Chapter 13 Crime and Punishment

Crime is clearly a major social problem and by and large the way most societies deal with it is through some form of official punishment, involving imposing fines, confining people in prisons and even executing people. This chapter explores ethical debates about crime and punishment, concerning such questions as…

• What is the justification for punishing people who commit crimes in general?
• What particular forms of punishment, and what particular rationales for punishment are ethically defensible?
• Is the death penalty a legitimate form of punishment?

Now it might seem ridiculous to ask that punishment for crime be given a general justification. It seems obvious to most people that committing crime, wronging or hurting others deserves and requires punishment and that the only question is that of the degree of punishment. And yet philosophers start to get suspicious whenever anyone claims that something is completely obvious. Maybe we just like making life difficult, or maybe there are some unquestioned assumptions that need to be clarified and supported if we are going to be able to resolve pressing difficulties in our policies on crime and punishment. The fact that there are difficulties is itself painfully obvious as the following points show:

• The United States currently has the world’s highest per capita prison population: the number of people incarcerated in federal, state and local jails exceeds 2 million.
• Crime rates nevertheless remain high as do rates of recidivism or return to jail after release for other convictions.
• More types of behavior are considered criminal in the US than in most other countries around the world (the exceptions are fundamentalist Islamic countries and dictatorships).
• The US is the only Western democracy to utilize the death penalty in peacetime.
• The death penalty continues to attract controversy, especially concerning the possibility of executions of innocent people.
• Police continue to be granted more power to arrest, prosecute, seize property, as the official “get tough on crime” policy adopted all around the country continues its popularity among politicians and the general public.

If we are to define crime in a non-circular way (we can’t simply say that crime is what our society deems to be illegal because that is a circular definition) we can perhaps say that crime is the deliberate infliction of pain and suffering on other people by taking from them things that are theirs, harming them physically or mentally or taking away their lives or their liberty. If we consider the punishments that we give out for committing crimes in the light of this definition of crime, however, a problem appears. We punish people by taking away their property (fines), by making them work without compensation (community service), by taking away their liberty (jail), or by killing them (execution). But how are these any different than the crimes of theft, forced labor, kidnapping or murder? Is it just because state officials carry them out? We can thus see why it is that punishment requires justification – because if it lacks justification then we can’t really distinguish between the kinds of things that count as crime and the kinds of things that would count as a legitimate social response to crime. If punishment lacks justification then the only difference between crime and punishment would be the identity of the person or people carrying it out – it’s called crime when it’s done by anyone other than the official representatives of the state.

The state, that is, the set of official governmental institutions that wields power, has a monopoly on the use of violence or the use of force. This gives the state an enormous power over its citizens. The state can take money from individuals (taxes and fines), take away freedom (restraining orders and jails), kill (the death penalty). So the task of justifying punishment is that of showing why the state should have such power, how such power should be wielded, in whose interests that power is wielded, and what exactly the state should be allowed to do. Many opponents of the death penalty, for example, argue that whatever other powers the state has (taxation, punitive fines and imprisonment) it should not have the power to kill its own citizens. This might be argued because it is too socially risky to allow the state to kill, or it may be argued on the grounds that there are some things that the state is just not allowed to do, if it is to be a legitimate state. On the other hand, backers of the death penalty often insist that the state has the right to do whatever is necessary to maintain order within its borders, including kill troublesome offenders. Clearly power is a major issue here.

Because crime and punishment look quite similar to each other, and because a state that can arrest, fine, confine and even kill its citizens has enormous amounts of power over its citizens, punishment requires justification. So then how might punishment be justified? Our answer to this question will have far-reaching consequences – it will determine the nature of acceptable punishment, the function of punishment and the limitations on punishment that we endorse. Since justification of punishment will involve distinguishing justified from unjustified punishments this is the same as establishing limits to punishment. Different types of justification will respect different limits.

In general, there are two approaches to justifying punishment, those that focus on the social good done by punishment and those that emphasize the idea of justice. These are known, respectively, as utilitarian and retributivist theories of punishment. As we will see, even though our society appears to endorse both of these approaches to punishment, they are deeply in conflict with each other.