Desert Part 3: The Purpose of PunishmentNovember 30, 2008
Last time I observed that punishments are, by definition, given because they are deserved. This is the “retributive” view of punishment (although as mentioned earlier, this is the more traditional concept of “retribution” as requital rather than revenge or retaliation). Plamentz (1967), while not defining punishment to be retributive, suggests that it is only in societies which have professional judges and teachers where punishment would be seen as a means to an end, and that in “primitive” societies punishment would simply be seen as proper and fitting.
I do not mean to suggest that punishment serves no purpose beyond that of desert. I have already mentioned that it is a vital part of the concept of morality, or the concept of rules, that poor conduct should be punished. My point is that without the notion of desert, we are left with a deeply flawed concept of punishment. Lewis (1953) described punishment without desert as the “Humanitarian Theory Of Punishment”. Regarding its application to criminal justice he wrote:
According to the Humanitarian theory, to punish a man because he deserves it, and as much as he deserves, is mere revenge, and, therefore, barbarous and immoral. It is maintained that the only legitimate motives for punishing are the desire to deter others by example or to mend the criminal. When this theory is combined, as frequently happens, with the belief that all crime is more or less pathological, the idea of mending tails off into that of healing or curing and punishment becomes therapeutic … But the concept of Desert is the only connecting link between punishment and justice. It is only as deserved or undeserved that a sentence can be just or unjust. I do not here contend that the question ‘Is it deserved?’ is the only one we can reasonably ask about a punishment. We may very properly ask whether it is likely to deter others and to reform the criminal. But neither of these two last questions is a question about justice.
Lewis argued that this theory, despite appearing merciful, would deprive criminals of their rights as human beings. The enlightened, non-retributive action, taken in response to crime would be as compulsory as retributive punishment, but not subject to the same restraints. While I hesitate to raise it to the level of human rights, I would suggest that in the education context the Humanitarian theory of punishment allows similar injustices.
Deterrence is the most commonplace, pragmatic justification for punishment. Docking (1987) observes that “the view of most teachers is that some punishment is necessary for deterrent purposes” but identifies the popularity of Bentham’s (1789) view: “But all punishment is a mischief: all punishment is in itself evil … It ought only be admitted in as far as it promises to exclude some greater evil”. A purely deterrent based system of punishment can be seen as (that most incoherent of concepts) a “necessary evil”. However, deterrents can act against justice in several ways. It is not necessary to punish the guilty to deter. Punishment of those who are thought to be guilty (“the usual suspects”) or punishment of wider groups of people than simply the guilty may also deter. Whole class punishments, in which every student in a class is punished regardless of guilt, is often a deterrent even though such punishment of the innocent is utterly unjust. If punishment was truly only about deterrence then collective punishment and victimisation of undesirable elements would be the order of the day. Similarly, there would be no reason to show restraint in punishment. If students were not deterred by a particular punishment, then there would be no reason not to increase its severity, no punishment could be unfairly harsh if there was no concept of desert to suggest the punishment needed to fit the crime. Punishment as deterrent would be more brutal and less discriminating than punishment as retribution. This, of course, doesn’t necessarily make it wrong but it does give a lie to those who suggest retributive punishment is cruel or unfair when compared with punishments given only as a deterrent.
The other proposed purpose of punishment is that of “rehabilitation”. The claim is that punishments can, in some way, reform the character of the punished. There is some truth to the suggestion that punishment can teach a lesson. Wilson (1971) suggests that punishment is educative because it consists in part of “seeing the point or rightness of the rules” as “it is because the rules are right that it hurts to break them”. Plamentz (1967) identifies punishment of young and “innocent” children as intending to “train them to `feel’ as they ought”. Peters (1966) adds the possibility that a punishment might serve as a “sharp shock” which would bring an offending student “to their senses”, breaking them out of a fantasy and causing them to contemplate what behaviour is or is not socially acceptable. Others, such as Piaget (1932), suggest specific ways of punishing that might reform. However, there are clear limits (noted by most of those named above) to the extent to which such an effect might take place. It is also less than clear that punishment is educative when it is intended to be purely educative. It seems to me more plausible that it is when a punishment consists of a clear judgement of moral fault and desert that it provides most to think about and learn from.
More importantly, without desert, there is once again no requirement that the punishment fits the crime. At the moment we see inappropriately lenient punishments (eg. a verbal warning, a day off school) that are intended to “reform”. However, particularly in light of the fact that such punishments never do reform, it would be equally justified to use inappropriately harsh punishments. If a child is being punished in order to be reformed then there is no point at which they have “done their time” and can cease being punished. The only justified punishment, even for a minor misdemeanour such as dropping litter, is one that continues until it is clear that they will never reoffend. Again, a supposedly humanitarian doctrine could be used to justify the most severe punishments.
It might seem odd that I am arguing against the principles of deterrent and reform on the grounds that it would lead to punishments that are too harsh, when normally I am complaining that punishments are not harsh enough. Actually, this all takes us back to the issue of human nature. If human beings were rarely inclined to do wrong then perhaps small deterrents would deter all wrongdoing and small penalties, of the right kind, could reform the worst offenders. The lenient punishments we currently see might be compatible with deterrent and rehabilitation if the desire to do wrong was rare and weak. The fact is that human beings are prone to doing wrong. Deterrents would have to be severe and rehabilitation extensive to prevent misbehaviour completely and there is no reason why the advocates of the Humanitarian theory of punishment should be aiming for anything less than this. The retributive approach to punishment seeks justice, it hasn’t failed if some offences are still committed. By contrast, if an offence continues to occur it hasn’t been deterred, and the offenders haven’t been rehabilitated and so, according to the Humanitarian theory of punishment there is no reason to cease punishing until reoffending becomes unthinkable. Of course, what happens in practice is that those who reject desert also fail to acknowledge what human nature is like. Then and only then, when what children are like and what can be done about it are both being ignored, do we arrive at the situation our schools are now in: a state of complete and utter denial.
Bentham, J. An Introduction to the Principles of Morals and Legislation, Collins, 1957, first published 1789
Docking, J.W. Control and discipline In Schools: Perspectives and approaches,Second Edition, Harper and Row Ltd, 1987
Lewis, C.S. The Humanitarian Theory of Punishment, Res Judicatae 6, 1953
Plamentz, J. Responsibility, Blame and Punishment, in Laslet, P. and Runciman, W.C. (eds) Philosophy, Politics and Society: Third Series 1967
Peters, R.S. Ethics and Education, Allen and Unwin, 1966
Piaget, Jean The Moral Judgement Of The Child, Routledge and Kegan Paul, 1932
Wilson, P.S. Interest and Discipline in Education, Routledge and Kegan Paul, 1971