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Course: Wireless Philosophy > Unit 8
Lesson 7: Non-retributivist justifications of punishmentNon-retributivist justifications of punishment
In this wireless philosophy video, Barry Lam (Vassar College, Hi-Phi Nation podcast) explores the plausibility of justifying legal punishment either in terms of what criminal offenders have somehow consented to or in terms of what best promotes the social good -- rather than focusing on what offenders deserve.
View our punishment learning module and other videos in this series here: https://www.wi-phi.com/modules/punishment/. Created by Gaurav Vazirani.
Video transcript
[Music] Hi, I’m Barry Lam, associate professor
of philosophy at Vassar College, and the producer
of Hi-Phi Nation, a show about philosophy that
turns stories into ideas. In this video, we’ll examine whether
legal punishment can be justified in terms of what wrongdoers
have consented to, or what promotes social good, rather than in
terms of what they deserve. When Emma’s teenage son
John got his driver’s license, he caused two
accidents in the first month. It was important to John’s
sense of freedom to keep driving, but Emma worried about his
safety, and the safety of others. So she made a deal with him. He could only drive with her for
the next month, and if he didn’t break any laws or cause any further accidents,
he’d be free to drive on his own. If he violated the agreement,
no driving at all for two months. John took the deal, but immediately
broke it by sneaking out to drive alone. Emma took away his driving privileges. John snuck out again. This time Emma grounded him for a month. These were punishments.
But were they justified? One justification for legal
punishment appeals to a social contract, where punishment is justified
when it’s part of a legitimate contractual agreement between
citizens and their government. In America, for example, the government
recognizes rights and freedoms granted to citizens, including freedoms to
engage in risky activities, like driving. In return, citizens agree to comply
with laws keeping people safe. As part of this contract, if the
government fails to protect citizens’ rights and freedoms, citizens are
permitted to replace the government. If citizens fail to follow laws, the
government has the right to punish. As with all contracts, if the
agreement is set out in advance between free and consenting
parties, the terms are binding. Consequently, the government
is justified in punishing lawbreakers because this
is what they consented to. Does this account justify
John’s punishments? John’s deal with his
mom looks like a contract. He didn’t keep his end of the bargain, so
he was punished as agreed to in advance. But when we look deeper,
there’s a lot to question. The basic problem is that all the power
in this relationship lies with his mom. Could John really have rejected the deal? If the terms were unreasonable, like John
could only drive after he got straight As and ran 5 miles a day, what choice would
John have but to agree to those terms too? If you can’t say no to a deal,
can you really consent to it? Second, what about the grounding? John never agreed to that. Yet he
appears to have no choice but to accept it. One of the basic tenets of
contracts is that if one party violates the terms, the other
is no longer bound by them. When Emma escalates the punishment, it
seems she’s breaking her contract with John. But John has no recourse. As a minor he can’t reasonably
overthrow his parents and find a new home. All he can do is
accept the terms. So, if the agreement
wasn’t entered into freely, and John can’t hold Emma
accountable when she violates it, it doesn’t seem like
a legitimate contract. Therefore, Emma can’t justify the punishment
as the outcome of a binding contract. Similarly, most of us don’t
freely and consensually enter into a contract with our
government — at least not explicitly. We can’t easily leave the country or
directly negotiate the terms of the deal. Generally, we just
have to accept the laws. How can such a contract justify
legal punishment? Maybe it can’t. A different justification
for punishment comes from viewing it as a tool
for social engineering. Emma is trying to give John reasons
to comply with safe driving rules, for his own protection
and the protection of others. When his own safety isn’t
enough to disincentivize dangerous driving, removing
his driving privileges might be. Emma just needs to figure
out which incentives work. But in the real world, this
can be quite challenging. While John’s active social life makes
grounding him a reliable way to discourage his rebellious activity, Emma
has found that grounding is much less effective for Angela,
John’s more introverted sister. If Emma wants to dissuade
Angela from breaking rules, she knows to threaten
Angela’s video game privileges -- a punishment that’s
proven less effective for John. Apparently, getting the
desired outcomes depends on the ability to tailor
punishments to particular people. For the government, this would mean
creating an elaborate system of fines and prison time carefully designed
to disincentivize a wide range of individuals who vary greatly in
circumstances and personalities. It’s challenging enough
for Emma, as a parent, to figure out effective
punishments for her own kids! Is it feasible to implement
anything close to such personalized
punishments at the state level? Another challenge comes from
the real world relationship between criminal sentences and the
size of the prison population. Social engineers claim that a harsher
sentence means a stronger disincentive to commit crime, which should
lead to a smaller prison population. In reality, we’ve got more
people spending longer in prison. The problem may lie in the
theory’s basic assumptions. The theory assumes that people respond
to incentives in their own self-interest. However, people often are short-sighted
and act against their own interest. Another assumption is that the people
engineering the punishments understand and share
their citizens’ most important values, and can
implement these effectively. But policies are often based on
incomplete or incorrect information -- even worse, they often reflect
and exacerbate systemic injustices. When criminal activity is driven
by desperate social conditions or a lack of opportunity and hope, policies that focus on
punishing crimes without addressing underlying
conditions are risky. They risk not only being ineffective,
but creating vicious cycles of despair. And when policymakers fixate
on disincentivizing certain crimes, they can escalate punishments
without considering the disproportionate effects
on different social groups. This can increase
injustice and civil unrest. These real problems have real costs. If we’re going to spend
billions of dollars imposing an intricate system of punishments and
taking away people’s freedoms and rights -- and justify it as a way to improve
social outcomes -- we should pause and ask: Is it working? [Music]