1. The Issues, External and Internal
Of all our social practices, legal punishment is one of the most troubling to us. When we—that is, the state—legally punish, we invoke our authority in order to inflict pain, deprivation, or some other form of suffering.[1] The state's power to punish legally can be the power of life and death. In Judge Roy Jones's proposal that a mother who fed her four-year-old son fatal doses of psychiatric drugs agree to sterilization in exchange for a reduction in sentence, declaring that she was "a person who no longer needs ever to have any children," could be heard the voice of God: be not fruitful, do not multiply.[2]
[1] Only the state or public authority may with right legally punish: see Thomas Hobbes, Leviathan , ed. Michael Oakeshott (New York: Collier Books, 1962), ch. 28 ("executed by a due authority"); and Antony Flew, "The Justification of Punishment," Philosophy , vol. 29, no. 111 (October 1954), pp. 292–94.
[2] New York Times , September 25, 1988. Some courts have challenged such rulings. The South Carolina Supreme Court reversed an order that a young woman who abandoned her two young sons in a sweltering apartment remain on birth control for the rest of her childbearing years, but on the grounds that this punishment was unenforceable because of the fallibility of birth control (New York Times , May 26, 1988). See also Skinner v. Oklahoma , 316 U.S. 535 (1942), in which the U.S. Supreme Court struck down Oklahoma's Habitual Criminal Sterilization Act, which authorized the sterilization of persons previously convicted and imprisoned two or more times for crimes "amounting to felonies involving moral turpitude" and thereafter convicted of such a felony and sentenced to prison.
We disagree about the morality of punishing at all. Legal punishment often hurts its victim, and this troubles many of us.[3] Some think legal punishment is institutionalized revenge, and that we are now above all that; we are now in an age of enlightenment, living according to humanitarian principles, and punishment is a regression to a past we have shed and that is best forgotten.[4] In this view, when we punish we go against our enlightened selves; we are no longer at home in, or comfortable with, this practice. Recently a concert promoter convicted of dealing in cocaine avoided a lengthy jail sentence by agreeing to stage a rock concert to benefit drug-treatment programs for juveniles. The concert promoter justified the laxity of his punishment: "This is a better deal for society. Locking me up and charging the taxpayers for it and possibly having me come out worse than I went in does not help anyone."[5]This is the enlightened response to punishment.
But not all of us accept this line; many are outraged. This man broke the law; he deserves to suffer for his wrong—he
[3] On the association of punishment with pain, see, for example, Herbert Packer, The Limits of the Criminal Sanction (Stanford: Stanford University Press, 1968), p. 21; Edwin Sutherland and Donald Cressey, Criminology , 8th ed. (Philadelphia: J. B. Lippincott, 1970), p. 298; Karl Menninger, The Crime of Punishment (New York: Viking Press, 1966), p. 202; Immanuel Kant, Metaphysik der Sitten , in Werke in Sechs Bänden , ed. Wilhelm Weischedel, vol. 4 (1798; Darmstadt: Wissenschaftliche Buchgesellschaft, 1963), A195, B225; and Otto Kirchheimer and Georg Rusche, Punishment and Social Structure (New York: Russell and Russell, 1939), p. 46; but see Flew, "The Justification of Punishment," p. 292, who says punishment must be an evil or unpleasantness but need not be physically painful.
[4] On punishment as institutionalized revenge see, for example, René Girard, Violence and the Sacred , trans. Patrick Gregory (1972; Baltimore: Johns Hopkins University Press, 1977); on punishment as a cruel relic we should discard see Menninger, The Crime of Punishment . In the next chapter we shall consider these and other works expressing such views.
[5] San Francisco Examiner , August 30, 1988.
should be hurt, as he hurt those who used the drugs he sold. Against those who oppose punishment, or at least punishment that hurts, speak others who say we must punish, and that it must hurt. Punishment is so deeply ingrained in our society that where we expect it but don't have it, we demand justification for its absence. Earlier this century, some anthropologists tried to find out why it was that Eskimos don't punish their children—this struck them as demanding an explanation.[6] Legal punishment, too, seems so much a part of us that we demand justification for its absence in cases where we expect it. When the media reported that the twenty-four-year-old son of former vice presidential nominee Geraldine Ferraro was serving his prison sentence for cocaine use in a $1,500-a-month luxury apartment, some were so outraged that the governor of Vermont was pressured to exclude drug offenders from this program of house arrest.[7] The belief is that someone who is rightly condemned deserves to be punished, and failure to punish him is wrong. The state will even nurse an ill inmate on death row so that he will become healthy and capable of receiving the punishment he deserves.[8] Justice demands punishment.
But others call such justice "hypocritical" and see in legal punishment a "morality play."[9] They heed Nietzsche's warning:
Mistrust all in whom the impulse to punish is powerful. . . . Mistrust all who talk much of their justice! Verily, their souls lack more than honey. And when they call themselves the good and the just, do not forget that they would be pharisees, if only they had—[worldly] power.[10]
[6] V. Stefansson, My Life with the Eskimos , cited in Elsworth Faris, "The Origin of Punishment," International Journal of Ethics , vol. 25, no. 1 (October 1914), pp. 54–67.
[7] New York Times , September 3, 1988.
[8] Robert Nozick notes this in Philosophical Explanations (Cambridge, Mass.: Harvard University Press, 1981), p. 370.
[9] Menninger, The Crime of Punishment , pp. 153–54.
[10] Friedrich Nietzsche, Thus Spoke Zarathustra , part 2, no. 7; cited in Walter Kaufmann, Nietzsche (New York: Random House, 1968), p. 374.
The practice of legal punishment troubles us. It stirs in us conflicting emotions, and thinking clearly about it is difficult. One day we may well be persuaded by an editorial protesting the inhumanity, immorality, and cruelty of inflicting pain, but perhaps another day a loved one is mugged or raped, and we scream for revenge. Realizing the cruelty of punishment but resigned to its necessity, some try to find more humane ways to punish; enraged by those who would pamper the evil-doer, and appalled by the devastations of crime, some try to find more effective ways to punish; whereas others, perhaps convinced that doing harm to another is never just, or does no good, try to persuade us to abolish the practices.[11]
Still others, not willing to accept the state as "we," view punishment as coercion by "them" against "us" and question the justice of any state punishment. The January 1989 riots by blacks in Miami were, in part, an expression by those on the margin, more "people" than "citizens," of outrage against the state, and against the society the state represents. These riots, like Miami's "McDuffy riots" of 1980, were set off when a police officer, for no apparent reason, shot a black man on a motorcycle. In the McDuffy riots, violence erupted when the police officers involved escaped serious punishment; the 1989 riots began immediately after the incident. These riots were fueled by more than resentment of authority in general. It mattered to the rioters in 1980 that the police officers who killed Mr. McDuffy were white, and it mattered to the rioters in 1989 that the officer involved was Hispanic. A reporter on the scene of the most recent riots recounts how
[B]lacks complained that Miami treated blacks unfairly and gave favorable treatment to Hispanic immigrants. They complained that little was done to help poor blacks, many of them lifetime residents here, to find housing and
[11] Cf. David Rothman, "Decarcerating Prisoners and Patients," in Hyman Gross and Andrew von Hirsch, eds., Sentencing (Oxford: Oxford University Press, 1981). Others who express similar views include Karl Menninger and Randall Barnett, whose work we shall consider in later chapters.
jobs, but that much was done to help Hispanic immigrants. They pointed to the latest wave of immigrants, Nicaraguans, who are arriving here at the rate of 200 or 300 a day…. State Senator Carrie Meek, who is black, said, "As I rode in the Martin Luther King parade, young black people were shouting at me about how they saw Nicaraguans being hired for $5 an hour, and they were yelling, 'Why can't you get me a job?'"[12]
In such circumstances, right, as declared by the laws of the state and enforced by its police, may not seem right to those who are excluded. As one black teenager participating in the 1989 riots shouted to a reporter, "They get everything. Nothing for us."[13] Is it just to punish these people? Does it make any sense to punish them? Aren't they punished enough? Are the laws imposed on them their laws?
Crime is called the cancer of our society; it disrupts our communities and keeps people locked indoors. We erect street barriers because we so fear crime, blocking off whole neighborhoods with huge barrels, or hiring private guards to stand at checkpoints to stop and question strangers.[14] Can we ever realize the republican dream of participatory democracy when we literally build walls between us and our neighbors, when we are too scared to leave our havens and expose ourselves to a public life? Crime is so bad that people are losing faith in the ability of the police to handle violations of the law.
Some not only erect barriers and hire guards, but take justice into their own hands. Recently two men were found not guilty of arson in a case in which they had proudly admitted to the court that they had set a "crack house" (a house frequented by dealers and users of the cocaine-based drug called crack) on fire. They had argued that they acted under duress and in self-defense, that their neighborhood was disintegrating: "Nobody could sit out on the front porch anymore. The
[12] New York Times , January 18, 1989.
[13] Ibid.
[14] New York Times , December 6, 1988.
kids couldn't play outside." The police would not act, so they took justice into their own hands.[15]
To some, our problem is not that the police lack the manpower or will to punish but, rather, that we must resort to punishment at all; that we must punish reflects a crisis of law and order, a crisis of legitimacy. For example, John Schaar believes that "genuine authority is all but lost to us today." In the "cries of the people who feel that the processes and powers which control their lives are inhuman and destructive," he hears the "outward and visible signs of the underlying crisis of legitimacy in the modern state." In this view, our punishment is pure power, with no authority, and it is authority that we lack, not power. Where authority is lost, "the police can only punish."[16]
Others believe that punishment is not merely symptomatic of, but a reaction to, the crisis of legitimacy. Some Marxist-oriented criminologists argue, for example, that mugging is a constructed crime, created by the state as a reaction to a crisis of hegemony and as part of a war against permissiveness, a war begun in the mid-1960s under the direction of Richard Nixon, who declared "the right of the citizens to walk their own streets, free of the fear of mugging, robbery or rape." In this view, the state—here understood as the courts, police, and media—is said to have constructed a threat, the "crisis of mugging," in order to legitimize an exercise of power that in reality serves only to maintain existing unjust property relations.[17] We need not accept such arguments to see that there is something wrong about us. We are not at ease. Some feel alienated, others downright oppressed. Where authority is lost, the state is a "they," and we are not at home in its practices and institutions.
[15] New York Times , October 22, 1988, and November 11, 1988.
[16] John Schaar, Legitimacy in the Modern State (New Brunswick, N.J.: Transaction Books, 1981), pp. 2, 44, 281.
[17] Stuart Hall, Chas Critcher, Tony Jefferson, John Clarke, and Brian Roberts, Policing the Crisis: Mugging, the State, and Law and Order (London: Macmillan Press, 1978).
We disagree both about the morality of punishing at all and about the legitimacy of state punishment. But we also disagree about numerous issues that arise inside the practice of legal punishment. In this book I am concerned not only with the issue of whether the state should punish people at all—is the practice of legal punishment justified?—but also with questions that get raised from within the practice. Given that we do punish, how should we punish? For what actions should we punish? Under what circumstances is it appropriate to punish a particular person? Is punishment appropriate if the person did not intend to commit a crime, perhaps because she lacked either the capacity to know the nature and quality of the act she was doing or the capacity of will to conform to the law? Should we punish a person whose guilt was established only by inclusion of evidence obtained illegally? Should we use expedients like plea-bargaining, where we offer a reduced sentence to a defendant in exchange for a plea of guilty, in order to cope with our overburdened courts? Should we put more people into already overcrowded prisons? Should we aim at penal reform by using such practices as parole? Should we sentence certain criminals to die? I shall argue that our conception of why we punish at all provides crucial guidance to us when we assume a position inside the practice, that, in other words, the justification of the practice as a whole can guide us in considering the justification of actions within the practice . To decide whether to punish someone who is "insane" or who cops a plea, or to execute a convicted murderer, we need to ask whether doing so is consistent with our conception of why we punish at all. In this book I take both an "external" and an "internal" approach to legal punishment; I believe the two approaches are connected. Of course, if we don't think we should punish at all, we won't want to assume a position inside the practice.