On Criminal Law–Theories of Punishment
July 22, 2009
In my criminal law class at law school, we discussed four basic theories of “why we punish”: deterrence (“to keep them from doing it”), incarceration (“to keep those who do it away from us”), rehabilitation (“to help them stop doing it”), and retribution (“because they deserve it”). Any punishment should fall in line with your basic theory of punishment.
It seems to me that each theory of punishment, when applied and examined, ends up needing such a degree of retribution as justification that retribution may be said to be the primary theory. Deterrence is probably the most commonly-held theory in America, but if deterrence is our primary motivator, we should chop the hands off of teenage shoplifters; that would deter! We don’t do that because we don’t think they deserve to have their hands chopped off. That punishment strikes us as cruel and unusual in comparison to the weight of the crime. I find incarceration equally problematic (we could lock up criminals indefinitely), and rehabilitation is foolish because it doesn’t (can’t?) work. Ultimately, the other theories lead to obvious injustices unless they have retribution as a foundation, notwithstanding critics that claim the retributive theory is too “vengeful.”
One of the best explanations of the problems with the deterrence and rehabilitation theories is C.S. Lewis’ essay, The Humanitarian Theory of Punishment. In the essay, he argues:
[With respect to] the deterrent justification of punishment we shall find the new theory even more alarming. When you punish a man in terrorem, make of him an ‘example’ to others, you are admittedly using him as a means to an end; someone else’s end. This, in itself, would be a very wicked thing to do. On the [retributive] classical theory of Punishment it was of course justified on the ground that the man deserved it. That was assumed to be established before any question of ‘making him an example arose’ arose. You then, as the saying is, killed two birds with one stone; in the process of giving him what he deserved you set an example to others. But take away desert and the whole morality of the punishment disappears. Why, in Heaven’s name, am I to be sacrificed to the good of society in this way?—unless, of course, I deserve it.
. . . .
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. Thus it appears at first sight that we have passed from the harsh and self-righteous notion of giving the wicked their deserts to the charitable and enlightened one of tending the psychologically sick. What could be more amiable? One little point which is taken for granted in this theory needs, however, to be made explicit. The things done to the criminal, even if they are called cures, will be just as compulsory as they were in the old days when we called them punishments. If a tendency to steal can be cured by psychotherapy, the thief will no doubt be forced to undergo the treatment. Otherwise, society cannot continue.
. . . .
Of all tyrannies a tyranny sincerely exercised for the good of its victims may be the most oppressive. . . . Their very kindness stings with intolerable insult. To be ‘cured’ against one’s will and cured of states which we may not regard as disease is to be put on a level with those who have not yet reached the age of reason or those who never will; to be classed with infants, imbeciles, and domestic animals. But to be punished, however severely, because we have deserved it, because we ‘ought to have known better’, is to be treated as a human person made in God’s image.
. . . .
[I]f crime and disease are to be regarded as the same thing, it follows that any state of mind which our masters choose to call ‘disease’ can be treated as a crime; and compulsorily cured. It will be vain to plead that states of mind which displease government need not always involve moral turpitude and do not therefore always deserve forfeiture of liberty. For our masters will not be using the concepts of Desert and Punishment but those of disease and cure. We know that one school of psychology already regards religion as a neurosis. When this particular neurosis becomes inconvenient to government, what is to hinder government from proceeding to ‘cure’ it? Such ‘cure’ will, of course, be compulsory; but under the Humanitarian theory it will not be called by the shocking name of Persecution. . . . Even if the treatment is painful, even if it is life-long, even if it is fatal, that will be only a regrettable accident; the intention was purely therapeutic. In ordinary medicine there were painful operations and fatal operations; so in this. But because they are ‘treatment’, not punishment, they can be criticized only by fellow-experts and on technical grounds, never by men as men and on grounds of justice.
This is why I think it essential to oppose the Humanitarian theory of punishment, root and branch, wherever we encounter it. It carries on its front a semblance of mercy which is wholly false. That is how it can deceive men of good will. . . . The older view was that mercy ‘tempered’ justice, or (on the highest level of all) that mercy and justice had met and kissed. The essential act of mercy was to pardon; and pardon in its very essence involves the recognition of guilt and ill-desert in the recipient. If crime is only a disease which needs cure, not sin which deserves punishment, it cannot be pardoned. How can you pardon a man for having a gumboil or a club foot? . . . This means that you start being ‘kind’ to people before you have considered their rights, and then force upon them supposed kindnesses which no one but you will recognize as kindnesses and which the recipient will feel as abominable cruelties. You have overshot the mark. Mercy, detached from Justice, grows unmerciful. That is the important paradox.