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

1. An Institution in Search of a Moral Grounding

An Institution in Search of a Moral Grounding As one reads history . . . one is absolutely sickened not by the crimes the wicked have committed, but by the punishments the good have inflicted. —Oscar Wilde, “The Soul of Man under Socialism,” 1891 I. Introduction Punishment, at its core, is the deliberate infliction of harm in response to wrongdoing. As an institution, it is so deeply rooted in history that it is difficult even to imagine a society without it. We have grown up with it, and it seems natural and inevitable to us. At the same time, there is no denying that it is a human creation; we must accept responsibility, collectively and individually, for the harm that we do in punishing: the deprivation of life, liberty, or property, or the infliction of physical pain. We ought not to impose such harm on anyone unless we have a very good reason for doing so. This remark may seem trivially true, but the history of humankind is littered with examples of the deliberate infliction of harm by well-intentioned persons in the vain pursuit of ends which that harm did not further, or in the successful pursuit of questionable ends. These benefactors of humanity sacrificed their fellows to appease mythical gods and tortured them to save their souls from a mythical hell, broke and bound the feet of children to promote their eventual marriageability, beat slow schoolchildren to promote learning and respect for teachers, subjected the sick to leeches to rid them of excess blood, and put suspects to the rack and the thumbscrew in the service of truth. They schooled themselves to feel no pity—to renounce human compassion in the service of a higher end. The deliberate doing of harm in the mistaken belief that 1 1 it promotes some greater good is the essence of tragedy. We would do well to ask whether the goods we seek in harming offenders are worthwhile, and whether the means we choose will indeed secure them. In the pages that follow, I shall be arguing for the abolition of punishment , insofar as it involves depriving people of things to which they have a right (typically, life, liberty, or property), either simply in order to deprive them of those things (as retribution), or in order to secure some further end (such as deterrence or incapacitation) to which the deprivation of these rights is essential. I shall distinguish punishment from other practices , such as blaming or formal condemnation (and collateral consequences such as difficulty in obtaining employment), which do not deprive the offender of anything to which he has a right; and from harmshifting interventions that prevent (through direct intervention) or reverse (through compensation) harm to victims at the offender’s expense. I begin with a brief description of the actual harms that are done by punishment. II. Harms Done by Punishment Today, the most common punishments in the Western world are deprivation of liberty or property; only the United States still imposes the death penalty. The debate over the death penalty has made imprisonment look benign, but the harm done by incarceration is not trivial. Imprisonment means, at minimum, the loss of liberty and autonomy, as well as many material comforts, personal security, and access to heterosexual relations. These deprivations, according to Gresham Sykes (who first identified them) “together dealt ‘a profound hurt’ that went to ‘the very foundations of the prisoner’s being.’”1 But these are only the minimum harms, suffered by the least vulnerable inmates in the best-run prisons. Most prisons are run badly, and in some, conditions are more squalid than in the worst of slums. In the District of Columbia jail, for example, inmates must wash their clothes and sheets in cell toilets because the laundry machines are broken. Vermin and insects infest the building, in which air vents are clogged with decades’ accumulation of dust and grime.2 But even inmates in prisons where conditions are sanitary must still face the numbing boredom and emptiness of prison life—a vast desert of wasted days in which little in the way of meaningful activity is possible. For the more vulnerable, and for those confined in worse prisons, imprisonment often means exposure to predators and an extreme loss of 2 | In Search of Moral Grounding personal security. The rate of victimization — assault, robbery, extortion—of prisoners is much...