Punishment

Since all vices are of bodily origin, it is possible for interference upon the body to correct vices. Such interference is punishment; an act intended to do this is an act of punishment. The successful correction of vices is sometimes called the spiritual welfare of the punished.

Since we can only know vices through evil acts, we can only punish the guilty. The threat of punishments, however, may help correct vices in those yet innocent; such threats are perfectly reasonable, and this secondary correction is deterrence.

Other acts may be materially the same with an act of punishment, such as restitution for theft or injury, the protection of society through incapacitation of the evildoer, or the quelling of the public’s anger at him. But they are not formally the same;[1] the act is only punishment insofar as it is understood through the foregoing definition.

Threats of punishment usually attempt to correct vices by threatening such a measure of pain, or of privation of pleasure, as would be proportionate to the evil done, in the sense that a threatened person’s sensitive desires will be affected by the threat of punishment in such a way as to neutralize the influence of his vices, possibly permanently. This method of determining the measure of punishment is the proper notion of retribution;[2] it is subordinate to deterrence, since the punishment itself is only an aid to it insofar as it makes such a threat credible.

Sometimes, the acts of punishment themselves are intended to correct vices, by affecting the evildoer’s mind in accordance with a particular understanding of psychology. This method of determining the measure of punishment is that which is called rehabilitation or reformation.

All methods of determining the measure of punishments are doubtful, with regard to their effectiveness at correcting vice. Proportionality is a tenuous notion which can never be understood with precision; and in most cases, the science of psychology is not yet advanced enough to have a distinct understanding of reformation.

The people usually have a vague understanding of retribution, and no understanding at all of reformation; so, it is best to avoid punishments which, when known by the public, will appear to them to be disproportionately grave. Any measure beyond their sense of proportion will not seem to be punishment, but mere unjust abuse.

Punishments may be divided into coercive and uncoercive punishments.[3] Coercive punishments may only be exacted by a legitimate state, because they directly interfere with the person or property of the punished, which is an infringement when done by those without authority. All other acts of punishment are uncoercive.

Some evil acts may not indicate vices in the agents who committed them, when there is reason to believe that the sensitive desire which motivated the act was caused by a circumstance which was peculiar to the particular act. In such cases, it is rational for the state to exercise mercy, which is to say, to not punish, and waive its right to punish. It may still rationally punish the acts, however, in order to maintain the power of deterrence in the threats of law.[4]

Since coercive punishments are necessarily detrimental to the bodily welfare of the punished,[5] and therefore, necessarily, to the general welfare, insofar as it is known; and since the effectiveness of all punishments, in general, at improving the spiritual welfare of the punished is doubtful; it appears that coercive punishments should only be applied to crimes against person and property, which are themselves detrimental to the general welfare, insofar as it is known. Even then, mercy should be exercised whenever it may be safely and rationally exercised.

Catholics should believe, however, that no coercive punishments should be given to any crimes, since there are no legitimate states.

Notes

[1] The following examples may make this clearer to the uninstructed.

If a thief repents and returns what he stole, restitution has been made to the victim, but no punishment has been exacted.

If I expel a man from my community because I believe that his mental condition will make him prone to dangerous acts, I have protected my community by removing the dangerous man and making him incapable of such acts; but I have not punished him, since I did not know him to be vicious.

If society is put under the convincing illusion that a man has been punished, their avenging sentiments are quelled, but no punishment has been actually given to the man.

If I announce that, after the punishment of this last person, the law forbidding his act will be abolished, such that no one will be punished for it anymore, then the punishment will not deter, since deterrence is actually a function of the threat of punishment, which the punishment only serves to make believable.

[2] Although the earlier mentioned idea, of quelling the public’s vengeful passions, is often called retribution, all defenses of retribution make it something independent of that, and closely tied to proportionality; so that I believe that I have assigned the name correctly.

I believe that there is no other intelligible way for a punishment to be proportionate to a crime.

[3] I almost called them “punishments of law” and “punishments of opinion”, following a division from J.S. Mill, On Liberty, §1. I might still do that in some places for rhetorical effect, but for technical purposes, Mill’s nomenclature may be misleading, since uncoercive punishments might not consist merely in voicing opinions about the punished, but also in depriving them of gifts, of access to certain private locations which they do not own, and of certain business relationships.

[4] The most common reasons to doubt the presence of vice are usually inscribed into law as universal exceptions to its application, as in cases of insanity or duress. Mercy only pertains to unexcepted cases.

[5] Bodily welfare, or simply welfare, is the ability to fulfill desires, as may be contrasted with spiritual welfare, which was defined just earlier. Violations of private property, including self-ownership, necessarily deprive a human being of the ability to fulfill his desire to continue to control the property, which is a desire that he demonstrated through his actions, since if he did not have this desire, he would give the property away. Violations of contract are also detrimental to welfare, insofar as they are violations of property. The general welfare is the bodily welfare of the entire society.