The Case Against Punishment: Retribution, Crime Prevention, and the Law

6. Punishment as Communication

Punishment as Communication I. Introduction Moral reform theories seek to show that punishment is justified (in whole or in part) because it conveys a moral message—a message that may bene fit the offender by improving his moral character. These theories take as central that the source of wrongful behavior is the failure of the offender to appreciate the wrongfulness of his conduct, that this failure is a defect of moral character, and that hard treatment (punishment) is necessary to the communication that the conduct was wrongful. Moral reform theory shares with retributivism a focus on individual moral responsibility. As we have seen, it is problematic to assume that the commission of criminal acts results from a moral weakness not shared by others; moral character plays into circumstances to determine which individuals will offend. Character defects may, however, be a necessary condition for the performance of at least some kinds of criminal acts, perhaps, for example, those that display gross indifference to the suffering of others; punishment of such acts might legitimately address moral character. I shall argue, however, that aiming at the moral good of the offender, either alone or in combination with other purposes, is not sufficient to justify punishment. Moreover, state punishment cannot address the offender on a moral level—whether to make a forceful communication of the wrongness of the act, or to change his moral character for the better—so that the effort to do so, and to justify criminal punishment in these terms, is misplaced. This remains true even where the laws are just and evenly applied. II. Moral Reform Theories Rehabilitation of offenders seemed for a while an attractive and humanitarian alternative to harsh deterrent and retributive views. Criminal 6 117 offenders often have troubled family backgrounds plausibly thought to result in poor social adjustment that might be addressed through appropriate therapy, thus benefiting both the offender and society. Punishment that benefits the offender as well as society is apparently easier to justify than punishment that harms the offender for the social good. Apart from the problematic record of rehabilitation in practice,1 however, its apparently kindly face conceals an essentially manipulative approach to offenders . To see this, one need only consider the possibility of subjecting unruly protesters to aversion therapy or psychosurgery to make them more law abiding.2 Herbert Morris provides the definitive critique of the rehabilitative ideal in “Persons and Punishment,” arguing that the theory’s view of the offender as a mere product of social forces, and its treatment of punishment as a benefit to the offender, are inconsistent with treating him as a person in the Kantian sense.3 Moral reform theory, in contrast, begins from the Kantian position that individual autonomy must be respected; its purpose is not to change the offender as such, but rather to persuade him to choose to change his own behavior as a result of the perception, induced by punishment, that his previous behavior was morally wrong. The principal proponents of this view are Morris himself (in a later article ), R. A. Duff, and Jean Hampton.4 Beginning from the premise that the state must take measures to announce the wrongness of certain acts and to prevent them from occurring, they argue that, because the state may not use offenders as mere means to the goals of others, these measures must respect the autonomy of offenders and be taken out of a concern for the offender’s good. Duff, for example, criticizes deterrent theories for providing the offender with morally irrelevant prudential reasons for complying with the law; avoidance of penalties is a self-interested, not a moral, reason for refraining from criminal acts.5 Duff suggests that, to treat the offender as our moral equal, we must instead supply relevant, moral reasons for compliance—that is, the reason we give the offender must be our reason for having the rule in the first place. Punishment can supply such reasons, and thus induce genuine repentance, under the right conditions—where it can serve as a penance appropriately imposed by a community of which one is a voluntary member and whose shared values one has flouted. Those imposing the punishment must do so with the intent of inducing voluntary repentance and thus bringing the offender back into the moral community. Given these aims, the punishment must 118 | Punishment as Communication not coerce or manipulate the...