Judicial punishment is the curious idea that individuals deserve to be punished by the state for breaking its laws. Intellectually this is rather counter-intuitive. If crime is so bad because of the social trauma it causes then setting out to hurt more people would seems a strange way to make things better. There are intellectual arguments for retributive punishment of course, many of them rather ingenious. But they have the look of post hoc rationalisations for a brute social fact: it just so happens that we like making wrongdoers suffer.
The modern criminal justice system – bloated and terroristic – is the product of government expansionism combined with this societal vindictiveness.
In theory there are great advantages to having the state administer criminal justice, i.e. acting as prosecutor and punisher rather than merely providing an impartial judge (as in older, less statist justice systems). In particular, by ensuring some baseline of fair treatment for less powerful victims and defendants. However, in practise state fairness is far from guaranteed. For example, it is a well-studied fact that young African-American men - a minority stereotyped as especially liable to criminality - receive systematically biased treatment at every stage of the criminal justice system: more likely to be stopped by government agents, to be arrested, to be charged, to be charged with a higher crime, to be denied bail, to be found guilty, and to be sentenced to a harsher punishment.
This is not the only way that the state's takeover of criminal justice goes awry. By converting crime from a relationship between victim and perpetrator to a relationship between a criminal and the state it has justified a vast expansion of what is criminalised and of the severity of punishment. The problem of crimes such as rape is no longer primarily understood as harms to specific people that need to be solved, but as offenses against society's laws that need to be punished. What is at stake is the dignity of society, and it is to be defended by a government always happy to take on new powers. And even if the government tries to relent it is driven onwards by our collective moral indignation, for this is politics now not morality. The interests and wishes of the actual victims of crimes play almost no role in this political dynamic.
Thinking of crime as an offence against society also drives a transition in what criminal justice is for. The problem to be solved is no longer the crime itself, but the criminal behind it who has shown himself to be an enemy of society. Even so, the true goal does not appear to be rehabilitation. Besides being a very inefficient – socially expensive – means of hurting people (something I've discussed elsewhere), the mental suffering of prison does little to advance the supposed moral goals of criminal justice. Locking millions of people into squalid little boxes for years on end and stopping them getting a job even after release doesn't make much sense as a justice programme. Not unless you fill in its real motivation: the desire to mark and hurt the enemies of society.
Consider the idea that the judicial infliction of suffering deters people from doing evil to others, or at least highly anti-social acts (like not paying your taxes). the rational calculation of self interest is thus supposed to substitute for a moral sense for people who don't have one. There is something to this, but not nearly enough. After all, the overwhelming majority of the people in prison are not cunning fiends who profited from their misdeeds, but sad losers whose dysfunction should inspire pity and our help. As the sociologist Sudhir Venkatesh memorably put it, crime pays so badly that most crack dealers live with their moms. The majority of prisoners are there precisely because they lack the practical reasoning skills to be deterred, or else their life outside prison was not worth very much to them.
Then there is the idea that punishment is directly rehabilitative, that it teaches respect for the moral rights of others in the only language – pain – that these amoral brutes understand. This kind of punishment-based behavioural conditioning is so bizarrely out of date that it isn't even used for training animals anymore. Clickers work much better.
But there is a deeper incoherence to trying to teach morality with extrinsic incentives. The punishment approach attempts to teach respect for others through the strange device of inflicting suffering on the criminal. The prisoner is thereby directed to reflect on his imprudence not his moral failure, to regret his crime only because it has brought such harm upon himself. Prison thus functions, at its very best, in the same amoral way that hell does in some of the sillier religions.
The last argument for prison is fear. Governments routinely declare that only prison can protect civilian society from genuinely dangerous characters such as violent psychopaths. Yet there are relatively few such people and their essential characteristic – their compulsive attraction to violence – means that they respond particularly poorly to punishment, whether intended as deterrence or rehabilitation.
Moreover it is in exactly such cases that prison sentences determined by what a particular kind of crime deserves will be inappropriate. They will be backward looking, based on the quality of the crime, when the problem the psychopath poses is his propensity to future violence. Some American states tried to bridge this by declaring that some crimes or patterns of crimes deserved life sentences without parole. For example, committing 3 felonies of any kind. The attempt to protect society from a few genuinely dangerous characters using the absurd logic of retributive punishment created the world's biggest prison population, in which a person could receive an automatic life sentence for stealing a pair of socks.
The criminal justice system should return to its roots – a broader concern with solving crimes rather than exacting vengeance on criminals. Concepts such as restorative and distributive justice should be an important part of that. These see crime as a problem for society to solve together rather than a person to be punished by the state. Most criminals are people who need mending, not further marginalisation. Most victims – and a great deal of crime has no victim but the state – would be more satisfied in the long run to be a part of a process of restitution than to be observers of a government run retribution programme.
For example, it seems eminently more fitting and more constructive for the fraudster who embezzled old people's savings to be sentenced to work two days a week in a nursing home kitchen rather than to increase the amount of suffering in the world (and direct taxes away from the care of the elderly!) by sending him to prison to ‘pay his debt to society' by waiting for time to pass.
Similarly, the moral rehabilitation of criminals should be concerned with bringing criminals to reflect on the wrongness of what they have done and the harms they have inflicted on others. That is a rather different project than hurting criminals to encourage them to become better calculators of the costs and benefits of crime to themselves. Punishment should fit the crime in such a way that it teaches a moral lesson that goes beyond mere suffering. The fraudster working in the nursing home is likely to learn much more about the wrongness of what he did, and the rightness of being punished for it, by helping the (kind of) people he harmed than by surviving the peculiar hell of living in a small concrete room for 5 years. Being required to make amends by helping people within one's normal life fosters wider and deeper moral self-reform than living in a specially constructed total institution, a colony of hundreds of other nasty people patrolled by club-wielding guards.
The ascendancy of the retributive punishment paradigm is so complete in modern societies that it is hard to recognise its cruelty and moral absurdity, let alone to imagine an alternative. It is not really an idea to be argued out, or a policy to be reformed, but an attitude that must be overcome by progress in our social relations and emotions. Can we find a way to continue to care even for those who do the most despicable things? Can we give up the pleasure of exacting retribution for our moral indignation at the crimes suffered by other people? Can we cope with the demanding complexity of crime solving rather than the simple abstraction of criminal punishment?