Is Punishment Wrong?

02 March 2018

Is it ever morally okay to punish people? To punish someone is to hurt them because of a wrong they’ve already committed—whether or not any future benefit will come of that hurt. How could it be okay to deliberately hurt someone?

In his article “Two Theories of Punishment,” John Rawls offers a justification for punishment based on the claim that its overall benefits outweigh its harms. Instead of punishing the guilty, we could try to mete out whatever harms and benefits would have the best consequences. This would sometimes involve harming the innocent (maybe it’s a great deterrent to torture innocent people if they’re widely perceived to be guilty), or letting the guilty go free (since some guilty people are unlikely to reoffend, and obscure enough that punishing them would have little deterrent effect).  

But Rawls argues that we should not abandon the practice of punishing the guilty. Achieving the greatest good for the greatest number is nice in theory, but it makes for terrible social policy. Trying to gauge the effects of a punishment is complicated, and judges are liable to mess up their calculations, or press their prejudiced and self-interested thumbs down on the scales of justice. Overall, it’s better to have clear rules for establishing guilt or innocence, and to enforce those rules consistently.

There are philosophical challenges to this argument, which I won’t discuss. But assuming that the argument works, can it be used to justify the punishments we currently mete out in America? I don’t think it can.

Consider our legal punishments for drug use. Perhaps drug use is wrong. At a societal level, it has bad consequences, including overdose deaths, lost potential due to addiction, and the transmission of diseases like HIV and Hepatitis C. But even if drug use is wrong and has bad consequences, there is little evidence that punitive drug laws are effective at preventing those consequences. (In contrast, some harm reduction policies, such as methadone and needle replacement, have proven effective.) Furthermore, punishing drug users has bad consequences itself; imprisoning someone deprives them of their freedom and subjects them to physical and psychological harm, a felony conviction can destroy a person’s life prospects once they are released from prison, and the racist enforcement of drug laws makes for a less equal society.

Or consider the practice of keeping sex offender registries. Some of the behaviors that land people on these registries are deep moral wrongs, such as child molestation and rape. But we can’t use Rawls’s argument to justify these registries as punishment. The evidence suggests that registries don’t prevent re-offense, and may even encourage it. Furthermore, placing someone on a sex offender registry harms them by restricting their ability to find housing, putting them at risk of violence, and subjecting them to the pain of social ostracism.

Even if Rawls’s argument justifies some policies of punishment, it does not justify all the policies currently enshrined in American law. Some philosophers and policymakers maintain that there is good reason to hurt people even when that hurt benefits no one, but I remain skeptical.


Comments (1)

Harold G. Neuman's picture

Harold G. Neuman

Saturday, March 3, 2018 -- 12:42 PM

Punishment has been around,

Punishment has been around, in some form or another, for as long as humans have possessed consciousness. There was once a notion of CREDIBLE DETERRENCE at the foundation penal systems, which theorized that if there was 'a price to pay' for crimes and/or misdemeanors, then those who contemplated such social faux pas might think twice before doing so. These measures probably worked better, earlier in the history of thinking men and women although it is difficult to put a yardstick on such speculation: we would have had to be there to know for sure. On balance, we have found that we must have some sort of control over anarchists, bad actors and criminals (the ABCs of malcontent). So, we have laws and enact others because there is no solace in merely exterminating all who refuse to conform to social norms. It gives one's society a bad name and throws up myriad reasons for other societies to attack and criticize. Penal systems do not offer a particularly credible deterrent. That much is abundantly clear. Social ostracism holds limited sway where the worst of the worst are concerned and getting them off the street often merely hardens their resolve. Those whose occupations are in law enforcement and criminal 'justice' generally avow that any weakening of the system would only encourage the bad guys---especially those worst of the worst. I don't know, but that injunction would seem to make sense if our notions about human nature are anywhere near accurate.
We have a system which, though not completely satisfactory, may be as good as it can ever be. Unless we ARE willing to institute a blanket policy of extermination---which seems unlikely. Our anything goes, permissive society has not helped matters. But there would be evil-doers regardless. I think many of us are skeptical...