Occasional Writing for T37 – Hampton on Punishment
The reading for T37 is Jean Hampton’s “The Message of Punishment,” which is in our Arthur and Shaw volume (5th edition). You may read, if you prefer, the full piece from which this was excerpted, “The Moral Education Theory of Punishment,” which was originally published in Philosophy & Public Affairs, Vol. 13, No. 3 (Summer, 1984), pp. 208-238. Steffan provides these quotes to ponder, with questions following each.
- “I believe we must accept the deterrence theorists’ contention that the justification of punishment is connected with the fact that it is a necessary tool for preventing future crime and promoting the public’s well-being.” Do you agree with this statement? Is the focus more on the well-being of society or the deterrence/rehabilitation of the criminal? What about non-violent offenses?
- “But to say that the state’s punishment is needed to prevent crime is not to commit oneself to the deterrence justification of punishment…if we aimed to prevent wrongdoing only by deterring its commission, we would be treating human beings in the same way that we treat dogs” (DOG EXAMPLE followed). Does this really relate to humans? Do we really question why there are laws in place after punishment is given?
As usual, 200-300 words, please.
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Philosophy 395: Philosophy of Law 
I do not agree that the main justificaiton of punishment is to prevent it from occurring again; this sounds like a consequentialist way of viewing justifying punishment. I think punishment is associated with society in that the degree of punishment typically has to do with the degree to which the criminal hurt society. However, the punishment itself (once a degree is chosen) is mainly to serve justice through punishing the criminal and cause the criminal to suffer what he or she deserves because of his or her actions. For nonviolent offenses, i think it makes sense to fine the person money because they did not inflict bodily harm on another so a physical punishment is not as appropriate. The punishment of course depends on the crime. If a person needs to be restrained because he or she cannot stop stealing, then it makes sense to physically lock him or her up. What Hampton says on the top of page 276 explains why she compares humans to animals well. She compares us to dogs and other animals because she says we can be conditioned to avoid certain behaviors if we see that avoiding x will help us avoid pain. However, she makes it clear that unlike animals, we can then reflect on the law and why it is there and why we must avoid it or feel pain. I think this is a correct analysis of the difference between humans and animals when it comes to deterrence-mainly we ask why and they don’t.
1. I don’t deny the contention that punishmentfor the good of society as a whole and prevents future crimes; on a simliar note, I think we can also include the public-made moral message punishment sends, as Hampton includes. I do agree that punishment is necessary in order to deter crime and to make a public message and to benefit society as a whole. But punishment is also what the criminal deserves. Punishment is not simply an “eye for an eye” because, like Hampton says, one evil does not make right an evil done; likewise, punishment does not negate the crime committed. Punihsment should be believed to be morally justified by the state, otherwise the state should not punish criminals. Punishment is morally justified and is “deserved” as mentioned earlier because it teaches the person a lesson. The utiltarian benefit comes second in helping society recooperate after the crime has been committed and so on… Punishment is not vengeance but a just reward for a crime committed, as Kant said (if I understand him correctly). So in my view, punishment should be more focused on the criminal than on the society. As for non-violent crimes, they must be punished none-the-less. Violence often includes emotions involved in punishing, but if we are to focus on the criminal and not society, it would make sense to be just as strict with non-violent crimes. This also would bring more respect for the law if punihsments were strict on all crimes- violent or non-violent.
2. The dog fence analogy does not relate to humans because, as Hampton mentions, people ask “why” they are being punished. And in having the capacity to ask why, there is rehabilitation taking place for the human that would not take place for the dog.
I do agree with the deterrence quote because the prospect of going to jail is constantly preventing crime on a daily basis, which is in turn helping society’s well-being. The main reason people do not rob people more or kill more is because the idea of going to jail is terrifying and a much more horrible condition than the one they are currently in. The same can be applied to non-violent offenses such as white collar crime, child pornography, etc. because a person has to be willing to accept the chance of going to jail in order to improve their situation. It is a basic logical decision in which one person must decide whether or not the high probability of getting caught and punished is less than or greater than the chance of not getting caught and moving on to a better life. Most decide that a crime is not worth it because the probability of getting caught is much higher than not especially with the constant progression of technology. Lastly, the dog comparison is similar to humans but cannot be fully applicable because the cognitive ability of a dog is much less sophisticated than that of a human. A human can make a fully reasonable defense with pros and cons justifying his decision while a dog can only see the deterrence of pain to not cross the fence. Humans can provide the defense necessary to fully justify a decision be it negative or positive and then weigh its consequences. A dog can only see the short term consequences of pain or feeling good.
I disagree with the statement put forth by Hampton. I don’t think deterrence is a necessary tool for preventing future crime. I think it can be an auxiliary tool, but I don’t think that it is absolutely necessary for promoting the public’s well-being. In our society, I think the focus is least on the rehabilitation of the criminal as evidenced by the extremely highly recidivism rate of criminals in America. Not only do we have the highest ratio of detained individuals, we also have the highest rate of repeat offenders. Either our criminals are of a drastically different mind, or there is something inherently different in our system that causes our criminals to behave in such a way. I don’t think deterrence plays a very large role if any at all in non-violent offenses. I think the dog example does relate to humans at a very basic level. Speaking from the perspective of a cadet, I think that we do question why laws are in place after we are given punishment. For example, when I got a Form 10 for failing to sign out to go to the bowling alley. I received 25 demerits and 15 confinements and restriction for three weeks. I thought it was a dumb rule and did not see the point of following it. After being punished and asking why that rule exists, I understood that it is all about accountability. Leaving base, leaving the cadet area, the squadron has to have accountability on every member. I think it is too much oversight, but I at least understand the rationale of why the rule is in place.
I believe that punishment is more geared towards preventing future crime and promoting the public’s well-being. I would begin by comparing punishment in today’s society to cleaning your room as a child. When you are little and your mother says that you cannot visit your friend until your room is cleaned, you speed up the process and throw as much of the mess into the closet as you can so that it can’t be seen at a glance. The mess appears to be gone to your mother just as throwing criminals in jail appears to clean up society. Even though the problem isn’t visible, the mess made by crime still goes down to our roots and is left unresolved. Punishment may deter people from committing crimes, but deterrence does not remove the desire/need to commit the crimes. Deep down, humans share the similar instincts to that of animals. If an animal sees food, they take it no matter what it involves to acquire it. A criminal sees a desired result and they go after that result no matter what it requires to obtain it. The difference between an animal and a human is that humans understand and accept the risks of doing something they know is wrong while animals are unaware of their discretion. However, what motivates people more than avoiding pain and suffering? Is it positive or negative reinforcement? I am convinced that deterrence/punishment is still the most conducive form of law enforcement. I do, however, believe that therapy and other aids to help change the criminal’s role in society help motivate a change in behavior and accomplish a more thorough benefit to society.
I do agree to a certain extent with the deterrence theorists’ contention that the justification of punishment is connected with the fact it is a necessary tool for preventing future crime and promoting the public’s well-being. I think it is impossible to ignore the fact that the public’s interest is considered when justifying punishments. I think we incarcerate people partially to deter others from committing the same crimes and ensure a safe society. I think the focus is on both on the deterrence/ rehabilitation and the well-being of society. By focusing on these aspects, the goal of reinstating former criminals as working and “good” citizens of society is pursued and hopefully accomplished. In other words, I think this focus considers the well-being of society. The dog example sort of relates to humans and sort of doesn’t. I think it does when considering the tactic of deterrence. Like animals, we are capable of being deterred from actions by punishment; however, an understanding/ acceptance of the law are needed to further prevent actions. Human beings need reasoning applied and the question of “why” is be answered. For example, after every crime committed some form of justification is either explicitly given or internally created and accepted. I think if human beings were treated as dogs in this manner, there would only be short term positive results if any.
Now, I agree we have to accept the “deterrence theorists’ contention that the justification of punishment is… a necessary tool for preventing future crime and promoting the public’s well-being,” but to a certain extent because it all depends on what society is trying to deter. If society is trying to rehabilitate the criminal then I don’t see how this deterrence will work because it will require the offender to perform the unaccepted action; but if society’s concern is more with the well-being of society then sure deterrence could work. Deterrence is a bit of a ‘tight-rope’ to walk in some sense because it requires the developer(s) to think the people whom it will affect are rational in thought and will discern that refusing to abide by a law is not worth it; and this goes for all types of offenses violent and non-violent alike. For the second question, I think it depends on the individual or groups that are being affected by the punishment. I think everybody don’t normally give a moment’s notice to laws until they’re, or are in some form connected to someone who is, affected by it. It is only natural to be concerned about those things that directly affects a person’s life but I don’t think this is wrong or makes you anymore or any less like a human or a dog.