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== What remains to be done? == | == What remains to be done? == | ||
The harm caused by crime is often more complex and more widespread than is usually thought. There is physical, psychic, and/or material damage, but there is also something in a crime that affects the community as such and even the normative structure of the social order. If there is to be an alternative to punishment then this alternative would have to take into account this three-dimensional harm. Any alternative would have to be able to respond to the question how it would deal with the challenge of re-instating the victim in his or her full status as a citizen (materially, emotionally, socially), how it would deal with restoring peace and confidence in a shaken collective, and how it would manage to publicly re-affirm the validity of a broken rule in order to prevent normative erosion. Crimes hurt victims, but they also hurt the law's claim to validity. Whereas victim compensation can do a lot to undo the harm inflicted upon the victim, punishment takes care of the crime's symbolic message in that it publicly and forcefully contradicts the impression that it is easy and okay to disobey the law - and that you can get away with it. Punishment is central to the normative order (and very existence) of society because it is an instrument with which to assure that a crime will not derogate the norm that it disobeys. It serves as the authoritative repudiation of the implicity anti-legal message of every crime that occurs. It is a performative (speech and non-discursive) act restoring the claim that the law - even if broken - has not lost its validity. And as we have seen, this anti-message against the message of crime contains not only a consolation for the victim, but also a relevant lesson to the offender, and a vital reassurance towards the affected community that breaches of the law are not being left acquiesced. | The harm caused by crime is often more complex and more widespread than is usually thought. There is physical, psychic, and/or material damage, but there is also something in a crime that affects the community as such and even the normative structure of the social order. If there is to be an alternative to punishment then this alternative would have to take into account this three-dimensional harm. Any alternative would have to be able to respond to the question how it would deal with the challenge of re-instating the victim in his or her full status as a citizen (materially, emotionally, socially), how it would deal with restoring peace and confidence in a shaken collective, and how it would manage to publicly re-affirm the validity of a broken rule in order to prevent normative erosion. Crimes hurt victims, but they also hurt the law's claim to validity. Whereas victim compensation can do a lot to undo the harm inflicted upon the victim, punishment takes care of the crime's symbolic message in that it publicly and forcefully contradicts the impression that it is easy and okay to disobey the law - and that you can get away with it. Punishment is central to the normative order (and very existence) of society because it is an instrument with which to assure that a crime will not derogate the norm that it disobeys. It serves as the authoritative repudiation of the implicity anti-legal message of every crime that occurs. It is a performative (speech and non-discursive) act restoring the claim that the law - even if broken - has not lost its validity. And as we have seen, this anti-message against the message of crime contains not only a consolation for the victim, but also a relevant lesson to the offender, and a vital reassurance towards the affected community that breaches of the law are not being left acquiesced. | ||
== Punishment without Prisons == | |||
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 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 them. One might even say that common sense and jurisprudence both believe in a kind of natural law logic that crimes must be responded to with punishment: crime requires punishment. Not only the reduction of risks. | |||
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. | |||
By its emphatic negation of the offender's deed and by making the offender suffer for what he did, the court declares in the name of state and society that this kind of behavior will not be tolerated, and that offenders will have to live with the consequences. 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. The expressive symbolism of punishment aspires to reach three target groups (Günther 2002: 218): (1) the victims of crime (who are reassured that the community does not regard the event as simply bad luck or fate, but as the result of unjustified and intolerable actions), (2) the offenders (who are told that their actions are seen as responsible for that what happened and that their 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 social reaction to harmful behavior will become conventional expressions of symbolic reprobation in the future. Even if we suppose punishment to persist for a long time to come, one thing is certain: the prison has not been there forever, and it will not be there forever. It is but one form of punishment - and forms of punishment come and go. | |||
== Punishment without Prisons == | |||
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 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 them. One might even say that common sense and jurisprudence both believe in a kind of natural law logic that crimes must be responded to with punishment: crime requires punishment. Not only the reduction of risks. | |||
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. | |||
By its emphatic negation of the offender's deed and by making the offender suffer for what he did, the court declares in the name of state and society that this kind of behavior will not be tolerated, and that offenders will have to live with the consequences. 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. The expressive symbolism of punishment aspires to reach three target groups (Günther 2002: 218): (1) the victims of crime (who are reassured that the community does not regard the event as simply bad luck or fate, but as the result of unjustified and intolerable actions), (2) the offenders (who are told that their actions are seen as responsible for that what happened and that their 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 social reaction to harmful behavior will become conventional expressions of symbolic reprobation in the future. Even if we suppose punishment to persist for a long time to come, one thing is certain: the prison has not been there forever, and it will not be there forever. It is but one form of punishment - and forms of punishment come and go. | |||
=== Beyond Punishment === | === Beyond Punishment === | ||