how there might be no “problem of punishment”

Should we think that punishment, because it involves intentionally inflicting harm without consent, is defeasibly impermissible (much like it is defeasibly impermissible, at least in private life, to initiate coercion against other people)? I suspect not, for a very simple reason: not intentionally inflicting harm on others (without their consent) might well not be the relevant sort of basic, defeasible duty that would play this role. Here, then, is another, better candidate: people having a basic moral right not to be gratuitously harmed by others. Why is this candidate better? That is a complicated question, but I’ll say two things. First, for me — and maybe for you — it is more intuitive (brutely, but also because it covers more ground, more cases). Second, it better comports with the following principle (based loosely on what Thomas Scanlon says in the first two or three chapters of his MORAL DIMENSIONS): the essential basis for the moral-permissibility-status of actions does not include the intentions or motivations of the agent (though in special cases such features are included).

If my suggestion here is right, then the Boonin-style sweeping argument against punishment does not work. One would have to argue something like this: the harms of punishment are — or perhaps usually are and should be presumed to be — gratuitous. That is a tall order. My conclusion is that there is no “problem of punishment” (or, if there is, it is really not much of a problem, at least not until someone demonstrates either a strong-enough thesis about punishment and gratuitous harm or that the fundamental duty here is definitely one of not intentionally harming others without their consent).

8 thoughts on “how there might be no “problem of punishment”

  1. That argument against Boonin doesn’t work. His argument doesn’t depend in any essential way on the claim that the infliction of harm is a defeasible norm. He defines punishment as the deliberate infliction of harm for an offense, then argues that no theory of punishment passes two hard-to-argue-against tests. From the NDPR review:

    The book contains five chapters. In the first, Boonin defines the notion of legal punishment the justification of which is at issue. The problem of punishment is to explain why state officials are morally permitted intentionally to harm people who violate just and reasonable laws. He contends that a successful solution to the problem must pass two tests. Under the foundational test, a solution must rest on only morally acceptable principles. Under the entailment test, a solution must establish the moral permissibility of punishing offenders and the moral impermissibility of punishing non-offenders.

    https://ndpr.nd.edu/reviews/the-problem-of-punishment/

    I don’t see how your proposal weakens or even engages Boonin’s argument. His argument doesn’t require that he give a positive argument for the claim that people defeasibly deserve not to be harmed, or that they defeasibly deserve not to be gratuitously harmed. Suppose that they deserve not to be gratuitously harmed. The fact remains that if no theory can explain why wrongdoers should be intentionally harmed, the harm/gratuitious harm distinction doesn’t matter. If no theory can explain why anyone should be intentionally harmed for the sake of punishment, no theory can explain why they should be gratuitiously harmed for the sake of punishment. Every case of punishment will turn out to be a case of gratuitous harm by virtue of inflicting unjustified harm.

    I think it’s nearly self-evident that punishment constitutes a problem of some kind, and I’m baffled by your contrary suggestion. Define “punishment” in any plausible way you want. Call this P. Surely we can ask why P is justified. By a familiar dynamic, we either get an answer or no answer. If we get none, we have no justification or we have self-justification. If we get one, it’s either a repetition of P, a further proposition (or set), or an infinity of them. A repetition is a circle, and an infinity can’t justify. So unless P is self-justified, then the regress that P sets off is the problem of punishment.

    I suppose P might be self-justified, but anyone making that claim would have to defend some form of intuitionism to distinguish what they were doing from merely asserting a blank dogma. They would then have to claim that P was one of our self-evident intuitions, distinguished in such-and-such a way from being a mere dogma. But that view is vulnerable to the counter-claim that it’s self-evident that P isn’t self-evident. We may find that it’s somehow epistemically or normatively basic, but it isn’t self-evident in the sense of being literally evident to anyone who reflects on it.

    This just looks to me like a fallacious appeal to ignorance:

    My conclusion is that there is no “problem of punishment” (or, if there is, it is really not much of a problem, at least not until someone demonstrates either a strong-enough thesis about punishment and gratuitous harm or that the fundamental duty here is definitely one of not intentionally harming others without their consent).

    You seem to be saying that S’s simply asking why p is justified requires S to assert and defend some other proposition q as a condition of asking her question about p. I don’t see why, so to speak. You get a problem of punishment off the ground if you just reflect on what punishment is, and ask why it’s justified. Problem solved–by being created.

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    • It is entirely possible that I have not addressed any argument from Boonin. My impression, though, was that his, and other, arguments (to the effect that there is sufficient prima facie reason to believe that punishment — of wrongdoers, of those who break reasonable and just laws — is impermissible, unless strong reasons are adduced otherwise) depend on appeal to a duty not to inflict intentional harms on others (without their consent). Maybe I’m responding to a too-quick, bastardized version of (a strand of) Boonin’s argument? I’m perfectly happy to leave Boonin out of it and simply challenge this premise in (what I took to be) a standard, quick argument against punishment being morally permissible. Independently, it just seems interesting and important to answer the question of what duty would be violated in some, all, or most punishment being morally impermissible. Though I did frame matters in a bit of a provocative way, may main aim is to explain stuff, not win arguments. Still somewhat on the fence, but leaning toward reading the Boonin book after reading and mulling over the NDPR review.

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    • Another relevant point: I’m interested only in evaluating whether or not punishment is morally permissible. To say that punishment is justified is to say more, viz., that punishment is permissible and that (in this or that context) some agent or institution has more reason to mete it out than not. It seems right that Boonin’s focus is the latter, conjunctive claim.

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      • That strikes me as a distinction without a difference. What would follow by way of action-guiding prescriptions if punishment were “permissible” but literally no one one had more reason than not to impose any? In general, “punishment is permissible” is taken to mean that it is permissible in some cases to impose punishments.

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        • There are some analyses of permissibility according to which, if PHI-ing is permissible, then one has (significant, non-trivial) reason to PHI. I disagree at least with the standard (in my view, discredited) view that has this result: the idea that X’s A-ing is permissible just in case (and because) A-ing is tied-for-best with other options in X’s set of alternatives.

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  2. I have a question. Is any penalty under criminal law by definition a punishment? Would that be really honest and sensible? I read the NDPR review, though that does not seem to help with my question. The reason this question became salient for me is because a friend of mine since around 1980 has been in federal prison for nearly nine years now (nine was his sentence), and Walter and I have become familiar with particulars of his crime and sentence. What is going on, it seems to me now, is that although nominally he is being punished and rehabilitated, and while those would be what was likely most talked about in passing the criminal statutes, those aims are simply not the really big thing being aimed at and attained, which is the simple thing of protecting the public from him. (He of course does not think the public needs any protection from him, but that’s not the way the law sees it and anyway presumes for any such criminal.)

    He is now in his 70’s. He committed a sexual offense. He allowed his home to be used by a younger man (bisexual, in his late 20’s, and apparently a con man) to make a pornographic movie. The performers were that con man’s girlfriend (early 20’s) and a man who was a friend of the con man. That last man was really only 15 years old. Hence, the bundle of crimes.

    That all happened in Florida, and when my convicted friend was in his first prison, it was near Orlando, and Walter and I drove down to visit him in there. This friend is very smart and had been a very accomplished pianist (he could play Liszt). Through these years and the sequence of prisons (Low security, not Minimum), he has been amazingly resilient in spirit, it has seemed to us through our email communications with him.

    About a year ago we offered to keep him here at our home in Virginia during the initial year or so of his probationary period. So the man who would be his probationary officer (two hats really, law enforcement and social worker) came to inspect our place and for us all to get all our questions answered. That was when we saw that the special conditions the judge had attached to the probation were vast, and that the total probation time after prison was 25 years. My friend had effectively received a life sentence. He would never really be free again—in movements, computer communications, or in-person sociability.

    Because of our home layout and my computer and most of my books needing (my “need” for this great work environment) to be in the common area, and them therefore being subject to warrantless search and my computer being taken away by the FBI, we withdrew the offer. Some months later, I ended up severing the friendship altogether, as our friend, after also being rejected by his two sisters, began to urge us to reopen the offer, and he began to greatly misrepresent what would be the probationary situation, starting to sound like a con man. So that was it.

    The cost of all those legal interventions must be enormous. Anyway, I couldn’t help but have a new perspective in which, yes punishment, yes rehabilitation, but mainly forever and day, keeping the criminal separate from potential victims. And it sure strikes me that is not something to be thought of as punishment. Perhaps Boonin or other theorists also conceive of legal punishments such that that aspect would not be part of punishment. But the thing that strikes me now, having had this experience, is that this simple thing—protecting the public in the future against the convict—is not a secondary thing. It’s the main thing going on.

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    • Thanks for that, Stephen. Sorry (I guess) to hear that your efforts in helping your friend (ex-friend, I guess) were not workable. The overall punishment here seems quite excessive and unfair (but this is no surprise in our justice system).

      On one standard definition of punishment, if there is penalty (intentional inflicting of harm without consent), then there is punishment. I accept that sort of definition — it seems adequate enough to the phenomenon.

      I would say this: if imposing the penalty is taken to be “it’s own end” (or valuable in itself), then the punishment is (subjectively) justified in a retributive way. If it were (subjectively) justified solely by reference to rehabilitation, deterrence (of the offender or of others generally or both), or incapacitation (the function of punishment that is striking you as the main one, at least in the case of your friend/ex-friend, then the punishment would be characterized as serving only one of these (valuable) ends. Typically, state punishment is taken to serve all of these ends to some extent, including the retributive one. Long prison sentences and lengthy parole with significant restrictions does speak to incapacitation as a main end.

      However: some folks would deny that punishment has to involve intentionally inflicting harm (without consent). I think Irfan is one of those folks. Maybe, on an alternative definition, what I just expressed could simply be expressed in a slightly different way. But maybe, if the definition is different, we get a more radical “reorganization” of our conceptual scheme (and the claims we make with it)? At a minimum, “Rand’s Question” is a live issue.

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    • That’s an interesting story that invites comment at many levels, but your primary question has both a simple answer and a more complex one. Your question is:

      I have a question. Is any penalty under criminal law by definition a punishment?

      The answer is made complicated by the range of definitions of “punishment” in the literature (and in use). The very broadest definition would treat any compulsory imposition of a convict as a punishment, but that is not the standard use of the term, and it’s also not one I find justifiable. In that case, the answer to your question would “yes,” but I don’t regard that as a sensible answer.

      The very narrowest definition, of the sort employed by Boonin, asserts that punishment is the deliberate imposition of harm on the offender in response to his having committed an offense. This definition is so narrow that it excludes any compulsory imposition, no matter how severe, unless that imposition deliberately aims to harm the offender, and has no further purpose (or least no fundamental purpose) besides that. So Boonin-punishment excludes incapacitation, deterrence, rehabilitation, and compensation. On Boonin’s definition, the answer to your question would be “no,” which seems a more sensible answer than “yes,” but not quite right, either.

      The more widely accepted understanding of punishment is closer to Boonin’s than to the very broad one, but not quite as narrow as Boonin’s. Boonin’s may be overly narrow, but I think it does capture the root idea of punishment. It can then be altered (and usually is altered) to include whatever else one wants to include in punishment beyond imposition of harm for harm’s sake. It is obvious (I think) that intending to harm someone is punitive. What is less clear is whether imposing a penalty on someone to incapacitate, deter, or compensate is likewise punitive (where the primary aim is not simply to harm, but something else). This is a judgment call, and precisely what makes your question so hard to answer. That said, it seems to me that when all is said and done, the answer remains “no.” Punishment is narrower than just any compulsory legal imposition, but probably broader than merely harming for its own sake.

      Personally, I think rehabilitation (including compulsory rehabilitation) is clearly not punitive, even if it’s very unpleasant or arduous. I think it is simply a different aim of the criminal justice process altogether from punishment. Rehabilitation (including rehabilitation of sex offenders or drug users) is a case in which the criminal justice system in effect appropriates the aims of another profession, the mental health profession, and transforms it for its own purposes. My own view is that when this is done, it absolutely must not be done so as to literally change the aim of the appropriated profession to the opposite of its actual aim. It’s almost an axiom that mental health, as a profession, does not aim to harm patients. So it can’t be conceived of as aiming to harm people simply because it’s used in the criminal justice system to rehabilitate offenders. From my perspective, however we define our terms, it’s essential that we not define them so that mental health as used by the criminal justice profession becomes an instrument of harm. There are many ways of preserving that basic claim, some better than others. But that happens to be bedrock for me.

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