as a legitimate justification for punishment and focusing on improving the future rather than exacting revenge for the past.
Dispensing with blame and responsibility does not necessarily mean dispensing with all punishment. The evidence we have from psychological studies suggests that ‘the motivation to punish in order to benefit society’ remains in place even when ‘the need for blame and desire for retribution are forgone’, so society could keep the ‘social benefits of punishment intact while avoiding the unnecessary human suffering and economic costs of punishment often associated with retributivism’.12 Once we know someone is guilty of committing a crime, the important question is what the effect of punishment would be on both the guilty lawbreaker and the rest of society. In a rational criminal justice system, the justification for punishment would derive solely from the positive effects it has on society, not from notions of blame or desert.
The benefits of punishment
Once retribution is ruled out, the most influential justification for punishment is to be found in the logic of deterrence. The idea is that criminal punishment not only deters lawbreakers from reoffending but acts as a deterrent to the wider population, a common assumption being that more severe punishments are more effective deterrents. Although in some contexts the logic of deterrence is compelling, it has its own serious flaws and fails as a justification for many of the punishments currently endorsed by governments – democratic or otherwise – around the world.
Deterrence strategies often fail to produce the outcomes we expect. Comparisons are difficult to make, but there appears to be a trend towards lower reoffending rates in less punitive countries. The incidence of recidivism in the US and UK hovers between 60 and 65 per cent. This is roughly 50 per cent higher than rates in less punitive nations such as Sweden, Norway and Japan.13 Bringing together the results of fifty different studies involving over 300,000 offenders, Canadian criminologist Paul Gendreau found that not one reported that imprisonment reduced recidivism. In fact, longer sentences were associated with a 3 per cent increase in reoffending rates, supporting the theory that prison can function as a ‘school for crime’.14
In the US, almost seven out of ten males will find themselves back in jail within three years of release.15 A 2010 UK government paper showed that 68 per cent of adults who either left prison or started a community sentence in the first three months of 2000 had reoffended within five years.16 After decades of research, prison psychiatrist James Gilligan concluded that the ‘most effective way to turn a non-violent person into a violent one is to send him to prison’ and that ‘the criminal justice and penal systems have been operating under a huge mistake, namely, the belief that punishment will deter, prevent or inhibit violence, when in fact it is the most powerful stimulant of violence we have yet discovered’.17
Objects, natural disasters, animals, small children and (sometimes) people with a mental illness are exempted from punishment precisely because they lack the cognitive capacity – the ‘minimal rationality’ – to be deterred by threats of punishment.18 This seems reasonable enough, but the problem is that anyone who commits a crime belongs, by definition, to the category of people undeterred by the punishments of society. At least when they commit the crime, every lawbreaker clearly possesses a brain that is not put off by the possibility of being arrested, tried, imprisoned or, in some cases, even executed. The high percentage of reoffending former prisoners confirms that those who end up being punished are not the ones the deterrent is primarily acting on.
If punishment often fails to deter lawbreakers from offending and reoffending, what purpose does it serve? The standard answer is that if criminals were not punished for their crimes, those members of the public who were previously deterred would in future have less reason to abide by the law and the crime rate would go up. It is the effect on this second category of people (the deterred public) that is used to justify the punishment on the first (the lawbreakers), that is, the criminal population are being punished to prevent the rest of the population from turning criminal. But if people are not truly responsible, then using the deterrence argument to justify harsh punishment is, as Daniel Dennett points out ‘. . . doomed to hypocrisy. Those whom we end up punishing are really paying a double price, for they are scapegoats, deliberately harmed by society in order to set a vivid example for the more ably self-controlled, but not really responsible for the deeds we piously declare them to have committed of their own free-will.’19
Disturbing though this reasoning may be, it lies at the heart of the deterrent argument. It was candidly recognised by the influential American jurist Oliver Wendell Holmes, Jr: ‘If I were having a philosophical talk with a man I was going to have hanged (or electrocuted) I should say, “I don’t doubt that your act was inevitable for you, but to make it more avoidable by others we propose to sacrifice you to the common good. You may regard yourself as a soldier dying for your country if you like.”’20 Expressed in this way, the injustice of the deterrent argument is apparent. It advocates punishment, even execution, for people who are not truly responsible for what they do – people who in many cases have suffered excessive hardships and deprivation – in order to prevent the more self-controlled, and often more privileged, from breaking the law.
As well as being morally dubious, the strategy of harming some to deter others can easily backfire. Severe punishments can function as an ‘anti-deterrent’, increasing violent crime rather than diminishing it. For instance, both the US and Nigeria experienced an increase in murder rates after introducing the death penalty, while its abolition in Canada saw a drop in homicides.21 And of the countries with the highest homicide rates, the top five that employ the death penalty average 41.6 murders per 100,000 people, whereas the top five with no death penalty average roughly half that number at 21.6 murders per 100,000 people.22 One explanation for these facts is that severe institutional punishment has a brutalising impact on the general culture, exacerbating rather than deterring violence. Regarding the relationship between capital punishment and homicide rates, the United Nations concluded that ‘The evidence as a whole still gives no positive support to the deterrent hypothesis.’23 According to polls, the vast majority of criminologists and police chiefs do not believe the death penalty deters violent crime more than imprisonment.24
The immorality of the ‘double price’ paid by prisoners is aggravated by the severity of the punishments they receive. As long as deterrence is believed to be our most powerful lever of influence and, to the extent that more brutal punishments are considered more effective deterrents, there will be pressure to increase the suffering of prisoners. This pressure, founded on morally questionable and factually baseless assumptions, is regularly employed around the world to justify punishments that ought to be regarded as a form of torture. According to the United Nations, torture encompasses:
any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him . . .25
Imagine being taken from your home and locked up for years in a threatening, violent, overcrowded institution – an institution in which people are often beaten, injured, raped or even killed, all the time separated from family and friends, with every aspect of your routine controlled coercively by a group of salaried strangers. The distinction between torture and prevailing forms of criminal punishment breaks down under scrutiny.
Consider the US’s ‘supermax’ prisons in which inmates are kept in solitary confinement for twenty-three hours a day. Prisoners living under such conditions often become mentally ill. They are deprived of any meaningful work, training, exercise or education and are shut off from almost all human contact. Access to a telephone, books, magazines, radio, television – even sunlight and fresh air – are severely restricted or entirely denied. Cells are illuminated at all times.26 The Committee on International
