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Why punish?

15 May 17

What do we mean by punishment? This contribution argues that while punishment has many different purposes, its role can only be understood in the context of the culture within which it is imposed

by Jordan Gray

Jacksonville, the murder capital of Florida. Brutal crimes are an everyday occurrence. Murder can be an everyday occurrence. But things work differently in the United States. Citizens decide who delivers law and order, ranging from sheriffs to judges; the people elect all. This was highlighted in the new three-part documentary American Justice, which illustrates a side to crime that we do not often see on television. It is not thrilling, nor is it dramatic. Just awful, and extremely sad.

This series brought a lot of questions to my mind. The main one is, why do we punish? It seems like an obvious question that should prompt obvious answers. They did wrong so they should be punished. An eye for an eye. I could go on, but suffice to say that there is more to “punishment” than meets anyone’s “eye”.

If an individual breaks the law then they are punished. Importantly, each individual’s punishment varies. It varies because the state has power over the person and hence can determine the most appropriate sentence. The state may find that the person should be given a community sentence, or that they should be sent to prison to teach them a lesson. Despite such methodological differences, each mode of punishment will have one thing in common: it is a negative consequence that is a result of the individual’s failure to comply with the wishes of the sovereign (commonly known as the law).

Search for an explanation

But why punish the person? One could simply contend that it is fair and right. Maybe, however, it has functional purposes – if we punish the person now, they and others will know not to do it in the future. Or, possibly, there is no concurrent explanation.

Punishment is multidimensional and is not something that can be fully understood without reference to specific cultures. Of course, if an individual breaks the law then there must be a consequence, otherwise the law would not be the law. It would be a set of guidelines. Punishment in this sense is a methodical and strategic measure that is administered for symbolic and influential purposes. This is evidenced by the fact that although crime rates are consistently dropping, prison rates are still on the rise. Prisons therefore act as a potent symbol of power. Prison can also be viewed, however, as accommodating for those who have been excluded from society due to their socio-economic background.

Those who are imprisoned are usually those who are marginalised in our society (there is little debate on that). This appears to seamlessly divide the working class against itself, and allows the dominant classes to contribute to the economy whilst the marginalised are kept locked away. By this logic, prison is a control mechanism that is being administered to regulate marginalised groups. This is probably overstating things. In the event of a serious crime, such as murder, people want the criminal to get what they deserve – but determining how much punishment someone deserves is highly subjective and fluctuates from culture to culture.

Cultural setting

Punishment in the United States (and across the world) varies significantly. This means that the purpose of punishment is not something that can be consistently determined. It is my view, therefore, that determining the role of punishment is something that is profoundly cultural. Punishment can only be fully understood within a particular socio-political context and not “western society” as a whole. Scandinavia illustrates this point nicely.

Scandinavian societies are counterattacking the almost global shift towards increasing rates of imprisonment. Not only this, the prisons found there are uniquely different to the “ghetto” prisons that can often be found in the United States. Scandinavian countries exhibit a specific “culture of control” where prison is extremely humane and dignified. Going on everything I have been saying, what is “humane” and “dignified” is subjective and open to dispute. Nevertheless, Scandinavian countries are a beacon of tolerance. I believe the roots of this are to be found in the highly egalitarian culture, which differs significantly from the more neoliberal cultures (in particular the United States) by displaying a well-functioning welfare state. In this sense, they are exhibiting a more welfare-orientated attitude to punishment.

This line of thought can facilitate the argument that neoliberalism is leading to punishment being used as a tool to control the marginalised. The only problem with this is that the punitive indulgences that one sees in most parts of the world are not universal, and there is no “view from nowhere”. By this I mean that punishment cannot be understood without making reference to a specific culture and time and the form it takes will differ in terms of structure, content, and spirit, dependent on what standard literature one reads.

Some illustrations

Let us take public execution as our example. This disposed of the criminal, but it was then accompanied by “whoring, gambling, alcohol abuse, and ugly crowds”, so it had to stop. Such methods of punishment could be seen as treating the criminal as a means to an end, by using them to set an example to others, which is a forward looking ideology that is mainly inspired through utilitarianism. Let us take the guillotine, the electric chair and “soft” prisons. Each of these modes of punishment highlight that punishment – amongst other things – is a volatile and unpredictable compound that changes as we evolve. What we see as a good and fair punishment now could be considered barbaric in 200 years' time.

The principle of just deserts, for instance, is a concept that can be found in almost all jurisdictions around the world. But the severity of any punishment is highly subjective to the individual receiving it. Take the following hypothetical example:

  • If a lawyer is convicted of behaving in a drunken and disorderly fashion, and sentenced to community service, the repercussions could be extremely grave as they may lose their right to practise law and their reputation could suffer significantly. However, if someone who has no job, and previous convictions, commits the same offence – and the same punishment is administered – the repercussions will not be as significant since that person has, at least ostensibly, less to lose.

Punishment, therefore, is acting as a disapproval mechanism by holding someone accountable for his or her actions. This prevents socially immoral acts from occurring whilst concurrently expressing a vindictive resentment toward the criminal.

Conclusion

The state has power over an individual, and if they break the law they ought to be punished. Such punishments can be administered to anyone in society. It remains my view that punishment is necessary for society to function. Its powerful symbolic element plays an important role in most contemporary societies, and this explains much of the American Justice series, where sheriffs and judges are running for office. I hope I have revealed that there is more to punishment than meets the eye; it has countless different purposes, all of which could endlessly be explored, but the main point to take away from this article is that, regardless of the agreed purpose of the administered punishment, such punishment can only be understood in an institutional and political context and never in the theoretical or abstract realm.

Jordan Gray is a trainee solicitor with DWF LLP. The views expressed are those of the author alone and not those of DWF LLP.

 

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