Punishment

Consensus Definition of Punishment

The term punishment is used in a variety of contexts. People reference the state's “punishment” of criminals, but they also reference the “punishment” of children by parents and teachers. The term is also used to denote severe handling or treatment, such as that endured by boxers and soldiers. Even extreme heat or cold can be described as “punishing.” Within the context of criminal justice, however, the term is used to signify a particular sort of state behavior. Most commentators have agreed that punishment is both aversive and state-sanctioned. Thomas Hobbes described it as an evil imposed by public [Page 363]authority; Cesare Beccaria noted that punishment is not an act of violence of one individual against another but is inherently public, necessary, proportionate to the crime, and imposed under law. In his “Prolegomenon to the Principles of Punishment,” H. L. A. Hart outlined a jurisprudential definition of punishment by identifying five characteristics: (1) It must involve pain or other consequences normally considered unpleasant; (2) it must be for an offense against legal rules; (3) it must be of an actual or supposed offender for his offense; (4) it must be intentionally administered by human beings other than the offender; and (5) it must be imposed and administered by an authority constituted by a legal system against which the offense is committed.

Many scholars also agree that stigma is another essential aspect of punishment. While a hospital patient may be quarantined for the same duration as the prisoner who serves a criminal sentence, there is condemnation inherent in the detention of the criminal.

The Moral Justification of Punishment

Although a handful of scholars have argued for the wholesale abolition of punishment, most systems of law incorporate mechanisms of its administration. What most philosophers, jurists, and legislators have debated is not whether punishment is justifiable, but on what basis it is justified. Two fundamentally different, and often conflicting, rationales have been advanced: consequentialist theories (that is, utilitarian bases of punishment) and nonconsequentialist theories (that is, retributivist bases of punishment). Consequentialist theories are prospective and instrumentalist, whereas nonconsequentialist theories are retrospective and intrinsicalist.

Consequentialist Theories of Punishment

Consequentialist theories of punishment focus on future crimes. As far as consequentialists are concerned, a crime, once committed, is finished. While steps can be taken to ameliorate its effects, the crime itself cannot be undone. Thus, the proper aim of punishment is the reduction of future crimes. In the Protagoras, Plato argued that when punishing, authorities do not punish a man for past wrongs unless they are wreaking blind vengeance. Instead, he argued, rational men inflict punishment to prevent future offending. Cesare Beccaria shared this view. In On Crimes and Punishments, Beccaria argued that the end of punishment is to prevent the criminal from inflicting additional harm and to prevent others from committing like offenses. Perhaps the best known of the consequentialist theorists, however, was Jeremy Bentham, who in The Principles of Morals and Legislation devised an elaborate hedonic calculus of pleasure and pain. Bentham aspired to create a system of laws that maximized the greatest good for the greatest number of people. Crimes were evils that caused suffering to their victims and rational laws were a mechanism to minimize them. However, Bentham also cautioned that punishment is also a pain, and he urged legislators to weigh the benefits of reduced crime rates against the costs of increased punishment. It is possible, he warned, to overpunish and to create unnecessary suffering in the world. Excess or useless punishment is an evil to be avoided.

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