Roundtable on Punitiveness Philosophical Issues Concerning Punishment

Jonathan JacobsJohn Jay College of Criminal Justice/CUNY

[Please do not share or quote without permission of theauthor.]

The present discussion identifies some of the fundamental philosophical issues concerning legal punishment. It also briefly surveys some of the most influential approaches to those issues without endorsing any particular approach to them. While the issues identified are meant to reflect philosophically important aspects of punishment in general, the discussion is most relevant to criminal sanction in broadly liberal democratic political/legal orders. I hope that it is safe to regard that form of political order as the most relevant for present purposes. While there are multiple, rival conceptions of liberal democracy, in such anorder individuals have extensive rights and liberties and itis important that there should be broad endorsement of the rule of law and the institutions of government, including criminal justice and criminal sanction, without the state actively, comprehensively imposing or enforcing any specificway of how people are to live.

Following some brief contextual and methodological remarks in the first section the discussion proceeds to a section onthe relevance to criminal sanction of key issues concerning the relation between law and morality, then a section on different conceptions of the justification of punishment, and it concludes with a brief section on the relevance of considerations of character to some central normative issuesconcerning punishment.

1.

The rule of law as understood in liberal democracies, has deep, complex historical roots going back to antiquity yet,

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the sovereign, territorially specific nation-state, largely taken for granted as a basic political/legal entity and locus of legal authority, is a development of the last four centuries.1 The modern rule of law and the institutions of the state have integrated and systematized criminal justice in important respects. While there are still many organizations and associations that can exercise various types of sanction the state is the primary agent of criminalsanction.

The chief philosophical questions concerning legal punishment involve a complex intersection of conceptual, normative, and empirical issues. By the empirical issues I mean the social and political realities of legal punishment,ranging from facts about what is criminalized, who is punished and how people are punished, to facts about the cost of punishment and punishment’s impact on individuals, neighborhoods, and society overall. By the normative issues I mean questions concerning the morally relevant aspects of legal punishment and justificatory considerations concerningpunishment. Whether mandatory sentences or long periods of solitary confinement are morally justifiable are examples ofsuch issues, as is the question of whether incarceration should include formal preparation for returning to free society, and whether an offender’s character as well as conduct should be taken into account at sentencing. By conceptual issues I mean the ways in which legal punishment is distinguished from other exercises of state power including those that might involve penalizing, disqualifyingor fining persons, ways that might, on the surface, appear little different from punishment.2 Just about any issue concerning criminal sanction has conceptual, normative, and empirical aspects whether or not a particular inquiry or argument seeks to address them.3

We cannot discuss everything at once but we can remain alertto the multiple aspects of the issues. Even straightforwardly empirical matters have conceptual or normative relevance and significance. Empirical realities

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can impact what we take to be morally justified. Moral justifications and judgments can depend in part on how the relevant concepts are understood, and what empirical considerations count for can depend a great deal on conceptualand normative claims and commitments.

I do not offer a definition of punishment or attempt to formulate necessary and sufficient conditions for it. However, I suggest the following as elements meant to express a conception of punishment sufficiently plausible toenable us to introduce key philosophical issues. They are: (I) That punishment involves the exercise of state power in a manner that deprives a person of liberty or otherwise imposes restrictions on the exercise of rights, and involvesthe infliction of suffering, either through the deprivation of liberty and/or additional impositions, (II) that the state does this in an institutionally regular, legitimately authorized, rule-governed way, based upon procedurally appropriate considerations (III) in response to persons having violated criminal law, (IV) which laws are publicly promulgated, and (V) that punishments are responsive to considerations of proportionality and/or social benefit and (VI) punishments do not degrade or humiliate persons in waysthat fail to acknowledge their humanity, their standing as moral agents.4

I realize that the final two conditions may seem somewhat tendentious. Element (V) is meant to register the point thatpunishments are not to be arbitrary or wholly disconnected from considerations of the gravity of the offense and/or putative benefits of punishing. That is, it is important forpunishment to be morally intelligible in regard to its severity. Element (VI) may seem to express a distinctively Kantian point but it is not meant to do that. Though Kant famously distinguished between persons and things on the basisof a specific conception of rational agency the notion of a person in (VI) is meant to further elaborate the requirementthat punishment should be morally intelligible. Under a liberal democratic rule of law persons are never to be

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regarded merely as things it could be appropriate to simply destroy, discard or ignore completely. Punishments that are inhumane are morally problematic. Granted, this leaves open the question of what counts as inhumane. Nonetheless, the disqualification of degrading and humiliating punishment is not trivial. When the requirement indicated by (VI) is ignored or deliberately violated, especially in a systematicway, that is indeed, morally very troubling. The significance of punishment being humane does not depend upondistinctively Kantian commitments about the nature of rational agency.

We should note that a distinctive feature of a liberal democratic political/legal order is that numerous political,moral, and social issues can remain contested or open to different interpretations without the institutions of government and the rule of law unraveling or being rendered ineffective. There can be persistently disputed issues, evenconcerning punishment, without motivating deep, institutionally paralyzing doubts about the legitimacy of the institutions and activities of government. Broad, stableendorsement of the form of government and rule of law is part of what makes significant disputes about policy possible. Endorsement does not imply that there is an enduring, stable consensus on every important issue.5

One of the most fundamental questions is whether it should be the task of the state to prosecute alleged offenders and punish those deemed liable to punitive sanction. Among the reasons often given for why the state is the agent of criminal sanction are these: (1) that violations of criminallaw are offenses against the shared values of the community and in that sense, crimes are matters of public concern and not just the private concern of the victims of crimes, (2) putting punishment in the hands of the state is a way for sanction as an institution to be governed by shared values and promulgated principles; it is a way for it to be institutionally and procedurally consistent and (3) for it to be minimally influenced by passions for vengeance, by

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unregulated desires to impose retaliatory harm, and by idiosyncratic and potentially inconsistent practices.

Granted, there is no guarantee that the state will be fair, persons’ rights properly respected, and that the state’s conduct will fulfill the aims of punishment properly and effectively. But, as indicated above, at the least this approach purports to significantly reduce the scope and occurrence of abuses, unfairness, and excesses possible whenpunishment is the responsibility of non-state actors or private citizens. There are various approaches affording citizens (offenders and victims, in particular) roles in strategies of restorative justice, and defenders of those approaches advocate replacing some elements of the role of the state in sanction and some of the punitiveness of sanction, with a view to numerous benefits for all parties. However, those have been attempted on a very modest scale and have not yet attracted wide and strong support.6 There are good reasons to consider alternatives to incarceration as a form of punishment but the focus of the present discussion is incarceration, on account of its prevalence, the large numbers of persons incarcerated, and the issues towhich it gives rise.

Given the complexity of civil society in liberal democraciesmany non-state institutions and organizations—entities otherthan those enforcing the rule of law—have various sanctioning powers and procedures. They include churches andfaith communities and all manner of organizations and associations, from the American Medical Association, to neighborhood social organizations, to the Middle States Commission on Higher Education, the Masons, the National Association for the Advancement of Colored People, ornithological clubs, the Edmund Burke Society, and countless others. How they sanction persons cannot violate persons’ civil rights or otherwise violate the society’s laws but such groups have considerable latitude regarding their own by-laws and procedures regarding misconduct.

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2.

One of the most philosophically important issues concerning punishment in a liberal democracy is the question of the relation between law and morality. Even defenders of austerelegal moralism, the view that the state should strive to be neutral in regard to morality and should enforce any specific moral view as little as possible, acknowledge that criminal law cannot be entirely morally neutral. Indeed, there is criminal law at all because of shared views of people’s rights and shared judgments of what are unacceptable harms. There just is no morally neutral conception of criminal law, whether or not one’s treatment of issues involves explicitly moral concerns, and even if one claims to be undertaking exclusively an exercise in conceptual analysis or description. Moral considerations remain close-by, at least in the sense that criminal law concerns (i) what should be prohibited because it is harmful or otherwise wrong, (ii) what is a just or proper response onthe part of the state and (iii) when and in what ways is it appropriate to deprive persons of liberty or otherwise causethem to suffer because they have violated criminal law. Questions concerning the distribution of ill-desert are unavoidably involved in an account of criminal justice. Eventhe least moralized notion of punishment, justified only on deterrent grounds, as a matter of risk-assessment and socialbenefit, rests on a basis of what counts as avoidable, unacceptable threats to security and wellbeing.

In any case, even many theorists who maintain that it is proper for criminal law and criminal sanction to have moral purpose and justification would also maintain that the stateshould not enforce morality as comprehensively as possible. If law addressed moral issues in all departments of life, asexpansively as possible, it would be stifling and oppressive. The plausible positions—at least in regard to the liberal democratic rule of law—are in the wide middle ground between austere legal moralism and ‘thick,’ expansivelegal moralism. Neither of those is the most extreme

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position possible at their respective ends of the spectrum, the two possible end-points being highly implausible.

In addition, we should note that it is possible to argue that law will function effectively as law only if substantialmoral agreement supports it. Even if there is a widely shared view that law should extend into fewer, rather than more departments of life, and that the law should permit extensive freedoms, the efficacy of law is likely to depend upon widely shared moral values. Austere legal moralism doesnot imply or presuppose minimal moral agreement. On the other hand, maintaining that the law should be underwritten by moral agreement does not necessarily imply that one also maintains that the law should enforce morality as comprehensively as possible.

Some defenders of the liberal polity argue that the liberal order is fully consistent with the enforcement of more than libertarian moral values. Antony Duff makes a case for communitarian liberalism. He notes, “First, community requires a shared commitment by the community’s members to certain defining values…”7 “Second, the members of the community must have a regard for one another as fellow members that is itself structured by the community’s defining values. They must understand their own and one another’s good, as members, in terms of the values and goodsthat define the community.”8 Also, “A liberal community willrecognize individual freedom and autonomy as crucial values:as human goods to be fostered and encouraged and as rights that must be respected by other citizens and by the state.”9

He argues that members of such a society

constitute a community insofar as they aspire, andknow that they aspire, to share the community-

defining values of autonomy, freedom, and privacy…and

insofar as they aspire, and know that they aspire, to an

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appropriate mutual concern for one another in the light

of those values. That mutual concern will involve a

readiness to assist one another in pursuing and pre-

serving the community’s distinctive goods…and a respect

for one another as fellow members of the community

that precludes simply exploiting others for one’s own

ends or treating them in ways that are inconsistent

with the community’s defining values.10

In explaining his conception of liberal communitarianism Duff says that he will “focus on the way in which a liberal-communitarian will understand the defining goods of a liberal polity—autonomy, freedom, and privacy—as being not only socially constituted but also communal, in that they count as goods only insofar as they are shared.”11 It is just a mistake to assume that being a proponent of moral community makes one a proponent of enforcing severely liberty-limiting morality. Much depends on the values at issue.

In Not Just Deserts Philip Pettit and John Braithwaite argue forwhat they call “dominion,” contrasting it with classical liberal conceptions of liberty. They “hope that the term [“dominion”] has the connotations required to suggest that the bearer of dominion has control in a certain area, being free from the interference of others, but has that control in virtue of the recognition of others and the protection ofthe law.”12 And, “Perfect liberty will be a condition enjoyed so far and only so far as a person relates to other people, and to the institutions of his society, in a way which gives him a certain sort of power.”13 They explicate their view as being in the republican tradition, with a

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considerable debt to Montesquieu as well as to classical liberals such as Locke. They write: “we hope that it [“dominion”] can suggest to modern ears what libertas must have suggested to the Romans, ‘franchise’ to the medievals.”14 “Dominion, freedom in the republican sense, requires more than the bare fact of exemption from interference by others: more than the liberal notion of freedom.”15

Theorizing about law that has its origin in jurisprudential thought is likely to be less directly concerned with the sorts of normative considerations that shape conceptions of political legitimacy, the telos of political community, and relations between law and morality, as understood, for example, by Duff. Consider Hyman Gross’s view:

Even if all crime can confidently be said to be morally

wrong, it is a serious mistake to suppose that conduct

with which the criminal law concerns itself is prohibited

and made punishable for the reason that it is morally

wrong. Conduct is prohibited by rules with teeth only

because it is thought of as some sort of peril.16

In this view it is not the case that conduct is criminalizedprimarily because it is morally wrong but because it causes harm. Presumably, these harms can be easily recognized by anyone except persons with exotically implausible moral views. That still does not thickly moralize the law. The relevance of the ability to recognize harms is not the same thing as the action-types being criminalized because they are immoral. Gross goes on to write: “the rules of conduct laid down in the criminal law are a powerful social force upon which society is dependent for its very existence, and there is punishment for violation of these rules in order to

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prevent the dissipation of their power that would result if they were violated with impunity.”17 One is not punished primarily for moral blameworthiness but for violating rules crucial to social order. That is a crucial difference. The social order is essential to persons being able to lead lives in which they can strive to realize what they take to be good, meaningful, and important. From the jurisprudentialperspective the legal order necessary for moral life but need not itself be understood in primarily moral terms. (That does not render them irrelevant. Instead, they are notintegral to the conceptual architecture from that perspective.)

The contrast between Duff and Gross is instructive. Duff seems to be starting from the moral/political perspective and arriving at a view of criminal law and criminal justice based upon respects in which a society and its rule of law reflect moral community. Gross is not directly challenging the importance of moral community to the social order but considers the relation between law and morality primarily from a jurisprudential perspective. The two views might agree on many questions of criminalization and criminal sanction—they might actually agree on many normative matters—though there are significant differences in what they take to be the justificatory reasons most relevant to judgments of whether a type of conduct should be criminalized and liable to sanction.

Just to be clear, we have taken note of two debates—(i) one concerning the extent of legal moralism, (ii) the other concerning whether to formulate the issue of criminal sanction in moral or jurisprudential terms. They are distinct but there are important points of contact and overlap between them. We can see, though, that in the debateover legal moralism the issue is not “complete neutrality vs. full-scale enforcement of a comprehensive moral view.” What is most importantly at issue in the question of legal moralism is the extent to which law should enforce morality,not whether criminal law should reflect moral values and

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principles at all. Gross (at least in the passages quoted) does not address that issue directly. He was making a point about a difference between the conceptual architecture of legal thought and political theory, noting that the normative concerns that often figure prominently in the latter might not be integral to the former.

The upshot is that gaining perspective on how to negotiate this complicated landscape it is important to ask, “what is the thinker’s primary concern, and what does this thinker take to be the conceptual idiom appropriate to address the issue in question?” This helps us see that the differences between views are not always differences over how to negotiate the same landscape; often, they are differences inwhat is to be mapped, the method of mapping, and why mappingthat way is especially important.

3.

The question of the aim and justification of punishment is undeniably significant. I use the expression “aim and justification” in a sense that is not meant to employ “justification” as a redundant version of “aim” despite the fact that some influential views speak of “the General justifying aim” of punishment.18 In a consequentialist approach to punishment it is likely that justification will be in terms of punishment’s aim, i.e., the types of states of affairs it purports to bring about. A non-consequentialist justification will be explicated on the basis of considerations other than what punishment brings about. Considerations of just desert, intrinsic rightness orsome other formulation independent of casual considerations will be the focus. Moreover, the difference between, on the one hand, the justification of the institution of criminal law and criminal sanction overall and, on the other, the justification of punishing this, that, and the other individual can be important. For instance, one might argue that the most general justification of criminal law and legal punishment is that they bring social benefits but that

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the punishment of individual offenders should be based on retributivist, non-consequentialist considerations.

Regarding the former issue Anthony Kenny writes:

The primary purpose of punishment is to prevent

citizens from becoming criminals; hence punishment will never be understood if it is regarded purely as a transaction between society and those who have already become criminals. When a man is punished, the purpose of punishment has, in his case, already been thwarted.19

Thus, we might say that we punish this individual as a matter of what he deserves, while we have the institution ofcriminal justice in order to prevent persons harming others.The question, “why is there criminal sanction?” is not exactly the same as the question “what justifies the imposition of criminal sanction on any person who is punished?” The former question is concerned mainly with why the institution of legal punishment exists while the latter concerns what kinds of reasons there are for punishing person P, person P1, person P2, and so forth. Moreover, as we will see, even when we are quite clear about what the justificatory project is, it is possible to elaborate coherent eclectic or mixed views; justification is not limited to being exclusively consequentialist or exclusivelynon-consequentialist.

The distinction between consequentialism and non-consequentialism is the most basic distinction pertaining tothe sorts of reasons there are for punishing individuals. Under the heading “consequentialist” we could find

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considerations of deterrence, reform, rehabilitation, and incapacitation (singly or in combination). Under the heading“non-consequentialist” we would find retributivist considerations and certain expressivist considerations (again, singly or jointly). There are mixed views including considerations of more than one type. (The communicative view is an example.) Fashioning a mixed view is more difficult than it might seem at first glance.20 It will not do to simply take some considerations from here and some from there; they may be in significant tension with each other. The defender of a mixed view needs to explicate how the elements can be coherently integrated, how it is a mixedbut not mixed-up view.

While in recent decades several defenses of retributivism have been elaborated many critics are almost offhand in their dismissal of retributivism, as though it is obviously implausible. For example, Hart writes of several retributivist theories, that they “all either avoid the question of justification altogether or are in spite of their protestations disguised forms of Utilitarianism,...”21

Anthony Kenny has said, “Popular wisdom, which has many adages which seem to favour the retributive theory, has one which is conclusive against it: two wrongs don’t make a right. We must not render evil for evil.”22 Nigel Walker wrote: “Those who object to utilitarianism because it seems to condone the punishment of the innocent...might ask whether the harm done every day to prisoners’ dependants in the name of retributive sentencing does not amount to the same thing.23 He adds that, “The retributive sentencer cannot escape this dilemma.”24

Hart has argued that a consequentialist approach can assimilate an aspect of retributivism that appeals to many theorists, namely, that only those who deserve to be punishedshould be punished, only the guilty deserve to be punished. He wrote:

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the injunction ‘treat like cases alike’ with its corollary ‘treat different cases differently’ has indeed a place

as a prima facie principle of fairness between offenders,

but not as something which warrants going beyond the requirements of the forward-looking aims of deterrence, prevention and reform to find some apt

expression of moral feeling. Fairness between different

offenders expressed in terms of different punishments

is not an end in itself, but a method of pursuing other

aims which has indeed a moral claim on our attention;

and we should give effect to it where it does not impede

the pursuit of the main aims of punishment.25

The relationship of these two injunctions of fairness to theissue of proportionality is that in punishing more serious crimes more severely we are aiming to do what we deem to be required to effectively check more serious evils, and we do so in a way that meets public demands for denunciation of serious crimes. There is fairness across two dimensions: (i)across the dimension of treating what is alike in a like manner, and (ii) across the dimension of responding with more severity to more grave offenses. In Hart’s view, neither of these essentially depends upon endorsement of retributivism.26 There are utilitarian (consequentialist) reasons for aspiring to fairness in these respects. Thus, even fairness is explicated in consequentialist terms.

It is doubtful that the assimilation Hart suggests would satisfy the retributivist. In addition, (in regard to Kenny)many retributivists might argue that it is a mistake to

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suggest that their view involves a second wrong in response to a first wrong; i.e., they would reject the characteriziation of retributive punishment as rendering evil for evil. First, the retributivist might argue that causing suffering—or for that matter, the bringing about of any state of affairs—is a mischaracterization of what is meant by retributivism. Instead, retributivism is a view of the point or signficance of punishment, a view of what punishment most fundamentally is, not a view of what it aimsto bring about. The retributivist could argue that punishment as just desert is not an attempt to “balance the scales of justice” or “right the wrong that has been done,” and the like. Those are open to being interpreted as characterizing what punishment might aim to bring about or accomplish and retributivism can be understood in a way thatdoes not make bringing about some state of affairs fundamental to punishment. Of course, the objector can argue that the retributivist’s view is inadequately responsive to the reality of causing suffering by punishing; surely, unless punishment does some good we have saddled ourselves with a view that endorses the state in causing avoidable suffering,and it is not sufficiently clear how that evil can be intrinsically right.

The retributivist can reply that when we are seeking the justification of punishment, we are not automatically required to think in terms of its efficacy or its intended purposes as a means to something. Those terms are most suitable in relation to the aim of a practice or institution. The retributivist can argue that punitive sanction can be rationally merited and in suitable degree just as resentmentor gratitude can be rationally merited and suitable in degree. They are merited in a sense in which it would not becorrect to say that envy and spite, for example, are ever merited. We can often understand why someone is envious or spiteful, but those are responses for which there is not an ethically suitable rationale for their aptness and fitness as there is for the resentment and admiration. The acts and facts that cause them do not merit them in the way that other

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attitudes and responses are merited. Also, what is merited is appropriate regardless of what it happens to bring about.(Resentment may just aggravate the nastiness of the person at whom it is directed. It could still be appropriate to resent that person and one might resent that person in the fit or suitable degree.)

Retributivism has been interpreted in several different waysand numerous issues—of principle, of moral sensibility, of moral motivation—are relevant to it. For example, some critics of retributivism regard it as poorly disguised vengeance and they believe that rather than “sanitizing” vengeance we should respond to criminal conduct in a different way. On the other hand, Adam Smith, for example, argues that resentment “is the safeguard of justice and the security of innocence.”27 Resentment reflects a concern to see that justice is served. Of course, resentment can becometoxic and it can poison one’s sensibility and relations between people but it should not be regarded as inherently morally problematic, as though it is a sentiment we should try to exclude from our experience in any case. In addition,it is not essential to connect retributivism with resentment. Kant’s account of retributive just desert—which he takes to be both necessary and sufficient for morally well-ordered legal punishment—is not rooted in the sensibility of resentment. Indeed, Kant was anxious to arguethat the case for retributive sanction is independent of empirical considerations of moral psychology.

In recent years Michael Moore has argued that sentiments canhave an epistemic role, enabling us to detect moral propertiesor moral facts.28 There is such a thing as properly felt resentment and the person who experiences it is best positioned to discern morally relevant features of an action, situation or agent. It is not only that the feeling or attitude can be justified, it can also heighten a person’s moral perceptiveness. In this view it is just a mistake to regard “negative” moral sentiments (anger, resentment, desiring that the offender be punished, etc.) as

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always morally unhealthy and as suitable only for minimization and containment.

In another view ascribing a valuable role to resentment Jeffrie Murphy writes:

Moral commitment is not merely a matter of intellectual

allegiance; it requires emotional allegiance as well, for

a moral person is not simply a person who holds the

abstract belief that certain things are wrong. Themoral

person is also motivated to do something about thewrong—and the source of our motivation lies

primar-ily in our passions and emotions.29

This is stated in the course of critiquing the standard arguments meant to establish “the irrationality or immorality of vindictiveness.”30 The diversity of views regarding the role of moral sentiments indicates how important it is to distinguish between (i) the role of moralsentiments in constituting what is right and wrong, (ii) their role in discerning what is right and wrong, and (iii) their role in motivating morally appropriate behavior. The difference between (i) and (ii) has to do with the difference between, for example, something being wrong because it elicits a certain reactive attitude (say, resentment) and being able to recognize that something is morally wrong, at least in part, on the basis of sensibility. Sentiment figuring in recognitional ability, ina constitutive role for moral valuation, and in moral motivation are three differentthings.

Expressivist views of the justification of punishment often highlight the role of certain sentiments in determining what

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is right and what is wrong. Feinberg argues that punishment is distinguished from penalizing and other acts by involvingauthoritative disavowal, non-acquiescence, vindication, and absolution (of other suspects).31 Part of the account of howpunishment differs from penalizing is that punishment expresses censure, denunciation. Though this is clearly not Kantian (or Hegelian) retributivism Feinberg also argues that a guilty verdict and even reprobation are not sufficient without hard treatment.32 In his view desert is required and we explicate desert in terms of certain moral sentiments. This is expressivism in the sense that the rightness, the aptness of judgments of certain kinds are explained in terms of the sentiments expressed by them rather than sentiments being shown to be appropriate on the basis of facts that are cognitive objects of judgment. Rather, the reactive attitudes motivated by certain kinds ofconduct and motives are integral elements of the account of what it is for something to be (morally) wrong.

Feinberg argues against retributivism that the only way punishment can be proportional to the gravity of the offenseis through its condemnatory aspect, not through actual infliction of pain or deprivation.33 Retribution focuses on how morally evil the criminal is, while expression is concerned with the intensity of social disapproval and condemnation of the act. (Smith, Moore, and Feinberg each ascribe important roles to sensibility but in different ways.) Feinberg argues that the retributivist project simplycannot be enacted successfully; there just is no way to proportionally ascertain how much hard treatment one deserves with retributivist resources.

Communicative accounts of the justification of punishment involve retributive elements and an important role for the expression of censure, denunciation. They illustrate how important it is to integrate different types of elements carefully. This is because there are some respects in which retributive and expressivist views can be incompatible. Generally, a defender of retributivism defends the claim

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that there is a principled basis for an offender enduring punishment, and the principle is not explicated on the basisof affect or sensibility and its expression. An expressivistview maintains that the suitability of punishing offenders in specific ways is accounted for by our reactive attitudes.In a communicative view the justification of punishment is not explained primarily in terms of reactive attitudes but there is a role for the expression of denunciation, which reflects sensibility. A communicative view has a role for expression of commitment to certain values; part of what is being communicated is the genuineness of the community’s valuative commitments. Those commitments include retributivist considerations.

A communicative view is well suited to Duff’s communitarian liberalism. Mutual respect is a significant feature of such a polity, and this requires thicker relations and forms of mutual concern than just refraining from harming others. In such a polity criminal wrongdoing will be recognized as meriting retributive just desert but also the communication of the society’s values as a way of addressing the offender as a rational agent capable of acknowledging and understanding the wrongfulness of his or her act, and of ethically reorienting to correct values. Criminal convictioncan be an expression of concern for the good of the offender. This is more than an expression of censure; it is meant as a form of dialogue, insofar as what is communicatedcan and should motivate ethically self-correcting reflectionon the part of the offender. That will enable the offender to also reconnect with the society from which he has been separated by his wrong act.

Above, we mentioned that a consequentialist conception of punishment might take deterrence and incapacitation as important aims and that it can also regard reform and rehabilitation as important aims. One way to distinguish between the latter two is to take reform as being mainly a matter of ethical reorientation, the offender engaging or re-engaging with correct values and undertaking to revise

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his or her action-guiding dispositions, while rehabilitationis chiefly a matter of the offender coming to behave in a socially acceptable and functionally appropriate manner whether or not the person has revised valuative commitments.34 The reformed offender is trying to be a better person and the rehabilitated offender is trying to function more successfully in free society.

One might argue that it does not really matter whether it isreformation or rehabilitation that is achieved; ultimately, it is deterrence and social benefit that matter and reform andrehabilitation are two different ways of accomplishing them.There is something to be said for this in the sense that, ifone is a consequentialist, then the primary concern is whether sanction leads to less crime (without also causing harms that would offset the benefits of less harm). However,the distinction between reform and rehabilitation can still matter in the respects that (a) some offenders may be good candidates for one but not the other approach, and (b) if wethink that criminal sanction should include at least some concern for what people are like and not just what they do we will have concern for more than just reduction in the crime rate. If we believe that it is appropriate for society to show concern for what kinds of lives offenders will be able to live, and not just for the crime-rate, then we might regard rehabilitation and reform as legitimate aims and hopethat offenders are not only rehabilitated but reformed. There is a difference between persons abandoning criminal activity because they recognize its wrongness and desisting because punishment is so unpleasant. There are, so to speak,qualitative differences between forms of desistance and those differences could matter to what sort of civil societywe have and aspire to have.

What we take to be among the aims of punishment can make a significant difference to the forms and conditions of punishment we regard as acceptable. The conditions prevailing in many U.S. and some U.K. prisons are hardly likely to motivate ethical self-correction and they have

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virtually no prospect of guiding prisoners in the direction of reform and perhaps not even desistance. (That is a highlysignificant empirical consideration.) Seriousness about rehabilitation and/or reform would require large-scale institutional commitments and sustained enactment of carefully considered policy covering matters such as living conditions, health care and counseling, educational opportunities, and changes in what is permitted regarding visitors and interactions with free society. It might be cynically suggested that the miserable and even inhumane conditions in many prisons reflect the dominant retributive mood of society; that this is what society actually desires from sanction. But retributivism—properly understood—is not a mood and not primarily a matter of what is desired. It isa principled focus on just desert and there is no proper place for inhumane conditions or malicious pleasure in another’s suffering in regard to justice or desert. A retributivist may not regard reform as a primary aim of or ajustificatory condition for punishment but can still welcomeit and can endorse conditions that encourage it. It is not as though the retributivist disavows concern with anything other than just desert. Kant’s view, in fact, illustrates the point.

4.

We noted early on that in a liberal polity persons have extensive rights and liberties and extensive freedom to leadtheir lives in the ways they choose. The state is not to impose or enforce any specific conception of how to live. The state has a role in responding to persons harming othersbut it is not to police persons’ characters. (Some theoristswould also argue that punishment should not be directly concerned with reforming or rehabilitating offenders; that its proper concern is retrospective, addressing a criminal act with its just desert.) In this view it is past conduct that properly attracts the attention of criminal justice. However, criminal justice in the Western world has roots that reach deeply into ancient and medieval moral and

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religious conceptions, and until historically recent times, punishment was widely thought of as a form of atonement and expiation.35

Even in the context of modern political thought this does not mean that one’s character has no relevance once conduct has merited the attention of criminal justice. Considerations concerning character often have a role in sentencing when the offense or the offender is judged to exhibit a “depraved heart,” “callous indifference to life,” or “remorselessness.” Considerations of character almost inevitably enter the picture, in one way or another. Perhaps, then, other differences in sensibility could also enter it appropriately. Of two persons convicted of exactly the same offense is it fair to punish them similarly knowingthat it will be a psychological and emotional, life-ruining catastrophe for one of them and for the other, something of a badge of honor, reinforcing his alienation from the rule of law and its enforcement? Does fairness require consistency across persons in sentencing or does it require calibration to individual sensibility and the likely responses of the persons punished? This is a difficult challenge for both consequentialist and non-consequentialistviews. We can all agree that it is crucial to be fair yet, continue to disagree (reasonably) over what fairness requires regarding differences between individuals.

Here we only raise the question and cannot pursue it. We will, however, mention one additional issue, one to which considerations of character can be strongly relevant. We might hold that we should not regard any offenders as incorrigible, that “[w]e owe it to every moral agent to treat him as one who can be brought to reform and redeem himself—to keep trying, however vainly, to reach the good that is in him, and to appeal to his capacity for moral understanding and concern.”36 While a great deal of contemporary political thought may regard the state’s concern with a person’s character as inappropriate and potentially dangerous it might also be thought that, for

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moral and epistemic reasons no one should be “written off” as a total moral loss, beyond the possibility of constructive moral reorientation.36 This can be claimed to follow from the respect owed to persons as rational agents of equal moral standing (supposing the agent in question is not insane or otherwise rationally disabled). Whether and how that should make a difference to forms of punishment andtheir proper aims we cannot consider here, except to note that it points to one of the ways in which punishment is unavoidably a moral matter, demanding our moral concern however morally neutral we claim our form of inquiry or analysis to be.

Countries for which broadly liberal democratic values are fundamentally important are likely to be countries in which governments do not require individuals to acquire certain states of character or certain guiding interests and concerns. Citizens in such states have more freedom than that though, of course, the genuineness of that freedom depends upon people having and maintaining certain valuativecommitments. On the one hand, the state is not to police one’s character and is not to impose requirements on it. On the other, states of character and the ways they are reflected in one’s actions can seem strongly relevant to at least some aspects of criminal justice, and especially, aspects of criminal sanction. Wherever one begins one’s project of analysis or inquiry, and whether it begins from amoral starting point, a jurisprudential starting point or any of a number of empirical/scientific starting points the unavoidable importance of questions concerning the intersection of law and morality and concerning what people are like, and not just what they do, will make itself known.

End Notes

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1. Though key developments concerning (i) the role of the state in legal punishment, (ii) the forms of legal punishment, (iii) the aims and justification of legal punishment, and (iv) possible alternatives to legal punishment as a response to criminal conduct have rootsand sources at least two millennia old there is not space here to include historical discussion. Through medieval times and into the early modern period there were multiple loci of authority and multiple sources and systems of law. Some of the most significant political disputes of the period, and extending into the early modern period, concerned the jurisdiction of the various institutions claiming legal authority and the relations between them. Those debates concerned fundamental issues of political and theological authority and legitimacy, basic issues concerning property and property rights, and various fundamental issues concerning authority to sanction. Many of those debates are substantively relevant to early modern and modern thought though medieval thought is often left out of the picture. Very valuable help understanding why it can and should be illuminatingly included in thepicture see Medieval Political Ideas, ed. Ewart Lewis, London, Routledge & Kegan Paul, 1954. It is a rich collection of excerpts from a large number of primary sources of several types, accompanied by excellent editor’s essays.

2. There are numerous other types of sanction besides punishment, and in being distinguished from punishment they are regarded as civil matters. Fletcher mentions what he calls “status-related sanctions” such as “deportation, disbarment, and impeachment.”(29) “The purpose of these status-deprivation sanctions is…not topunish but to protect society in the future.” (30) George Fletcher, Basic Concepts of Criminal Law, New York: Oxford University Press, 1998.

3. While distinguishing between different types of inquiryand analysis is important and helpful, and while there surely are important methodological differences between

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different modes of inquiry the complicated reality of the issues makes it very challenging to undertake a study in what purports to be exclusively empirical, conceptual or normative terms. Large and difficult questions concerning (i) the possibility of value-neutral inquiry and analysis and whether that is even desirable, and (ii) whether there are objective normative considerations are very quickly motivated even if one insists that one is confining one’s claims to purely or only empirical or conceptual matters. Justreporting the results of counting some kind of phenomenon—as blandly factual as a study might be—already reflects presuppositions concerning relevance, explanatory significance, and other matters. Moreover, often ‘just the facts’ can be vitally important to moral reasoning, judgment, and analysis.

4. With the exception of (V) and (VI) the elements suggested are similar to those H. L. A. Hart suggested in Punishment and Responsibility, New York: Oxford UniversityPress, 1968, 4-5.

5. The marks of the endorsement of political legitimacy may be tacit, implicit, and exhibited mainly in people’s habits, attitudes, and conduct such as voting,paying taxes, and serving on juries rather than involving explicit, official acts of endorsement. If people have not been coerced, manipulated or deceived into living under a specific rule of law and set of institutional arrangements and they are willing to seekchanges through the political processes associated withthat political/legal order, that may reflect endorsement without requiring other official demonstrations or ratifications of it. There can be non-confessional, tacit, rational endorsement. (This isnot the place to undertake a survey of the most influential approaches to theorizing about political legitimacy and political obligation. That important project would draw us into numerous issues besides those of primary interest here.)

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6. Restorative justice employs non-punitive methods such as reconciliation, mediation, and other forms of dialogue and communication aimed at enabling victim andoffender to regard each other respectfully as members of shared community. Hopefully, the victim will be ableto overcome hatred and resentment, and the offender will recognize and appreciate the harm done by his or her wrongdoing. Various such attempts, with varying degrees of success have been undertaken but on what is a very modest scale relative to the overall numbers of offenders and victims.

7. R. A. Duff, Punishment, Communication, and Community, New York: Oxford University Press, 2001, 43.

8. Ibid., 43.9. Ibid., 47.10. Ibid., 47-8.11. Ibid., 54. The relations between law and morality

can take a multitude of forms. Even if one’s conceptionof a society or a society under the rule of law involves widely shared commitment to moral values that have a role in shaping criminal law and criminal sanction, that view is distinct from maintaining that the point and function of criminal law and criminal sanction are to be as responsive as possible to substantive moral commitments, that they are ‘morality in application,’ so to speak.

12. Not Just Deserts, John Braithwaite and Philip Pettit, Not Just Deserts, Oxford: Clarendon Press, 1990, 60.

13. Ibid., 61.14. Ibid., 60. 15. Ibid., 203.16. Hyman Gross, A Theory of Criminal Justice, New York:

Oxford University Press, 1979, 15.17. Ibid., 401.18. H. L. A. Hart, Punishment and Responsibility, New York:

Oxford University Press, 1968, 9.19. Anthony Kenny, Free Will and Responsibility, Rouledge &

Kegan Paul, New York, 1978, 76.

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20. There is analogy here to the debates concerning free will and determinism. Compatibilist views cannot be formulated by combining libertarian commitments withhard determinist commitments; libertarianism and hard determinism are inconsistent with each other. Compatibilism requires a non-libertarian conception of free will and a form of determinism distinct from hard determinism. The analogy extends to other areas of philosophy, as well. Virtue-centered theorizing is not a combination of deontology and consequentialism. It isa third thing, distinct from those other two views.

21. Hart, Punishment and Responsibility, 9.22. Kenny, Freewill and Responsibility, 73.23. Nigel Walker, Why Punish?, Oxford University Press,

Oxford, 1991, 107.24. Ibid., 107.25. Hart, 172. Part of the significance of fairness is

that it addresses ordinal and cardinal concerns regarding punishment.

26. Hart writes: Much confusing shadow-fighting between utilitarians and their opponents may be avoided if it is recognized that it is perfectly consistent to assertboth that the General Justifying aim of the practice of punishment is its beneficial consequences and that the pursuit of thisGeneral Aim should be qualified or restricted out of deference to principles of Distribution which require that punishment should be only of an offender for an offence. Punishment and Responsibility, 9.

27. Adam Smith, The Theory of Moral Sentiments, ed. by D. D.Raphael and A. L. MacFie, Liberty Fund, Indianapolis, 1984, 79.

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Smith wrote: …the violation of justice is unjury:it does real and

positive hurt to some particular persons, from motives which

are naturally disapproved of. It is, therefore, the proper object of resentment, and of punishment, which is the natural consequence

of resentment. The Theory of Moral Sentiments, 79 [II. ii. 1. 4] A significant feature of Smith’s moral theoryis that, while largely limiting himself to resources ofsensibility and imgaination, he articulates an account of moral experience and moral judgment meant to preserve and explain distinctions between correct and incorrect moral judgments, sound and unsound moral responses, and so forth. It is an account of the objectivity of moral judgment though it takes moral judgment to be based upon sensibility. Smith’s conception of impartiality, to which the imagination iscrucial, has a centrally important role in his view.

28.See Michael Moore, “The Moral Worth of Retribution,” Chapter Three of his Placing Blame, Oxford: Oxford University Press, 1997, 104-152.

29. Jeffrie G. Murphy, Getting Even: Forgiveness and Its Limits, New York: Oxford

University Press, 2003, 19.30. Ibid. 25.31. Joel Feinberg, “The Expressive Function of

Punishment” reprinted in A Reader on Punishment, ed. by A.Duff and D. Garland, Oxford University Pres, Oxford, 1994, 71-91.

32. Feinberg argues that the only way vindication of the law that has been violated can be accomplished is through punishment—i.e., hard treatment. It serves a socially useful function in that reprobation without hard treatment cannot effectively convey what society means to express, and hard treatment without reprobation is also insufficient, for much the same reason. Both symbolic meaning and conduct are

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necessary elements of criminal sanction. Feinberg argues that that the problem of justifying punishment “may really be that of justifying our particular symbols of infamy.” (87)

33. In the course of several objections to certain forms of retributivism Feinberg picks out for special castigation “the pain-fitting wickedness version of the retributive theory” a version such that perhaps the best we can say of it is that it has gone so far as to “erect its edifice of moral superstition on a foundation in moral common sense, for justice does require that in some (other) sense ‘the punishment fitthe crime’” “The Expressive Function of Punishment,” The Monist, 49 (3), 1965, 422-423.

34. See Fergus McNeill, “When Punishment is Rehabilitation,” The Springer Encyclopedia of Criminology and Criminal Justice, ed. G. Bruinsma, D. Weisburd for a helpful discussion of the several ways reform and rehabilitation have been understood.

35. Punishment as it is conceptualized in contemporaryliberal democracies involves significant revisions of older notions of the nature and purpose of political community and of punishment. There is a very long, very complicated story to tell about how modern liberal democracies have come to endorse the laws, institutions, and practices they regard as vitally important to the legal/political order. In addition tothe ‘orthodox’ histories of these matters there are critical genealogies of many of them, such as Nietzsche’s.

36. R. A. Duff, Trials and Punishments, New York: Cambridge University Press, 1986, 266.

37. Among the epistemic reasons for not writing peopleoff as incorrigible are the fact that we do not know all we would need to know in order to be in a positionto make such a judgment, even in our own case, no less, that of other persons. Supposing we have reason to believe that a person is a rational, voluntary, accountable agent—not someone whose pathological or

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other condition places them beyond the reach of accountability—it may be that there are no particular facts about the person that could provide a conclusive basis for determining that he or she is incapable of moral reformation, whether aided and guided by others or entirely through an internally motivated, self-directed process. We cannot even know this—or whether there is some type of terrible act we utterly cannot perform—about ourselves. A moral reason for not writing persons off is that doing so, even if based upon what appear to be excellent reasons, could motivate a kind of moral arrogance and a diminution of respect for others, thinking of them as lesser and of ourselves asmorally superior. Making such judgments would be at odds with a sort of moral humility it is almost certainly both wise and good to strive to maintain. Even if it is quite clear that some persons (perhaps ourselves) are morally much better than other persons,there still may be an impenetrable constellation of considerations that figure in the explanation of why that is so. And the true explanation might involve a considerable element of luck, to an extent that is notmorally very flattering. This is an issue on which Kant commented and it is very helpfully discussed in Forgiveness and Mercy, by Jean Hampton and Jeffrie G. Murphy, New York: Cambridge University Press, 1988. Even if there are epistemic and moral reasons for not writing persons off as incorrigible there is still a point in considering whether, given the states of character, which, in a mature individual may be quite firmly established, there may be character-based formsof practical necessity and impossibility. Indeed, in some conceptions of virtue, the ideally virtuous agentis one for whom corrupt motives and wrong actions are practically (in the sense of ‘having to do with deliberate action’ not in the sense of ‘almost’) impossible; that person not only wouldn’t act in wrongways but any contrary-to-virtue considerations do not occur to her. That is one way in which practical

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impossibility can be a strength rather than a weakness. There are very difficult questions concerning the fixity (or not) of states of character and the relation between that issue and the issue of whether there are ever reasons to regard a person as incorrigible.

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