Sunday, November 20, 2005

Should punishments fit the crime?

At the moment, I'm working on a paper dealing with proportionality. I'm arguing that, if we take proportionality seriously, we should also take informal punishment seriously, including it in the calculus during the sentencing phase.

As it stands, Canadian courts do take informal punishment into account. At least sometimes. In the case of minor crimes, the judge sometimes says something like "she has suffered enough" when deciding that no further penalty should be given. In major crimes, however, informal punishments are not taken seriously all that often. I think that this is probably a mistake.

Informal punishment differs from formal punishment by lacking a standardized processes for deciding on punishment. Informal punishment includes things like lowered reputations, loss of work, frowning, and ostracism--things that the members of the community choose to impose as punishment for what they view as an offence. Similarly, self-punishment is also a form of informal punishment. When the offender feels terrible about what she has done, she can be said to have punished herself for having done the thing in question. I suppose the courts deal with this by way of recognizing penitence and remorse as mitigating factors in deciding on punishment. I think that's right.

Extradition cases also include a proportionality clause as an upper bound. The Marc Emery case is interesting. His supporters are asking Canadians to write to Cotler saying that the penalty he would face in the U.S. "shocks the conscience." The reason for this precise wording is that, in prior extradition cases, the Supreme Court has denied extradition when Canadians would face a penalty that would "shock the conscience" of Canadians. The Court has, thus far, interpreted this clause narrowly, for all cases of torture, and some cases where the offender would face the death penalty. The Emery trial may expand this conception to include life imprisonment for a crime that would receive fines and maybe a minor term in prison in Canada. I hope they do this. But we'll see.

You should take proportionality seriously, too, but that will depend on the kind of penal theorist you are. That is, it will depend on what you see as the purpose of punishment. If you are a retributivist, then you will probably like the penalty to fit the crime on the basis of some abstract conception of what the "right" amount of punishment really is. I think this is a hopeless position, by the way, since in some cases it looks an awful lot like plain old vengeance. Cases where, for instance, we all know that punishment will not serve any further purpose. Why punish them in these cases?

An expressivist will probably take proportionality seriously only if she thinks that we are all aware of the punishment. Since the purpose of punishment is to 'express' our collective distaste for some behaviour, we will only accomplish this end if the punishment is common knowledge. Not all informal punishments will be public like this, so there may be reason to discount some cases of informal punishment if we're going to be thoroughgoing expressivists.

We might also be desert-based theorists about punishment. I guess the former two include a desert-based account as well, but there is some sense in speaking of this separately. Some think that the punishment should be enacted because this is what the offender deserves. What they deserve, exactly, will be a matter of debate. Whatever it is, however, we should probably reconcile it with other punishments, and ensure that we don't think stealing a loaf of bread deserves the rack, and throwing rocks at children gets a slap on the wrist.

Finally, and (almost) best of all, we could be consequentialist about punishment. So we'll punish just in case, and up to the point where, the best consequences arise everything considered. We'll care about proportionality only if it comes with good consequences. I think the most plausible reading of this would include a proportionality clause given the sorts of other things we believe. Like that a lot of us would be horrified by a really big sentence for a minor crime. Unless we can make everyone consequentialists (ain't gonna happen), consequentialists will have to take conventional morality seriously, which would probably include treating crimes proportionately.

We can also take a composite approach, mixing bits of all of the above. This, I think, is the best approach of all. Consequentialism, however, would take up the vast majority of the right theory of punishment for me, with expressivism and, maybe, desert-based theories following along. Retributivism, in my mind, is out altogether.

If we agree that everyone needs to take proportionality seriously, a counter-intuitive outcome might come about. This is when a serious crime is committed, and the community reacts significantly. The offender loses her job, her friends, her family disowns her, and she is generally ostracized by her community. Suppose, also, that she feels deep regret about her behaviour, and daily thinks herself the worst kind of person. Suppose also that the relevant community is well aware of all of these things, including her feelings of remorse and shame. This is a serious punishment that she has faced for her actions. Now supposing the courts do take informal punishment into account, it may turn out that her crime warrants a less severe formal response than some (much smaller) crime that escapes informal punishment.

This outcome might make some people unhappy, and disquieted. I'm trying, at the moment, to think of various reasons why this might be so. I suspect that, for one, some might worry about legitimizing informal punishments encouraging vigilanteeism. If these informal punishments are taken seriously, then maybe the rest of us will take our punishment roles more seriously. That might worry you, although it sounds like a benefit to me. We should take this task more seriously, and more regularly involve ourselves in the lives of our neighbours and fellow community-members. If we did take our roles as (informal) enforcement officers more seriously, I could see a whole slew of crimes coming off of our formally punishable list, since it would be too costly to continue meddling in the affairs of offenders who are (mostly) punished sufficiently by the community. How many times would a judge offer a really lenient sentence before the police stopped arresting people on these grounds?

Ollivia, meanwhile, suggests that we like the division of labour, and like not having to punish people ourselves, leaving that task to the judiciary and police. While that may be, I tend to be fairly communitarian, thinking that this burden, if we took it up more significantly, would lead to better outcomes through more integrated and aware neighbours and friends. If it's a burden, so be it.

That's where things sit at the moment.


Blogger Rob Leone said...

Peter, this is an interesting topic, and it would be an interesting paper to write about. I hope I/we get to see the final result.

One thing that struck me is that you say, according to the retributivist, there is "some abstract conception of the "right" amount of punishment..." At the same time, isn't informal punishment as much an abstract concept on punishment? It appears that we have a clashing of values between the retributivist and the proportionalist on what is the right amount of punishment. We don't know.

Furthermore, how can a community truly know the remorsefulness of a person who committed a crime, or how shamed he/she feels about the punishment inflicted by the community? Of course, by asking this question we are shifting the focus from punishment to remorse. Both formal and informal punishment must deal with this. However, it appears that the proponents of informal punishment want to look at remorse as a primary objective.

I would argue that discovering the "right" amount of remorse and embarrassment is much more difficult than finding the "right" amount of punishment. Finding the "right" amount of punishment generally correlates with the severity of the crime collectively defined, such that the more severe the crime, the greater the incarceration period. But this is difficult for informal punishment to consistently establish.

How do we measure remorse and embarrassment? People show remorse and embarrassment differently. You can't measure it. You can't say a person cried x times, went to confession, received fewer phone calls and E-Mail messages by friends, tarnished reputation, etc. and determinately say that the person has shown enough remorse for effective informal punishment. People like measurement. They like definition, even if defining abstract terms is philosophically difficult.

Because of this, I think defining punishment, either formal or informal, is a community exercise. By collectively defining formal punishment, the community is saying that this is the punishment we want to inflict. People are more at ease with formal punishment because it is easier to define, and they believe that it is equally applied. This is probably where people's feelings toward the rule of law manifest.

Formal punishment must always be the benchmark and the safeguard. So I disagree with you that we can move more crimes off the formal punishment list. I suppose that should come as no surprise to you.

That's my initial thoughts anyway. I could be way off on this one.

12:25 a.m.  
Anonymous ollivia said...

you give too much credit to the human spirit, peter. most criminals, i'd submit, don't give a shit if their community is angry with them for committing a crime. if informal strictures worked, we shouldn’t have criminals or at least very few, as those same disincentives that you suggest as punishment would work as deterrents.

11:55 a.m.  
Blogger Michael Cust said...

You associate the retributivist position, making whole a wrong done, with vengeance and then dismiss it, in effect assuming vengeance is wrong.

What is unjust about vengeance? There is no consensus that vengeance is wrong. It's not clear that persons in contemporary Arab countries or 18th England would agree with dismissing vengeance out of hand. Arguably, the judicial systems of both times and places practice(d) it, either by cutting off one hand of thieves or hanging thieves, respectively.

What is vengeance? I understand it to be the infliction of punishment in return for a wrong committed. (That's broad, I know.)

What you likely mean by it is either a) too much punishment (by some standard or other) or, more likely, b) punishing for sadist reasons, or c) both.

I propose to defend (b), since (a) is largely meaningless (by my account).

Think of Hobbes' social contract. (Warning: I slightly misrepresent Hobbes here, but what's more important is that what follows is the theoretical underpinning of my argument.) Our right to be free from force and fraud is contingent on our respect of the similar right of others. Once that respect is breeched, the victim and her violator return to the state of nature, and, as such, the victim may use any and all the advantages of warre in either self-defence, or later the juror might use whatever advantages she deems necessary in meting out punishment.

This implies that, where Jones attempts to steal a candy bar from Thompson's corner store, Thompson may take his shotgun from under the counter and, presuming he is certain Jones is guilty and no innocent bystanders are present, fire.

Before you think I've gone loopy, bear with me.

Think of that woman in Texas you posted on earlier. A man entered her home to hide from police in her closet. How did she react when she found him? She shot him in the leg. All he did was trespass, a minor breach of rights, yet you did not get offended at her use of near lethal force. Nor would most people (especially most women).

Now, what punishments we as a society decided to level against criminals are another matter, enter retributivist, consequentialist, or whoever. My point here is that, in general, vengeance, or unlimited violence, as punishment is, in principle (at least), defendable.

3:22 p.m.  
Blogger P. M. Jaworski said...


I do dismiss vengeance, but not for any particularly good reason. I suspect, for one, that the costs involved for the benefit (that of vengeance) are going to be too high. I have no 'in-principle' objection to vengeance, though, it seems fine enough.

I think, however, that there really is a consensus among, say, punishment theorists and high-minded philosophers (ahem) that vengeance is not a civilized thing to pursue as a policy. I just think it costs too much.

You give the example of Ol' England and some Arab countries. I wonder to what extent, however, the acts that you cite were done with a deterrent effect in mind, and what part was done for vengeance. If, for instance, no one were to know about the act, would they still do it? I suppose they would, but maybe they wouldn't be so eager. I'd be curious to hear how they would justify the acts themselves, and whether they would cite other things besides vengeance as primary, or significant contributing factors. So it's a mixed example you give.

You say vengeance is "the infliction of punishment in return for a wrong committed. (That's broad, I know.)"

It is broad, but it also misses giving a good enough definition. We have to give an account of why the punishment is given to capture vengeance. If the punishment is given for punishment's sake, with no view to, say, deterrence, rehabilitation, or whatever, then that is vengeance. Vengeance is punishment for a perceived wrong done for the sake of punishment.

Then you write about Hobbes. You say that the victim and the violator return to the state of nature. That's not right on Hobbes' account. Once we're out of the state of nature, we have agreed to hand over the task of punishment to the Leviathan. So we don't return to the state of nature unless others refuse to seek peace and follow it, and likewise do not give up their right to punish and the advantages of warre (sic).

I put to you that your example of Jones shooting the guy for stealing a candy bar would only be 'vengeance' if it was done for its own sake. I bet, in most cases, Jones probably thinks he'll deter others this way, and maybe get a bit of vengeance on this thief in the process. We probably wouldn't like this very much, but that will depend on the background norms and conventions of morality operant in the background of your example. Since you're providing it, you get to stipulate the background conditions as well. So I'm not sure if you'll like this response.

Then you cite the woman in Texas who I approvingly put up on my blog. She shot some dude for hiding from the police in her closet. You say that this is a good case where she was taking vengeance. I say that this is not what was going on. I doubt the woman knew the man was just hiding from the police. In fact, she says that she was worried about him maybe doing terrible things to her and her daughter (?). Something like that, anyways.

If, however, she knew the guy was just trespassing, meaning no one in her home any harm, then maybe her shooting him would be egregious and something I would disapprove of (unless, of course, she tells him to leave first, threatens to shoot him, and he refuses. Then shoot away.

You conclude by saying that vengence and excessive force is defensible in principle. I don't think I disagree. In principle, we probably can defend this view. However, in the case of a judicial system, or principles set down to inform a system of justice, we probably should take proportionality seriously and should not take vengeance as a guiding principle in any way.

On another note, we should probably start to update the website more frequently. Especially since I still get Google News Alerts about it, and because things will start up again soon, I bet.

9:17 p.m.  

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