Law in Contemporary Society

Just Punishment?

-- By DRussellKraft

Some Starting Assumptions

This essay is written for my classmates at Columbia Law School. In my argument I assume the following things (as well as a great many others):

  1. The United States of America are ruled by an aristocracy operating in a procedural democracy
  2. We (CLS students) are either inborn members of, or now entering, that aristocratic class
  3. The criminal justice system exists largely for the benefit of our class, to maintain the structures that give us wealth and power
  4. The form of the criminal justice system is at least to some degree within our control

How do we Justify Criminal Punishment in America?

The Definition of Justification

The word "justify" carries (at least) two important meanings for our understanding of what we do in the name of criminal justice. From the American Heritage Dictionary, the verb Justify can mean:

  1. To demonstrate or prove to be just, right, or valid
  2. To declare free of blame; absolve
The first of these definitions might be deemed a "scientific" definition - although it deals with what might be "moral" terminology, it requires a showing of evidence in support of a finding. The second definition can rightly be called "moral" on its face, and possibly irrational insofar as it does not specify a "why." It is difficult to justify the current system of criminal punishment in America under either definition.

On What Theories do we Punish?

The theories we use to punish our fellow human beings rest on both of the aforementioned definitions of justification. Utilitarian theories rest more on the first, while retribution finds its basis in the second.


Purportedly following the ideas of Jeremy Bentham (1748-1832), several theories have been advanced over the last two hundred years on why punishment might reduce crime.


The idea of deterrence posits that human beings are less likely to engage in proscribed conduct as that conduct is punished more certainly and more severely. This idea primarily springs from the work of Cesare Beccaria (1738-1794), as interpreted by Bentham and later thinkers in the classical school of criminology.


Incapacitation is a relatively simple idea - the removal of an offender's ability to engage in criminal activity (by incarceration or other means) will reduce crime. It seems obviously effective, but may disregard the cost of the marginal reduction in crime it achieves - making us question whether it has positive social value.


Beyond the idea that punishment might reduce crime (the causal relationship that is at least pseudo-scientific about deterrence and incapacitation), retribution rests on what I call a "moral" theory: that crime justifies (demonstrates to be right) punishment. This theory also justifies (declares free of blame, absolves) the infliction of suffering by third parties. I believe it has its roots in our law in the Bible, which famously offered "an eye for an eye" as equitable retribution.

The Democratic Limiting Principle of Kantian Retributivism

One interesting point made by Immanuel Kant about retribution is that in its most thorough form, it requires both a finding of guilt in order to justify punishment, but also requires punishment to accompany any finding of guilt. In this way there is no punishment without cause, but also no preferential treatment by the law of different people beyond the level of their guilt.

Do These Theories "Work?"

What do They Actually do?

As attractive as some of the theories above are, what is their real value to us, the aristocratic class?

Utilitarian Theories Are at Best Inconclusively Successful

The debate over the effectiveness of deterrence has raged for almost as long as it has been our policy. Humans are not wholly rational actors, and so classical ideas of individual cost/benefit analysis do not seem to accurately predict our behavior. Further, even assuming that some potential criminal acts are deterred by the threat of punishment, the fact that the presence or absence of the death penalty does not in any way predict the prevalence of homicides in a given American jurisdiction should tell us something about even the most high-profile case for deterrence.

In our system, incapacitation primarily takes the form of incarceration. While there may be some class of people whose incarceration truly reduces the risk of their behavior to the rest of society, there is also a sizable class of inmates in our current system whose risky behavior (for example the sale of drugs) will almost inevitably be carried out by some other person in their absence from the street.

Retribution Fails to Meet its Democratic Promise

There is no rational way to argue that our system equally punishes those who are equally guilty. From judge and jury discretion to the massive outcome differential for poor and rich defendants, there are many obvious places where discrimination and inequality make a mockery of the retributive ideal. Beyond the satisfaction of blood-lust, retribution does little to maintain social order.

Does it Matter How we Justify it?

The Cost of Punishment

The total measurable cost of punishment is far greater than its direct cost to the state. Almost unmentioned by my criminal law textbook (the only one I've read) is the vast economic and social toll that punishment takes beyond its obvious fiscal burden. Retributivism is persuasively undercut by some notable critics, but that line of critique also works for utilitarianism. In simple macro-economic terms, our society loses an immense amount of wealth through the absence of the incarcerated from our labor pool. The decrease in expensive crime brought demonstrably by punishment is not worth that cost.

Remedies Not Adapted to the Malady

While utilitarianism at least posits a cause for crime (rational choice by criminals), retributivism focuses solely on its consequences. Modern statistics, however, show evidence that there are more deterministic factors that actually correlate to (and plausibly cause) crime.

A simple plotting of the overall crime rate and the incarceration rate (as a percentage of the US population) will show you that what we're doing just isn't working.

The Availability of Other Means to Reduce Crime

In the face of mounting evidence that our system of criminal punishment is not just (fair), but rather just (only) punishment, perhaps we can abandon the effort to prove the validity (or value) of both utilitarianism and retributivism. While some argue that rehabilitation is both more efficient and more just than the aforementioned theories, it is prevention, through education and economic empowerment, which will provide us the most efficient (and most justifiable) path to stability. By replacing the underlying drivers of crime with the drivers of economic expansion and social cohesion, we might move doubly quickly towards our "aristocratic" goals of wealth and stability.

-- By DRussellKraft - 28 Feb 2010

Derek- I was glad to see that you chose to write about punishment. It was something that I was thinking about in earlier stages of my own paper (which ended up going in a different direction). I wanted to suggest a couple of ideas that may or may not be helpful in achieving a more argumentative/persuasive paper, but realize now that they are a bit late in coming and so maybe they’ll just be some food for thought.

I wanted to talk about justifications for punishment, and particularly why two of those justifications can’t really been seen as legitimate, given the reality of how we punish.

Just desert

Argument: Some argue that the only justification that is morally acceptable for punishment is retribution or just desert in line with the degree of culpability of the crime. And yet, we punish A, who has served time for X crime, more than we normally would for Y crime, because of his history- so we are either punishing him for who he is (punishing a person for being ‘bad’- and isn’t this transcending the law to a realm of morality) or we are punishing him above his just desert (either adding punishment on to X crime of the past, or enlarging punishment for Y crime more than Y crime actually merits). So it doesn’t seem that we can justify the way we punish on this theory alone.

Incapacitation Argument: Some claim that incapacitation and prevention of further crime justifies punishment by imprisonment. But many crimes are not extremely violent. Further, we re-release prisoners, at which point they are influenced by the system and perhaps more likely to be violent- or at least not necessarily any less likely to be. If we followed this to its logical extreme, we would lock people away for life and actually prevent any recidivism.

The theory of punishment as a way of upholding the legitimacy of the law and keeping it in check with a general moral fabric of society seems to be the true representation of why we punish. If it were not for this, a lot of the punishment we do carry out would be useless. We use punishment to teach a lesson- and I (maybe like you) find this to be pretty problematic. -- JessicaHallett - 22 Mar 2010

  • Actually, Eben's comments about how Arnold would point out that we might have no conscious clue what we're doing made me think harder about that today...which gets to my first comment on my own paper - I might actually be removing those parts in an edit. Sorry for the cop-out, but I'm not sure I'm willing to stand behind those lines. -- DRussellKraft - 03 Mar 2010
  • Hi, Derek-- here are two thoughts: (1) I would've liked to hear more about the significance of us being part of the aristocratic class and having control over the system; (2) You seem to assume in your conclusion that people in the aristocratic class are long-run oriented: the aristocratic class is motivated to make x and y changes to the justice system, because in doing so they increase their future wealth. I thought greed kept the aristocratic class thinking short-run, though... Wouldn't they want to maintain the status quo? -- KalliopeKefallinos - 03 Mar 2010
  • I'm playing off your second definition, and thinking about how a community, implicated in the wrong/sinful acts of one of its members, might seek to absolve itself of guilt and thereby make itself righteous before God -- and how such absolution might obtain in a secularized world. This article gets at the basic idea: -- GloverWright - 02 Mar 2010
  • How do you mean, Glover? -- DRussellKraft - 02 Mar 2010
  • I wonder if there might also be a broader cultural point to make about theological justification? -- GloverWright - 02 Mar 2010
  • Your paragraph on retributivism seems to suggest it makes our punishments harsher. From my, admittedly cynical, viewpoint - it's really a limiting factor. From what I've read, Lex Talionis and its variations were a way to say 'You can't kill for this, you can only inflict so much harm.' When we used to kill, now we only jail. It does give moral justification for the harm, but it also attempts to reign in our baser instinct to just kill anyone who fucks with us. Maybe that's your point too, but the paragraph seems to be riding the middle. -- StephenSevero - 28 Feb 2010
    • Stephen - What I'm trying to say is exactly what you suggest: Retributivism certainly has a built-in limiter in the requirement for guilt. To address your criticism, I'm not sure how to get that point as well as the Retributivism's justification of the infliction of suffering by outsiders without some amount of "riding the middle." Do you have suggestions on how I could make it more clear? Cheers. -- DRussellKraft - 28 Feb 2010

  • My concern isn't so much with thinking both thoughts, but more about making both explicit. The space limitation makes it difficult, but I think a simple sentence might help clarify the point. Maybe something along the lines "While it restricts the vengeance of the harmed, it also justifies, even requires, a certain state response." I agree with your reference to the bible, and I think a link would help support the point. There's a lot you could use, but I think Deuteronomy 19 would work nicely. -- StephenSevero - 28 Feb 2010
    • I've tossed in a link as you suggest, but I think my first sentence under Kant says essentially that, no? Maybe I'm just unclear (/unable to get quite outside of my own writing yet), and something better might still come to me. -- DRussellKraft - 28 Feb 2010
  • I see what you're saying. I think the idea is contained partially in each statement; it might help reinforcement to say it in each statement. In your parenthetical exegesis of justification for third party action, maybe add in requires. For your Kant paragraph, perhaps adding in "a measured" or even "determinate" before "punishment" to bring the second sentence into the first. Also, I'm not sure if you can work this in, but I just realized that in "limiting crime", the personal vendetta is also a crime to be limited. Not that the idea is novel, but that it would even come to be as a realization and not be blatantly obvious - seems related to Glover's point about punishing someone else to make us righteous. -- StephenSevero - 2 Mar 2010
  • I also realize now that my conclusion sounds mighty flippant, and that there are much better reasons to suggest what I suggest. Starting from a modified premise might help the next revision of this. -- DRussellKraft - 28 Feb 2010

Others appear to have productively responded to this essay on substantive points; I'm not in agreement with all the suggestions offered, but they do seem to me at least to get at questions about how your position is defended. My primary response to the writing is more about the writing. It seems to me too schematic, geometric, as though all that mattered were getting the right-shaped pieces to fit together. But a reader not already convinced of the futility of punishment will find nothing in the style of this argument that will facilitate the opening of her mind. Support for large-scale incarceration and other punishments, whatever the jargon employed by elite proponents, is based on fear. Treatment of the subject on an emotionless basis is unpersuasive, precisely because it does not address what's really going on. In my view, the route to a powerful revision is to carve away at the windup, which is much more than necessary, and find the way to put the central argument to the gut of the reader, rather than to which part of him attends public policy seminars. Whatever part that is has already made up its mind.


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r20 - 13 Jan 2012 - 23:14:11 - IanSullivan
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