Conceiving Punishment as Moral Justice

This essay argues that although penological philosophies of punishment justifying judicially
sanctioned imprisonment, corporal punishment and the death penalty appear coherent
in themselves, they are contradictory when relied upon as a whole or in relation to each
other.

These philosophies of pain when applied in the real world fail to justify and legitimate the lived
realities of contemporary technologies of punishment. This paper advocates an ethical approach to punishment; one that never loses sight of the humanity of the individual and their right to be treated as moral, rational beings.

The increasing reliance on prisons by liberal democracies as a form of State sanctioned punishment

Weisberg speaks of a paradox involving the United States, asserting that ‘the
wealthiest and most powerful free-market democracy imprisons such an anomalously
high percentage of its population at a time when crime itself is not one of the nation’s
pressing social problems.’ (Weisberg, 2012, p.1203-1252).

Globally, an estimated 10 million people languish in prisons worldwide with a further
estimate of 3.2 million of incarcerated individuals who have yet to face trial. (Amnesty
International, 2018).

Such an unwavering reliance by both liberal democracies and illiberal States on the use of
prisons and the death penalty necessitates a review of the current penal policies on
incarceration;

A review that questions whether–

incarceration is justified by the longstanding theories of retribution, deterrence and
rehabilitation;

whether prisons contribute significantly to falling crime rates and safer societies,
and, more importantly, —

whether theories on punishment justify the empirically documented social realities of what takes place within prisons, the deleterious effect it has on inmates and society as a whole.

Does the Retributivist theory provide a rational template that legitimates and justifies punishment?

The origins of the Retributivist principle can be traced to the Enlightenment philosopher, Emmanuel Kant (1724-1804). Carrabine notes that ‘for Kant the duty to punish was a categorical imperative that restored the moral equilibrium – a view that led him famously to declare that even on the dissolution of society ‘ the last murderer remaining in prison must first be executed’ (Carrabine, p.301 citing Walker, 1991, p.77)

Kant, however, was a critique of Utilitarian justifications ‘which use offenders merely as means rather than fully recognizing their humanity so that even the innocent can be deliberately punished if it is expedient to do so” (Carrabine, p.301)

Regardless of the success or failure of achieving such politically expedient objectives, Retributivists such as
Michael Moore argue that ‘we have a duty to punish according to retributivist principles’
(Weisberg 2012, p.1225).

Moore argues:

‘Within the set of conditions constituting intelligible reasons to punish, the retributivist asserts, desert is sufficient, i.e., no other of these conditions is necessary. Of course other conditions outside the set of conditions constituting
intelligible reasons to punish may also be necessary to a just punishment, such as the condition that the punishment not violate any non-forfeited rights of an offender.’ (Weisberg 2012, p.1225).

I argue that the retributivist duty to punish an offender should be tempered by ethical and moral considerations underpinning individual human dignity and rights (Art 1, UDHR 1948); the right to be recognized as a person before the law ( Art.6 UDHR), and not to be exploited as a political tool for societal control.

In this regard, Kant posited :

”I say that man , and in general every rational being , exists as an end in himself , not merely as a means for arbitrary use by this or that will”.

To Kant, individuals as rational beings of dignity are to be perceived as possessing an absolute or intrinsic value rather than a relative value, ( Sandel 2010, p.122); a value relative, for instance, to a political objective of deterring crime within society.

Yet, we continue to hear of States administering the death penalty on disabled, low IQ or mentally ill offenders, ostensibly in the name of general deterrence; an unrelentless reliance on the death penalty by the US and some Asian States:

Death penalty 2020: Despite Covid-19, some countries ruthlessly pursued death sentences and executions   – Amnesty International

Death penalty 2020: Despite Covid-19, some countries ruthlessly pursued death sentences and executions  

The contradictions arising from a comparison of both retributive and utilitarian philosophies of punishment

Utilitarians may argue that retributive principles are to be considered as an ‘irrational disutility’ –

‘A pre-modern tradition based upon emotion and instinct and thus should be afforded no place in considerations of punishment.’ (Garland, D. ‘Penal Modernism and Postmodernism’, in Blomberg, T.G. and Cohen, S. (eds))

Such ‘illiberal consequences’ of utilitarian thinking, however, devoid of normative moral safeguards respecting human dignity were manifested in arguments posited by apologists for torture in places such as Guantanamo Bay post 9/11.

As Alex Adams notes:

‘‘Apologists for torture often either posit utilitarian arguments such as the “ticking bomb”
defense of torture, which claims that torture is acceptable in certain conditions, or they
claim that torture is not acceptable, but that the interrogation techniques used in the
secret archipelago of war on terror black site prisons are not forms of torture and can
thereby be condoned.”(Adams p.245)

Such subjective assessments by State officials such as the CIA on what kinds of
conduct constitute torture—

are largely unchecked by moral and ethical considerations underpinning respect for
human dignity and rights.

Rather, the impetus for the reliance on torture is the ostensibly ‘pragmatic benefit ‘
derived from the saving lives.

Popular Culture’s role in contributing to such Utilitarian thinking is evident:

”Cultural productions such as Fox’s televisual drama 24 (2001–14), James Barrington’s
novels Overkill (2004) and Pandemic (2005), Gregor Jordan’s movie Unthinkable
(2011), and Frank Miller’s graphic novel Holy Terror (2011), for example, all narrate
ticking bomb scenarios in which it is demonstrated that torture can solve problems:
when a bomb is ticking, torturing the terrorist responsible for it in order to prevent its
detonation is represented as a morally acceptable, militarily effective, and intellectually
rational tactic for saving innocent lives.” (Adams p.247)

Kant’s legacy of retributivism, however, may arguably be in the introduction of a ‘crucial
distinction between what would be good to do on the grounds of utility and what we
have a right to do”'(Carrabine , p.301) as moral beings.

In this respect, Retributivists do, to some extent, recognize the limits to the severity of
punishment administered on convicted offenders, —

and the ethics of imposing punishment that may be disproportionate to the harm caused
by the crime.

Carribine reminds us that ‘missing this important distinction between desire and duty
reveals the illiberal consequences that can flow from utilitarian reasoning ….

when the individual is sacrificed for the general welfare of the many, with torture being
the most controversial example.’ (Carribine, p. 301).

In contrast to such consequentialist views, a deontological concept of punishment
epitomizing the retributivist view is grounded in a normative ethical position that may
appear intuitively right to many;

We punish because justice demands that violations of the law be addressed;
Yet, as this essay argues, a conceptualization of punishment that draws its justifications
from a retributive or utilitarian philosophy or a combination of both ideologies–

fails to take into account other contextual factors that exist when punishment is inflicted
in the real world today–

factors such as the devastating psycho-social effects of institutionalization on an
offender, and the impact of corporal and capital punishment on the rest of society.

It is submitted that the impact of Judicially sanctioned punishment is not limited to its
effect on the incarcerated offender, but resonates in the community from which the
offender hails.

Amnesty International, for instance, recognizes that ‘the high economic and human
costs of harsh policies are forcing their reconsideration across the (United States) which
has increasingly resorted to overly punitive approaches to immigration law enforcement.’ (Amnesty International, 2014).

Amnesty argues that ‘imprisoning migrants with minor or no criminal records before
deporting them often affects people seeking to reunite with their families in the US or
fleeing persecution.’ (Amnesty International, 2014).

The injustice associated with the operation of immigration prisons in liberal democracies
such the United States is explored by Emily Kassie, writing for The Guardian. Kassie
writes:

”Children sleeping on floors, changing other children’s diapers. Families torn apart at
the border. Migrants crammed into fetid detention centers. These have become familiar
sights as people fleeing gang violence, domestic abuse and poverty arrive on the
southern border of the United States.”

”Many will join more than 52,000 immigrants confined in jails, prisons, tents and other
forms of detention – most of them for profit.” (Emily Kassie, The Guardian 2019).

The migrants including asylum seeker, legal migrant and their children detained in such
prisons for sometime years suffer alleged sexual and physical violence (Kassie, The
Guardian 2019) and are treated no differently from common criminals.

The philosophical contradictions arising from relying on either a retributivist or utilitarian philosophy to justify the use of immigration prisons

From a purely Retributivist view that emphasizes that punishment be just in
recognizing the categorial imperative to punish,–

it is morally and ethically impossible to justify the incarceration of thousands of migrant
children and their families in the absence of any harmful conduct committed by them
justifying such imprisonment.

However, from a consequentialist or utilitarian view, the incarceration of thousands of illegal migrants in the US –poses financial and economic gains in the form of lucrative contracts for stake holders associated with the
US Immigration and Customs Enforcement (ICE). Kassie,writing for the Guardian notes:

‘While the population of people in detention has grown, so has the government budget
to fund the beds to hold them. Billions of American taxpayer dollars are now allocated to support a system where for profit companies hold the vast majority of immigrants. In fiscal year 2018, private prison companies like CoreCivic and GEO Group derived 25% and 20% of their profits respectively from Ice, which is now their biggest client. In
the same year, Ice spent over $250m on contracts with GEO Group and another $60m
with CoreCivic” (Kassie, The Guardian)

The contradictions that arise from relying on a hybrid of Retributivist and
Consequentialist approaches to justifying punishment

Kenneth Avio considers but rejects a ‘hybrid retributivism inspired by Rawls and H.L.A.
Hart, —

an adherence to a strong deontic duty to punish but positing that criminal law can be
consequentialist in its overall purpose—

to threaten punishment so as to deter—but retributive in meting out punishment for
individual acts.’ (Weisberg 2012, p.1235).

Conceptually, such a perspective could result in a paradoxical approach to the
justifications for punishment, —

since a retributivist stance would reject the ‘intentional punishment of the
innocent as well as disproportionate penalties, —

whereas, ‘deterrence advocates would recommend disproportionately high
punishments to compensate for the uncertainty of apprehension and
prosecution’ (Weisberg 2012, p.1235), a view that would be rejected by
retributivists.

Does Garland’s perception of punishment as a cultural artefact provide explanatory power for why punishments such as imprisonment continue to be relied upon in the real world?

David Garland, professor of law and Sociology at New York University, presents us with an eloquent sociological theory of punishment that takes us beyond the penological theories of why States punish.

Garland argues that any phenomenological explanations of punishment:

‘Should never lose sight of the fact that punishment is also, and simultaneously,
a network of material social practices in which symbolic forms are sanctioned by
brute force as well as by chains of reference and cultural agreement.’

So, the infliction of State punishment in the form of whipping or executing an offender is not just about ‘deterring’ an offender from reoffending, or deterring the general population from committing a similar crime;

To Garland, the significance of punishment is to be found in what it symbolizes in the
cultural history of a Society,

the history of, for instance, its use of the death penalty, corporal punishment and
incarceration, —

and the changing sensibilities that a Society associates with such symbolic practices
that are used to mediate brute force and the infliction of pain.

Amnesty International, in this regard, argues that:

“The death penalty is a symptom of a culture of violence, not a solution to it.”

From this perspective, a true understanding of punishment and why certain States
continue to use the death penalty or incarceration for even the most minor breaches of
law in some instances –

requires us to understand the changing sensibilities, sentiments, attitudes , values , and
emotions that governments and societies associate with these forms of punishment.

For instance, colonialism’s instrumentalization’s of capital punishment as political tool oppressing dissidents is evident in the historiography of the subject. Andrew Novak writes:

”Capital punishment served as a tool of social control and deterrence, especially in the starkest display of the power of the colonial state, the public execution, which survived in the colonies long after its abolition in Europe.

The death penalty could also be used as an instrument of political oppression against African nationalists, especially in French Algeria, British Kenya, and the white settler-dominated states of South Africa and Rhodesia.”

‘Novak A. (2014) Executions and State Power during the Colonial Period. In: The Death Penalty in Africa: Foundations and Future Prospects. Palgrave Pivot, New York. https://doi.org/10.1057/9781137438775_3

The historical echoes of such punitive responses of State involving detention without trial, corporal and even capital punishment continue to reverberate today.

Far from being a morally just response to crime, such forms of State punishment are increasingly perceived as a tools for oppressing and silencing political opponents or an undesirable underclass in society.

This spirit of colonialism together with its violent tendencies arguably continues to manifest itself in cultural practices involving the use of brute force and violence on criminal offenders;

Such infliction of State sanctioned pain is, however, assigned symbolic meanings in such cultures that accord with the State’s narrative legitimizing punishment.

The death penalty thus becomes portrayed as a tool of deterrence; corporal punishment, the means for keeping society safe from marauding drug traffickers or illegal immigrants breaching national borders;

Such perceptions evoke the question of whether Punishment is a rational and ethical response to crime and social harms or —

merely an emotional, irrational response associated with cultural sensibilities, sentiments and passions aroused by politicians invoking populist policies when cherished norms are violated.

For Garland, the ‘essence of punishment’ was ‘an irrational unthinking emotion’ that had to be conceptualized not only in terms of the power to punish, —

but also as an ‘urge to punish’ as an emotional reaction which flared up at the violation of cherished social sentiments.

Garland conceives punishment as a cultural artefact, embodying and expressing society’s cultural forms and values.

How it is even conceivable for individuals living in democracies built on respect for human dignity to support penal policies of death and unspeakable pain inflicted on offenders?

Garland discusses ‘those phenomena of cognition known as ‘mentalities’ and also those of affect or emotion usually termed ‘sensibilities.’( Garland, Punishment and Modern Society, pp.195-197).

He states:

“In its cognitive aspect, culture refers to all those systems of belief which human beings use to construe their world and render it orderly and meaningful. It thus covers the whole range of mental phenomena…elaborated and inarticulated, so that philosophies and theologies are included alongside …folk prejudices and ‘plain common sense.’

“These mentalities or ways of thinking are, in in turn closely linked to ways of feeling and sensibilities, so that the cognitive aspects of culture become inseparable from its affective dimensions….”

”These socially constructed sensibilities and mentalities have major implications for the
ways in which we punish offenders.’’(Garland, Punishment and Modern Society, pp.195-197).

And so we hardly flinch when a child below the age of 18 is detained indefinitely without trial or charge by State officials invoking national security laws, claiming the existence of a threat of terrorism posed by a minor to Society;

or when a person convicted for a non violent immigration offence is subject to whipping or lashings by a prison officials;

or when a intellectually disabled person with a low IQ convicted of drug trafficking is sentenced to hang;

Our cognitive mentalities engaged in making sense of such State inflicted punishment attempt to rationalize the justifications for, what ordinarily would be considered an inhumane, perverse infliction of violence or torture on children or vulnerable individuals.

The inseparability of the ‘cognitive aspects’ of our punitive culture of control and its ‘affective dimensions’ is further strengthened by:

‘’These cultural patterns (that) structure the ways in which we think about criminals, providing the intellectual frameworks (whether scientific or religious or commonsensical ) through which we see individuals, understand their motivations, and dispose of them as cases.’’(Garland, Punishment and Modern Society, pp.195-197)

These ‘cultural patterns’ of penality prevalent in an Asian society, for instance, that claims that punishments such as Capital and corporal punishment act as deterrents to offending, ‘structure the ways in which we feel about offenders ….through the shaping of our sensibilities,’’(Garland, Punishment and Modern Society, pp.195-197),–

to the extent that the potentiality for emotional dissonance that one might possibly experience when reading about the hanging of a drug offender, caning of an illegal immigrant or incarceration of children is minimized in no small part due to the narratives replayed by the government and its executive officials that such punishment keeps us safe from the likes of drug traffickers and terrorists.

As Garland explains:

”Our sense of what constitutes a conscionable, tolerable or ‘civilized form of punishment is very much determined by those cultural patterns, as is our sense of what is intolerable, or as we say, inhumane’. Thus culture determines the contours and outer limits of penalty as well as shaping the detailed distinctions, hierarchies, and categories which operate within penal field.’’(Garland, Punishment and Modern Society, pp.195-197).

A sociological analysis of punishment would therefore require an examination of the
cultural forces and values which shaped and influenced the idea and the organization of
punishment.

These would include moral, religious and emotional forces which historians had
identified as part of the motivational dynamic of penal reform. (Morrison).

This essay argues that not only are certain forms of punishment such as the death
penalty and corporal punishment irrational expressions of sheer brute violence, influenced by cultural practices
of States that violate human rights, —

they are also unethical and immoral in denying the human dignity of individuals and
their right to life.

Consider Amnesty International research into capital punishment since 1990 that found:
145 executions of child offenders in 10 countries: China, the Democratic Republic of
Congo, Iran, Nigeria, Pakistan, Saudi Arabia, South Sudan, Sudan, the USA and
Yemen.

Several of these countries have changed their laws to exclude the practice. Iran has
executed more than twice as many child offenders as the other nine countries
combined. At the time of writing Iran has executed at least 97 child offenders since 1990

(Amnesty international 2020)

Penological Theories of Punishment fail to justify the lived realities of Prisons

The difficulty in conceptualizing punishment that is mediated through institutions like
prisons and the death penalty is that –

theoretical justifications for punishment very often remain as abstract ideas, detached
from the realities of places of pain infliction and brutality.

As Garland asserts, ‘modern, liberal democratic states and civilized, squeamish
moderns would rather avoid the sights, sounds, and smells of the body in pain.’

‘So we eliminate them where that is possible and we hide them behind the scenes when
it is not.’ (Garland 2011, p.767).

As Garland notes ‘Criminal offenders are “deprived of their liberty”; capital offenders are
“sentenced to death”; killing a body is “carrying out a sentence.”

There is a careful avoidance of any suggestion that bodily pain and physical suffering
are intrinsic elements of legal punishment.’ (Garland 2011, p.768).

From this perspective Punishment instrumentalized through deprivation of
liberty, physical pain and death of the human body is presumably efficient in
achieving it desired ends of retribution or deterrence.

Garland, however, reminds us of the detrimental effects of prison, ‘the palpably
physical, bodily aspects of being forcibly held in a prison,’ which juridical bodies neglect
when ‘suspending the rights’ of an offender by depriving him or her of his liberty while in
prison. (Garland 2011, p.769).

Gresham Sykes’ ethnography of a maximum security prison, in Society of Captives,–
‘describes the “pains of imprisonment” as consisting of physical and sexual deprivation;
undernourishment; limited access to health care and hygiene; the pervasive odor of
urine, disinfectant, and stale food;

the noxious and threatening proximity of other bodies; the claustrophobic pressure of
confinement and crowding; and the endemic hazard of physical violence, whether by
guards of by other inmate.’ (Garland 2011, p.769).

Phenomenologically speaking, individual offenders consciously react in a myriad of
ways to such prisons conditions –

and may not respond to his or her prison term in ways that correspond to our idealistic
conceptions of deterrence or rehabilitation.

This is especially since incarceration of offenders does not merely entail deprivation of
one’s liberty.

Justice Anthony Scalia’s dissenting opinion in Brown v Plata 2011 Supreme
Court of the US—

envisions other fundamental rights of an incarcerated offender that may be violated, —
specifically, the Eighth Amendment entitlement to respect for one’s basic bodily needs:

‘[T]he law and the Constitution demand recognition of certain other rights. … To
incarcerate, society takes from prisoners the means to provide for their own needs.
Prisoners are dependent on the State for food, clothing, and necessary medical care.”
”A prison’s failure to provide sustenance for inmates “may actually produce physical
torture or a lingering death.” . . . Just as a prisoner may starve if not fed, he or she may
suffer or die if not provided adequate medical care.
A prison that deprives prisoners of basic sustenance, including adequate medical care,
is incompatible with the concept of human dignity and has no place in a civilized society
(Brown v. Plata, Opinion of the Court, 13).’ ( Garland 2011, p.771)

The discriminatory use of prisons to incarcerate ethnic racial minorities

Angela Davis, professor of history of consciousness at the University of California,
notes that during her career as an anti-prison activist, she witnessed ”the population of
US prisons increase with such rapidity that many people in Black, Latino and Native
American Communities now have a far greater chance of going to prison than of getting
a decent education.” (Davis, p. 10)

Davis poses a deeply disturbing question on why States continue to rely on prisons,
calling into question the very philosophies of punishment invoked by policy and law
makers to justify the continuing use of prisons and the death penalty: She states:

“The question of whether the prison has become an obsolete institution has become
especially urgent in light of the fact that more than two million people (out of a world
total of nine million) now inhabit US prisons , jails, youth facilities and immigrant
detention centers.”

”Are we willing to relegate even larger numbers of people from racially oppressed
communities to an isolated existence marked by authoritarian regimes , violence
disease and technologies of seclusion that produce severe mental instability?” ( Davis,
p.10).

Such State sanctioned oppression is exemplified by the racist treatment of Anthony
Ray Hinton, who spent 30 years on death row for a crime he never committed; Hinton
had this to say:

”My only crime was being born black, or being born black in Alabama.
I was guilty.

Hell, as far as the police and the prosecutor and the judge and even my own defense
attorney were concerned, I was born guilty.

Black, poor, without a father most of my life, one of 10 children – it was actually pretty
amazing I had made it to the age of 29 without a noose around my neck.

But justice is a funny thing, and in Alabama, justice isn’t blind. She knows the color of
your skin, your education level and how much money you have in the bank.”

References
Death Penalty, Amnesty International 2020,
Online: https://www.amnesty.org/en/what-we-do/death-penalty/

Alex Adams, Guantanamo Boy (2009) and the Task of Critique, The Lion and the
Unicorn, Volume 40, Number 3, September 2016, pp. 245-261

Davis, Angela, ‘Are Prisons Obsolete?’, Seven Stories Press, NY, 2003.
‘Detention and Inprisonment’ Amnesty International 2018
Online: https://www.amnesty.org/en/what-we-do/detention/

DETAINED: How the US built the world’s largest immigrant detention system, The
Guardian , 24 September 2019.
Online: https://www.theguardian.com/us-news/2019/sep/24/detained-us-largestimmigrant-detention-trump

Weisberg, Robert (2012) ‘Reality-challenged philosophies of punishment’, Marquette
Law Review, Vol.95(4), p.1203-1252

Garland, David (2011) ‘The Problem of the Body in Modern State Punishment’, Social
Research, Vol. 78, No. 3, pp. 767-798.

”How I got 30 years on death row for someone else’s crime”, The Guardian, 27 April
2018.
Online: https://www.theguardian.com/us-news/2018/apr/27/anthony-ray-hinton-deathrow-a-legal-lynching-alabama-crime