by Thomas R. Wells

Judicial punishment is the curious idea that individuals deserve to be punished by the state for breaking its laws. Intellectually this is rather counter-intuitive. If crime is so terrible because it is a social trauma then deliberately hurting more people would seem to amplify that trauma rather than treat it. There are intellectual arguments for retributive punishment of course, many of them rather ingenious, but they have the look of post hoc rationalisations for a brute social fact: we just like the idea of hurting bad people – even if these days their suffering is the mental torture of prison rather than the rack.

The modern criminal justice system – bloated and terroristic – is the product of government expansionism combined with this societal lust for vengeance.

II

In theory there are great advantages to having the state administer criminal justice – i.e. as a prosecutor and punisher rather than merely as a judge – such as ensuring some baseline of fair treatment for less powerful victims and defendants. However, these are not guaranteed. For example, it is a well-studied fact that young African-American men, a minority stereotyped as especially liable to criminality, are more likely to be stopped by government agents, arrested, charged with a higher crime, denied bail, found guilty, and sentenced to a harsher punishment.

This is not the only way that the state's takeover of criminal justice goes awry. By converting crime from a relationship between victim and perpetrator to a relationship between a criminal and the state it has justified a vast expansion of what is criminalised and of the severity of punishment. The problem of crimes such as rape are conceived not primarily as harms to specific people that need to be redressed, but as transgressions of laws that represent the will of society. All crimes are now offenses against the dignity of Society, as represented by the government. The democratic requirement that justice must be seen to be done means that the moral indignation of society as a whole drives the government's punishment decisions, not the interests or wishes of actual victims of crimes.

Locking millions of people into squalid little boxes for years on end doesn't make much sense if you take away its real motivation: the naked desire to make society's enemies suffer. Besides being a very inefficient – socially expensive – means of hurting people (something I've discussed elsewhere), the mental suffering of prison does little to advance the supposed moral goals of criminal justice.

Consider the idea that the judicial infliction of suffering deters people from doing evil to others, or at least very anti-social acts (like not paying your taxes). It is thus supposed to substitute for a moral sense for people who don't have one. There is something to this, but not nearly enough. After all, a very large proportion of the people in prison are not cunning free-riders on our good will and public services, but the opposite – people whom society should have spent much more time and money on helping: the mentally ill, drug addicted, illiterate, and so on. Presumably the reason this type of person make up the majority of prisoners is exactly that they lack the practical reasoning skills to be deterred, or else their life outside prison is not worth that much to them.

Then there is the idea that punishment is directly rehabilitative, that it teaches respect for the moral rights of others in the only language – pain – that this filth understand. This kind of punishment-based behavioural conditioning is so bizarrely out of date that it isn't even used for training animals anymore (clickers work much better). But there is a deeper incoherence to trying to teach morality with extrinsic incentives. The punishment approach attempts to teach respect for others through the strange device of inflicting suffering on the criminal. The prisoner is thereby directed to reflect on his imprudence not his moral failure, to regret his crime only because it has brought such harm upon himself. Prison thus functions, at its very best, in the same amoral way that hell does in some of the sillier religions.

The last argument for prison is fear. Governments routinely declare that only prison can protect civilian society from genuinely dangerous characters. But there are relatively few such people and their essential characteristic – their compulsive attraction to violence – means that they respond particularly poorly to punishment, whether intended as deterrence or rehabilitation. If they are still dangerous characters when the prison term they 'deserve' for their crime is over, then society will again be at risk.

III

We should return the criminal justice system to its roots – a broader concern with solving crimes rather than exacting vengeance on criminals. Concepts such as restorative and distributive justice should be an important part of that. These see crime as a problem for society to solve together rather than a person to be punished by the state. Most criminals are people who need mending, not further marginalisation. Most victims – and a great deal of crime has no victim but the state – would be more satisfied in the long run to be a part of a process of restitution than to be observers of a government run retribution programme.

For example, it seems eminently more fitting and more constructive for the fraudster who embezzled old people's savings to be sentenced to work two days a week in a nursing home kitchen rather than to increase the amount of suffering in the world (and direct taxes away from the care of the elderly) by sending him to prison to ‘pay his debt to society' by waiting for time to pass.

Similarly, the moral rehabilitation of criminals should be concerned with bringing criminals to reflect on the wrongness of what they have done and the harms they have inflicted on others. That is a rather different project than hurting criminals to encourage them to become better calculators of the costs and benefits of crime to themselves. Punishment should fit the crime in such a way that it teaches a moral lesson that goes beyond mere suffering. The fraudster working in the nursing home is likely to learn much more about the wrongness of what he did, and the rightness of being punished for it, by helping the (kind of) people he harmed than by surviving the peculiar hell of living in a small concrete room for 5 years. Being required to make amends by helping people within one's normal life fosters wider and deeper moral self-reform than living in a in a specially constructed total institution, a colony of hundreds of other nasty people patrolled by people with clubs.

IV

The ascendancy of the retributive punishment paradigm is so complete in modern societies that it is hard to recognise its moral absurdity, let alone to imagine an alternative. It is not really an idea to be argued out, or a policy to be reformed, but an attitude that must be overcome by progress in our social relations and emotions. Can we find a way to continue to care even for those who do the most despicable things? Can we give up the pleasure of demanding satisfaction for our moral indignation at the crimes suffered by other people? Can we cope with the demanding complexity of crime solving rather than the simple abstraction of criminal punishment?