With the new year in full swing, and my LLM Bar course underway, I haven't yet published an article this year. Despite being incredibly busy with coursework and pupillage applications (and good luck to anyone else in the same position!), I aim to publish several articles soon. However, in the meantime I thought that it would be fitting, considering that I find myself writing this article whilst doing some criminal defence work for my course, to publish on here a paper I wrote at York on the theory of punishment. I hope you enjoy reading it and find some insightful quotes, sources and ideas throughout.
Moore On Punishment: Is He Wrong?
‘The good that punishment achieves is that someone who deserves it gets it’, Moore writes. The reality, however, is not so simple, as I shall demonstrate in this paper. In order to critically consider this statement, I will break it down into three questions:
1. What is Punishment?
2. Does anyone ‘deserve’ it?
3. Is the purpose ever fulfilled and does punishment ‘achieve’?
In doing such, I hope to demonstrate that many of the words in the statement, namely; ‘good’, ‘punishment’, ‘achieves’, and ‘deserves’ result in a proclamation with far too much vagueness, ambiguity and oversimplification to withstand scrutiny. Consequently, I shall then be able to dismiss the statement as a well-meaning but misguided attempt to unravel the vast complexities of the topic, an overhasty utterance if you will.
What is ‘Punishment’?
Punishment is an action (or infliction from the eyes of the receiver) as old as time. Hammurabi, the King of the First Babylonian Empire from 1792-1750 B.C., was known to have a code in his name which included 282 rules, including punishments, in order to ensure the implementation of justice. One of his most famous is still frequently quoted today, ‘an eye for an eye’, and is one of the earliest examples of the law of retribution. As such, we can conclude that ‘punishment’ has existed for 4000 years at least. However, given that we do not condone the horrific removing of body parts accepted in previous societies, the question remains; what exactly is ‘punishment’ in the context of modern times?
According to Thom Brooks punishment can only be described as such if four criterions are fulfilled, namely that punishment must:
I. Be for breaking the law,
II. Be of a person for breaking the law,
III. Be administered and imposed intentionally by an authority with a legal system, and,
IV. Involve a loss.
The first two parts to this are self-explanatory, the idea that punishment (in the legal sense) should only result from breaking the law and that such punishment should only be administered to or ordered against the actor who committed the crime. However, it’s worth pointing out that punishment resulting from a criminal act does not equate to punishment being mandatory, that is to say that just because someone has broken the law it does not mean that punishment will, or should, always be the solution or end result.
It is the latter two criteria which cause some issues. For instance, if someone were to steal a wallet, thereby committing theft (and perhaps also assault depending on how the wallet was obtained), but was chased and had their legs broken, would it not be right to conclude that they have been punished, that they have suffered a loss? Does the lack of state intervention really mean that they haven’t been punished for their actions, or would further punishment result in suffering a disproportionate loss? The distinction, as made by Brooks, accepts only the hand of law as acceptable means for punishment, unexpected attacks as described above are excluded from this. It is said that this is to ensure punishment is distributed in a fair and just way for all, but also to stop would be vigilante’s from being tempted to administer their own form of ‘justice’, which would in fact just be them committing a crime as well.
Despite this distinction, Feinberg’s view is that penalties and punishment differ, with penalties being monetary by and large and punishment being a physical infliction of pain, loss of liberty, loss of food etc. Lucas, too, is a proponent of this idea, on the basis that punishments are fit for those actions which are mala in se (evil or wrong of themselves) whereas penalties disincentivise those things which are mala prohibita (wrong only by way of statute). Indeed, it may well have some standing that punishment and penalty ought to differ in definition and criteria for prescription, however no such distinction is made in law. Looking back at the 18th and 19th centuries, inflicting pain as a form of punishment was presumed fair so long as it was inflicted with equivalence to the wrong committed. Whilst we do not tend to do this anymore, in developed countries at least, the idea of equivalence is very much still used, even if just to morally justify certain punishments. This is promulgated by Garland and Duff, saying:
“Punishment requires justification because it is morally problematic. It is morally problematic because it involves doing things to people that (when not described as ‘punishment’ [and thereby legitimised]) seem morally wrong.”
Despite this moral questionability, we can now see what is meant by punishment and that both civil violations and criminal offenses can lead to punishment. The difficulty with prescribing a form of punishment, however, is a question of deservingness. Namely, what does it mean to deserve punishment in law, does anyone actually deserve punishment, and if so, why?
Does anyone ‘deserve’ it?
“Punishment is punishment only when it is deserved. We pay the penalty, because we owe it, and for no other reason; and if punishment is inflicted for any other reason whatever than because it is merited by wrong, it is a gross immorality, a crying injustice, an abominable crime, and not what it pretends to be.”
The retributivist theory of basic desert can be split into two schools of thought. ‘Weak’ retributivists believe that being deserving of punishment is not enough to warrant punishment, a social good must also result, for example deterring future crime, in order for punishment to be acceptable. ‘Strong’ retributivists, on the other hand, see the committing of an offence or breach of civil code as intrinsically immoral and bad enough to warrant punishment in itself, social magnanimity need not result. Even within the ‘Strong’ camp, opinions split over whether justifying punishment means that the punishment must be carried out as a moral obligation, or whether it is not grounds for compelled retribution but rather a justification, should punishment be administered. However, the retributivist argument falls down here, as punishment must be reserved for an authority with a legal system to carry out, but when a retributivist is a victim, they would then be compelled to hurt the criminal back out of a sense of moral obligation, which of course is assault at best. Even in cases of no criminal conduct, such as dropping a biscuit in the road, they would expect punishment to be cast upon said person, seeing it as intrinsically wrong or evil, which of course it is not. Furthermore, the retributivist theory aims to disincentivise moral misconduct but neglects actors for which there has been no moral impropriety. For example, cases of criminal activity which are not a breach of ethical code, such as stealing property to which they have a right of ownership, cannot therefore lead to punishment where punishment is based upon moral misconduct.
However, it must be conceded that the Utilitarian theory of punishment neglects in the opposite way, punishing not because of any deservingness but because it is a means to an end, a deterrent or warning to society so to speak. As such, a proponent would have to view prescribing punishment to an innocent person as a triumph of justice, despite its obvious unjustness. Consequently, as argued by Hart, it must stand that retribution is a justifiable aim for the betterment of society, but not at the cost of morality. This is because guilt is a foundational requirement for retribution, so it follows that without guilt the retribution is immoral, thus making it no more than an ‘abominable crime’.
Proportionality is another consideration for deservingness. It may well be that a mixed approach between Utilitarian and Retributive theories would yield the best result when weighing up the morality of punishing a specific criminal or civil wrongdoer with the societal aims and betterment desired, but this does not cover proportionality. For example, it may well be that a burglar and someone parking on a double yellow line are both guilty of an offence, but to say that because it is morally right to punish them and that punishing them would deter future cases in society, does not mean that they are deserving of the same punishment. As a result, fines are often issued for lesser crimes in order to help differentiate between offences by level of severity. In Australia, for example, over 70% of criminal cases resulted in fines being issued as punishment. The issue, however, is that paying for a crime often leaves perpetrators feeling almost no loss, as money is often taken for granted nowadays with things we all buy without a second thought, expensive coffee’s and takeaways for example. Whilst its moral merits are clear in comparison to going to prison, the societal benefit may not be felt, leading some to question its effectiveness and whether it is proportionate to the offence committed. Prisons, on the other hand result in a loss of liberty, something which is taken in the same way regardless of the crime, although the length of sentence does of course make a difference in how much that loss is felt by the individual. Unlike fines, which are often for different amounts of money depending on the crime and the circumstances surrounding it, the loss of liberty is a ‘universal and constant feeling…..levying the time of the prisoner, the prison seems to express in concrete terms the idea that the offense has injured, beyond the victim, society as a whole’. Indeed, in applying this to my earlier example, it may well be that a driver lacking the attention to consider how they ought to park may well be deserving of a fine, and that a burglar may well be deserving of prison time, but it may also be the case that comparatively to the crime committed, the burglar may face a disproportionate loss over the driving offender as the driving offender is able to pay the fine without a second thought whereas the burglar is losing his liberty in exactly the same way as others in the prison for worse crimes, be that murder, rape, torture etc.
Is The Purpose Ever Fulfilled?
In answering this question, we must first define what the purpose is. The purpose, however, can be argued as being two things, either exclusive of each other or as an equilibrium of interests. If the purpose of punishment is for the victim, or their family, to feel that the offender has received equal loss or pain to that which they caused, then it may well be right, just and sensible to allow the victim or their family to decide what appropriate and proportionate punishment is. However, if the purpose is for the betterment of society in general, then retribution ought to be left to an authority to decide what constitutes appropriate punishment. Set within this, however, are five defining purposes of sentencing which are overarching, regardless of whether it is decided that an authority or the affected should decide exactly what the retribution ought to be. These five aims; punishment, deterrence, reformation and rehabilitation, protecting the public and the making of reparation to those affected are critical when deciding if the given retribution is fair, proportionate and fulfils its objectives. With this in mind, it should be questioned whether allowing victims to use the ‘Community Trigger’ (a way of giving victims the power to demand a case review if they are not satisfied with the outcome) or the ‘Community Remedy’ (which gives victims the opportunity to have their voice heard when deciding the remedy for out of court, minor crimes) will skew justice? It may be seen as simply sidestepping the five fundamental aims in order to make the victim feel better, rather than focusing on the good of the community by objectively handing out a sentence without the victim’s approval. Arguably, rehabilitation focused retribution would likely be chosen more frequently this way than if retribution were in the hands of emotional victims and family members, who may well be after vengeance more than anything else. Of course, through the retributivist lens, it would simply be the moral duty of the law to give victims that choice as the perpetrator has committed an offence which has resulted in a loss which must be assuaged. However, the third criteria of punishment stipulates that it is for the state, or other form of authority, to carry out the punishment as involvement from members of the public constitutes nothing more than vigilante behaviour, an attempt at carrying out their idea of justice. As such, it seems that a very thin line is being walked by allowing victims these opportunities, as it risks blowing out the underpinnings of punishment and sidestepping the aims of sentencing, thereby jeopardising our understanding of punishment and its administration. Many disagree with such a view, however, with Fletcher believing that victims ought to be involved in sentencing as a form of empowering the victim, or as he describes it ‘re-establishing equality’ away from the dominance the perpetrator had over the victim at the time of the offence. It is interesting to note this, as the victim’s opinions are largely disregarded when sentencing for more severe crimes, suggesting that there are limits to the purpose of punishment being to empower the victim. Moore succinctly captured the consensus of many on this topic when he opined ‘doing justice is the essence of retributive punishment and … victims have neither any moral right nor expertise to say how our legal institutions should achieve that justice’.
Victims, then, do have a place in the sentencing of perpetrators of minor crimes (although fines for minor crimes are completely for the state or authority to issue as they are often a fixed fee for a specific offence), but such involvement is limited to only minor offences. Therefore, referring back to the start of this chapter it may well be safely concluded that the purpose of punishment is, by and large, for the betterment of society in general. I take this view despite efforts to involve victims more so with retribution for minor offences, as given the view taken by the likes of Moore in sentencing for more major crimes, the expertise and moral impartiality required to pass fair judgment is lacking when victims are involved. Therefore, it logically follows that allowing victims to inform the retribution prescribed could well lead to many disproportionate sentences being handed out which do not fulfil the five aims of sentencing.
Theoretically, it can be said that the purpose of punishment is fulfilled, therefore, as we have found that the purpose of punishment is to better society in general, and that by allowing an authority to prescribe punishment it leads to a more fair, proportionate and morally acceptable sentencing. This is because an authority takes into account punishing the perpetrator as well as rehabilitating them in order to make them better, safer members of society instead of the likely more vengeance focused approach taken by victims in distributing retribution. It therefore must be concluded that if the purpose is to improve society, and by leaving it to the authority to distribute retribution we end up with more focus on rehabilitating and reforming perpetrators via the use of five key aims for sentencing, who then end up being more valuable, safer members of society, then the purpose is fulfilled.
In considering Moore’s proclamation I have broken the statement down into three sub-categories, each with their own questions. Fascinatingly, it transpires that deciding whether Moore is correct or not is largely a matter of whether you are a fundamentalist Utilitarian or Retributivist, a milder version of each or neither (perhaps as a proponent of a hybrid theory or perhaps even an Academic Sceptic or a believer of Pyrrhonism). For example, a ‘strong’ retributivist may well see the deservingness of punishment as enough to receive punishment without further consideration, whereas a fundamentalist utilitarian would go even further in the pursuit of a better society and condemn an innocent person, helping to restore community spirit and trust by jailing an innocent person who is thrust into the character of a criminal. As such, to claim that ‘the good that punishment achieves is that someone who deserves it gets it’ is to misunderstand the ‘good’ in punishment achieving and what exactly punishment is achieving in the first place. As we have found, punishment aims to achieve creating a better society via the five key criteria of sentencing, even in less serious matters, by fining as a consequence to act as a deterrent for driving offences. It also achieves this objective by a hybrid theory between utilitarian and retributivism, taking the moral leanings of retributivism to stop those undeserving of punishment from being subjected to it, but with the end goal views of utilitarianism. It is very important that the retributivist viewpoint is utilised here, as otherwise someone being deserving of punishment wouldn’t necessarily mean they get the punishment that they deserve. For example, a utilitarian may justify imprisoning someone by saying that they are guilty of a crime, and therefore are deserving of imprisonment. However, a retributivist would first ask what the perpetrator did in order to distinguish whether it is intrinsically immoral or only such because of statute, and would then seek to find whether a societal good would come of punishment. It would then be a case of deciding whether a penalty, or a punishment, would be more morally suitable form of retribution. Without such input, a minor driving violation could well land you in jail. So no, punishment does not just give itself to ‘someone’ because they are mildly deserving of it, and doing so would not be a ‘good’. If Moore were to have considered this, a better summation may have been that the good punishment achieves is a better society for us all.
Bradley, F.H., ‘Ethical Studies’, 2nd edn, Oxford University Press, 1927
Case, S., Johnson, P., et al., ‘Criminology’, Oxford University Press, 2017
Code of Hammurabi - https://www.history.com/topics/ancient-history/hammurabi#:~:text=The%20Hammurabi%20code%20of%20laws,and%20finally%20rediscovered%20in%201901 (Accessed 16/03/2021)
Criminal Justice Act 2003
Duff, R. and Garland, D., ‘Introduction: Thinking about Punishment’, Oxford University Press, 1994
Fletcher, G., ‘The Place of Victims in the Theory of Retribution’ Buffalo Criminal Law Review 3(1): 51–63, 1999
Foucault, M., ‘Discipline and Punish’, 1975
Hart, H.L.A., ‘The Presidential Address: Prolegomenon to the Principles of Punishment’, Proceedings of the Aristotelian Society New Series, Vol. 60 (1959 - 1960), pp. 1-26, Oct. 1959
Home Office (2014) Anti-social Behaviour, Crime and Policing Act 2014: Reform of Anti-social Behaviour Powers: Statutory guidance for Frontline Professionals. London: Home Office.
Lucas, J.R., ‘On Justice’, Oxford University Press, 1980
Moore, M. S., ‘Placing Blame: A Theory of The Criminal Law’, OUP Oxford, 1997
Moore, M., ‘Victims and Retribution: A Reply to Professor Fletcher’ Buffalo Criminal Law Review 3(1): 65–89, 1999
O’Malley, ‘Theorizing Fines’, Punishment and Society, 2009, 11(1): 67–83
Rabinow, P. (ed.) The Foucault Reader. Harmondsworth: Penguin Books, 1984
Wacks, R., ‘Understanding Jurisprudence: An Introduction to Legal Theory’, 5th edn, 2017
 Moore, M. S., ‘Placing Blame: A Theory of The Criminal Law’, OUP Oxford, 1997, 87  Code of Hammurabi: https://www.history.com/topics/ancient-history/hammurabi#:~:text=The%20Hammurabi%20code%20of%20laws,and%20finally%20rediscovered%20in%201901. (Accessed 16/03/2021)  Brooks, T., ‘Punishment’, Taylor & Francis Group, 2013, 1-2  Ibid, 3  Ibid, 4  Ibid, 5  Ibid, 3  Lucas, J.R., ‘On Justice’, Oxford University Press, 1980, 140-142  Case, S., Johnson, P., et al., ‘Criminology’, Oxford University Press, 2017, CH 24, 662  Duff, R. and Garland, D., ‘Introduction: Thinking about Punishment’, Oxford University Press, 1994, 2  Bradley, F.H., ‘Ethical Studies’, 2nd edn, Oxford University Press, 1927, 26–7.  Wacks, R., ‘Understanding Jurisprudence: An Introduction to Legal Theory’, 5th edn, 2017, CH 12, 12.1, 333  ‘Punishment’ (n3)  Wacks (n12), 12.4, 336  Hart, H.L.A., ‘The Presidential Address: Prolegomenon to the Principles of Punishment’, Proceedings of the Aristotelian Society New Series, Vol. 60 (1959 - 1960), pp. 1-26, Oct. 1959, 8-11  Bradley (n11)  O’Malley, ‘Theorizing Fines’, Punishment and Society, 2009, 11(1): 67–83, 68  Ibid  Foucault, M., ‘Discipline and Punish’, 1975, P4 CH1, “Complete and Austere Institutions”, 232 in Rabinow, P. (ed.) The Foucault Reader. Harmondsworth: Penguin Books, 1984, 215  Criminal Justice Act 2003, c. 44, Part 12, c. 1, 142 (1) (a-e)  Home Office (2014) Anti-social Behaviour, Crime and Policing Act 2014: Reform of Anti-social Behaviour Powers: Statutory guidance for Frontline Professionals. London: Home Office. 3  Ibid, 11  Brooks (n3)  Brooks (n3), 5  Fletcher, G., ‘The Place of Victims in the Theory of Retribution’ Buffalo Criminal Law Review 3(1): 51–63, 1999, 63 as cited in ‘Criminology’ (n9), CH 24, 665  Moore, M., ‘Victims and Retribution: A Reply to Professor Fletcher’ Buffalo Criminal Law Review 3(1): 65–89, 1999, 89 as cited in ‘Criminology’ (n9), CH 24, 665  CJA (n20)  Moore (n1)  Wacks (n12)  Wacks (n14)  Ibid  CJA (n20)  Duff (n10)  Hart (n15)  Lucas (n8)  Brooks (n3), 3