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Even with the safety of the population guaranteed through a responsible system of preventive detention - both drastically smaller and better than present-day prisons-as-punishment - there might remain a need to see a criminal suffer. An example might help. Imagine a young man of 29 years, diagnosed as physically and mentally healthy, an educator in a kindergarten, who is found to have abused and brutally killed three children over the time of five years. Or a cold-blooded professional killer hired by the mafia or a drug cartel for the necessary eliminations of traitors, enemies, and unfair competitors, who, after a number of years on the job, is finally being arrested. In both cases, public security can be regained by ordering the dangerous individuals to be locked up in preventive detention. For questions of safety, that could be it. Even if we know that such a purely instrumental reaction will be seen as unsatisfactory by victims' families and beyond. In the case of a successful insanity defense such an exemption from criminal responsibilization is a long-standing tradition and the victims' discontent is seen as a sad, but unavoidable fact which the criminal justice system, in those cases, cannot do anything about. | Even with the safety of the population guaranteed through a responsible system of preventive detention - both drastically smaller and better than present-day prisons-as-punishment - there might remain a need to see a criminal suffer. An example might help. Imagine a young man of 29 years, diagnosed as physically and mentally healthy, an educator in a kindergarten, who is found to have abused and brutally killed three children over the time of five years. Or a cold-blooded professional killer hired by the mafia or a drug cartel for the necessary eliminations of traitors, enemies, and unfair competitors, who, after a number of years on the job, is finally being arrested. In both cases, public security can be regained by ordering the dangerous individuals to be locked up in preventive detention. For questions of safety, that could be it. Even if we know that such a purely instrumental reaction will be seen as unsatisfactory by victims' families and beyond. In the case of a successful insanity defense such an exemption from criminal responsibilization is a long-standing tradition and the victims' discontent is seen as a sad, but unavoidable fact which the criminal justice system, in those cases, cannot do anything about. | ||
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 | 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 could be set free after experts confirm a successful psychological treatment and come to the 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 retributive harm upon | 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 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. | ||
But what exactly is punishment and what are the needs it responds to? First of all, punishment is "the intentional delivery of pain" (Nils Christie), it is a strong affirmation of a negative value judgement concerning the punished person's past violation of an important norm. For the punished person, punishment 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.” And that is the very sense of it being a punishment. | |||
The idea of punishment is to demonstrate emphatically that it was wrong for the offender to commit the crime, and that society is not ready to tolerate such a behavior. Punishment sends a strong symbolic message to the offender and to the public, but also to the victims of crime. 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. | The idea of punishment is to demonstrate emphatically that it was wrong for the offender to commit the crime, and that society is not ready to tolerate such a behavior. Punishment sends a strong symbolic message to the offender and to the public, but also to the victims of crime. 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. | ||