Punishment and Imagination

Danielle’s recent post on prison overpopulation reminded me of a symposium on criminal justice theory hosted by University of Alabama School of Law last year. The theme of the symposium was “The Punitive Imagination” wherein several scholars considered the consequences of traditional criminal justice theories for how we punish criminal offenders in the U.S. What we imagine we are doing when we punish determines the character of the punishment and reflects the character of the community that metes out the punishment. After a brief review of the theories of punishment, I here summarize two of the scholars who presented papers at the symposium, each considering the implications of alternative theories of punishment.

Traditionally, the punishment of criminal offenders is justified under four theories: retributivism, rehabilitation, deterrence, and incapacitation. Under retributivism, the community punishes the offender because the offender’s transgression merits a response—the moral order of the community is not restored until the offender is made to internalize the pain he has caused by his transgression against the community. Under rehabilitation theory, we conceive of the offender as a misguided member of the community in need of correction. Punishment here is meant to recondition the offender to conform to community standards of appropriate conduct and to lead a more productive life. Under deterrence theory, the purpose of punishment is to raise the relative cost of an offense so as to dissuade an individual from seeking gain through violation of community standards.  Finally, under incapacitation, the offender is conceived of as a threat to the community that must be contained. Punishment here is meant to remove the offender from the community to protect others members of the community from harm.

Throughout most of human history, jail was the place where an offender awaited punishment rather than being considered itself the punishment. With retribution as the primary rationale, punishment tended to consist of the infliction of bodily pain, forced servitude, exile, and very often death. Early American history saw a series of reform efforts predicated on the other three theories of punishment, giving us the contemporary American prison system. Today, the U.S. Bureau of Justice Statistics reports that 1,598,780 persons are incarcerated at the federal, state, and local level, approximately 492 persons per 100,000. The U.S. leads the world both in total number of incarcerated persons and in proportion of the population incarcerated. Moreover, “17% (237,000) were serving sentences for drug crimes.”

Punishment as an Act of the Imagination

A.    Incapacitation

In an address titled “Imprisonment Without Justice”, Yale American Studies and English professor Caleb Smith considered the possibility that America has in recent years adopted “a system of mass incarceration that has detached itself, more or less explicitly, from any claim of justice at all.” Smith describes American penological practice historically as a self-conscious break with “the public tortures and tomb-like dungeons of a despotic past.” From its beginnings in the late eighteenth century, the setting for American criminal punishment was the penitentiary which was “associated with a humanitarian reform movement that defined the cell not only as a site of punishment but also as a scene of rehabilitation and redemption.” This rehabilitative spirit, according to Smith, was revived and furthered from the New Deal period through the 1960’s. The 1980’s saw the resurgence of the retributivism, “the decline of the rehabilitative ideal,” and the conceptualization of punitive practice as a war on crime. This replaced correction with vengeance as the chief aim of criminal justice policy and marked an explosive growth in the American prison population. “Over the past few decades, the United States has built the largest prison system in the world—inhuman not only in its violence but also in its scale.”

While legal scholars tend to see today’s ever-expanding prison population as a perpetuation of the vengeful retributivism, Smith sees evidence in social science literature that “the logic of incarceration has been stripped down to its simplest form, incapacitation.” This trend is troubling, says Smith, because vengefulness can be assuaged “with humanizing stories, with calls for mercy and understanding,” but incapacitation is not susceptible to such amelioration: “It is a policy for the management of social instability and social space. In the popular imagination, it does not require a vengeful memory; its signature effects are insecurity and fear.”

Smith points to popular television as suggestive of the emerging tendency to conceive of criminal justice policy merely as state management of undesirables and conservation of urban space. Shows such as Crime Scene Investigation: Miami and NYPD Blue depict offenders not as members of the community in need of correction or deserving of punishment, but “psychopaths and subtle villains…whose psychology is complex and whose motives are personal.” Such persons, if we dare call them persons, are irredeemable undesirables who must be prevented from contaminating the urban landscape:

Note how obsessively, how lovingly they represent the urban space. Almost every cop show calls attention to its setting, often naming a city in the title. The typical opening sequence is a view of the skyline from a helicopter or a panning shot of the streets from the window of a cruiser…we might need to retrain our eyes to see the image as primary and the setting, not the character or the plot, as bearer of ideological weight.

Fundamentally, Smith is arguing that the American prison system may have recently grown to such immense proportions because it “may no longer need to legitimate itself by appeal to either vengeance or rehabilitation…The insecure imagination is to be discovered, instead, in the background: in every nightmare of broken windows, in every fantasy of secure communities.”

 

B. Prevention

University of Pennsylvania law professor Leo Katz makes a related argument. In “Punishment as an Act of the Imagination”, Katz posits that non-retributivist theories of punishment may lead to harsher punishments because they are exempted, in our moral intuitions, from the requirement of proportionality as a normative constraint. Much of the meaning of an act (and how we categorize it) depends on the intention behind the act. Different categories of acts face different constraints according to our category-specific moral intuitions. Acts conceived as retributive are inextricably bound in our moral intuitions with the notion of proportionality—the notion that the severity of the punishment should correspond to the severity of the offense. However, when our acts of punishment are motivated by the aim of prevention, no such proportionality constraint attaches.

Katz makes his point with the use of several thought experiments, the central one drawn from the work of Larry Alexander. Alexander asks us to consider the existence of a Doomsday Machine:

Assume there is a sophisticated satellite that can detect all criminal acts and determine the mental state of the actors….If the satellite finds that the actor knew his act was a crime, that he has no recognized excuse or justification for committing it [and no other recognized mitigating factor]—zaps him with a disintegration ray. Once the satellite detects the crime, it is impossible to prevent punishment of the criminal, no matter how merciful the authorities might feel….The entire population is informed of the existence of the satellite and what it does.

According to Alexander’s argument, Katz explains, there is nothing objectionable about such a device. To see this, we are told, suppose a man protects his castle with the aid of a moat. One day he receives a letter from someone threatening to enter the castle on the next occasion it is deserted. This would-be invader cannot swim and so certainly would drown in the attempt. “Is there a duty to drain the moat in order to avoid excessive punishment?” What about an electrified fence or spring gun? “[M]ost people will not feel that these examples involve excessive punishment…[or] punishment at all.” The Doomsday Machine is no different, according to Alexander, because “A person bent on violating another’s moral rights is fully aware of a condition that renders such an attempt life-threatening…”

Katz accepts Alexander’s argument and extends it. He says that such a device, which can only rightly be conceived as an instrument of prevention, is not subject to the proportionality requirement because it is not punishment. “Moreover,” Katz argues, “I am not entirely sure that the notice requirement is in fact a prerequisite for Alexander’s conclusion. Suppose the owner of…jewelry hid it in a snakepit but did not warn potential thieves about the presence of the snakes. It is not clear to me that that would make him liable so long as they were not entitled to go after those jewels.” What renders these things so morally distinct is that we are simply “let[ting] things take their course when the wrongdoer decides to trigger them”—our impact, such as it is, is indirect. Hence, Katz concludes, “punishment seems to depend to an unappreciated extent on the way in which the person meting it out conceptualizes what he is doing. If he thinks of it as something other than punishment, then sometimes by virtue of that it becomes something other than punishment.”

Conclusion

Can current penological practice be explained as overly retributive? Or are we, as Smith and Katz suggest, doing something else entirely?

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