Posted by Eugene Volokh:
Deriving Benefits and Satisfaction from Criminals' Suffering:
I've found the recent debates about punishment and retribution very
interesting -- I may actually see whether there's anything left to
write on the subject (despite the centuries of philosophy and legal
thinking on the matter). This really is terribly important stuff. It's
important if we retributivists are right (regardless of whether the
retribution should come in the form of prison terms, death, pain, or
whatever else), and it's important if we're wrong: Either sort of
error may cause lots of needless suffering, whether to the criminals
or to their victims.
For now, let me note one brief observation, which again is present
even if one sets aside the death penalty, painless or painful. Many
people have bargued that it's wrong to derive pleasure from others'
suffering, and I suppose I agree under some definitions of pleasure --
we shouldn't take out the popcorn and settle in for a fun evening of
contemplating the suffering inflicted on others. But I think that
under many necessary and proper theories of punishment, it's quite
proper to derive satisfaction from criminals' suffering. That sounds
cruel, but it seems to me quite right, and here's why.
We can identify six main theories of punishment, though I'm sure there
are others, and other ways of categorizing these ones:
1. Incapacitation: Lock someone up so he can't commit the crime again
(or chemically castrate him or whatever else). I think this is quite
right, though there may be limits on how long it's fair to lock people
up. And this doesn't require that the person suffer: If we could
cheaply incapacitate someone in ways that are perfectly pleasant for
him, we'd still be fulfilling the goal of incapacitation. But
incapacitation can't be the whole story; I take it, for instance, that
if a rapist gets into a car accident after the rape and becomes
paraplegic and practically highly unlikely to rape, we wouldn't just
let him out.
2. Restitution: Make the person pay for the damage he did. This too is
good, and it doesn't require that the person suffer. (The payment may
make him suffer, but it need not; if Winona Ryder shoplifts something
and then has to pay for it, the payment probably isn't enough to make
her suffer, and yet the restitution function is entirely satisfied.)
But while this can work well for purely financial crimes, it's much
less satisfying for other crimes, and often the criminal doesn't have
the money to pay.
3. Rehabilitation: Make the criminal change his ways. "Nice work if
you can get it," I say -- from what I hear, no-one quite knows how to
do this reliably, and even the programs that seem to work the best
tend not to be that effective. Still, in principle, if this were
possible, it could be doable without the person's suffering (unless
the rehabilitative technique relies on the person's suffering).
4. Norm-setting: Send a message to the public that something is wrong,
and affect their moral judgments (and not just their cost-benefit
analysis). Locking up drunk drivers, for instance, might lead people
to recognize how bad this behavior is; some people hope that hate
crimes laws may have a similar effect. Likewise, sternly punishing
date rape might open some other people's eyes to how awful this crime
is. It may do little to the serious sociopaths, but it may affect some
people who have decent impulses as well as evil ones. And punishment
of 60-year-old Nazis might serve as a reminder to the public about how
evil Nazism is.
This, I think, generally requires that the punishment involve some
suffering, precisely because the infliction of suffering is what helps
set the norm. Just saying "drunk driving is bad" or "date rape is bad"
might do something, but not much; the government says similar things
all the time ("literring is bad"), and people tend to tune them out. I
think that what makes the prosecution of these criminals noteworthy,
and norm-reinforcing, is that the legal system finds the crime so
serious that it's willing to inflict suffering as a result.
Again, consider the thought experiment from item 1: Imagine that one
could come up with a "punishment" that inflicted no suffering; for
instance, say that drunk drivers could be given a pill that keeps them
from getting drunk (and assume that for most people that wouldn't
cause suffering). The resulting penalty may make for quite effective
incapacitation, but I doubt that such a suffering-free punishment
would much affect moral norms.
5. Deterrence: Increase the cost of crime to the criminals, and thus
scare them away from the crime. Now this necessarily involves
inflicting suffering; if the punishment didn't include suffering of
some sort, then criminals wouldn't be deterred by it.
What's more, if we take a deterrence perspective -- or, say, a
deterrence-incapacitation perspective, or some other mix that includes
deterrence -- then we should derive satisfaction from knowing that
criminals will suffer. The satisfaction may be tinged with sorrow,
regret, or even disgust at the suffering. Locking someone up for the
rest of his life, or even for several years, is surely a harsh and
even brutal punishment, and would be even if we eliminated the risk of
prisoner-prisoner violence.
Nonetheless, if we believe in deterrence, we are deriving a benefit
from this suffering: It is this suffering of the criminals that is
making us and our children safer. And as a result we must presumably
derive some (though not unmixed) satisfaction, as we would from
anything that we think makes us safer, and is morally justified.
6. Retaliation: Punish criminals because they deserve to be punished
for the evil things they did. This, as I've argued before, is the best
explanation for the understandable and laudable campaign to [1]punish
70-year-old Nazis.
Likewise, say that there were some entirely suffering-free way to
incapacitate and deter rapists: For instance, imagine that there's a
cheap (and constitutionally and morally permissible) form of chemical
castration that can for some period of time take away their sex drive
-- which means that they won't even miss sex, forced or unforced --
and say that reliable comparative studies show that this deters rape
as well as other punishment does. (For instance, say that uncastrated
men really don't want to be chemically castrated, but once they are
they don't really suffer much, setting aside for a moment any possible
social shame that might come from being uninterested in sex.) Would we
think this is really enough? If the rape victim came to us and said,
"So the trial was yesterday, and today I saw the man who brutally
raped me walking down the street whistling," would we think that
justice had been done?
If we wouldn't think so -- if we think that justice requires some
retaliatory punishment here, or as to the Nazis -- then we are
demanding that the criminal be made to suffer, even if just through
the loss of liberty. And thus presumably when we hear about old Nazis
or young rapists being convicted and thrown in prison, we derive
satisfaction from knowing that the person is suffering.
* * *
So it seems to me that if we endorse theories 4, 5, or 6, or some mix
of them and other theories (and I think most of us do endorse such a
mix), we support deliberately inflicting suffering on criminals, and
derive benefit and satisfaction from this infliction. Again, doubtless
some moral rules limit the type and amount of suffering we can inflict
on people for certain crimes. (Even if we really want to deter
pickpockets, and the death penalty deterred them, I don't think the
penalty would be a suitable punishment, though I won't go into the
reasoning for that here.) And perhaps some moral rules categorically
limit the type and amount of suffering we can inflict on people for
any crime. Perhaps, for instance, it's proper to derive satisfaction
from deprivation of liberty but categorically improper to derive
satisfaction from deprivation of life or infliction of physical pain.
But unless we limit ourselves to theories 1, 2, and 3 -- unless we
renounce not only retribution but also deterrence and probably
norm-setting -- we must acknowledge that our criminal justice system
is largely based on the infliction of suffering, and rightly so; and
that we are therefore right to derive satisfaction (though not unmixed
with regret and other emotions) from knowing that criminals are being
made to suffer precisely for the sake of the moral and practical
benefits that this suffering causes us. Maybe that's a reason to
utterly reject deterrence and retaliation. But if we accept them, then
what I say here seems to follow, not just as a matter of my moral
judgment but as a matter of logic.
References
1. http://volokh.com/archives/archive_2005_03_13-2005_03_19.shtml#1111217824
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