Justifying Punishment

Doing harm to another person is generally regarded as wrong in itself. Yet punishment is, by its very nature, the deliberate infliction of some form of harm on a person who has committed a wrong.

Imprisonment deprives someone of liberty; a fine deprives them of property; community orders impose restrictions and obligations; and, in some jurisdictions, punishment may even involve physical suffering or death.

This creates an apparent moral paradox. If deliberately harming a person is normally wrong, how can it become morally permissible when the person being harmed is a wrong-doer? The problem of punishment is therefore not simply to explain why people who commit crimes should suffer consequences, but to explain why the deliberate infliction of harm can be justified at all.

Retribution

One traditional justification is retribution. According to the retributive view, a person who deliberately does wrong deserves to suffer a proportionate penalty. The central idea is not that punishment is useful for producing some future benefit, but that justice requires a wrong to be answered by an appropriate response. If someone deliberately steals, assaults or kills, it may seem unjust for society simply to ignore the offence.

Punishment expresses the judgement that the wrong mattered and that the offender is responsible for having committed it. On this view, punishment is not merely a means to some further social objective; it is part of giving people what they deserve. This is sometimes expressed in the idea that justice requires that the guilty should suffer in proportion to the seriousness of their wrongdoing.

Retribution, however, needs to be distinguished from revenge. Revenge is typically personal and potentially unlimited: a victim may want the offender to suffer because the offender has caused them suffering. Retributive punishment, by contrast, is supposed to be impersonal, proportionate and governed by rules. The person administering the punishment is not entitled simply to inflict whatever suffering they desire. The punishment must correspond to the seriousness of the offence.

The moral attraction of retribution therefore lies partly in the idea that punishment can restore a kind of moral balance without becoming an expression of personal hatred.

Deterrence

A second major justification is deterrence. Punishment may be justified because the prospect of suffering a penalty discourages people from committing offences. There are two forms of deterrence. General deterrence aims to discourage members of society as a whole from committing crimes, while specific deterrence aims to discourage the individual offender from offending again. The justification is consequentialist: punishment is harmful, but the harm inflicted on the offender may be justified if it prevents greater harm to other people. A fine, imprisonment or other penalty can therefore be regarded as a means of protecting society by making wrongdoing less attractive.

The difficulty with deterrence is that it can appear to treat the offender merely as a means to an end. If punishment is justified simply because it frightens other people into obedience, there seems to be a danger that excessively harsh penalties could be justified whenever they were thought to have sufficiently powerful deterrent effects. This conflicts with the intuition that there are limits to what may legitimately be done to a human being, even when doing so might produce beneficial consequences. Furthermore, deterrence does not by itself explain why a particular individual deserves punishment. If someone could be punished effectively even though they were innocent, deterrence alone would seem unable to explain why that would be wrong.

Incapacitation

A third justification is incapacitation, or the protection of society by preventing an offender from committing further offences. Imprisonment provides the clearest example. A person who is incarcerated is physically prevented, at least to a considerable extent, from harming members of the public in the ordinary ways available to someone at liberty. The justification therefore rests on the prevention of future harm. It does not necessarily matter, from this perspective, whether the offender deserves suffering; what matters is whether restricting their liberty is necessary to protect others.

This justification is particularly compelling where an offender poses a serious and continuing danger. Nevertheless, it raises difficult questions about proportionality and prediction. If someone is punished principally because they might commit a future offence, the punishment begins to resemble preventive detention rather than punishment for something already done. There is consequently a moral difference between saying that a person deserves punishment because of what they have done and saying that they should be deprived of liberty because of what they might do. The latter raises especially serious questions about how confidently future behaviour can be predicted and how much liberty it is legitimate to sacrifice in the interests of security.

Rehabilitation

A fourth justification is rehabilitation. On this view, punishment can be justified if it helps to change the offender so that they no longer offend. Education, psychological treatment, drug and alcohol programmes, vocational training and other interventions may seek to address the causes of criminal behaviour. The purpose is not simply to make the offender suffer but to help them become capable of living without harming others. Rehabilitation consequently offers a particularly interesting response to the moral problem of punishment, because it seeks to turn an imposed harm into an opportunity for moral reform.

Conflict between rehabilitation and punishment

There is, however, a tension between rehabilitation and punishment. If the primary purpose is to reform the offender, it is not always obvious why suffering must be imposed at all. A society might attempt to rehabilitate people without deliberately harming them. Moreover, compulsory rehabilitation can itself become coercive, and the authorities may claim to know what is best for an offender in ways that threaten individual autonomy. Nevertheless, rehabilitation provides an important justification for restricting liberty when such restrictions are genuinely directed towards helping an offender to return safely to ordinary social life.

Social Denunciation, Condemnation, Disapproval

A fifth justification is denunciation. Punishment can express society's condemnation of certain kinds of behaviour. A criminal conviction does more than impose a practical inconvenience on the offender; it communicates that the offence was seriously wrong and that the victim's interests and dignity matter. Punishment can therefore have a symbolic and communicative function. The condemnation of murder, rape, serious assault or fraud communicates the values by which society claims to be governed. In this respect punishment can be understood as a public moral statement: this behaviour is unacceptable, and those who are harmed by it are entitled to the protection and concern of the community.

Restores the moral standing of victims

Closely related to denunciation is the idea that punishment can restore the moral standing of victims and law-abiding citizens. When a serious wrong is committed and apparently ignored, victims may reasonably feel that their suffering has been disregarded. Punishment can acknowledge that a wrong has occurred and that responsibility rests with the offender rather than the victim. It can therefore have a restorative dimension even when it is not itself restorative in the more specific sense of reconciliation between offender and victim.

Restorative justice

Restorative justice offers another approach to the problem. Rather than concentrating primarily on the suffering deserved by the offender, restorative justice focuses on the harm caused by the offence and on repairing relationships where possible. Offenders may be encouraged to acknowledge what they have done, understand its consequences, apologise, compensate victims and undertake actions designed to repair some of the damage. In suitable cases this can provide a morally attractive alternative to purely punitive responses. It recognises that crime is not merely a violation of an abstract law but an event in which particular people and communities may have been harmed.

Maintains the system of law itself

Finally, punishment may be justified by the need to maintain a system of law itself. A legal system depends upon rules being taken seriously. If violations carried no meaningful consequences, the protection that law provides could become ineffective. Punishment can therefore be regarded as part of maintaining a framework within which people can live together under common rules. This justification is not simply deterrence, because the point is not necessarily that individuals calculate the probable penalty before deciding whether to offend. Rather, a functioning legal order requires institutions capable of responding authoritatively when its fundamental rules are violated.

Pluralistic Justification

None of these justifications is entirely satisfactory on its own.

• Retribution explains why a wrong-doer might deserve punishment but does not necessarily explain why punishment should produce social benefits.

• Deterrence and Incapacitation can explain why society might need to impose restrictions, but they can make the individual offender appear merely as a means to the protection of others.

• Rehabilitation offers the possibility of constructive change but does not by itself establish why deliberate suffering is justified.

• Denunciation explains the expressive function of punishment but raises the question of whether condemnation requires suffering.

• Restorative justice may address the actual harm caused by crime more directly, but it cannot readily deal with every kind of serious offence or every kind of offender.

The most plausible justification may therefore be pluralistic. Punishment is morally defensible not because causing suffering suddenly ceases to be harmful when inflicted upon a wrong-doer, but because there can be competing moral reasons for imposing a carefully limited form of harm.

A legitimate system of punishment must take account of the wrong committed, the protection of others, the interests of victims, the possibility of reform and the need to uphold a just legal order. At the same time, the fact that punishment is itself a harm imposes constraints upon it. Punishment should therefore be imposed only on the guilty who are responsible for the relevant wrongdoing, and proportionate, minimising unnecessary suffering.

The fundamental moral question is consequently not simply, "Why should wrong-doers suffer?" It is, "Under what circumstances is it morally permissible for society deliberately to impose a harm on someone who has harmed others?" That formulation makes clear why punishment requires justification. The wrong-doer does not lose all moral status by committing a crime. If punishment is to be justified, it must respect the offender as a human being while nevertheless taking seriously the wrong that has been done. The strongest conception of punishment is therefore one in which retribution, deterrence, protection, rehabilitation, denunciation and restoration are not regarded as competing explanations of exactly the same thing, but as different moral considerations that may, in appropriate circumstances, contribute to justifying the limited and proportionate infliction of harm.