Non-retributivist justifications of punishment

[Music] Hi, I’m Barry Lam, associate professor of philosophy at Vassar College, and the producer of Hi-Phi Nation, a show about philosophy that turns stories into ideas. In this video, we’ll examine whether legal punishment can be justified in terms of what wrongdoers have consented to, or what promotes social good, rather than in terms of what they deserve. When Emma’s teenage son John got his driver’s license, he caused two accidents in the first month. It was important to John’s sense of freedom to keep driving, but Emma worried about his safety, and the safety of others. So she made a deal with him. He could only drive with her for the next month, and if he didn’t break any laws or cause any further accidents, he’d be free to drive on his own. If he violated the agreement, no driving at all for two months. John took the deal, but immediately broke it by sneaking out to drive alone. Emma took away his driving privileges. John snuck out again. This time Emma grounded him for a month. These were punishments. But were they justified? One justification for legal punishment appeals to a social contract, where punishment is justified when it’s part of a legitimate contractual agreement between citizens and their government. In America, for example, the government recognizes rights and freedoms granted to citizens, including freedoms to engage in risky activities, like driving. In return, citizens agree to comply with laws keeping people safe. As part of this contract, if the government fails to protect citizens’ rights and freedoms, citizens are permitted to replace the government. If citizens fail to follow laws, the government has the right to punish. As with all contracts, if the agreement is set out in advance between free and consenting parties, the terms are binding. Consequently, the government is justified in punishing lawbreakers because this is what they consented to. Does this account justify John’s punishments? John’s deal with his mom looks like a contract. He didn’t keep his end of the bargain, so he was punished as agreed to in advance. But when we look deeper, there’s a lot to question. The basic problem is that all the power in this relationship lies with his mom. Could John really have rejected the deal? If the terms were unreasonable, like John could only drive after he got straight As and ran 5 miles a day, what choice would John have but to agree to those terms too? If you can’t say no to a deal, can you really consent to it? Second, what about the grounding? John never agreed to that. Yet he appears to have no choice but to accept it. One of the basic tenets of contracts is that if one party violates the terms, the other is no longer bound by them. When Emma escalates the punishment, it seems she’s breaking her contract with John. But John has no recourse. As a minor he can’t reasonably overthrow his parents and find a new home. All he can do is accept the terms. So, if the agreement wasn’t entered into freely, and John can’t hold Emma accountable when she violates it, it doesn’t seem like a legitimate contract. Therefore, Emma can’t justify the punishment as the outcome of a binding contract. Similarly, most of us don’t freely and consensually enter into a contract with our government — at least not explicitly. We can’t easily leave the country or directly negotiate the terms of the deal. Generally, we just have to accept the laws. How can such a contract justify legal punishment? Maybe it can’t. A different justification for punishment comes from viewing it as a tool for social engineering. Emma is trying to give John reasons to comply with safe driving rules, for his own protection and the protection of others. When his own safety isn’t enough to disincentivize dangerous driving, removing his driving privileges might be. Emma just needs to figure out which incentives work. But in the real world, this can be quite challenging. While John’s active social life makes grounding him a reliable way to discourage his rebellious activity, Emma has found that grounding is much less effective for Angela, John’s more introverted sister. If Emma wants to dissuade Angela from breaking rules, she knows to threaten Angela’s video game privileges -- a punishment that’s proven less effective for John. Apparently, getting the desired outcomes depends on the ability to tailor punishments to particular people. For the government, this would mean creating an elaborate system of fines and prison time carefully designed to disincentivize a wide range of individuals who vary greatly in circumstances and personalities. It’s challenging enough for Emma, as a parent, to figure out effective punishments for her own kids! Is it feasible to implement anything close to such personalized punishments at the state level? Another challenge comes from the real world relationship between criminal sentences and the size of the prison population. Social engineers claim that a harsher sentence means a stronger disincentive to commit crime, which should lead to a smaller prison population. In reality, we’ve got more people spending longer in prison. The problem may lie in the theory’s basic assumptions. The theory assumes that people respond to incentives in their own self-interest. However, people often are short-sighted and act against their own interest. Another assumption is that the people engineering the punishments understand and share their citizens’ most important values, and can implement these effectively. But policies are often based on incomplete or incorrect information -- even worse, they often reflect and exacerbate systemic injustices. When criminal activity is driven by desperate social conditions or a lack of opportunity and hope, policies that focus on punishing crimes without addressing underlying conditions are risky. They risk not only being ineffective, but creating vicious cycles of despair. And when policymakers fixate on disincentivizing certain crimes, they can escalate punishments without considering the disproportionate effects on different social groups. This can increase injustice and civil unrest. These real problems have real costs. If we’re going to spend billions of dollars imposing an intricate system of punishments and taking away people’s freedoms and rights -- and justify it as a way to improve social outcomes -- we should pause and ask: Is it working? [Music]