Against Prisons: Unterschied zwischen den Versionen

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.

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.

 

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 in 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 behavior to others, newly criminalized ones (e.g. from being gay to anti-gay discrimination). Punishments do change. What does not change is the function of punishment as a symbolic reprobation of the respective punishable acts.

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''.