I wrote this throughout 2010 for Criminology 416: The Sociology of Punishment at Victoria University of Wellington. It’s a bigee… but I like it. It asks the question of why we respond to crime with punishment. There’s also an appendix at the end which asks if there could be a better way; arguably the most interesting part.
You can click the little numbers and they take you to footnotes down the bottom.
Punishment is “some harm, pain, or evil that is conditional upon the failure of a person to comply with the wishes of the sovereign” (Wacks 2006: 24). Definitions of punishment typically consist of these three criteria; A) infliction of pain or deprivations, B) in reaction to an individual deemed responsible for a crime, C) a claim of authority to do so.
The combination of A and B makes punishment inherently retributive, even when it is defended by other reasons such as deterrence or reform. But without C – retribution without authority – it would more commonly be called ‘revenge’; the word ‘punishment’ is typically only used when it is undertaken by someone claiming authority to manage and administer the retribution. A and C without B – pain imposed arbitrarily rather than retributively – is simply tyranny; it is not punishment unless it is reactive. The B criterion also specifies that punishment is targeted at an individual; the individual deemed responsible for the crime or norm violation.
Punishment is often seen as the natural response to crime, but breaking it down into these criteria we can see that there can be other responses to crime that are non-punitive (removing the A criterion), non-authoritarian (removing the C criterion) or non-individualist (adjusting the B criterion). This study explores the question of why, among all these possibilities, punishment is our main response to crime. Attention is restricted to punishment as part of criminal justice systems; other forms of punishment such as parental discipline or workplace regulation will not be discussed.
Explanations of why punishment happens have usually been placed in two broad categories: utilitarian reasons – we punish in order to achieve positive consequences, largely inspired by Jeremy Bentham; and justice reasons – we punish because it’s fair and right, which has its modern root in Immanuel Kant (von Hirsch 1992: 55). To this we can add a third category, functional reasons – we punish because it is essential for the functioning of society, most famously exemplified by Émile Durkheim. These traditions are not mutually exclusive; arguments and, particularly, populist sentiments often consist of some combination of these defences (Mathiesen 2000: 111-115).
Punishment for utilitarian reasons
This line of thinking claims that punishment can prevent or reduce crime. Of course, punishment cannot prevent the crime to which the punishment refers; this has already happened and cannot be reversed. The most punishment can hope to achieve is to prevent future crimes; through rehabilitation, deterrence or incapacitation.
Rehabilitation defences for punishment consist of the idea that punishing people can reform them into better individuals: replacing the traits that led them to crime with ‘Protestant ethic’ traits that will make them benign and contributing members of society and economy (Mathiesen 2000: 53). Rehabilitation has lost popularity since the 1970s; partly alongside the displacement of the welfare state by neo-liberalism (Brownlee 1998: 322), partly amid human rights concerns (Bottoms 1995: 19-23), partly to appease populist punitive sentiments (Brownlee 1998: 333-335) and partly because it became apparent that prison rehabilitation simply does not work (Hawkins 1983: 117-118). Thomas Mathiesen outlines how ineffective attempts at rehabilitating while punishing are (2000: 27-54). While some treatments have a modest effect, they are typically the ones which involve treating prisoners well. More punitive rehabilitation techniques, such as aversion therapy, are extremely counter-productive (Mathiesen 2000: 178n.). A major barrier to rehabilitation that treats people well is the principle of ‘less eligibility’, originally articulated by Bentham and considered by Rusche and Kirchheimer to be the “leitmotiv of all prison administration down to the present time ” (Hawkins 1983: 100). This attitude, still pervasive in popular opinion if not always in policy, insists that the punished should be treated more harshly than the un-punished poor. While this is justified for the sake of deterring the latter, it has the unintended effect of “barr[ing] all true rehabilitative possibilities” for the former (Rotman 1986: 1031).
In order to understand in more detail why punishment is so unsuccessful at rehabilitation, it is helpful to evaluate how well punishment deals with the reasons why crime happens. Because punishment is inherently individualist, and the selection of individuals is on a blame basis, it cannot reflect explanations for crime which attribute blame to wider societal factors (Mead 1918: 595-596). Mathiesen notes that this shows “we do not take seriously our ideology emphasizing that crime is … at least partly conditioned by a context of complex social forces impinging on the individual” (2000: 28). Rehabilitation can only hope to affect the ‘individual’ side of these social forces; the society to which they return remains unchanged. The main crime explanations which emphasise individual characteristics are lack of moral fortitude or virtue (Knepper 2001: 253-277), lack of social or self-control (146-148), social learning (156-158), and biological or psychological positivism (63-134), along with rational choice which cannot be rehabilitated, only deterred.
Modern punishment has largely abandoned attempts to preach morality to prisoners, beyond obedience and discipline; any moral improvement is left up to the punished themselves (Garland 1990: 260-261). However, punishment is not neutral to moral reform, it actively works against it. William Godwin points out that the lesson of punishment is “Submit to force, and abjure reason. Be not directed by the convictions of your understanding, but by the basest part of your nature, the fear of personal pain, and a compulsory awe of the injustice of others” (1793: 121-122). Émile Durkheim also acknowledges that punishment “cannot touch the moral life at its source” (Garland 1990: 44), and Friedrich Nietzsche that “punishment tames human beings, but it does not make them ‘better’” – in fact, it hardens them against guilt and shame (1887). All three stress that punishment can at best produce instrumental, coerced results, and that coercion is highly unsuitable for cultivating virtue. If anything, punishment encourages solving problems with force, which is what many offenders are already being punished for.
Another possible contributor to punishment’s failure to inspire moral improvement is its reliance on modern Western concepts of morality. Whether Kantian, utilitarian or rights-based, modern morality is perceived as an individual’s performance with respect to a set of abstract ideals or principles, attainable by reason devoid of particularity and emotion (Goldberg 1993: 223). There is no need in this formula for relationships, and accordingly, punishment does not facilitate the punished relating to their victims and hearing how they have hurt them (Christie 1977: 8). Prison chaplain Jim Consedine believes this is the main reason for the “hardening of the arteries of emotion” and lack of remorse he has observed in prisoners (1995: 162-163). Criminal and penal proceedings are such abstract, rationalised affairs that there is little room for cultivating shame, which affirms the offender as a moral agent capable of change (Braithwaite 1989: 72-73).
With regard to control and social learning, Peter Kropotkin observes that the technique of modern punishment attempts to break the will of a prisoner, which works against self- and even, paradoxically, social control. “Where will he find the strength to resist the first impulse of a passionate character, if, during many years, everything has been done to kill in him the interior force of resistance, to make him a docile tool in the hands of those who govern him?” (Kropotkin 1887: 126-127). On the contrary, prisons are often seen as “universities of crime” (Kropotkin, cited in Ward 2004: 41), contributing to the formation of a criminal culture and a rejection of would-be-rehabilitators (Mathiesen 2000: 46-53). The form of punishment would have to be greatly altered before it became a vehicle for positive social learning.
Biological and psychological explanations for crime are similarly ill-served by punishment. Rehabilitation does not affect biology or genes, and enforced medical ‘rehabilitation’ such as frontal lobotomies is, thankfully, deeply out of favour; as is biological determinism itself (Thigpen 1985). More benign psycho-medical treatment can only very loosely be made consistent with punishment and certainly does not require it. As for the extent to which ‘at risk’ behaviour can be attributed to developmental issues, research into resilience against this finds that what is most beneficial is developing attachment, achievement, autonomy and altruism in youth (Brendtro & du Toit 2005: 44-46). None of these are particularly well-served by punishment after the fact. Indeed, existing forms of punishment work against these factors in many ways, and at least in the case of autonomy, even the most nurturing of rehabilitation would seem to be at odds with building resilience so long as it is coercive.
Given the failure of rehabilitation to address the causes of crime, it is not surprising to learn that punishment actually increases crime rather than reducing it (Mathiesen 2000: 105,176). Prison can be more accurately said to “dehabilitate” than rehabilitate (Mathiesen 2000: 53); or as acknowledged by British Conservative politician David Waddington, “prison is a very expensive way of making bad men worse” (Ward 2004: 46). Rather than ‘prison will do him good’, an axiom that fits better with the situation of punishment is that “the success of violence has been short-lived… It has led to greater violence” (Gandhi 1960: 182). Punishment runs completely counter to effective rehabilitation.
Of course, rehabilitation does not try to reform individuals for their own good as much as for the good of the social order. This utilitarian focus and lack of autonomy makes rehabilitation highly questionable from a human rights point of view (Bottoms 1995: 19-20). Regardless of whether punishment is ‘successful’ in preventing recidivism, it consists of an attempt to indoctrinate the individual into the ‘disciplined’ values conducive to capitalist society (Foucault 1975: 135-228, Mathiesen 2000: 53). Due to the high degree of control, the prison can be seen as the most effective social institution to experiment with a more overt form of the cultural hegemony present throughout society (Foucault 1975: 293-308, Garland 1990: 111-124).
In either case, the ‘dehabilitating’ effect of punishment becomes a self-perpetuating cycle that does not serve the interests of wider society any better than those of the punished individual, if reduction of crime is taken to be the goal. Reflecting on the alarming rise in the United States’ prison population in recent decades, David Cayley laments that “the more Americans who are manhandled by the criminal justice system, the more there are whose behaviour seems to justify and demand this treatment” (cited in Ward 2004: 43-44). Punishment is such a consistent failure at reducing crime that it begs the question of what its real intention is. Michel Foucault has theorised that modern punishment’s real instrumental goal is not to reduce crime but to create delinquency, which serves the interests of the dominant classes (1975: 277). We will return to this.
Deterrence theories assert that punishment is an effective way of dis-incentivising crime, either for the punished themselves (individual or specific deterrence), or for onlookers (general deterrence) (Knepper 2001: 36). Mathiesen identifies a strong ‘general prevention paradigm’ permeating societies which takes for granted a ‘common-sense’ general deterrent effect (2000: 55-58). There is also a “legal superstition”, common in the ‘law and order’ movement, that harsh penalties will provide an individual deterrent effect (Rotman 1986: 1031). These attitudes were demonstrated recently in New Zealand by corrections minister Judith Collins who surmised that the new ‘three strikes’ legislation will give would-be-criminals “food for thought” and “likely … some deterrent effect” (Hartevelt 2010). However, academic studies find scant evidence for such effects. Even proponents of general deterrence ultimately have to fall back on ‘common-sense’ reasoning based on their own personal experience (Mathiesen 2000: 58-59,64). In the case of three strikes, a study into similar legislation in California found that its deterrent effect accounted for at most 1-2% of crime reductions in following years, although proponents have been quick to claim credit for the entire decrease (Vitiello 2002: 268-278).
Deterrence theories imply a rational-choice behavioural theory, whereby crime is a rational response by individuals to costs, benefits and opportunities. Deterrence, affecting only these rational calculations, is at most a partial solution to crime as it does nothing about its myriad other determining factors. Rational-choice theories have been popular amongst economists (Becker 1968, Cornish & Clarke 1986), who currently have a tendency to portray the human as a purely rational utility-maximising individual agent, but human motivations are far more complicated than this (Dupré and O’Neill 1998: 154). 19th century economist Karl Marx warned against this “delusion … to substitute for the individual with … multifarious social circumstances pressing upon him, the abstraction of ‘free-will’” (Marx 1853). While rationality may be a major aspect of the ‘ideal’ capitalist personality (Weber 1905), it seems that it is relatively minor for the disadvantaged social groups most likely to become the targets of punishment. The deterring message sent by punishment has been found to be weakest precisely for the groups who are most drawn to crime (Mathiesen 2000: 73-75,104). Given the reliance of general deterrence proponents on ‘personal experience’, they ought to pay more heed to the admitted “danger in generalizing from oneself” (Johannes Andenæs, cited in Mathiesen 2000: 73). Educated, middle-class criminologists and policy-makers ought to take note that the strong deterrent effect they may observe amongst themselves and their own social groups is far weaker, if not totally neutralised, in the people that it is actually intended to deter (Consedine 1995: 36).
Strictly speaking, what deters is not the current punishment but the looming threat of future punishment; the current punishment merely serves to communicate this threat (Knepper 2001: 37). Thus, individual deterrence relies on the subjective perception of the ‘cost’ of crime rising after the subject has experienced punishment. This is by no means certain; it could work the other way as people are absorbed into prison cultures. The rare and marginal deterrent effects that have been found by some researchers have resulted from a perceived probability of a sanction rather than severity of that sanction; as predicted by the classical penal reformers (Mathiesen 2000: 60-63; Knepper 2001: 36-37). Invoking the idea of deterrence to justify ‘tough on crime’ policy like ‘three strikes’ thus completely misses the mark. If anything, deterrence research supports raising detection rates alongside a less severe and more efficient punishment such as fines (Graham 1981, Garland 1990: 95-96). To raise probability of punishment, actual punishment would have to increase, so a form of punishment which promotes recidivism is certainly not what is called for. This is precisely what we have with prisons (Mathiesen 2000: 105), and it outweighs any possible deterrent effect punishment could have.
If there is any point in trying to tweak the costs and benefits of crime, this does not necessarily have to be done through punishment. An alternative could be to seek greater socio-economic equality in society; if money and power were more evenly distributed by the legitimate economy, individuals would stand to gain less from crime. Perhaps rational choice is most useful not as a defence of punishment, but as part of explanations of the link between inequality and crime (Merton 1938, Wilkinson & Pickett 2010: 129-144).
Modern punishment, in keeping with modern capitalist values, has seen deprivation of liberty become the common ‘currency’ of punishment (Knepper 2001: 42, Garland 1990: 115-116). Prison has grown from a temporary pre-trial holding cell to become the dominant punishment in and of itself. Capital punishment, where it still exists, is now the extreme deprivation of liberty with physical pain minimised, rather than the extreme of bodily damage as formerly (Foucault 1975: 11).
Incapacitation is unique amongst the rationales for punishment in that it is irrevocably tied to deprivation of liberty; ‘getting criminals off the streets’ so that they cannot offend. Incapacitation theory is predicated on a constructed dichotomy between liberty and safety; the idea that certain people are ‘dangerous’, and will unleash chaos, conflict and crime if given too much freedom (Bottoms 1995: 33). This principle of limiting liberty for safety is the basis of ‘social contract’ theories of the state, particularly that of Thomas Hobbes (Knepper 2001: 38), but in arguing for imprisoning or executing people, the deprivation of liberty is taken to extremes. This essentially fascist view of human nature is of course not applied to the general population, but only to criminals, or perhaps only a certain subset of particularly dangerous recidivists (Mathiesen 2000: 90). The non-punished public in democratic New Zealand does not seem averse to sub-democratic rights for prisoners, if open comments on news websites are any indication (3 News 2010). This “de Tocquevillian irony” (Garland 1990: 40-41) can be partly explained by observing that the dominant discourse of morality in the West has become one of ‘rights’, whereby people are valued only insofar as they are granted recognition by legal-political systems. Those who do not honour social contracts can be deemed “‘extrinsic’ to rights entitlement” even alongside a discourse of ‘universal’ or ‘human’ rights (Goldberg 1993: 217-222).
Incapacitation obviously does not cure crime totally, and its advocates thankfully do not go as far as trying to eradicate liberty altogether to achieve this. The debate becomes one of selection and extent; deciding who to lock up, and for how long, to achieve the best equilibrium between safety and liberty. Incapacitation proponents often claim that if a small group of persistent recidivists, who commit the lion’s share of crime, are taken out of circulation, a significant amount of crime will be prevented (Mathiesen 2000: 95). Indeed, a reduction in crime that is disproportionate to the reduction in liberty, and thus a worthwhile trade-off. Then-MP David Garrett claimed his flagship ‘three strikes’ legislation would target these “bad bastards” (Torrie 2010).
However, observations from Sweden and the United States show the disproportionality going the other way. Significant changes in prison populations led only to marginal changes in crime rates, far weaker than other concurrent determining factors, and further reductions would require “at least 10 to 20 per cent increases in inmate populations for each 1 per cent reduction in crime” (Mathiesen 2000: 92-93). Both experiences, from very different penal cultures, gave the same picture; one produced a modest reduction in crime that was dwarfed by the cost in lost liberty, and the other achieved an increase in liberty that far outweighed the modest cost in increased crime. If liberty and safety could be graphed the way economists graph costs and revenues, the ‘elasticity’ of the curve would seem to indicate that reducing incapacitation would be more efficient than increasing it. When this reasoning is instead used to justify increasing sentences through policies like ‘three strikes’, it can lead to massive, compounding increases in prison populations (Mathiesen 2000: 94).
The ineffectiveness of incapacitation strategies is partly because current techniques for predicting who is most likely to commit crime are highly inaccurate. Many false positives and negatives are inevitable, and it is difficult to know when someone is ‘safe’ enough to release (Mathiesen 2000: 86-87,94, Christie 1977: 11-12). The inherent uncertainty of predictions means that punishment severity can be highly inconsistent with actual ‘dangerousness’, and certainty inconsistent with the seriousness of the official punished crime. This raises serious ethical issues, as punishments which ‘fit the crime’ (Knepper 2001: 36) are supplanted by punishments which fit the calculations of computer models.
Under the incapacitative rationale, punishment is a response to individuals rather than acts, and insofar as crimes enter the picture, it is hypothetical future crimes that are relevant rather than tried and convicted past crimes. In both these aspects, incapacitation “breaks fundamentally with the basic principles of penal law” (Mathiesen 2000: 88). Without the caveat that there be some past crime to which the punishment can officially pertain (Mathiesen 2000: 89), this would not be punishment at all, but merely a very selective and autocratic method of governance. This gels with the rise of ‘managerialism’ in recent decades, whereby “penology is neither about punishing nor rehabilitating criminals, it is about identifying and managing unruly groups” (Feeley and Simon, cited in Bottoms 1995: 32). Tellingly, Garrett advertised ‘three strikes’ as “equally a protective measure” as a punitive one (Gower 2009). This reasoning of “punishment upon suspicion” should be subject to suspicion itself as it has been used to justify tyranny throughout history (Godwin 1793: 119), and can be considered the moral equivalent of George W. Bush’s ‘pre-emptive strike’ (Chomsky 2002).
More worrying still is the consideration of which types of people will be predicted as dangerous, regardless of how accurate the predictions turn out to be. The groups of people most likely to be selected for incapacitation are by and large groups who are already disadvantaged by society; the poor, the unemployed, drug users, and the previously punished; even race could potentially be used as a predictive factor (Mathiesen 2000: 101-103). The 2006 New Zealand Crime and Safety Survey found that the predictive factors for criminal activity are the same as those for crime victimisation (Workman 2009: 12). This ruthless logic conflates oppression with ‘dangerousness’, and compounds it with reduced freedom. Punishment is morally reprehensible if it consists of enslaving the margins for the sake of safety for the centre.
Punishment for utilitarian reasons: Ethical issues
Punishment for utilitarian reasons will inevitably clash with conceptions of justice and ethics. Utilitarianism is a highly questionable ethical system. It may be possible to support some instrumental goals of punishment without subscribing to the totality of utilitarian ethics, but it does necessitate accepting some of its precepts, such as the primacy of ends over means and the ability to ascertain the ‘good’ in a society by measuring and totalling certain tangible statistics of the individuals comprising it. Only in these individualised, rationalised, scientific modern times could an ethical system based on these notions rise to the prominence it has (Goldberg 1993: 214-219).
Ironically, despite its individualist conception of humanity, utilitarianism fails to properly value the human individual; Kant rejected utilitarian punishment because it treats the individual as a means to an end (von Hirsch 1992: 59). This end may be for the individual’s ‘own good’ if it helps break him/her out of the cycle of crime and punishment. Yet in a capitalist democracy, rehabilitation, like incapacitation, is more about the safety of the majority and the smooth functioning of the economy. Meanwhile, individual deterrence, like its general variant, is aimed at bringing down the overall crime rate to maintain the stability of society in its current form. Marx, following Kant and Hegel, denies a right to “punish me for the amelioration or intimidation of others” (1853). This criticism of utilitarian punishment has become all the more potent with the rise of ‘managerialism’ (Bottoms 1995: 24-34). Contra pre-modern law focusing on communities, and modern law focusing on atomic individuals, managerialism is a product of ‘bureaucratic-administrative’ law, whose “presupposition and concern is a non-human abstracted ruling interest … of which human beings are subordinates, functionaries, or carriers” (Kamenka and Tay, cited in Bottoms 1995: 27).
As well as tensions with justice and rights, utilitarian motivations will inevitably clash with the stated rationale for punishment, which is backward-looking; pertaining to past offences. Utilitarian strategies, aimed at preventing future crime, are inherently forward-looking. In many ways, these utilitarian strategies for social order are inconvenienced by the necessity of a retributive element. They do not need it to achieve their goals; they need it because the level of power over someone’s life necessary to punish him/her is only permitted by law after she/he has been convicted of a crime. Using punishment for instrumental goals thus goes beyond the mandate of punishment, to be administered as a sentence for past crimes with proven guilt (Mathiesen 2000: 87-89).
Punishment for utilitarian reasons: Effectiveness issues
The utilitarian defences also fail on their own terms as punishment is shown to do more harm than good (Mathiesen 2000: 105,176). This was acknowledged at least as far back as Marx, who believed history makes it abundantly clear that “since Cain the world has neither been intimidated nor ameliorated by punishment. Quite the contrary” (Marx 1853).
The insights of labelling theory provide still more reasons to be sceptical of the notion that punishment – which necessarily involves labelling people as criminals – will reduce crime (Braithwaite 1989: 16-21). Procedures of reintegration to remove this criminal label after punishment are sorely lacking. Modern punishment provides ceremonies of shame and denunciation, but no corresponding ceremonies of social restoration upon completion of the punishment; this is left up to the individual to achieve for him/herself (Mathiesen 2000: 28-29). Indeed, the lower status of the punished is maintained in many ways; formally through legal limitations on convicted criminals, and informally through societal stigma. John Braithwaite denies that all forms of shame and labelling necessarily increase crime, but agrees with the labelling theorists that stigmatisation – shame without reintegration – leads to high crime rates (1989: 55, 99).
We should not over-emphasise the counter-productive nature of punishment; on the whole, crime trends are independent of trends in punishment policy (Mathiesen 2000: 173n.). The main issue is that punished criminals are returned to an unchanged society in, at best, the same condition as when they were removed from it, and yet a different result is expected. Any crime-reduction strategy that functions on the level of punishment is doomed to miss the point; structural and socio-economic factors dwarf punishment’s individualist impact on crime rates.
Punishment for justice reasons
So much for the utilitarian defences of punishment. But surely, it will be argued, punishment is fair and just. Perhaps it doesn’t cure crime, perhaps it even makes it worse; but that sad fact doesn’t mean we should do away with punishment. When someone commits a crime against society, it is only right that they be made to suffer by society in return. A ‘just deserts’ approach to punishment, which prioritises justice over utilitarian concerns, has been influential in Western criminal justice since the 1970s (Bottoms 1995: 19), but has its roots much earlier. Kant and Hegel believed that punishment of the criminal is really “an act of his own will”, the natural and proper “negation of his negation” (Hegel, cited in Marx 1853). The correct response to crime is conditioned by the criminal; it is to respond in kind, to sink to his level. This is demanded by justice, which must be maintained as “if justice succumbs, the existence of man on earth no longer has any value” (Kant, cited in Mathiesen 2000: 24). Popular conceptions of justice agree that not to punish, to ‘let them get away with it’, would offend universal human sentiments of justice.
However, justice is not a fixed and universal notion; it is socially constructed. Although it is a concept found across many cultures, it can take very different forms. Anabaptist theologian Chris Marshall contrasts Greco-Roman justice, from which Western ideals of justice are largely drawn, with ancient Semitic justice. While Greco-Roman justice is perceived in relation to a set of abstract norms and is symbolised by Lady Justice’s scales, Hebrew justice is seen as a process of restoring relationships with and within community and is symbolised by a river. Justice according to Hebrew formulations requires mercy – which is in tension with Western justice – but it does not always require punishment (Marshall 2001: 43-53). Jim Consedine identifies similar restorative elements in Māori justice systems (1995: 81-97), and John Braithwaite discusses many other cultures which have held restorative conceptions of justice (1999: 1-5). It is therefore possible for our societies and communities to move towards an idea of justice that is inimical to punishment; opposing punishment requires reformulating justice, not abandoning it. The idea of restorative justice is making slow but significant inroads into our criminal justice systems, and throwing the link between justice and retribution into doubt (Braithwaite 1999, Consedine 1995: 157-172).
Even within exclusively Western conceptions of justice, punishment has significant problems. It is not at all clear how much punishment is required to attain a balance of the hypothetical scales. Although desert advocates often champion ‘universal’ values of justice, they have no universal method for converting crime into the currency of punishment (Bottoms 1995: 20-23, Mathiesen 2000: 117-132); the notion that this is even possible can be attributed to commodification (Garland 1990: 113-115). Evaluations of how much punishment someone deserves are subjective and tend to be harsher from those who are more abstracted from the situation (Bottoms 1995: 40). Moreover, the same crime can earn vastly different penalties in different societies, at different times, or under different policy-makers. Evaluating the harm felt by a given punishment is just as slippery. In theory, imprisonment can be measured by the length of the sentence, but there are many other pains and variables involved, which will be experienced differently by every prisoner (Mathiesen 2000: 132-138). Moreover, as we have seen, prison continues punishing long after the designated ‘fair’ sentence, and is likely to compound itself. Fines are also inconsistently experienced, in a more straightforward way; they are regressive, hitting the poor harder than the rich (Foucault 1975: 232).
Even if crime and punishment could be accurately measured, punishment would not amount to a complete restoring of the scales. Firstly, it only acts upon the relatively low proportion of crimes that are actually apprehended and convicted (Garland 1990: 59n.). Secondly, it consists only of lowering the scale of someone deemed guilty of lowering the scale of another. It does not include raising the scale of the victim; even if vengeance is often falsely conflated with ‘victims’ rights’ by retributive justice advocates. Restorative justice advocate Kim Workman observes that “successive governments had done very little for victims”, and that the interests of victims are often tied up with the interests of offenders; punishment helps neither (Workman 2009: 7-13). Compensation or reparation for victims exists in some jurisdictions, but punishment exists in all (Galaway & Rutman 1974). Rather than making positive changes in the lives of offenders and victims, punishment is entirely based on delivering pain or deprivations; especially with the decline of rehabilitation. The use of punishment to balance scales ultimately means adding more pain to the picture; attempting to balance harm with more harm rather than replacing it with good. This can be seen as hypocritical (Tolstoy 1894) as the “medium … undercut[s] the message” (Garland 1990: 45).
Distributive and retributive justice
Looking more holistically at justice, we must take into account the two aspects of Western justice; distributive or social justice as well as retributive (Marshall 2001: 43, Mathiesen 2000: 115-116). It is clear that the scales of social justice are far from balanced in our societies. Social justice has become less of a political priority in recent decades amid the hegemony of neo-liberalism’s ultra-capitalist ideology (Larner 2000). The ideal of ‘from each according to his ability, to each according to his need’, which held at least some sway during the welfare state era, is being swamped by the philosophy of ‘each according to his ability should look after himself’. This ideology’s version of distributive justice is that resources should be distributed by ‘hard work’ and success in the economy. Like a modern-day version of Euthyphro’s ethics, ‘justice’ and ‘desert’ are simply whatever distribution the gods of the market come up with; just as contemporary morality is defined by whatever ‘rights’ the gods of legal authority come up with (Goldberg 1993: 220-221). To balance the scales of distribution is to interfere with this new vision of desert, with personal freedom and responsibility, and with competition-based production incentives.
Crime, too, can be perceived as that which interferes with the market’s distributive whims; by destabilising society, property and economy. ‘Property crime’ is not property inequalities, and the compounding tendency of these inequalities through the institutions of wage labour, rent and interest; these are above reproach because the gods of the market willed them. Property crime is when somebody has the audacity to interfere with the gods’ distributions through theft; though outside of the prism of legal definitions, property itself is functionally equivalent to theft (Proudhon 1840). ‘Crime against the person’ is not the creation of poverty, it is not marketing designed to foster dissatisfaction, it is not social exclusion, it is not even violence when that violence is blessed by political authorities. It is only that which actively violates someone’s ‘rights’, which are defined narrowly enough to permit many forms of exploitation (Glenn 2000: 2). Marx stated that “punishment is nothing but a means of society to defend itself against the infraction of its vital conditions” (Marx 1853) – in this case, private property and the rule of the state. This selective definition of crime is itself a strong argument against the justice of punishment (Consedine 1995: 38-39).
Conversely, the desire to balance the retributive scales has not waned in recent years. If anything, it has becoming more pronounced with neo-liberalism (Workman 2009: 4-7), as inequality and individualism have eroded a sense of community (Wilkinson & Pickett 2010: 49-62), and lowest-common-denominator appeals to ‘getting tough on crime’ have been discovered as an effective political football (Bottoms 1995: 39-40,47-48). Indeed, the more distributively unequal a society is, the bigger its lust for harsh retribution (Wilkinson & Pickett 2010: 145-156).
In fact the relationship between distributive and retributive justice is far closer than it appears. Structural inequalities lead some to crime, and therefore to punishment, more than others (Mathiesen 2000: 74). Robert K. Merton pointed out the role played by “culturally defined goals”, and the ability to achieve them, in the creation of crime (1938: 672-673). Capitalist culture relies on a near-universal desire for maximising wealth, justified as a means to fuel competition for scarce resources. The more unequal and competitive the society, the more people there will be who accept this goal but are denied the ‘legitimate’ means of achieving it. It is inevitable that some of the people who miss out will resort to illegitimate criminal means instead. The culture that creates a lust for wealth (‘the root of all evil’) is to blame at least as much as these ‘innovating’ individuals (Merton 1938). Moreover, it is not just property crime that is influenced by distributive injustice; there is also a well-established relationship between relative deprivation and violence (Wilkinson & Pickett 2010: 134-135).
Punishment is unable to make any moves to promote income equality, reform class systems or address structural inequalities. Social justice is kept completely separate from criminal justice in public policy, despite their interrelation in society. The failure of punishment to confront social causes for crime compromises its justice as well as its effectiveness, as the individual is exclusively expected to pay for a rupture that she/he did not exclusively cause (Marx 1853). In fact, punishment itself is one of the social causes for crime, as it promotes recidivism (Mathiesen 2000: 105). The cycle of crime and punishment is a vicious one indeed, especially with policies such as ‘three strikes’ that exponentially increase punishment.
Punishment, therefore, inevitably falls more heavily on those who are already disadvantaged, and compounds distributive injustice in the name of promoting retributive justice. Institutional injustices work significantly against the poor at every stage of the process, from the shaping of morals and laws to the likelihood of apprehension to the severity of sentencing, and even the salience of enduring criminal labels (White and Habibis 2005: 135, Newbold 2000: 251-257). The demographics of New Zealand prisoners clearly demonstrate that poor and marginalised people suffer the bulk of punishment (Consedine 1995: 30). These groups are already most likely to be victims of crime (Mathiesen 2000: 146, Workman 2009: 12); punishment is yet another harm which predominantly victimises the poor. Mathiesen’s critique of imprisoning people based on determining factors (2000: 102) can be taken as an overall critique of punishment wherever injustices affect crime statistics. If it is unjust to punish people directly for being poor or marginalised, a society which leads poor and marginalised communities to crime and then proceeds to punish them for it is equally unjustifiable.
It is appropriate to refer to punishing communities rather than just individuals. While in theory punishment targets individuals only, no member of society lives in total isolation. It is inevitable that families and communities will be affected; effectively punished for committing no crime themselves (Ferraro et al. 1983: 575-576). Partners of people sent to prison experience a variety of emotional and financial strains (Deane 1985), and the family is subject to stigmatisation (Condry 2007). Moreover, having a parent imprisoned raises the chances of children later committing crime and being directly punished themselves (Bonhomme, Stephens & Braithwaite 2006). Traditional Māori justice processes were criticised by colonial administrators for “innocent persons being made to suffer for the faults of others” (Consedine 1995: 87), but this was an acknowledged aspect of Māori notions of collective responsibility for offence and restoration (Consedine 1995: 95). In the individualistic Western system, the silent ‘externalities’ borne largely by dependants are an inexcusable aberration.
Capitalist states seek justice by delegating the market to repay good with good, and punishment to repay bad with bad. As we have seen, the latter is as fraught with structural imbalances, and as ineffective at bringing justice, as the former. Jeffrey Reiman summed up the combined injustice of these institutions as “the rich get richer and the poor get prison” (cited in Knepper 2001: 193). Retributive justice makes little sense when it is sequestered from the distributive injustice that permeates crime and punishment. As distributive justice declines in society, punishment fails to check this decline; if anything, it contributes to it. Punishment is also highly ineffective at promoting restorative justice (“healing the effects of crime” – Consedine 1995) as it is based on bringing harm rather than good; as Jim Consedine puts it, “you cannot punish and reconcile at the same time” (1995: 157). Whatever conception of justice is preferred, punishment is better seen as a force for injustice than justice.
Punishment for functional reasons – Durkheim and the penal passion
There is obviously a disconnect between the widespread perception that punishment is just and effective, and the reality which renders such perceptions rather hollow. This disconnect opens up more questions which help to refine the overall question ‘why punishment?’: Why do governments punish – are they mistaken about its benefits, or are powerful interests earning some spurious benefit from punishment? Why does the general public have such a strong support for punishment – are we mistaken, are we being deliberately fooled, or are all our justifications merely smokescreens for a subconscious penal instinct we cannot excise from ourselves? Is the former a product of the latter, or the latter a product of the former?
Émile Durkheim’s answers to these questions provide an explanation for punishment that does not require it to be just or effective; for him, the perception is sufficient, which gives his theory an immediate advantage given what we have observed. Durkheim rarely discusses the idea of justice, and he acknowledges that punishment is highly ineffective at crime control (Garland 1990: 43-44). Instead, he assigns punishment “a functional importance for society which far outweigh[s] its contribution as a means of controlling crime” (Garland 1990: 26, emphasis added).
For Durkheim, punishment is not a means to an end, but “simply occurs in the nature of things” (Garland 1990: 32) as the response of the conscience collective to violations against its moral order. Governments punish as a direct result of the public thirst for punishment, which is the natural reaction of the human psyche when it witnesses crime. However, in the process of punishing, the conscience collective is able to express and reinforce its symbolic authority after crimes have threatened it. This performs the important task of maintaining social solidarity, and keeping societies from becoming ‘demoralised’ (Garland 1990: 42-43). Thus, punishment is both normal and functional.
Durkheim’s theory is consistent with utilitarian justifications insofar as it proposes a definite beneficial consequence of punishment. However, he believes that to find this benefit, we must look far beyond the standard utilitarian goals, whose uses have been “exaggerated beyond all reality” (Durkheim, cited in Garland 1990: 43). The real use of punishment – no less than the sustaining of society as we know it – does not result from the “petty calculation of social controllers” but is the “spontaneously functional effect” of condescending to the outraged conscience collective. David Garland calls this Durkheim’s “paradox of higher utility” (Garland 1990: 33). Meanwhile, Durkheim shares with justice motivations a focus on morality, however he expects punishment to communicate morality rather than to enact it (Garland 1990: 45-46). This idea of punishment as a ‘moral message’ overlaps somewhat with the goals of general deterrence (Mathiesen 2000: 65-75). Communicating an appearance of safeguarding justice against crime is far more achievable than the ambitious goal of actually restoring justice in all cases, not least because most crime is not apprehended or punished (Garland 1990: 59n.).
For Durkheim, what ignites and fuels this functional process is “passion … the soul of punishment” (Durkheim, cited in Garland 1990: 31). This penal passion is “a sense of outrage, anger, indignation, and a passionate desire for vengeance” aroused in onlookers whenever the collective conscience is violated (Garland 1990: 30). For Durkheim this is a natural reaction of all healthy consciences, though others have been less optimistic about the penal instinct. Freudian psychoanalysts have understood it as a socially acceptable outlet for otherwise frowned-upon emotions such as aggression and vengeance (Garland 1990: 65). Nietzsche views it as vicarious sadism, particularly attractive for those who are not usually given opportunities to hold power over others (1887).
George Herbert Mead agrees with Durkheim that punishment can and does “unit[e] all members of the community in the emotional solidarity of aggression” (Mead 1918: 591). However, unlike Durkheim, Mead insists upon counting the “great and at times disastrous” cost of this form of solidarity (592). The penal passion “inevitably brings with it the attitudes of retribution, repression, and exclusion” (590), provokes a negative and unquestioning “respect for law as law” (585) and has “failed utterly” at addressing the causes of crime or reforming criminals (588). Mead’s description of the penal passion is a powerful critique of punishment, rather than a defence (Garland 1990: 77).
Mead ultimately denies that the penal passion is a universal or healthy method of solidarity, and suggests that it is far better for communities to unite around “the interests which spring up around the effort to meet and solve a problem” (Mead 1918: 596-597). Mead holds out hope, even amid a world war, that we can move towards an approach to crime which focuses not on vanquishing our ‘enemy’ the criminal, but on “reconstruct[ing] the social conditions” that lead to crime (602). He says that the energy once channelled into finding scapegoats to blame for plagues is now directed into medical research and practice, and believes we can take a similar approach to crime without losing the solidarity of a shared solution.
Punishment for functional reasons – Girard and scapegoating
Anthropological philosopher René Girard’s account of the ‘scapegoat mechanism’ in history and myth expands upon this last thought in a way which can be fruitfully compared to Durkheim’s theory. Girard describes how in times of escalating conflict, peace and solidarity can be found through the blaming, targeting and punishing of a scapegoat; which is the normal, unconscious culmination of the conflict. The chosen scapegoats are typically marginal people, “outsiders of one type or another” (Girard 1987: 87) who are not the true source of the tension, but also cannot appear totally innocent if the blame is to be accepted (98). This cathartic act of collective punishment quenches the community’s anger and forges a new sense of solidarity as a previously divided community unites against its contrived enemy (90-92). This means, paradoxically, that although the scapegoat did not cause the conflict, punishing her/him can put an end to it; reassuring the community that their choice was a good one (121).
The main focus of Girard’s inquiry is to uncover this scapegoating mechanism in mythological and cultural texts (Adams & Girard 1993: 13). Following Freud’s observation of “some kind of collective murder” as the dominant theme of primitive religion (Girard 1987: 121), Girard argues that a story of scapegoating is the root of all societies’ foundational myths. The explicit acts of collective murder are obscured to greater or lesser degrees in the retelling (102); culminating in philosophy which, abstracted from narrative, can hide its scapegoating origins deepest of all (Adams & Girard 1993: 19). Regardless of this particular claim, similar scapegoating practices can be observed in other spheres of life; he compares it to the portrayal of wartime enemies (Girard 1987: 90), and draws the same analogy as Mead about the lynching of ‘witches’, Jews and foreigners during the Black Plague (87). More usefully for our purposes, Girard’s theory has been applied to criminal punishment, and particularly the penal passion (Yoder 1995).
Girard parallels Durkheim in attributing punishment to spontaneous and collective public feeling, and in claiming that the solidarity of all societies throughout history has relied on punishment. Indeed, he states rather patronisingly that Durkheim “had some inkling” of the scapegoat mechanism (Girard 1987: 127). However, Girard’s account of the penal passion also provides important correctives to Durkheim’s functional analysis. Girard exposes the hypocrisy of punishment by revealing that although it is portrayed as “the just punishment of a guilty criminal”, its target is “chosen more or less at random, or for reasons completely alien to the misdeed he supposedly committed” (79). He attributes the real conflict primarily to ‘mimetic desire’, of which the rest of society is at least as guilty as the scapegoat. This has obvious parallels to Merton’s idea of ‘culturally defined goals’. He also casts doubt on Durkheim’s assumption that punishment is a healthy base of solidarity, as it is ultimately based on hypocrisy and a cover-up of the unpleasant truth. Because scapegoating does not deal with the real conflict but only temporary neutralises it, it is a cycle that is doomed to repetition, until communities can find an alternate paradigm to live by (Yoder 1995: 2-3). In this, Girard’s description of the ‘scapegoat’ mechanism arguably provides a better explanation for the ongoing, futile practice of criminal punishment than it does for one-off murders buried deep in the past that created a solidarity sufficient to build entire societies on.
If nothing else, the warning Girard presents about humanity’s potential for hypocritical scapegoating is highly pertinent to penology. Indeed, punishment seems inevitably destined to some degree of hypocrisy so long as it targets select individuals. Durkheim may be right in insisting that functioning societies require a collective morality to bind them together, and that this must be expressed through public ritual and ceremony. If so, an honest, non-scapegoating approach to these rituals would need to reflect Aleksandr Solzhenitsyn’s idea that “the line dividing good and evil cuts through the heart of every human being” (1973: 168). If we distance ourselves from the viewpoint of ‘criminals’ and ‘non-criminals’ we can more easily see that crime is not something done by certain deviant individuals. Decisions to commit crime are largely situational, and anyone could potentially become a criminal in the right circumstances (Mathiesen 2000: 103). We would be better off changing the circumstances. However, the practice of punishment insists upon ignoring circumstances and drawing the line of blame in between people, galvanising ourselves against self-critique and self-reform as we point the finger at scapegoats.
The penal ideology and power
Given that much of Durkheim’s thought has fallen out of favour (Garland 1990: 26), perhaps the most valuable aspect of his penal theory is its acknowledgement of the strong public support for punishment. It is certainly true that there is a strong penal ideology permeating entire societies; an ideology comprising the ‘penal passion’, the ‘general deterrence paradigm’, the ‘myth of redemptive violence’ and the strong emphasis on retributive justice even while social justice is languishing. The system of criminal law and punishment enjoys a broad consensus of support across all classes (Braithwaite 1989: 38-43). This support is not a dispassionate one; the public have a keen emotional interest in ‘seeing justice done’, which for Durkheim is about witnessing the reassertion of the moral authority of the conscience collective (Garland 1990: 55-74).
Most penological literature since Durkheim has neglected this penal passion and assumed punishment is “a strategic measure undertaken by the state” for mainly instrumental reasons (Garland 1990: 61). Durkheim’s account is in obvious contrast to that of Foucault, who saw punishment losing its former ‘spectacle’ nature and becoming increasingly rationalised and privatised. While ideology is important for Foucault, it is a rational ideology of ‘discipline’ rather than a passionate punitive one, and it is imparted from above upon ‘docile bodies’, rather than rising up from the people’s collective sentiments (Foucault 1975). Garland synthesises the two by proposing that there is still a spectacle aspect to punishment, but it is mostly restricted to the apprehension and conviction (1990: 71-74). The courtroom is still a public ritual, but unlike previously, punishment promptly leaves “the public and moral arenas” (73) after sentencing, leaving the actual outworking of punishment to more technical forms and aims. However, the problem of where the penal ideology ultimately springs from is still a highly pertinent one.
While Durkheim sees it as a straightforward expression of the collective values of ‘society’, he ignores the fact that the ‘social order’ is precarious, a product of continual renegotiation and conflict. Rather than taking the conscience collective for granted, it is more accurate to talk of a ‘dominant moral order’ (Garland 1990: 51-54). The upshot of this is that we should not necessarily assume, as Durkheim does, that the penal ideology is a natural and inevitable part of the human psyche. An important corrective has been developed within the Marxist tradition, with its idea that “the ruling ideas of each age have ever been the ideas of its ruling class” (Marx & Engels 1847). The public support for punishment may be a product of cultural hegemony and derive from ruling interests’ desire to punish, rather than the other way around; Garland believes that the two are “mutually interacting and conditioning” (1990: 54).
So what benefit would the powerful gain from cultivating a penal ideology? Marx and Engels argue that the lumpenproletariat or ‘dangerous class’ serve to divide the working class against itself and are inclined to become a “bribed tool of reactionary intrigue” (1847), but this is not specifically related to punishment. Early 20th century Marxist historians George Rusche and Otto Kirchheimer do focus on punishment as “one element within a wider strategy of controlling the poor”, alongside factories, poor laws and the labour market (Garland 1990: 91). They assert that the development of penal policy, rather than being a process of humanisation, has largely been a factor of the demands of the labour market (Garland 1990: 89-110). Foucault follows Rusche and Kirchheimer in much of this, but gives a wider explanation of the use of modern punishment; for him it is more about creating ‘delinquency’ to distract from the illegalities of the powerful, and creating ‘docile bodies’ conducive to control and surveillance by the all-encompassing force of ‘discipline’ (Foucault 1975: 135-228,257-292). More recently, Anthony Bottoms has coined the phrase ‘populist punitiveness’ to describe the use of punishment by politicians, who are increasingly finding in the neo-liberal era that they can woo voters with rhetoric of getting ‘tough on crime’ (Bottoms 1995: 39-41, Workman 2009: 5).
Much of this is largely situational, with political and economic élites capitalising on specific opportunities presented to them. But there are other benefits of punishment for the powerful, which do not necessarily reflect a conscious “conspiracy of rich men” (More 1516); after all, policy-makers themselves are members of the public and may really believe that they are bringing justice or preventing crime. Since Durkheim, it has become common knowledge that rituals such as punishment build solidarity and reaffirm collective sentiments, but anthropologists are divided about whether this is “a latent function (signifying the cunning of social institutions) … [or] a conscious objective (signifying the cunning of the authorities who stage and perform the rituals)” (Garland 1990: 76).
The fear of crime and the assumption of punishment legitimises the state as a necessary punishing agent. In modern times, states co-opt conflicts, and people look to governments and professionals to save them from crime and criminals, rather than sorting out conflicts amongst themselves (Christie 1977). Thomas Hobbes based his theory of the state on the necessity of a powerful ‘mortal god’ to enable societies to move from the perpetual conflict and violence of the state of nature to a state of order (1651). Fuelled by the myth of redemptive violence, this assumption that the state protects against conflict and chaotic violence is an important source of support for the state even when individual policies are unpopular. As acknowledged by Marxists as well as Durkheim, each successful punishment ceremony serves to further strengthen the ideological support for the current form of society (Garland 1990: 124).
Of course, the modern state is characterised by a monopoly on violence (Weber 1919). The state – and its punishment – consist of the very same substance they are ostensibly controlling. Hobbes’ ‘mortal god’ concentrates and orders violence rather than eliminating it. In fact, by concentrating violence in powerful centralised bodies, it can increase to levels far beyond the realms of what is usually thought of as crime; war, slavery and genocide are some of the more extreme examples. A focus on punishment as legitimised and necessary violence shifts attention away from the majority of violence; the kind of violence that results more from obedience than disobedience (Zinn 1990: 128). The scapegoating and demonising fear of criminals, deviants, enemies, witches, communists or terrorists may be a spontaneous collective phenomenon as Girard asserts, but it is nonetheless manipulated by the powerful for their own ends. Protection against these ‘enemies’ gives the state a paternalistic justification for its coercive bodies – police, courts, armies and prisons – which are “necessary, before all things, for the defence of governments from their own oppressed and enslaved subjects” (Tolstoy 1894).
By justifying the state, the punishment ideology also protects current unequal distributions of resources and power, which would be impossible without the state and law to protect property rights (Garland 1990: 117, Godwin 1793: 131, Rousseau 1754). The public’s support for punishment, stemming from its promise to protect them against violence, is extended to all law, which is “nine-tenths concerned with upholding a radical division of property” (Hay, cited in Garland 1990: 120-121). The collective upswelling of penal passion to defend the sacred cow of property overtakes an objective analysis of how to “make property serve its functions in the community”, and this unquestioning passion becomes a tool of the propertied (Mead 1918: 589). As we have seen, these unequal distributions and these ‘beati possidentes’ cause far more damage than what is conventionally labelled and punished as crime. This connection between state and property is self-perpetuating, as power is wielded by “an almost inevitable alliance between business and politics, between money and power” (Newbold 2000: 33).
Righteous indignation is a powerful and essential response to an unjust and violent world; but the penal ideology misdirects this indignation away from power structures, property and injustice, which are the real sources of conflict, towards marginal individuals, who are already its victims (Garland 1990: 77). Even if the penal passion is a natural human reaction rather than a hegemonic ideology, “the fear of blue-collar crime justifies a legal and judicial system in which the problems of society are blamed on a largely impotent criminal underclass, while the ravages of the rich, the respectable and the powerful go largely unaddressed and unnoticed” (Newbold 2000: 257).
It is apparent that although punishment is only dubiously beneficial from the perspective of controlling crime or bringing justice, it is highly ‘functional’ for the dominant moral order of societies. Whether punishment demonstrates the power of the sovereign as with Foucault’s analysis of pre-modern punishment, or makes power anonymous as with his analysis of modern punishment, it consistently supports the interests of the powerful (Foucault 1975). It seems that we finally have an adequate answer to ‘why punishment?’. Contrary to popular opinion, but acknowledged in different ways by Marx, Durkheim, Weber, Foucault and many others inside and outside of sociology, punishment is best explained as a “political tactic” (Foucault 1975: 23).
The natural follow-up question is ‘is it worth it?’ Kropotkin points out that we are constantly being told of the supposed benefits of punishment, but only rarely do its proponents attempt to weigh them up against “the degrading effect of these penalties upon humanity” (1886: 115). The only definite and clear reason for punishment is the maintenance of the state’s monopoly on violence; we could perhaps be generous enough to include some marginal and inconsistent crime control effects, and a perception of justice and safety amongst the public. On the other side of the ledger, we have the tendency of punishment to promote recidivism and thus compound itself; the replication of wider societal injustices; the reliance on exclusively individual, hypocritical explanations for crime; and the indiscriminate legitimising of the status quo. Punishment also does severe damage to individuals; a famous account is that of Gresham Sykes who talks of “the pains of imprisonment” in a maximum security prison; deprivation of liberty, goods & services, heterosexual relationships, autonomy, and security (Mathiesen 2000: 132-135). To this can be added the continuing pain of punishment when not followed by reintegration, and the suffering of families and communities alongside the punished individuals.
Punishment represents real harm caused to real people – both ‘criminals’ and otherwise – for the sake of abstracts such as the state and ‘moral order’. Durkheim’s ‘paradox of higher utility’ accepts that punishment is futile at its ‘official’ purposes, but insists that it is necessary for its functional role. This Hobbesian presumption that authority must be maintained leads to the totalitarian contention that any harm done to human beings and human communities is justified as a means to the end of supporting the state. The question of whether this is a worthwhile trade-off will depend on our opinion of human nature. We could agree with Hobbes that humans are inherently competitive and cannot thrive without a punishing Leviathan to keep us under control, or with Kropotkin that the societies who thrive best are based on free co-operation rather than competition (Kropotkin 1902, Karlberg 2003, Wilkinson & Pickett 2010); and “for that very reason, suffer less from antisocial activity” (Ward 2004: 41). At the very least, these observations should cause us to question our penal ideology, and ask ourselves whether there is another way.
– Caleb Morgan, 20/10/2010.
APPENDIX: Another way?
Punishment is not a solution to crime. Both are symptoms of the same problems; unjust and alienating economic, political and social arrangements, and the willingness of people to use force to get what they want. If we want to solve our conflicts and escape from the repeating loop of crime and punishment instead of reinforcing it, we must abandon punishment and seek more creative responses. The punishment ideology makes it difficult to imagine crime going unpunished without disastrous consequences. However, most crime already goes unpunished, as it is not caught – particularly, crime of the powerful (Garland 1990: 59n., Newbold 2000: 251-257). Disastrous consequences are as likely to flow from punishment, and the structures and inequality it supports, as from lack of punishment.
Of course, we should not replace punishment with a gulf of nihilistic disregard for justice. Harm, oppression and violence in all their forms should be exposed, shamed and passionately denounced. This should be done from the clear perspective of a community committed to doing good not harm itself; with a mindset that good done to one person filters throughout all of society, rather than that what is given to one is taken away from the others. Our righteous indignation should be encouraged when appropriate, but directed against actions rather than people; “hate the sin and love the sinner” (Braithwaite 1989: 101). The people and structures responsible for harm should be identified, but with the focus not on inflicting a balancing harm and then returning to the status quo, but on analysing what exactly went wrong and what can be changed to make it less likely to happen again.
For individual people exhibiting anti-social behaviours, this should be geared towards guilt, apology and repentance, and met with reintegrative shaming (Braithwaite 1989: 64-107), forgiveness, and continual acceptance as a member of the community; “the word ‘criminal’ should be taboo from our dictionary. Or we are all criminals” (Gandhi 1960: 222). For restitution, people should be encouraged and assisted by their communities to participate in restoring victims’ situations, and reforming themselves and their societies. This will no doubt be a more rewarding ‘repayment to society’ for all concerned than the meaningless suffering of punishment. Of course, the failure of prison rehabilitation should forewarn us against ‘encouraging and assisting’ coercively.
It is imperative that any ‘micro’ focus should not be undertaken at the expense of dealing with ‘macro’ socio-economic and structural factors. Structures, the silent offenders under our current system’s rush to scapegoat a human individual, should not be let off so easily. Structural change should be a normal part of reacting to conflict. Punishment distracts us from this as it sees punishment as the solution, but when a body has a disease, we do not punish the part showing the symptoms and then consider the problem solved. We seek to manage and minimise the damage in that part of the body, and more importantly, to heal the underlying illness before it affects other parts of the body. As Marx put it, “is there not a necessity for deeply reflecting upon an alteration of the system that breeds these crimes, instead of glorifying the hangman” (1853) – or the prisons, or even restorative justice if it does not look as wide as systems?
Above all, people must be our priority. “Punishment has become something the dominant group in society imposes on those of little status and power who are not in a position to challenge its fairness or its usefulness” (Consedine 1995: 19). Seeking alternatives to punishment is ultimately an act of compassion to these people of little status and power. This should be part of an overall philosophy of looking after each other throughout our lives; encouraging attachment, achievement, autonomy and altruism from youth, rather than only acting after a crisis (Brendtro & du Toit 2005: 44-46). When crises and conflicts do occur, solutions should be focussed on improving the situations of the people involved; first the victim, but also the offender, other people in similar situations to the offender, the community as a whole, and the relationships in between them all. Insofar as they are willing and able, these people should be given the opportunity to work together on the solutions, in hopes that the community can be improved from the experience.
This approach will be best undertaken at a grass-roots level with a ‘think globally, act locally’ approach. This may mean that change will happen more slowly, but it will be more authentic. People opposed to punishment should seek to change their own attitudes and embody alternative responses themselves first, rather than waiting for police, courts or prisons to change. The state is slow to listen and even slower to change, and has powerful stakes in the punishment status quo (Garland 1990: 114). It also tends to co-opt, compromise and dominate alternative justice practices when they are introduced alongside the state’s system (Hudson 1993: 39-41). Alternative justice approaches should consciously seek to remain outside of the state’s apparatus. The state is most likely to change its justice system if it sees independent alternatives working better.
What will it take in our lives to shape communities where conflict and interpersonal harm is less likely to happen, and when it does, it is more likely to be dealt with in a healthy way, rather than offloaded to the penal establishment?
We must actively work against the individualist values which are conducive to the interests of political and economic élites, and regain community values on a personal and local level (Christie 1977: 12). We must be willing to give up some of our individual privilege in order to combat this dominant worldview. We must be willing to give up some of our individual comfort to look after people in our communities – particularly the most marginalised – instead of fearing or mistrusting them. And we must be willing to give up our ‘right’ to revenge when we are harmed. As long as an individualist, capitalist, defensive mindset dominates communities, punishment will remain the dominant way of dealing with crime and conflict in those communities.
We end with two quotes from alternative justice advocates of the last two centuries, which indicate the kind of dreaming that will be necessary to make positive change this century in our own contexts.
With this last statement, as with most of the others I have made, I raise many more problems than I answer. Statements on criminal politics, particularly from those with the burden of responsibility, are usually filled with answers. It is questions we need. The gravity of our topic makes us much too pedantic and thereby useless as paradigm-changers.
– Nils Christie (1977: 9-10)
As soon as the prisoner is released, the comrades of his former life wait upon him … And what a contrast between the fraternal reception of the brotherhood of ‘magsmen’ and the reception on behalf of ‘respectable people’ … For them the liberated prisoner is something plague-stricken. Who of them would invite him into his own house, and merely say, ‘Here is a room, there is work for you; sit at this table, and be one of our family’? He needs the most fraternal support, he is most in need of a brotherly hand stretched out to him. But, after having done all in our power to make him a foe of society, after having inoculated him with the vices which characterize prisons, who will tender him the brotherly hand he is in need of?
– Peter Kropotkin (1887: 127)
3 News (2010). ‘Should prisoners have the right to vote?’. Retrieved from http://www.3news.co.nz/Should-prisoners-have-the-right-to-vote/tabid/1153/articleID/177081/Default.aspx
ACT New Zealand (2010), ‘Policies’. Retrieved from http://www.act.org.nz/
Adams, Rebecca & Girard, René (1993). ‘Violence, Difference, Sacrifice: A Conversation with René Girard’, Religion & Literature 25(2), Violence, Difference, Sacrifice: Conversations on Myth and Culture in Theology and Literature, 9-33.
Becker, Gary S. (1968). ‘Crime and punishment, an economic approach’ in Cullen, Francis T. & Agnew, Robert (eds) (1999), Criminological Theory: Past to Present (Essential readings), 251-253.
Bonhomme, J., Stephens, T. & Braithwaite, R. (2006). ‘African-American males in the United States prison system: impact on family and community’, Journal of Men’s Health and Gender 3(3), 223-226.
Bottoms, Anthony (1995). ‘The Philosophy and Politics of Punishment and Sentencing’ in Clarkson, Chris & Morgan, Rod (eds), The Politics of Sentencing Reform, Oxford: Clarendon Press, 17-49.
Braithwaite, John (1989). Crime, shame and reintegration. Cambridge: Cambridge University Press.
Braithwaite, John (1999). ‘Restorative Justice: Assessing Optimistic and Pessimistic Accounts’, Crime and Justice 25, 1-127.
Brendtro, Larry & du Toit, Lesley (2005). Response Ability Pathways : Restoring Bonds of Respect, Cape Town: Pretext.
Brownlee, Ian (1998). ‘New Labour: New Penology? Punitive Rhetoric and the Limits of Managerialism in Criminal Justice Policy’, Journal of Law and Society 25, 313-335.
Chomsky, Noam (2002). ‘Mirror Crack’d’, Outlook India. Retrieved from http://www.chomsky.info/articles/200209–02.htm
Christie, Nils (1977). ‘Conflicts as Property’, The British Journal of Criminology 17(1), 1-15.
Condry, R. (2007). Families Shamed: The Consequences of Crime for Relatives of Serious Offenders, Devon: Willan Publishing.
Consedine, Jim (1995). Restorative Justice: Healing the Effects of Crime, Lyttleton: Ploughshares Publications.
Cornish, Derek B. & Clarke, Ronald V. (1986). ‘Crime as a rational choice’ in Cullen, Francis T. & Agnew, Robert (eds) (1999), Criminological Theory: Past to Present (Essential readings), 254-7.
Deane, H. (1985). The social effects of imprisonment on male prisoners and their families, Wellington: Victoria University of Wellington, Institute of Criminology.
Dupré, John & O’Neill, John (1998). ‘Against Reductionist Explanations of Human Behaviour’, Proceedings of the Aristotelian Society, Supplementary Volumes 72, 153-188.
Ferraro, K.J., Johnson, J.M., Jorgensen, S.R. & Bolton, F.G. (1983). ‘Problems of prisoners’ families: the hidden costs of imprisonment’, Journal of Family Issues, 4(14), 575-591.
Foucault, M. (1975). Discipline and punish : the birth of the prison (tr. Alan Sheridan 1977), New York: Vintage Books.
Galaway, Burt & Rutman, Leonard (1974). ‘Victim Compensation: An Analysis of Substantive Issues’, The Social Service Review, 48(1), 60-74.
Gandhi, Mohandas K. (1960). Kripalani, Krishna (ed), All Men Are Brothers : Life and Thoughts of Mahatma Gandhi as told in his own words, Ahmedabad: Navajivan Publishing House.
Garland, David (1990). Punishment and Modern Society, Chicago: The University of Chicago Press.
Glenn, Evelyn (2000). ‘Citizenship and Inequality: Historical and Global Perspectives’, Social Problems 47(1), 1-20.
Girard, René (1987). ‘Generative Scapegoating’ & ‘Discussion’ in Hamerton-Kelly, Robert G. (ed), Violent Origins: Walter Burkert, Rene Girard, and Jonathon Z. Smith on Ritual Killing and Cultural Formation, 73-145.
Godwin, William (1793). ‘On punishment’ & ‘On property’ in Woodcock, George (ed) (1977), The Anarchist Reader, Glasgow: Fontana, 118-124 & 128-132.
Goldberg, David Theo (1993). ‘Modernity, Race and Morality’, Cultural Critique 24, 193-227.
Gower, Patrick (2009). ‘Change Bill of Rights, says 3-strikes MP’, The New Zealand Herald 03/03/2009. Retrieved from http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=10559642
Graham, F. (1981). ‘Probability of Detection and Institutional Vandalism’, British Journal of Criminology 21(4), 361-365.
Hartevelt, John (2010). ‘Violent crimes boost three-strikes prison fears’, The Dominion Post 28/06/2010. Retrieved from http://www.stuff.co.nz/southland-times/news/3860185/Violent-crimes-boost-three-strikes-prison-fears
Hawkins, Gordon (1983). ‘Prison Labor and Prison Industries’, Crime and Justice 5, 85-127.
von Hirsch, Andrew (1992). ‘Proportionality in the Philosophy of Punishment’, Crime and Justice, 16, 55-98.
Hobbes, Thomas (1651). Leviathan. Retrieved from http://www.gutenberg.org/ebooks/3207
Hudson, Barbara (1993). Penal Policy and Social Justice, Toronto: University of Toronto Press.
Knepper, Paul (2001). Explaining Criminal Conduct : Theories and Systems in Criminology, Durham: Carolina Academic Press.
Kropotkin, Peter (1886). ‘The uselessness of laws’ in Woodcock, George (ed) (1977), The Anarchist Reader, Glasgow: Fontana, 111-117.
Kropotkin, Peter (1887). ‘Prison and its effects’ in Woodcock, George (ed) (1977), The Anarchist Reader, Glasgow: Fontana, 124-127.
Kropotkin, Peter (1902). Mutual Aid. Retrieved from http://www.marxists.org/reference/archive/kropotkin-peter/1902/mutual-aid/index.htm
Karlberg, Michael (2003). ‘The Paradox of Protest in a Culture of Contest’, Peace and Change, 28(3), 319-347.
Larner, Wendy (2000). ‘Neo-liberalism: Policy, Ideology, Governmentality’, Studies in Political Economy 63, 5-25.
Marshall, Christopher D. (2001). Beyond Retribution: A New Testament Vision for Justice, Crime, and Punishment, Grand Rapids: Wm. B. Eerdmans Publishing Co.
Marx, Karl (1853). ‘Capital Punishment. — Mr. Cobden’s Pamphlet. — Regulations of the Bank of England’, New York Daily Tribune 17-18/02/1853. Retrieved from http://www.marxists.org/archive/marx/works/1853/02/18.htm
Marx, Karl & Engels, Friedrich (1847). Manifesto of the Communist Party (tr. Samuel Moore 1888). Retrieved from http://www.marxists.org/archive/marx/works/1848/communist-manifesto/
Mathiesen, Thomas (2000). Prison on Trial, Winchester: Waterside Press.
Mead, George H. (1918). ‘The Psychology of Punitive Justice’, The American Journal of Sociology, 23(5), 577-602.
Merton, Robert (1938). ‘Social Structure and Anomie’, American Sociological Review 3(5), 672-682.
More, Thomas (1516). Utopia. Retrieved from http://www.gutenberg.org/ebooks/2130
Newbold, Greg (2000). Crime in New Zealand, Palmerston North: Dunmore Press.
Nietzsche, Friedrich (1887). On the Genealogy of Morals: A Polemical Tract (tr. Ian Johnston 2009). Retrieved from http://records.viu.ca/~johnstoi/Nietzsche/genealogytofc.htm
Proudhon, Pierre-Joseph (1840). What Is Property?: An Inquiry into the Principle of Right and of Government (tr. Benjamin R. Tucker 1890). Retrieved from http://www.marxists.org/reference/subject/economics/proudhon/property/index.htm
Rotman, Edgardo (1986). ‘Do Criminal Offenders Have a Constitutional Right to Rehabilitation?’, The Journal of Criminal Law and Criminology (1973-) 77(4), 1023-1068.
Solzhenitsyn, Aleksandr I. (1973). The Gulag Archipelago (tr. Thomas P. Whitney), London: Collins & Harvill Press.
Stanford Encyclopedia of Philosophy (2008). ‘Legal Punishment’. Retrieved from http://plato.stanford.edu/entries/legal-punishment/
Rousseau, Jean-Jacques (1754). ‘A Dissertation On the Origin and Foundation of The Inequality of Mankind and is it Authorised by Natural Law?’ (tr. G.D.H. Cole). Retrieved from http://www.marxists.org/reference/subject/economics/rousseau/inequality/index.htm
Thigpen, Robert B. (1985). ‘Review: From Genesis to Genocide: The Meaning of Human Nature and the Power of Behavior Control’, Social Indicators Research 16(2), 223-226.
Tolstoy, Leo (1894). The Kingdom of God is Within You (tr. Constance Garnett). Retrieved from http://www.gutenberg.org/ebooks/4602
Torrie, Bronwyn (2010). ‘Criticism and praise for law proposal’, The Manawatu Standard 11/05/2010. Retrieved from http://www.stuff.co.nz/manawatu-standard/news/3675385/Criticism-and-praise-for-law-proposal
Vitiello, Michael (2002). ‘Review: Punishment and Democracy: A Hard Look at Three Strikes’ Overblown Promises’, California Law Review 90(1), 257-290.
Wacks, Raymond (2006). Philosophy of Law: A Very Short Introduction, Oxford: Oxford University Press.
Ward, Colin (2004). Anarchism: A Very Short Introduction, Oxford: Oxford University Press.
Weber, Max (1919). ‘Politics as a Vocation’. Retrieved from http://www.ne.jp/asahi/moriyuki/abukuma/weber/lecture/politics_vocation.html
Weber, Max (1905). The Protestant Ethic and the Spirit of Capitalism (tr. Talcott Parsons 1930). Retrieved from http://www.marxists.org/reference/archive/weber/protestant-ethic/index.htm
White, Robert & Habibis, Daphne (2005). Crime and society, Melbourne: Oxford University Press.
Wilkinson, Richard & Pickett, Kate (2010). The Spirit Level : Why equality is better for everyone, London: Penguin Books.
Wink, Walter (2007). ‘Facing the Myth of Redemptive Violence’. Retrieved from http://www.ekklesia.co.uk/content/cpt/article_060823wink.shtml
Workman, Kim (2009). ‘Reducing Crime or Reducing Victims – Crime as Social Harm’. Retrieved from http://www.rethinking.org.nz/images/newsletter%20PDF/Issue%2067/02Final_speech_Victim_Support_conference.pdf
Yoder, John Howard (1995). ‘Chapter XI: Back to the rest of sociology’ in You Have It Coming: Good Punishment. The Legitimate Social Function of Punitive Behavior. Retrieved from http://theology.nd.edu/people/research/yoder-john/
Zinn, Howard (1990). Declarations of independence: cross-examining American ideology, New York: HarperCollins.
 Wacks (2006: 24); also “the imposition of something that is intended to be burdensome or painful, on a supposed offender for a supposed crime, by a person or body who claims the authority to do so” (Stanford Encyclopedia of Philosophy 2008)
 Workman does note some improvement with the Victims’ Rights Act 2002, though the combined legislative changes in that year were a “mixed bag” (Workman 2009: 8).
 Russian Marxist legal theorist E.B. Pashukanis describes convincingly how the legal and penal form of capitalism corresponds to its economic relations, and argues that the two strands are mutually supporting and have dialectically shaped modern society (Garland 1990: 111-118).
 This paradox is represented most starkly in New Zealand by the ACT political party (ACT New Zealand 2010), which styles itself “The Liberal Party” due to its laissez-faire approach to distribution, but holds a “zero tolerance” approach to crime and a highly retributive penal policy. Yet our entire society has moved in the same directions, to varying extents.
 Merton’s theory has been criticised for not taking into account white-collar crime (Newbold 2000: 14), however the limitlessness of the ‘culturally defined goal’ of wealth accumulation ensures it strains against the rich as much as – and sometimes more than – the poor. Corporates benefit from fostering dissatisfaction amongst all classes; the chimera of ‘keeping up with the Joneses’ always just out of reach, for as soon as it is achieved, marketers lose the consumer demand that accompanies this dissatisfaction.
 Lest it be assumed that this is merely an unfortunate corollary to the fact that the poor do more damage to society, and thus deserve more punishment, it should be observed that in reality the rich and powerful, who would seem to have the least ‘need’ for crime, do the most damage. Edwin Sutherland influentially found in 1940 that 90% of US corporations qualified as ‘habitual criminals’, a situation that has not changed (Newbold 2000: 36). White-collar crime has been estimated to be as much as 40 times more damaging than blue-collar, largely because the rich have the power to commit crime on a much larger scale (Newbold 2000: 44). This scale is not reflected in correspondingly longer sentences (Newbold 2000: 38-39). The legalised damages of the rich and powerful, which the law protects rather than punishing, are also worth considering.
 “The concept of the conscience collective is never fully elaborated in Durkheim’s work … It is described as ‘the totality of beliefs and sentiments common to average citizens of the same society’ and … forms ‘a determinate system which has its own life’” (Garland 1990: 50).
 Girard’s built-in proviso that the scapegoating will be obscured means that this claim is difficult to either prove or falsify.
 ‘Mimetic desire’, which Girard sees portrayed most honestly in fictional literature, is desire produced through imitation. Conflict arises from multiple imitators desiring the same object. Unanimous punishment provides a way out of this conflict as it focuses mimetic desire upon the scapegoat and allows all desires to be simultaneously satisfied (Girard 1987: 121-129).
 Walter Wink defines the myth of redemptive violence as “the story of the victory of order over chaos by means of violence”; the assumption that violence is a necessary and inevitable solution to human conflict, order must be imposed violently from above, and “whoever conquers must have the favour of the gods”. Wink points out the ubiquity of this message in entertainment media, most obviously in children’s television, and argues that this myth is the dominant religion of Western society (Wink 2007).
 “’Society as a whole’ does not exist, except in the fantasies of the jurists. In reality we are faced only with classes, with contradictory, conflicting interests” (Pashukanis, cited in Garland 1990: 113).