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→‎Punishment without Prisons
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In the case of mentally sane offenders, though, not only victims' families feel a strong need for something more than just instrumental reactions to happen. It is one thing to forego punishment in the case of mentally ill offenders. It is another to do so with the sane and cold-blooded authors of heinous crimes. This becomes clearer when we imagine the case that either the child killer or the mafia killer has has successfully completed treatment or counseling, and that - after a few years - he is set free because a sufficient number of high-quality expert assessments have come to the sound conclusion that the person in question does not pose a risk of continued offending anymore.  
In the case of mentally sane offenders, though, not only victims' families feel a strong need for something more than just instrumental reactions to happen. It is one thing to forego punishment in the case of mentally ill offenders. It is another to do so with the sane and cold-blooded authors of heinous crimes. This becomes clearer when we imagine the case that either the child killer or the mafia killer has has successfully completed treatment or counseling, and that - after a few years - he is set free because a sufficient number of high-quality expert assessments have come to the sound conclusion that the person in question does not pose a risk of continued offending anymore.  


Most people would probably not consider it just if the offenders were to walk out of their preventive confinement without having had to "pay" for what they had done. There is a strong and very widespread emotion that those who committed heinous acts should be responded to by the intentional infliction of harm to them. One might even say that there is a kind of natural law logic that crimes must be responded to with punishment. Where there is crime, there must be punishment, not only damage repair or a sanitary reaction of preventing future occurrences.  
Most people would probably not consider it just if the offenders were to walk out of their preventive confinement without having had to "pay" for what they had done. There is a strong and very widespread emotion that those who committed heinous acts should be responded to by the intentional infliction of retributive harm upon the offenders. One might even say that there is a kind of natural law logic that crimes must be responded to with punishment. Where there is crime, there must be punishment, not only damage repair or a sanitary reaction of preventing future occurrences.
 
In all of these cases, convicted offenders are no being sent to prison, but they are still being punished. The state reacts to a crime by punishment, and a punishment, by its very nature, is - in the words of South African judge Thokozile Masipa uttered at the occasion of the sentencing of Oscar Pistorius in 2016 - "unpleasant, it is inconvenient, it is painful, it is certainly not what you would chose to do.”
 
It is important to note that punishment - pure punishment - is pain infliction as a reaction to the past, i.e. to a crime or crimes that the offender committed in the past. Pure punishment looks backwards. Pure punishment serves atonement. It is a symbolic response to an event in the past, and a response of sorts to affirm the continuing validity of the broken norm.
 
It is equally true that punishment, the basic legitimation of which lies in the past, will almost invariably also aim at the future. It wants to prevent the offender from re-offending, it wants to heal wounds of the victims as good as it can, and it wants to calm public anxiety that may have been fuelled by disturbing crimes. All these are (secondary) purposes of punishing offenders, but they are not what lies at the root of normative theories of punishment. If it was different, i.e. if the basic justification of punishment were only to lie in the prevention of recidivism, then "security measures" with no punitive element were to prefer over "punishment". And in those cases in which there was no recidivism to be feared, and in which, additionally, the victim had forgiven the offender and did not want to see him punished, there would be no need and no justification for punishment anymore. But still, there often are strong feelings in a community that the to restore peace and order, there was a need to respond to the crime in question by an authoritative ''actus contrarius''.
 
Think of the Roman Polanski case: the film director's rape victim, then 13, and now in her 40s, had filed a statement in court asking for dismissal. An editorial of the Los Angeles Times stated the reasons why the court procedure should still go on, even against the victim's explicit will, saying:
 
:"The case against Polanski was not brought to satisfy her (the victim's) desire for justice or her need for closure. It was brought by the state of California on behalf of the people of California. (...) Crimes are committed not just against individuals but againt the community. ... People accused of serious crimes must be apprehended and tried and, if convicted, must face their sentence" (Diamond 2012: 110).
 
Punishment is a specific reaction because of its expressive symbolism. Its fourfold meaning lies - at last according to Joel Feinberg (1970/1994) - in manifesting an authoritative disavowal of the act in question, a symbolic nonacquiescence to what happened, but it also emphatically reaffirms the law, and last not least it relieves others of suspicion and blame by way of concentrating guilt on those who are found to deserve the punishment.
 
Klaus Günther (2002: 218) resumes the core significance of punishment as being a public declaration that a certain event was an injustice perpetrated by individuals, and that this injustice is not and will not be tolerated by the community. This declaration, according to Günther, has three addressees (1) the victim (who is reassured that the community does not regard his harm as simply bad luck or fate, but as the result of unjustified and untolerated actions), (2) the offender (who is told that his actions are seen as responsible for that what happened and that his behaviour is seen as strongly reprehensible), and (3) the general public (who is being told that the negative consequences are being defined not as accidental, but as an injustice that cannot be tolerated and that this injustice is neither to be blamed on the victim nor on the public).
 
In the course of history, punishment has played a central role ever since the emergence of proto-states, and the function of symbolic reprobation has been associated with certain forms of hard treatment. For a long time, public executions were the most conventional symbols of symbolic reprobation. Later on, the prison assumed this role. There is no natural law that can prevent coming changes. Other forms of hard treatment will become conventional expressions of symbolic reprobation of the future.
 
The relativity of crime (what used to be a clear hanging matter some centuries ago can be an accepted lifestyle option today) does not make punishments go away. It just moves punishment from one behaviour to others, newly criminalized ones (e.g. from being gay to anti-gay discrimination). But punishments change their appearances, and their essential elements. What does not change is the function of punishment as a symbolic reprobation of the respective punishable acts.




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Even more people might oppose the closing of all prisons because of their concern over sex fiends. Sex fiends do exist and some of them defy the therapeutic capabilities of contemporary science and psychology, making them continuously dangerous to others and eligible for long-stay institutions that take care of dangerous individuals by locking them up for preventive reasons. As for the rest of sexual offenders - and probably and happily they will be the large majority - there is no question that a well-supported and well-supervised everyday life in liberty would be a welcome alternative to imprisonment. In their own interest as well as in the interest of a society that has understood that confinement, especially for this special clientele, breeds both violence and monsters, but that circles of support and accountability of the Canadian kind (COSA) are an effective and humane way of dealing with this complicated group of persons in a community setting.
Even more people might oppose the closing of all prisons because of their concern over sex fiends. Sex fiends do exist and some of them defy the therapeutic capabilities of contemporary science and psychology, making them continuously dangerous to others and eligible for long-stay institutions that take care of dangerous individuals by locking them up for preventive reasons. As for the rest of sexual offenders - and probably and happily they will be the large majority - there is no question that a well-supported and well-supervised everyday life in liberty would be a welcome alternative to imprisonment. In their own interest as well as in the interest of a society that has understood that confinement, especially for this special clientele, breeds both violence and monsters, but that circles of support and accountability of the Canadian kind (COSA) are an effective and humane way of dealing with this complicated group of persons in a community setting.
=== The Expressive Symbolism of Punishment ===
In all of these cases, convicted offenders are no being sent to prison, but they are still being punished. The state reacts to a crime by punishment, and a punishment, by its very nature, is - in the words of South African judge Thokozile Masipa uttered at the occasion of the sentencing of Oscar Pistorius in 2016 - "unpleasant, it is inconvenient, it is painful, it is certainly not what you would chose to do.”
It is important to note that punishment - pure punishment - is pain infliction as a reaction to the past, i.e. to a crime or crimes that the offender committed in the past. Pure punishment looks backwards. Pure punishment serves atonement. It is a symbolic response to an event in the past, and a response of sorts to affirm the continuing validity of the broken norm.
It is equally true that punishment, the basic legitimation of which lies in the past, will almost invariably also aim at the future. It wants to prevent the offender from re-offending, it wants to heal wounds of the victims as good as it can, and it wants to calm public anxiety that may have been fuelled by disturbing crimes. All these are (secondary) purposes of punishing offenders, but they are not what lies at the root of normative theories of punishment. If it was different, i.e. if the basic justification of punishment were only to lie in the prevention of recidivism, then "security measures" with no punitive element were to prefer over "punishment". And in those cases in which there was no recidivism to be feared, and in which, additionally, the victim had forgiven the offender and did not want to see him punished, there would be no need and no justification for punishment anymore. But still, there often are strong feelings in a community that the to restore peace and order, there was a need to respond to the crime in question by an authoritative ''actus contrarius''.
Think of the Roman Polanski case: the film director's rape victim, then 13, and now in her 40s, had filed a statement in court asking for dismissal. An editorial of the Los Angeles Times stated the reasons why the court procedure should still go on, even against the victim's explicit will, saying:
:"The case against Polanski was not brought to satisfy her (the victim's) desire for justice or her need for closure. It was brought by the state of California on behalf of the people of California. (...) Crimes are committed not just against individuals but againt the community. ... People accused of serious crimes must be apprehended and tried and, if convicted, must face their sentence" (Diamond 2012: 110).
Punishment is a specific reaction because of its expressive symbolism. Its fourfold meaning lies - at last according to Joel Feinberg (1970/1994) - in manifesting an authoritative disavowal of the act in question, a symbolic nonacquiescence to what happened, but it also emphatically reaffirms the law, and last not least it relieves others of suspicion and blame by way of concentrating guilt on those who are found to deserve the punishment.
Klaus Günther (2002: 218) resumes the core significance of punishment as being a public declaration that a certain event was an injustice perpetrated by individuals, and that this injustice is not and will not be tolerated by the community. This declaration, according to Günther, has three addressees (1) the victim (who is reassured that the community does not regard his harm as simply bad luck or fate, but as the result of unjustified and untolerated actions), (2) the offender (who is told that his actions are seen as responsible for that what happened and that his behaviour is seen as strongly reprehensible), and (3) the general public (who is being told that the negative consequences are being defined not as accidental, but as an injustice that cannot be tolerated and that this injustice is neither to be blamed on the victim nor on the public).
In the course of history, punishment has played a central role ever since the emergence of proto-states, and the function of symbolic reprobation has been associated with certain forms of hard treatment. For a long time, public executions were the most conventional symbols of symbolic reprobation. Later on, the prison assumed this role. There is no natural law that can prevent coming changes. Other forms of hard treatment will become conventional expressions of symbolic reprobation of the future.
The relativity of crime (what used to be a clear hanging matter some centuries ago can be an accepted lifestyle option today) does not make punishments go away. It just moves punishment from one behaviour to others, newly criminalized ones (e.g. from being gay to anti-gay discrimination). But punishments change their appearances, and their essential elements. What does not change is the function of punishment as a symbolic reprobation of the respective punishable acts.


== Instead of Punishment ==
== Instead of Punishment ==
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