Three philosophies of punishment and whether or not they work

What do we want to do with convicted criminals? Penology has several philosophies waiting to answer that question.

judge holding gavel
Credit: nampix/Shutterstock
  • What is the purpose of punishing a convicted criminal supposed to be? It depends on which philosophy you prescribe to.
  • None of these ideas are without their detractors, or qualifying evidence.
  • As the United States grapples with criminal justice reform, the arguments each philosophy has behind it will have to be considered.


The question of what should be done with criminals after they are convicted is a big one. In the United States, where decades of "tough on crime" policies have come under increasing scrutiny from all sides, the question is of increasing social, political, and philosophical importance. Penology, the philosophy and practice of dealing with convicted criminals, houses various theories on what the point of punishing someone is, which may prove useful in this debate.

Here are three major theories on justice and punishment, the main arguments that support or oppose them, and some empirical data on how they work in real life.

Retributive justice

Perhaps the most straightforward idea about punishment there is; if someone does something very wrong, they cause themselves to be worthy of punishment. This punishment is good by itself, even if there are no side effects. Most theorists in favor of this system also posit that the punishment should be proportional to the crime and that it should only affect those duly convicted.

Most people have a strong intuition about this. A famous thought experiment with many variations asks people to imagine that murderers enjoy long tropical island getaways where they can't hurt anyone after conviction but appear to be suffering in jail for TV cameras every now and again, to deter other potential murderers. Even if the deterrent works, you might feel that something is off here. Something that can only be corrected by inflicting some kind of punishment on the murderer.

University of Chicago Professor Albert W. Alschuler argues that retributive justice can have positive consequences in addition to any inherent justice it offers.

He puts forward the idea of a neighborhood where no one parks correctly, with drivers frequently boxing in others and parking too close to stop signs and fire hydrants. The laws against this are unenforced in that neighborhood. Because there is no consequence for inconsiderate parking, there is no reason to be considerate yourself; your neighbors will continue to act like this in any case. It ends up being the case that everyone acts this way to avoid being a sucker. He points out that this situation could be resolved by punishing the lawbreakers, as it would drive people back to a state of fair play. He summarizes the concept by saying, "Withholding punishment is inappropriate when doing so would encourage people to conclude, 'Everyone else is looking out for themselves, and I'll be a fool unless I become a little bit like them.'"

Arguments against retributive justice often focus on the difficulties of justifying harsh treatments (rather than just punitive damages or restitution) against the convicted in a way that aligns with broader principals of justice. Many theories that attempt to do so have been deemed unsatisfactory by other philosophers. Others point out that retributive systems only look backward on what has been committed and not forwards, to what situation we'd like to be in after matters are settled.

Deterrence

Deterrence theory is the idea that punishments for crime should exist primarily to discourage others from committing a similar crime or to assure the punished individual won't do it again. For example, making the potential costs of committing a crime too high to justify doing it in the first place.

Jeremy Bentham, the eccentric founder of Utilitarianism, took a consequentialist approach to punishment. Seeing punishments as "always evil," he nevertheless hoped that the use of them could deter crime by others, increasing the total happiness of society overall and reducing the number of criminals in the future. He combined this support for deterrence with elements from other theories.

Ceasre Baccaria, a jurist in Milan during the Enlightenment, argued that crimes strained the social contract and that punishments should be used to assure that people continued to stick to it. Rather than a retributive scheme, this called for a deterrence system to ensure that neither those punished nor those aware of the punishments would desire to commit such crimes in the future.

Of course, there are objections to this idea as well. The most common revolves around the theory's assumption that most people who break the law weigh costs and benefits before doing so. A point many would contest. The previously mentioned thought experiment (with the murderer on the island) also points to another objection to pure deterrence theories. Deterrence can be produced without actually punishing the convicted, a situation that strikes many as unsatisfactory.

Rehabilitation

Rehabilitative theories of punishment are diverse in their foundations. In general, they look at what causes a person to turn to crime and try to remedy the situation.

Many proponents of rehabilitative theories argue that the decision to engage in criminal behavior is not as clear cut as other theories suggest. Factors of economic opportunity, addiction, mental illness, social issues, and circumstance can make it more or less likely that a person will be driven to crime. With that in mind, they suggest that the penal system should focus on resolving or mitigating those issues.

Others are more utilitarian in perspective. They argue that a person who went into jail with a criminal tendency is likely to come out the same way unless some action is taken. What that looks like, be it job training, education, counseling, or something else, depends on the situation. Making it less likely someone will return to crime by providing these services, they argue, benefits society as a whole.

This comparatively holistic and often humane approach doesn't mean there isn't a potential dark side to rehabilitation. The theory is very dependent on our understandings of psychology, sociology, and criminology being accurate. Mistakes can have horrible results. The modern practice of solitary confinement, a practice now deemed torture by the United Nations when used for more than two weeks, goes back to recommendations by the Quakers that leaving criminals alone and slightly sensory deprived would allow for repentance and reformation. They were extremely wrong.

Even when it works, there are concerns about its implications. In his pro-retribution essay on criminal justice, Professor Alschuler cites Francis A. Allen's argument that a dedication to rehabilitation can make it challenging to limit the scope of state involvement, as "one immediate consequence of a rehabilitative regime is a drastic enlargement of state concerns. The state's interests now embrace not only the offender's conduct, but ... his motives, his history, his social environment."

The concerns of libertarians and others interested in a limited state are easy to comprehend.

Enough of this abstract philosophy, what does the data say?

Empirical data does exist in a wide variety of areas related to the criminal justice system. Here, we can use it to see if the above conceptions of justice can do what they set out to do.

Retributive justice benefits from only seeking to deal punishment out to those convicted of crimes, which it often manages to do. It isn't easy to empirically measure such a thing, but its various side effects can be measured.

Studies show that those close to a convicted individual can share the effects of punishment despite them not having committed a crime themselves. Similarly, a criminal record's impact can follow people long after they have "paid their debt to society," suggesting that it is more difficult to assure "proportionality" in sentencing than might be supposed. In the United States, unequal sentencing is a known and well-documented problem, suggesting more difficulties in reaching the ideals of retributive justice in reality.

Deterrence theory has a fair amount of empirical evidence against it. Studies suggest that many crimes are committed under the rationality reducing influence of alcohol, that few people can tell you what the punishments for a given crime are, and that many people don't consider the possibility of being caught when planning a crime.

Longer sentences are associated with slightly higher recidivism rates, the opposite of what a proponent of deterrence theory would expect from people with first-hand knowledge of the prison system. Likewise, programs like "scared straight" don't seem to do much.

However, Professor Daniel Nagin has argued for the existence of a general deterrent effect while also suggesting it is difficult to use this to make any new policy. Dr. Valerie Wright suggests that a deterrent effect does exist, but adds that it is tied to how certain a person is that they will be caught and given a specific punishment rather than how terrible their punishment might be.

Rehabilitation has shown promise in achieving its goals. Efforts at providing education and addiction treatment in the American prison system lead to reductions in recidivism. The Norwegian prison system, based on rehabilitation and renowned for its humanity, boasts one of the lowest recidivism rates in the world.

Despite this, American efforts have yet to match the Norwegian system's effectiveness levels, and some studies also suggest that modern treatment programs have little effect on individuals with psychopathy, who are disproportionately incarcerated and have a high rate of recidivism to begin with.

What this data means is going to be influenced by which of the above arguments appeal to you. Do the side effects of retributive policies or the problems we have in assuring equal punishments for similar crimes outweigh the moral intuition towards punishing criminals? Do failures in rehabilitative practices make the concept worthless? Can deterrence be of use even if we know a disproportionate number of criminals aren't acting along the lines of its assumptions?

The raw numbers can't answer these questions by themselves. Philosophy has to step in and provide the tools for value judgments, answer questions of justice, and help determine where the line between theory and practice has to be drawn.

We'll probably never be rid of the need to do something with people who harm or violate the rights of others. What we do with them is another question. No definitive answer exists for what models of justice and punishment are best. Still, by considering the philosophy and raw data around each model, we might find something that works for our society. While many people would support a system that uses elements of all three of these considered philosophies, alongside others, how much of each to use remains the subject of continual debate.

This is what aliens would 'hear' if they flew by Earth

A Mercury-bound spacecraft's noisy flyby of our home planet.

Image source: sdecoret on Shutterstock/ESA/Big Think
Surprising Science
  • There is no sound in space, but if there was, this is what it might sound like passing by Earth.
  • A spacecraft bound for Mercury recorded data while swinging around our planet, and that data was converted into sound.
  • Yes, in space no one can hear you scream, but this is still some chill stuff.

First off, let's be clear what we mean by "hear" here. (Here, here!)

Sound, as we know it, requires air. What our ears capture is actually oscillating waves of fluctuating air pressure. Cilia, fibers in our ears, respond to these fluctuations by firing off corresponding clusters of tones at different pitches to our brains. This is what we perceive as sound.

All of which is to say, sound requires air, and space is notoriously void of that. So, in terms of human-perceivable sound, it's silent out there. Nonetheless, there can be cyclical events in space — such as oscillating values in streams of captured data — that can be mapped to pitches, and thus made audible.

BepiColombo

Image source: European Space Agency

The European Space Agency's BepiColombo spacecraft took off from Kourou, French Guyana on October 20, 2019, on its way to Mercury. To reduce its speed for the proper trajectory to Mercury, BepiColombo executed a "gravity-assist flyby," slinging itself around the Earth before leaving home. Over the course of its 34-minute flyby, its two data recorders captured five data sets that Italy's National Institute for Astrophysics (INAF) enhanced and converted into sound waves.

Into and out of Earth's shadow

In April, BepiColombo began its closest approach to Earth, ranging from 256,393 kilometers (159,315 miles) to 129,488 kilometers (80,460 miles) away. The audio above starts as BepiColombo begins to sneak into the Earth's shadow facing away from the sun.

The data was captured by BepiColombo's Italian Spring Accelerometer (ISA) instrument. Says Carmelo Magnafico of the ISA team, "When the spacecraft enters the shadow and the force of the Sun disappears, we can hear a slight vibration. The solar panels, previously flexed by the Sun, then find a new balance. Upon exiting the shadow, we can hear the effect again."

In addition to making for some cool sounds, the phenomenon allowed the ISA team to confirm just how sensitive their instrument is. "This is an extraordinary situation," says Carmelo. "Since we started the cruise, we have only been in direct sunshine, so we did not have the possibility to check effectively whether our instrument is measuring the variations of the force of the sunlight."

When the craft arrives at Mercury, the ISA will be tasked with studying the planets gravity.

Magentosphere melody

The second clip is derived from data captured by BepiColombo's MPO-MAG magnetometer, AKA MERMAG, as the craft traveled through Earth's magnetosphere, the area surrounding the planet that's determined by the its magnetic field.

BepiColombo eventually entered the hellish mangentosheath, the region battered by cosmic plasma from the sun before the craft passed into the relatively peaceful magentopause that marks the transition between the magnetosphere and Earth's own magnetic field.

MERMAG will map Mercury's magnetosphere, as well as the magnetic state of the planet's interior. As a secondary objective, it will assess the interaction of the solar wind, Mercury's magnetic field, and the planet, analyzing the dynamics of the magnetosphere and its interaction with Mercury.

Recording session over, BepiColombo is now slipping through space silently with its arrival at Mercury planned for 2025.

Learn the Netflix model of high-performing teams

Erin Meyer explains the keeper test and how it can make or break a team.

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  • Instead of the 'Rank and Yank' method once used by GE, Meyer explains how Netflix managers use the 'keeper test' to determine if employees are crucial pieces of the larger team and are worth fighting to keep.
  • "An individual performance problem is a systemic problem that impacts the entire team," she says. This is a valuable lesson that could determine whether the team fails or whether an organization advances to the next level.
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