Punishment

[lovett]

That sort of indirect judgement about benefit, with hindsight, is not at all what we should be measuring when we consider the costs and benefits of a crime.
The benefit is what the criminal would have had to pay (or give up, in time perhaps) for the education, which we can call what the state has to pay above its incarceration costs. Further benefits are entirely dependent on the criminal's subsequent actions, and therefore not a consequence of the crime.
I find it rather disingenuous to misinterpret my meaning in this way.

We could, for example, say that because the criminal is subsequently hunted down and beaten by an enraged victim his crime hasn't benefitted him. But actually, he still got the pleasure or money. He has simply also been the victim of another crime.

If you won't allow me to split lives into separate actions then I see no need for any sort of justice system except to judge people once they're dead.

I'm not sure that the divisions you are making are valid. That is to say, I don't see why you are considering one part of a directly predictable causal chain, but not the rest.

When considering rehabilitation we are not considering indirect benefits in hindsight. We are using foresight; we're are trying to predict the affect of a program on a convicts subsequent actions. The very thing in question are those subsequent actions, and we want to ensure those actions are broadly benign. There is a direct causal chain here:

1) Perpetrator commits a crime.

Which has the effect:

2) Perpetrator get's convicted and sentenced.

Which has the effect:

3) Perpetrator serves his sentence

Which, if said sentence is rehabilitative in nature (and works) has the effect:

4) Perpetrators acts differently.

which has the effect:

5) Society and the perpetrator benefit.

We can see that event 1 has caused event 5; the perpetrator has benefited from his crime. And the crucially relevant thing here is the role of sentencing in this causal chain. The entire point of a rehabilitative sentence is that the perpetrator act differently in future, and this is inextricably linked with the perpetrator benefiting from his crime. That's why this reasoning doesn't imply we have to have some power of omniscience ( or hindsight) before judgment; the perpetrator benefiting is directly predictable.

It seems to me that you want to say that we should treat 4 and 5 as a completely separate causal chain. That when sentencing we should only consider a time frame encapsulating 1, 2 and 3. I don't think this division is valid precisely because 4 and 5 are directly dependent 2. And dependent in a predictable and solid way. The intention at 2 was to cause 5.

This leads to the dilemma my hypothetical was meant to expose. We could consider sentencing as a moral 'turning point'. What we do here is morally right or morally wrong. If we think that a perpetrator should never benefit from his crime, we can't bestow a rehabilitative sentence at 2. Because it is quite clear that so doing will change the perpetrators patterns of action such that he benefits; it will lead to effect '5'. That means that in the former hypothetical we would prefer the punitive sentence in which the perpetrator is not rehabilitated, and continues to behave criminally and both he and society suffer.

The problem here is that if justice means 'everyone gets what they deserve' we have a situation in which the people as a whole (I.e society) are suffering undeservedly. We have not achieved just outcomes, and certainly have not achieved socially optimal outcomes. By imposing a punitive sentence at 2 we have acted 'unjustly', because the entirely predictable outcome of our sentence is that society suffers; someone gets undeservedly bad results.

That's why I'd contend that considering 1,2 and 3 alone is insufficient. That to achieve a just outcome (and isn't this what we want?) we must consider 4 and 5. Consequently a rehabilitative sentence is desirable.

As a brief aside, I'm not sure how you would go about defining 'benefit' in your example. The entire usage of a rehabilitative sentence using education seems to presuppose that the criminal would not himself have chosen to become more educated. The criminal does not see education as inherently valuable; he does not see it as a benefit. He does not enjoy it in itself - it has no intrinsic benefit to him.So we couldn't declare it a benefit without appealing to the effects of education (vis a vis future earning etc), because in a very real way it isn't beneficial otherwise. And thus one really does accept that the wider causal affect of a sentence are important; including those on society. And unless we call it a benefit we can't justify a presumption against education being part of sentencing. This seems to lead to something a catch 22; to call education unjust because it's beneficial we have to we have to accept that our conception of justice includes events past prison. And by so doing we are lead to the conclusion that education is just because it's beneficial.

 

[Brighteye]

That's why I said ideally it should be more than providing a safe prison cell, but the realist that I am recognizes that an important first step would be making prisons safer than they are now, because any treatment someone gets is diluted by the completely perverse and dysfunctional situation we have right now in American Prisons.

As to your second point, I'm not talking some common perception of "justice." If it helps lets stop calling it the criminal "justice" system because our system is not about your perception of "justice." It's about maintaining order. So when you want to talk about criminals not "benefiting" then you're turning the system into a zero sum game. That's not what it is.

I'm deliberately turning crime into a negative sum game for the criminals. If it is not we can debate deterrence effects of punishments all day, but we will not be just.
My conception of justice is common. It's what people imagine when you ask them if they want justice. If you told them we could chase justice, or else we could chase order but specifically at the expense of justice, my guess is that they'd prefer justice.

We have endless novels and films about the fight between order and justice. Typically, order is portrayed as a cloying, oppressive regime that reeks of injustice. I think that's quite right: some things are of more value than order. Order happens to a valuable by-product of a just system. It should not be that justice is a partial by-product of an orderly system.

I'm not sure that the divisions you are making are valid. That is to say, I don't see why you are considering one part of a directly predictable causal chain, but not the rest.

We can see that the perpetrator has benefited from his crime. And the crucially relevant thing here is the role of sentencing in this causal chain. The entire point of a rehabilitative sentence is that the perpetrator act differently in future, and this is inextricably linked with the perpetrator benefiting from his crime. That's why this reasoning doesn't imply we have to have some power of omniscience ( or hindsight) before judgment; the perpetrator benefiting is directly predictable.

This leads to the dilemma my hypothetical was meant to expose. We could consider sentencing as a moral 'turning point'. What we do here is morally right or morally wrong. If we think that a perpetrator should never benefit from his crime, we can't bestow a rehabilitative sentence at 2. Because it is quite clear that so doing will change the perpetrators patterns of action such that he benefits; it will lead to effect '5'. That means that in the former hypothetical we would prefer the punitive sentence in which the perpetrator is not rehabilitated, and continues to behave criminally and both he and society suffer.

The problem here is that if justice means 'everyone gets what they deserve' we have a situation in which the people as a whole (I.e society) are suffering undeservedly. We have not achieved just outcomes, and certainly have not achieved socially optimal outcomes. By imposing a punitive sentence at 2 we have acted 'unjustly', because the entirely predictable outcome of our sentence is that society suffers; someone gets undeservedly bad results.

That's why I'd contend that considering 1,2 and 3 alone is insufficient. That to achieve a just outcome (and isn't this what we want?) we must consider 4 and 5. Consequently a rehabilitative sentence is desirable.

As a brief aside, I'm not sure how you would go about defining 'benefit' in your example. The entire usage of a rehabilitative sentence using education seems to presuppose that the criminal would not himself have chosen to become more educated. The criminal does not see education as inherently valuable; he does not see it as a benefit. He does not enjoy it in itself - it has no intrinsic benefit to him.So we couldn't declare it a benefit without appealing to the effects of education (vis a vis future earning etc), because in a very real way it isn't beneficial otherwise. And thus one really does accept that the wider causal affect of a sentence are important; including those on society. And unless we call it a benefit we can't justify a presumption against education being part of sentencing. This seems to lead to something a catch 22; to call education unjust because it's beneficial we have to we have to accept that our conception of justice includes events past prison. And by so doing we are lead to the conclusion that education is just because it's beneficial.

Your points 4 and 5 are dependent on further actions. The whole concept of justice and responsibility is rather undermined if we do not allow that people are free agents. The immediate benefits of the crime (money, sexual pleasure... whatever they might be) come directly from his action. The immediate consequences are those laid down in law and enacted by the justice system. Anything beyond those, be they the criminal's responses to them or anyone else's responses to them, are not part of the equation.

If we are to include possible consequences of every act then we can indeed say that almost all humanity is criminal, because we will all have interacted with someone who has later committed a crime, and might have acted differently had we also acted differently.
I cease to draw responsibility for an action when the line of responsibility hits someone we regard as an agent.

When it comes to benefit, education is a benefit because it opens up opportunities that were not previously available, and costs the state money to administer. It is beneficial because of the opportunities, not the actual earnings that might follow if the opportunities are taken. If I have an expanded range of opportunities then I have been benefitted even if I then choose one that I already had.

 

[illram]

I'm deliberately turning crime into a negative sum game for the criminals. If it is not we can debate deterrence effects of punishments all day, but we will not be just.
My conception of justice is common. It's what people imagine when you ask them if they want justice. If you told them we could chase justice, or else we could chase order but specifically at the expense of justice, my guess is that they'd prefer justice.

We have endless novels and films about the fight between order and justice. Typically, order is portrayed as a cloying, oppressive regime that reeks of injustice. I think that's quite right: some things are of more value than order. Order happens to a valuable by-product of a just system. It should not be that justice is a partial by-product of an orderly system.

That's all well and good, but I'd prefer a system based on real tried and tested public policy principles than movie cliches and public misconceptions about how society works. We've been operating a system based on maintaining order (i.e. "the law") for quite a while now. That's why vigilante justice is just as illegal as the crimes vigilantes purport to avenge.

In fact, I'd say for a few hundred years our system (the Anglican one) has been more concerned with maintaining a functional orderly society than dispensing justice for the sole sake of the victim of a crime. It works, albeit clumsily. And I'd like to keep it that way, but fix it around the edges. You're talking about a complete reversal of what we've been doing since, I don't know... the 1600's or so. Blackstone, Locke, Rousseau, all those cats.

The primary concern of a criminal justice system in modern civil society is the maintenance of civil society for the public good. Any sentence and any law must conform to this basic principle. That further means any sentence levied on an individual, if it is not for life, must take into account that person's later release into society. If that person is later released into society and re-offends and makes someone else a victim of crime, the system has failed. The system is failing alot these days, unfortunately, but it can be salvaged and we don't need to completely re-invent the wheel as you're describing.

 

[Camikaze]

What is the point in punishment? Is it necessary or useful? If so, when? Is it right?

Well, punishment does have a point, as a deterrent, obviously. But I wouldn't really think that it in itself is 'right', as such. It's more an evil that society seems to tolerate as acceptable to dish out to fulfil that role.

Is it the main purpose of criminal justice, or does a criminal justice system have other more important purposes?

I dunno if it actually is or not (I'm sure that's up for debate), but it certainly shouldn't be. The point of justice should be to safeguard the public. Punishment doesn't, in itself, safeguard anyone from anything. Keeping something securely locked away might, but that isn't the same thing as punishment. The public would be just as safe with a criminal locked away in a lavish mansion as with a criminal locked away in a gaol. It isn't actually necessary to deprive criminals or more rights than their freedom of movement to keep the public perfectly safe. So, punishment cannot be the main instrument to achieve the goal of safety, seeing as it's not directly related to its achievement.

Is it mainly necessary as a deterrent, or for its own sake?

I think it's clear that a lot of people in society seem to find some sort of pleasure in seeing societal revenge take place, but I really don't think that it's right to pander to that primitive desire. It really should only be for deterrent's sake.

Is it merely institutionalised revenge?

Where is goes beyond the bounds of acting as a deterrent; where the moral and physical cost of that punishment exceeds the benefit of further punishment, then it has probably become institutionalised revenge.

Who benefits from punishment? Who should benefit from punishment: the victim or their friends and family? the public? the state? the criminal themself?

In addition to society (the public) benefitting from the deterrence value, the criminal should also benefit from the punishment. It is meant to act as a deterrent to them, to prevent them from committing further crimes, after all.

How should it be applied to children?

Enough so that they are deterred from acting wrongly in the future, but as little as is required to do so.

 

[Birdjaguar]

So if you have a million wayward youths they should all be isolated from each other. Presumably they were already being educated (but found it boring/irrelevant to their lives). How do you suggest they be educated instead?

Peers are the biggest influence on those between 12 and 20. The idea is to create new peer groups for those who have fallen under bad influences and do so in an educational environment that is better suited to their needs. ATM we do not know how to do that effectively.

 

[Brighteye]

That's all well and good, but I'd prefer a system based on real tried and tested public policy principles than movie cliches and public misconceptions about how society works. We've been operating a system based on maintaining order (i.e. "the law") for quite a while now. That's why vigilante justice is just as illegal as the crimes vigilantes purport to avenge.

In fact, I'd say for a few hundred years our system (the Anglican one) has been more concerned with maintaining a functional orderly society than dispensing justice for the sole sake of the victim of a crime. ...
The primary concern of a criminal justice system in modern civil society is the maintenance of civil society for the public good. Any sentence and any law must conform to this basic principle. That further means any sentence levied on an individual, if it is not for life, must take into account that person's later release into society. If that person is later released into society and re-offends and makes someone else a victim of crime, the system has failed. The system is failing alot these days, unfortunately, but it can be salvaged and we don't need to completely re-invent the wheel as you're describing.

I'm not advocating vigilante justice, nor revenge. Those are very distinct from justice, enacted by those with the authority to do so, as I would have thought was clear from my previous posts in this thread.
Film and novel cliches become cliches because they resonate with people and are used repeatedly. I think that we need to be clear that something that has an effect we desire is not necessarily a good thing, nor justifiable. The ends do not always justify the means is a well-known phrase.
Simply because making criminals benefit from crime might make them more productive doesn't mean that we should let them benefit from crime. If the sorts of courses that criminals were forced to attend were free for the public then the criminals would not be getting any additional benefit from the crime, and a small punishment would be enough.

I don't think that the system has failed if a criminal re-offends. If he re-offends in a way that he was not able to before his sentence (through the contacts and expertise he gained in prison) that's a failure, but simple re-offending is his decision. I don't think that we can blame our own actions for something that he does. It's an impossibility with our notions of responsibility and agency on which the legal system is based.
We fail if punishment gives him greater opportunities or abilities for crime. It's not failure if we don't alter his basic nature. I see no reason to try to change people.

 

[illram]

The problem is your conception of benefit is not focused on the correct target. A criminal entering prison and leaving a law abiding, productive citizen who is less likely to re-offend is beneficial to society. That's the point of the system. Your system of focusing on the individual in a zero sum game would make society worse IMHO.

And it's not like this guy is having fun in Prison. Prison would still totally suck. He would in all likelihood never want to go back. His new life might be a lot more boring and plain than his old one. I see no reason to speculate as to each individual whether they truly "benefit" based on some ambiguous concept of benefit.

 

[Brighteye]

And now we return to my original point: that your idea of benefit is not focussed on the correct target. We apply justice to individuals, and with a crime committed by an individual, we should be reckoning the gains and losses to an individual.
The aim of society is not 'the greater good', nor some collective concern for each others' welfare. Society exists in order to provide a framework within which we can all most easily seek our own good. When dealing with individual matters we should be concerned with individuals.
If we're talking about ambiguity, 'the greater good' and societal benefit, judged as the entirety of an individual's subsequent actions is a lot more ambiguous than the relatively easily quantified nature of the costs of learning and the costs of a crime.

 

[illram]

Releasing someone from prison with no attempt to reduce their likelihood of reoffending makes it less likely that you and I can seek "our own good" if that person is still inclined to commit crimes. The criminal justice system serves the interests of public in general, not you and I individually. That's how it is.

 

[Narz]

Peers are the biggest influence on those between 12 and 20. The idea is to create new peer groups for those who have fallen under bad influences and do so in an educational environment that is better suited to their needs. ATM we do not know how to do that effectively.

How do we "create a new peer group"? Kids choose their peers & resist being relocated &/or forced into a new one.

 

[Gustave5436]

What is the point in punishment?

Retribution; primitive emotional satisfaction from inflicting harm on others.

Is it necessary or useful?

No; even in the case of operant conditioning, positive reinforcement is the most effective strategy.

Is it right?

Punishment is the act of inflicting harm on another being for one's own enjoyment (in the sense of the "justice" system).

Is it the main purpose of criminal justice, or does a criminal justice system have other more important purposes?

There is no justice in the "justice" system. Dangerous individuals should be isolated from society until the cause of their violence is deemed to be in remission, but this is a mental health matter, not a criminal one. "Criminal justice," outside of the usefulness of isolating untreatable psychopaths, serves no purpose but to cause harm.

Who benefits from punishment? Who should benefit from punishment: the victim or their friends and family? the public? the state? the criminal themself?

No one; if punishment were effective as a learning technique, however, and if a technique could be devised without violating human rights, it would be justified in the treatment of the criminal.

How should it be applied to children?

Immediate psychological intervention. If the child is truly showing signs of psychopathy (rather than acting out due to some psychosocial stressor), she urgently needs intervention to restore normal functioning.

 

[Birdjaguar]

How do we "create a new peer group"? Kids choose their peers & resist being relocated &/or forced into a new one.

Of course they will resist, but you do it anyway. Now we put bad kids in reform schools or return them to their old neighborhoods, and mostly the results are more of the same. To get different results we must stop what we are doing now.

Find new neighborhoods, new school settings and a mix of different kids. Entirely different environments are needed and those have to be created even if they are physically far from the old. It is a multi dimensional problem that involves parents too.

 

[Brighteye]

Releasing someone from prison with no attempt to reduce their likelihood of reoffending makes it less likely that you and I can seek "our own good" if that person is still inclined to commit crimes. The criminal justice system serves the interests of public in general, not you and I individually. That's how it is.

Firstly, we are quite able to seek our own good with potential criminals around.
Secondly, this statement of yours does not necessarily lead away from punishment, either as an end in itself, a means to make crime a negative gain or as a harm to society.
The criminal justice system does indeed not serve any individual. The individuals with whom it deals are not 'served' by it in that sense. Nonetheless justice must be done to an individual.
If we think we're doing justice to 'society', but by so doing have ceased to do justice to individuals then we've lost touch with reality. The reality is that society is an artificial, abstract construct. Individuals exist.
If we were able to ensure that every crime was well punished such that each criminal received no benefit, whilst also being forced to discover new opportunities (that were free for the general public to access too) and being prevented from learning criminal techniques, making criminal contacts and developing criminal habits then justice would be served whilst also helping rehabilitate offenders.

I'm not against any of the proposals that I've mentioned for rehabilitating offenders. I do object very strongly to the idea that they could be replacements for punishment rather than additions.
The idea that committing a crime could ever lead to training opportunities, counselling and care that a person wanted/needed but were not available to law-abiding citizens is the complete opposite of justice. Not only that, but it makes a mockery of any doubts about the deterrent effect of justice. When crime not only pays, but being caught also pays it doesn't matter whether slightly more or less punishment compared to our current system deters criminals or not. We will encourage crime in such a situation.

All the rubbish about people's moral concerns preventing them in most instances is very contextual. There is no intrinsic morality to which almost all of humanity will always subscribe. If we have the farcical system where crime is necessary to get benefits from the state then, even if it doesn't happen instantly, those actions will come to be regarded as mere cries for help rather than the obnoxious crimes that they are.

I have already said that I think part of my disagreement is a very deep disagreement over philosophical considerations of agency and responsibility. The idea that a person could get away with a crime and call it a mere cry for help, or blame it on circumstances (in my society at least, where opportunities always exist to avoid crime, barring extreme cases of 'shoot someone or I shoot you' or similar) is outrageous. We are responsible for our actions. It's disgusting that people can even consider blaming parents, society or poverty. Some things don't help, but the choice remains. If no choice remains then the person is not a free agent and should be disposed of like a faulty computer: without consideration of mercy or compassion, because he's not a real human but a mere machine.

The other point is partly that our society does not allow opportunities for law-abiding citizens, and so the use of crime to identify people who need opportunities, although a seemingly nice idea, is intrinsically unjust to all the similarly disadvantaged people who nonetheless work very hard to avoid crime.
It reminds me of the smaller-scale example of a school that sent a group of disruptive pupils on a skiing trip when they'd managed to behave for a term or a year or something like that. It certainly helped those students behave, but what message did it send to the students who were already behaving and were also so poor or disadvantaged in some way that they'd never left Glasgow (I think it was) for a single holiday?

So we could resolve our disagreement in one way if we agreed that rehabilitation opportunities for criminals should be accessible for everyone. If I wanted to, I could sign up for psychiatric counselling, job training, free board and lodging (in poor conditions) and so on without committing a crime.

 

[illram]

Prison should still totally suck. Prison should not be a happy fun place to be. Practically speaking the counseling I am talking about is mental health treatment. Most violent criminals have some sort of mental health problem. (And of course I think mental health treatment should be available to all who need it, after all if it were we could avoid a lot of this current problem altogether.) If it's not mental health treatment, then it's providing opportunities for very basic things that the prisoner will need once they leave; such as obtaining a GED. This is already possible by the way.

They should still be locked in a cell. Their liberty should still be restrained. This, to me, is punishment and rehabilitation operating together. What I am talking about with serious crimes is just cleaning up the system around the edges and prisons less violent and disease ridden places than they are now. Keep the part where the guy has to sit in a small cell 18-22 hours out of every day though.

"Job training" and other programs that help people get back on their feet are, and should be, available to everyone that demonstrates a need. I'd classify those as re-entry programs not incarceration programs.

However once prisoners are released there are certain things they will need that normal citizens in the same demographic, such as people in poverty, won't, such as being hired by a company that receives tax-breaks for hiring ex-felons, or re-entry programs that help ex-convicts expunge certain charges. Obviously a normal person falling on hard times doesn't need those things, but an ex-convict does.

I'm not talking about substituting punishment for rehabilitation, I'm talking about literally making the punishment fit the crime. The prisoner should be offered the sentence most conducive to that prisoner not re-offending while still taking into account the need to "punish" in the classic sense in order to deter future bad conduct.