious laws of a monastery provide the
ideal for this.
Crime inherently separates a criminal from the community, as it must inherently break
the community’s laws. The hard treatment of penance, Duff argues, can restore the
offender’s relationships through its communicative aspect by showing sincere, serious
repentance. The offender can then be readmitted to society, their debt paid.
At this point we need to translate the ideal world of monastery punishment into the
more familiar ground of the real world. As well as the differences enumerated above,
another important difference here is that unlike our repentant monk, offenders in the
real world rarely accept their punishment or would punish themselves in the absence
of the judiciary. The appropriateness of hard treatment for the repentant has been
justified; forcing hard treatment on the unrepentant must be considered separately.
Duff justifies it by saying that it gives the chance for the criminal to be repentant. It is
a two-stage process: first the offender repents, then performs their penance, and both
stages can be achieved by hard treatment. This explains how the GJA of punishment
is penitential reform. By respecting the offender’s autonomy and appealing to their
conscience, this method risks failing, but that does not matter. The attempt is justified,
in fact it is the criminal’s ‘right to be punished rather than be subjected to some kind
of manipulative or preventative treatment…’8.
What are the problems with this view? While there are strong arguments that hard
treatment is appropriate to express penance, those arguments do not apply to using
hard treatment to induce repentance. At a practical level, this favours bespoke
sentencing, with an offender’s sentence inversely related to how repentant they are.
Duff is eager to avoid this, saying that his theory is not consequentialist, that
repentance is not the aim of the hard treatment, rather that hard treatment is inherently
appropriate to inducing repentance, hence preventing excessive sentences and
respecting the offender’s autonomy: they cannot simply be locked up until they
repent.
But Duff does not make it clear why hard treatment should be inherently appropriate
to inducing repentance, as it is for expressing penance. Duff rejects the idea that hard
treatment could be equivalent to the pain of guilt that an unrepentant offender should
be feeling, saying that these are two different kinds of pain with no equivalence to one
another. He also rejects the idea that hard treatment is a universal language, which the
community’s disapproval is translated into. He says that hard treatment could be seen
as simply coercive, and the message behind it would be ‘translated out of existence’9.
So it is not clear why hard treatment should induce repentance. Indeed, if we consider
other options, such as education or work among the victims of crime, they might be
7
ibid., 7.2.14
ibid., 7.2.23
9
ibid., 7.2.9
8
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more likely to induce repentance. And von Hirsch has pointed out that ‘penance
leading to penitence – may be the exception rather than the rule’10 and hence it would
be flawed to base the entire theory of punishment around it.
A larger problem is that in any state there will be sub-communities whose values do
not match those of the state. Monasteries are an example – while following a single
set of rules internally, they represent a sub-community to the state as a whole. Any
sub-community, by definition, will have different values from those of the state. Duff
says that if an individuals breaks the law they can be punished, and that the
punishment is for their own spiritual good, and that otherwise they will be estranged
from the state. But neither they nor their friends and relations may agree with that
good. Duff, like Morris, must appeal to a good the offender doesn’t recognise, and
thus fails to treat him as an autonomous agent capable of his own moral choices.
There is no such problem in the monastery example because all the monks, at some
time in their past, have agreed to abide by a code of conduct. The abbot can appeal to
that past promise, but the state cannot.
These questions about whether Duff adequately justifies hard treatment as a means to
reach repentance, as opposed to its purpose in penitence, and the problems of
enforcing adherence to a community’s values at the risk of individual freedom lead
me to conclude that penitential reform is flawed as a GJA of punishment. But there is
one aspect of Duff’s account I agree with absolutely, concerning the use of
punishment.
This is back in Duff’s monastery, where his monk is performing penance, and one of
the reasons Duff gives for penance being an inherently appropriate response to crime:
the monk is attempting to self-reform and remove his vice. The monk does not want
to sin, he is sorry that he has and sincere enough to punish himself without outside
prompting. All his reason rejects his crime, but his vice is still part of him. If the same
situation arose again, he may sin again. The most effective way he knows to rid
himself of it is to punish himself. Duff’s monk is not appealing to his own reason; his
own reason is already won over to being law-abiding. He is wilfully bypassing the
reason constraint, with the goal of not sinning.
I have argued that neither the retributivist accounts of Duff nor Morris appeal to an
offender's reason when they use hard treatment. To appeal to a person’s reason, you
talk and engage in dialogue. While accounts of punishment have been called
‘communicative’, the communication is primitive indeed compared to speech. The
communication works, in fact, on a subconscious level, and that is why it is compared
with tiger training11.
This section has attempted to show the flaws in retributivist theories, and to defend
consequentialism against the claim that it bypasses offender’s reason by pointing out
that any use of hard treatment bypasses offenders’ reason. Next I will argue for why
consequentialism justifies hard treatment, defend it against the claim that it sanctions
punishment of the innocent, and against the claim that it shows a lack of respect for
individual’s rights.
10
11
von Hirsch 1993, 7.4.4
von Hirsch 1993, 7.3.3
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Hard treatment serves the consequential goal in two compatible ways. First, it creates
a deterrence, the promise that the threats of punishment for breaking the law will be
carried out. It’s a deterrent for both society at large, and for the criminal under going
the punishment, hopefully making them realise that they do not want to suffer it again.
Secondly, punishment serves as prevention, especially in those cases where the
criminal appears incorrigible, such as in cases of psychopathic behaviour. These
arguments mean that consequentialism does not have a problem justifying hard
treatment for repentant or incorrigible offenders, as the retributivist accounts did.
Repentant offenders should still be punished as a deterrent to the rest of society;
incorrigible offenders should be punished as it prevents them from committing
crimes. The question is whether it justifies punishment in too many cases.
For a consequentialist theory to defend itself against the claim that it sanctions
punishing the innocent, it must be shown that only punishing the guilty has the best
consequences. The classic example where consequentialism seems to recommend
punishing the innocent is in the need for a scapegoat:
A heinous crime has been committed and caused public outrage. A huge manhunt is
underway, but nothing is known about the criminal save, for example, that he has
ginger hair. The police hunt but find nothing. Public unrest grows. Vigilante action
starts, ginger haired people are attacked at random. They cannot leave their homes,
and the already stretched police have to scale down the hunt to deal with riots in front
to their houses. The entire situation would stop as soon as the criminal was caught. If
the only justification for punishment is that it gives the best consequence, surely
consequentialism would say in this case, find one red haired person, try, convict and
lock him away for the good of everyone else. That one bit of suffering prevents a
great deal more.
Rawls has defended consequentialism against this claim by considering the distinction
between justifying a single act, and justifying the institution as a whole12. While this
single act would have the best consequences, for this to be a part of consequentialist
theory, there would need to be an institution in place that could carry it out. Rawls
calls this hypothetical institution ‘telishment’.
With this institution in place, the public’s view of punishment would be greatly
changed. For every case now, there is the thought that maybe the offender did not
commit the crime at all, and is merely being telished. There is the worry that you
could be telished yourself. It must be a closely guarded secret who has been telished
and who has not for it to be effective at all, so there is the risk of discovery. More
importantly, since the telishment committee works must work in secret, they are not
accountable to anyone; there is nothing to stop them telishing anyone they like. This
lack of public trust, this openness to abuse and fear for your own freedom are clearly
undesirable consequences, so no consequential theory would condone telishment
overall, and hence would not condone punishing the innocent.
Rawls’ account has been criticised for relying on empirical facts about the problems
of secrecy and abuse in his defence. He still appears to say that punishing the innocent
12
Rawls 1967, 7.1.2
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is alright, if only we could get away with it. More worryingly, changes in the judicial
system or technology might one day make the secret easier to keep, enabling people
to telish with impunity.
I do not think Rawls can be criticised for using empirical facts in his reasoning. The
entire theory of punishment relies on empirical facts about human behaviour and
human feelings of repentance, or otherwise, so it is no criticism of this account that
they consider them as well. And even if the risk of discovery were lessened, it would
never be removed, especially in an area with such public interest and scrutiny. There
are campaigns to free offenders who are believed to have been wrongly gaoled. The
cases of telished offenders would face the same scrutiny, and for good reason. The
empirical facts are relevant, and do back Rawls.
Having defended consequentialism against the claim that it sanctions punishing the
innocent, I now turn to sentencing. Consequentialism might seem to condone cruel,
unusual, lengthy or debilitating sentences – anything at all, in fact, that has the
consequence of deterrence and prevention. I will argue that there are many limiting
factors on consequentialist punishment.
The first limit on consequential sentences is that the punishment itself is a bad
consequence, and should be kept to a minimum. Whether the desired consequence is
happiness, freedom, or some other goal, punishment must inherently take it away to
be a punishment at all, according to that theory. So punishments are never unlimited
under a consequentialist account. In fact, punishment can take on a communicative
aspect under consequentialism. Both Duff and Morris say that punishment can
communicate the relative severities of crimes, and that is also a consequentialist
argument, and one that supports the proportionality requirement within
consequentialism.
Another important consequential limit on sentences, and on the cruelty of
punishments, is the teaching role government takes in society. As Brandeis points out,
quoted in Morris13, ‘Our government is the potent, the omnipresent teacher. For good
or for ill, it teaches the whole people by its example.’ A government that did not
respect the rights of its citizens, and did not seek to limit the breach of those rights
when punishing, would be compromised when it called for citizens to respect one
another’s rights. Could a government call for a ban on smacking children if it
routinely practised torture in its gaols? The government must strive to be a moral
guide and to behave towards the citizens as it wishes its citizens to behave toward one
another. If it does not, it can rightly be called hypocritical.
I have argued that consequentialism does not justify punishing the innocent, nor
punishing excessively. Finally I will turn to the claim that consequentialism fails to
treat people as ends, but merely uses them as means. The case of punishing repentant
offenders highlights this case most vividly. The consequential reason for punishing in
that case is the deterrent it creates for others. Surely that means the repentant offender
is being used simply as a means to deter others.
13
Morris, op cit., p105
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First, it is important to remember that the requirement is to treat people not merely as
a means. Every time you go through the till at Sainsbury’s you use the cashier as a
means of paying for your groceries. That is not morally objectionable, because you
also treat them as moral ends; if they should be threatened, or require assistance, then
their role as a moral end would also be important. So, in our case of punishing the
repentant offender, we can say that they are being treated, partially, as a means. The
important question is whether they are also being treated as a moral end in
themselves.
Walker has pointed out that we must clarify what exactly Kant means by a moral end,
and suggests ‘rational actors cognizant of (if not necessarily subscribing to) the laws
of the society in which they live.’ 14. This attitude means that we should advertise the
laws, and the punishment for breaking them. It further means that we should carry out
those punishments, to underline the seriousness of offending, and to show that the
advertised punishments do take place. The system must be treating people as rational,
because we only use it with rational agents. Animals cannot be prosecuted as they
have no understanding of the system. Repentant offenders, however, do, and this
explains how they are also treated as a moral means. They have understood the law,
and the penalties for breaking it, their entire trial and conviction treats them as
rational agents. Thoughtless or mistaken acts can be considered to mitigate the
sentence imposed, but it is understood that if you break the law you are guilty,
whatever circumstances contributed.
Earlier I argued that the use of hard treatment itself does not appeal to rationality, and
that still holds true here. But the threat, trial and imposition of punishment does; only
rational, moral agents can be appealed to in this way, so the appeal inherently respects
people as rational, moral agents.
I have argued that while retributivism is flawed, consequentialism can provide a
reasonable and justifiable theory that leads to intuitively acceptable behaviour, such as
only punishing the guilty with humane punishments. All this can be encompassed, I
have argued, with consequentialist theory, with no need to appeal to inherent rights. In
fact, only a consequential theory, which admits it is not punishing for the offender’s
own good, avoids the charge of ignoring the offender’s moral choice. Therefore
judicial punishment is justified, under a consequentialist theory.
Word Count: 4291
14
Walker 1980, p215
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Bibliography:
Murphy , J. G., 1973, ‘Marxism and Retribution’ in Duff, R.A. and Garland, D., eds
1994. A Reader on Punishment, Oxford: Oxford University Press.
Morris, H., 1981, ‘A Paternalistic Theory of Punishment’ in Duff, R.A. and Garland,
D., eds 1994. A Reader on Punishment, Oxford: Oxford University Press.
A850 Course notes, Matravers D.
Duff, R. A., 1986, ‘Trials and Punishments’ in A850 course notes.
Von Hirsch, A., 1983, ‘Censure and Sanctions’ in A850 course notes.
Rawls, J., 1967, ‘Theories of Ethics’ in A850 course notes.
Walker, N., 1980, ‘Reductivism and Deterrence’, in Duff, R.A. and Garland, D., eds
1994. A Reader on Punishment, Oxford: Oxford University Press.
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