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

7. Is Punishment Justified?

Is Punishment Justified? In the preceding chapters, I have considered the main lines along which current justifications of punishment have been proposed: that it does more good than harm, primarily through deterrence and incapacitation; that it is good to harm offenders, because doing so annuls the crime; vindicates the victim, assuages justified anger, preserves the moral order, or counts as justified self-defense; and that it aims at the benefit, rather than the harm, of offenders through moral reform. I have sought to establish that each of the proposed justifications fails, some on their own terms, and others when examined in light of the realities of criminal punishment. I. Crime Prevention: Doing Good by Doing Harm The purpose of crime prevention (or social control) runs through utilitarian , Kantian retributive, and self-defense justifications. Crime prevention is a worthwhile goal, but I have argued (chapter 2) that it is unlikely that punishment as presently practiced in the United States can meet the minimum utilitarian standard of doing more good than harm. Empirical studies using cost-benefit analysis have suggested that punishment is socially beneficial, but most of these studies fail to take into account negative effects on offenders. Those effects must be considered in a utilitarian reckoning and are likely sufficient to outweigh even the highest credible estimates of crime-preventive effects. Even if the good done by punishment did outweigh the harm, that would not be sufficient to establish that it is justified in utilitarian terms: it must also be compared to alternative (especially nonharmful) ways of reducing the crime rate. Given a small surplus of good over harm done by punishment, it would easily be overmatched by nonharmful social measures that made only modest reductions in crime. 7 147 Efforts to make punishment more productive of utility by restricting imprisonment to the most dangerous have failed so far, and can be expected to continue to fail, because crime is not a natural category, and the propensity to commit crimes is therefore not likely to be an isolable factor in individuals. We will therefore always have to incapacitate many who are not dangerous in order to incapacitate any who are, both reducing the net gain in utilitarian terms and raising serious questions of fairness . Finally, punishment is unlikely to satisfy utilitarian criteria because the small amount of good it might claim to do must be weighed against other uses of social resources to prevent crime, as well as against other goods that might be done with those resources. Punishment begins at a great disadvantage in such calculations because it expends resources on doing harm. Alternative uses of funds, labor, and materials, even those that are not aimed at crime prevention, are thus likely to fare better in utilitarian terms as long as they are directed to nonharmful ends. It could nonetheless turn out that, from a utilitarian point of view, some amount of more humane and more selective punishment would be justified. But even if punishment can be reshaped to meet utilitarian criteria , we may not harm some simply in order to prevent harm to others; to do so is to use persons as mere means to social ends—to fail to respect them as choosing beings and instead to treat them as raw material for the furtherance of social ends. In so doing, we are little better than the original offender, whom we seek to punish for violating the personhood of her victims. Nor can we avoid this criticism by appealing to the natural right of self-defense. The future offenders against whom we would defend ourselves are distinct from the present offenders we harm through punishment . It is not self-defense to harm the offender who has defied our threats, even if his defiance leaves us somewhat more vulnerable to harm by others. When we shift harms from potential victims of future crimes to past wrongdoers, we are still using the past wrongdoers as mere means to our own ends. Similarly, because we must desist from harming others under the rubric of self-defense when we learn that the measures we are taking cannot deter them, we may not enforce our self-defensive threats against those who have shown themselves undeterred. Constraining punishment for deterrent purposes by the requirement that it also aim at the offender’s good, as urged by moral reform theories, similarly fails to treat offenders as ends in themselves...