Finals are upon me now, so I have had very little time to blog and I have been feeling very guilty about it. So today I'm going to kind of wimp out and just post this essay which was supposed to be a 1hr practice exam. The question was, "Do you think deterrence or retribution should be the goal of punishment? Discuss at least two cases and how the different theories of punishment applied in those cases relate to your opinion." I just finished my answer and thought I'd use it as a stopgap post, which will hopefully be a good lead in to a more fun post about graffiti which is brewing in my head.
Now, you may not know this about me, but two things which spark my romantic nature are Kant and graffiti. Kant, because a college crush was always dropping his name in Intro to Comp Lit, and from then on Kant has signified to me the epitome of incomprehensible coolness. (Coolness because of this shy, brilliant guy who was in my Comp Lit class, and incomprehensible because, despite my fascination with the idea of Kant's work, I have never read more than a paragraph by him.) Graffiti is interesting to me for reasons which I will save for the forthcoming post, hopefully to be accompanied by some photographs of the graffiti I admire here in D.C. But suffice it to say that there is a bit of graffiti, written in red, girlish cursive on an electrical box, which I pass every day en route to school. It says: "Dear you: together we can change this rotten culture." That sentence, and my limited understanding of Kant's view of punishment, were ringing in my head as I attempted to answer this essay question.
Question #2
One of the saddest cases we read this year was Commonwealth v. Atencio, where a group of men were drinking together and playing Russian roulette. The language of the opinion suggested unemployed adults, together in some sort of boarding house, drinking to get drunk, gambling to end their lives. One man did die, and his companions, Mr. Atencio among them, were charged with manslaughter for their participation in the game. What is the motivation for charging Atencio, I wondered? What can you take away from this man who wants to die? And what punishment is worse that the life he leads?
Kant's theory of retribution as a moral rational for punishment rests on his concept of human dignity. As I understand it, the argument is that to try to coerce a person to change their actions is an affront to their right to free will. Incentives to change behavior are patronizing. The beauty of humanity is that we are self-aware beings whose voluntary actions guide our lives. If society wants to punish one of those choices, the punishment should be a direct payback for the action taken. Kant glorified retribution as sanitized punishment. The idea even evokes scientific maxims: for each action, and opposite and equal reaction.
But human interactions are a messy science. We cannot be expected to act like perfect machines. Each person's free will is balanced by our innate desire to live in interdependent communities and the tension gives rise to the dramas of human life. How is it in furtherance of human dignity to deny our natural urge to interact with others, to impact their lives and allow others to impact ours in unpredictable ways? To play on these emotions is not wrong, it is inevitable, and quintessentially human.
Retribution has no moral high ground, and it is not practical. Crimes create a not only a physical and/or financial injury, but a psychic one, for which there is no adequate compensation. The only mental restitution victims can hope for is that which they build for themselves out of forgiveness and faith. Beyond the obvious dilemma of how to calculate the amount of flesh owed by each transgressor, retributivism poses a greater problem of who in good conscience could mete out a punishment which does no one any good.
In cases like Atencio, the language of the depraved murder statutes comes to mind. These statutes are designed to describe the work of criminals, people among us so indifferent to the value of human life that they, say, shoot a lunch buddy in the stomach as part of a game. (Commonwealth v. Malone.) But the prerequisite "abandoned and malignant heart", as described by California statute, is also required of anyone willing to mete out a punishment in some of these saddest cases. To Kant, I would say that imposing meaningless punishment is an affront to the human dignity of the punisher.
Not that deterrence is always pretty, either. US v. Gementera shows how retribution and deterrence can be hard to distinguish at times. In that case, the defendant was convicted of tampering with the mail and as punishment, had to stand in post offices with a sign that read, "I stole mail." Gementera claimed that his punishment was cruel and unusual, and that it violated the Sentencing Reform Act because it served a purpose not allowed by the act: humiliation.
Humiliation, the court responded, is not the purpose of this punishment, but is a means to an end. Humiliation is a technique for achieving the real purpose -- deterrence (of others, general deterrence) and deterrence of Gementera specifically from committing the same crime again. Additionally, through his humiliating exposure to potential victims, there was a chance that Gementera might empathize with the formerly anonymous people he had injured, and decide not to commit the crime again, thus serving the goal of rehabilitation.
Humiliation, or any kind of pain, even when justified in self defense or punishment, is not something that it does the human spirit good to inflict upon another person. But we can stomach these actions when we believe that they are in service of a greater good, namely, a decrease in crime (and punishment!) in the future. Deterrence, rehabilitation and incapacitation are the only moral justifications for punishment, which should exist only inasmuch as it serves to run itself out of business.
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