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The Case Against PunishmentReview - The Case Against Punishment
Retribution, Crime Prevention, and the Law
by Deirdre Golash
NYU Press, 2006
Review by V. Prabhu
May 12th 2009 (Volume 13, Issue 20)

As the title suggests, this book argues against the theory and practice of punishment. Punishment is one of the difficult issues to discuss. Punishment, in one form or the other is quite prevalent in our society. In the earlier days the reason for punishment was through the divine sanction, and more recently, we have competing/complementary theories subscribing to one or the other form of punishment with their own reasons. But, not much questions were raised as why punishment at all? Here, Deirdre Golash is trying to raise this issue of why there needs to be punishment at all? With this interesting question, she sets the tempo for the rest of her book, which makes the reading interesting as well as insightful. From philosophers to criminologists to lawmakers to social theorists, there is no doubt, that there will be many takers for this book.

Punishment is defined on one law website as, "Some pain or penalty warranted by law, inflicted on a person, for the commission of a crime or misdemeanor, or for the omission of the performance of an act required by law, by the judgment and command of some lawful court." It is commonly conceived as the suffering, pain or loss that serve as retribution. Golash questions whether the judiciary system, which carries out the punishment, does it have any moral grounding to punish? We all know that punishment is deliberate infliction of harm, of course that is done in response to wrongdoing done by the offender. The author argues that just because the offender does some harm, does it mean that we are justified in doing the harm to the offender? We can, provided we have good reason for this. Golash says, "we ought not to impose such harm on anyone unless we have a very good reason for doing so" (p.1)

So, the question seriously remains, on what moral basis is punishment justified? In other words, we can very well ask the question, why should one be punished? The obvious answer we try to give is because he/she committed some crime? There is another deeper question on this point -- on what basis, are we (judicial institution) is justified in punishing the offenders? Now the need of the punishment theorists' side is to justify that there is a reason to willfully harm the offender, which is nothing but punishment.

In the subsequent chapters the author gives arguments against the existing theories that favor punishment. In each chapter, she takes each school of thought and tries to argue against their respective positions. She first takes the Utilitarians' perspective which view that punishment is given to promote more good than harm. Utilitarians, as a school of moral theory, will claim that any action or social practice will be considered right/good, if it produces more good than harm for the maximum number. Hence, punishment is basically given to offender in order to have more good than evil. And the mechanism to prevent the further crime is through deterrence, incapacitation and rehabilitation. In fact, Bentham, one of the pioneers of utilitarianism, accepts punishment as evil, as pointed out by author. But, he admits the institution of punishment is accepted as it avoids the greater evil. In her case against the Utilitarians, she puts forth arguments trying to nullify the justifications given by Utilitarians for exercising punishment. The Utlitarians tried to show that punishment prevents greater evil through deterrence, incapacitation and rehabilitation. The rest of the chapter is the arguments based on theoretical and empirical grounds to refute the Utlitarians' claim of having punishment as a prevention measure. Personally, I don't like the cost factor of Utlitarians and hence the author's take on the point was not quite interesting to me. One main criticism against Utilitarians is that their philosophy tends to treat individuals as means to some ends. The author raise the same point in several occasions and tries to show that Utlitarians' version of punishment is flawed.

Against the major criticism of Utilitarians, that they treat individuals as means to some ends, and hence their argument failed, one can very well say that punishment is justified not on the basis of utilitarian perspective, but on the basis of retribution. That is, since the person has committed a crime, he/she deserves to be punished. Here, punishment is not justified on the basis that it is going to prevent any harm in the future(which is deterrent theory), but rather punishment is justified because the offender deserves the punishment. This is called as retributive theory. If you think that this argument seems reasonable and sound, immediately comes Golash to refute this position. Two main strands of retributive theory is explained and examined by the author -- one is that retributive theory helps in preserving the moral order and the other is the Kantian view of crime entails consent to punishment. The author asks, "why it is right to do the offender things that it would be wrong for him to do to others-to deprive him of life, liberty, or property"? This, she says is the central problem for any retributivists. The rest of the chapter goes with arguments against the retributivists on the principle of rights. The author takes one other view from Walter Berns on the basis of the claim that punishment be regarded as justified anger. Golash makes it a point that anger is justified but the actions resulting out of the anger is not justified on the justified anger principle.

Ok. Let the deterrent and retributivists theory fail. Why can't we justify punishment as doing some good to the offender? If you think that punishment is for the good of the offender, that is, through punishment we are trying to do some good to him. Golash tries to refute this theory too. Also, she takes up two more positions related to theory of punishment, one is that the punishment is given as a self-defense mechanism and the other is that punishment is justified because it communicates a moral message to the offender so that it will benefit the moral character of the offender. First she positions these theories and then gives arguments against their respective positions.

In the penultimate chapter, Golash in a sense summarizes the positions and major arguments she had given against the different theories and finally in the last chapter, she suggests some mode of dispensing ourselves with the idea of punishment. She shows some practice systems like 'reintegrative shaming', 'Healing Circle', etc, which try to do away with punishments. Of course, her point is not to immediately come up with alternative systems or to abandon the existing approaches to criminal justice, but to show that the system of punishment that we often take it for granted needs a revisit as she says beautifully, "there are many other things we can do to secure our safety, and many more appropriate ways to respond to wrongdoing than to impose harm on the wrongdoer". (p.172)

As far as the theoretical part is concerned, the arguments which she puts forth against each and every theory is quite fascinating -- arguments against justified anger, moral paternalism, against self-defense are a treat to read. At least in couple of occasions, when I think in favor of certain positions against her, it seems as though she foresees that point and immediately takes up the issue in subsequent passages. Not necessarily does it mean that she has the final say. Whether her theory is practically feasible or not, is a big question to resolve. But, she didn't make any tall claims related to the feasibility of her theory, but, in spirit, what she claims is that many of the offenders' act is often because of social, economic and cultural factors like unemployment, single parent child rearing, discriminations, and like. So, why can't we look from that perspective and try to improve their living standards through better social and public policies than make them as 'offenders' and punish them. Her cause is noble and she has strong arguments in her side too for the cause she upholds. Of course, one can give arguments against her position, one can say that it is not practically possible, but definitely there is no harm in keeping this ideal in our mind and try to proceed in that direction.

© 2009 V. Prabhu

V. Prabhu is Assistant Professor in the Department of Humanities and Social Sciences, Indian Institute of Technology Guwahati. He is interested in ethics and applied philosophy. Email: vprabhu@iitg.ernet.in


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