In the previous article on this topic of punishment, I covered some of the purposes/benefits of punishment; this article will discuss the opposite issue: drawbacks.
Introduction (and topic applicability, briefly repeated):
As noted in more detail previously, punishment is not just applicable to criminal justice/courts; you can apply this lesson to any situations/actions involving punishment, whether in society, military, parenting, etc.
As a final note before we move on to the list, I want to point out how some of these points can be seen as direct opposites of some of the purposes of punishment (e.g., recidivism vs. rehabilitation), but there are certainly still some distinct and/or occasionally-unconsidered problems with punishment. Now, let’s dive into that list (which is not ordered in a particularly special way):
A non-exhaustive list of the problems of punishment
- Recidivism: Punishing an offender can make them more likely to offend (and/or make their subsequent offenses more severe) for a wide variety of reasons, including some of the following points:
- Self-identification (or identity acceptance) as a criminal/offender: put simply, someone who is treated like a criminal may be more likely to accept the designation as part of their identity, and resign themselves to a life of (comparatively more) crime.
- Learning criminality: This includes the classic example of how a minor/petty offender can go into prison with little knowledge of how to commit most crimes and come out with detailed knowledge of how to “best” commit crimes.
- Criminal network: this involves at least two aspects:
- A socio-psychological aspect which partially emphasizes that we can tend to adopt the values/beliefs of our peers and other people in our social network;
- A physical-material aspect which emphasizes that being in gangs (for example) can involve pressure/coercion to commit crimes for the gang, as well as access to some of the resources (e.g., weapons, accomplices, information) that enable more crime.
- Sense of injustice: especially when talking about children or (people in) foreign countries, the punished actor can feel wronged, leading to animosity towards the system/punisher and subsequent rejection of their validity/authority.
- Decreasing the opportunity costs to wrongdoing: referencing the idea mentioned in the previous article, if an ex-prisoner cannot find work with decent pay—as can often be the case with ex-felons—their opportunity cost to committing crimes decreases as they increasingly think “what do I really have to lose?”
- Social costs and other collateral damage
- This emphasizes that punishing offenders can hurt people/entities around them.
- A classic example: family members of non-violent drug offenders (especially children), who can typically suffer much more when a parent is imprisoned.
- Another example: economic sanctions for human rights abuses can hurt the very population they are supposed to help (sometimes by design). They can also hurt neighboring countries if those countries heavily trade with the sanctioned country (consider Turkey/Iraq and Iran, for example).
- Benefiting/helping offenders (potentially incentivizing offenses)
- Actors typically do not want punishment. However, punishment can, in certain situations, actually help offenders (encouraging the harmful actions), whether it is the specific offender being punished or the surrounding community of offenders, as explained in the following points.
- Specific Offender: sometimes the offenders may find that some punishment actually makes them better off—or at the very least, punishment can have some benefits for the offender that partially offset the risks/costs.
- Making the crime look or feel more attractive, especially when talking about individual/social psychology. This can be seen in classic ideas like “rebelling against parents” or “making someone into a martyr.” In fact, sometimes “offending” groups such as protesters count on this and try to provoke a punishment/retaliation, to gain support for their cause.
- Allowing a group to show its resolve by defying a threat or by inviting a threat which forces internal cohesion (e.g., rally ‘round the flag).
- Harming rivals by inviting collective punishment. This is especially clear in situations such as peace negotiations, where a group (e.g., the Taliban) might have a faction that wants peace as well as extremists who don’t want peace. These extremists can strategically engage in provocative/violent activity so as to undermine the overall negotiations (a process known as “spoiling”).
- Other Offenders: Punishing one offender can end up helping another offender. Consider for example drug dealers/cartels: imprisoning one drug dealer may increase another dealer’s control over the market.
- Incentivizing worse methods/actions
- This refers to the broad idea that a fear of punishment can encourage an offender to do something even worse than what they would have done otherwise.
- As a classic example, consider how strong punishments against robbery could potentially incentivize a burglar to murder a witness instead of fleeing—perhaps just in an irrational moment of panic over the thought of a lengthy prison sentence.
- From a more strategic standpoint, there is the example of gambling for resurrection, such as when political leaders (e.g., dictators) start or provoke conflicts in order to distract/rally the public or otherwise maintain power. It may not be likely to succeed—and it can cause severe harm to people—but a dictator may reason that if they fail to stay in power, it doesn’t matter to them whether they start a war or not: regardless of whether they do, if they lose power they will be severely punished (e.g., deposed and possibly killed). The conflict therefore can be a rational way to improve their expected wellbeing—but at a severe cost to their surroundings.
- Direct/inherent harms to the punished
- This refers to the harms to offenders that the punishment directly/inherently imposes, whether that be jail time, fines, sanctions, spanking/caning, etc.
- Utilitarian reasoning does not demand that we “be nice to all criminals,” contrary to the strawmans of some critics, but it does observe that offenders’ wellbeing has at least some degree of relevance.
- For example: exorbitant fines (or public caning) for minor infractions such as double-parking produces serious harms to the offender (especially if they are poor) while perhaps not producing benefits that outweigh the direct suffering. (In this case, the offender may have just double-parked accidentally, meaning that deterrence would have had little effect.)
- Potential for injustice (wrongful convictions, disproportionality, etc.)
- Wrongful convictions, misattribution, excessive punishment, etc. can seriously hurt the victim in a way that goes beyond the direct punishment itself (and does not necessarily result in recidivism, even if this can contribute to that).
- This injustice can also be harmful to the overall society, especially bystanders who feel guilty about their society.
- This can also undermine the legitimacy of the punisher (e.g., the justice system, the international diplomatic system).
- Encouraging (false) accusations/framing
- This is the idea that a system of punishment can serve (unintentionally) as a weapon/tool in a conflict between rivals.
- Consider for example how the possibility of a costly investigation may incentivize a disgruntled, fired employee to file (false) reports of illegality against their former employer as a means of retaliation.
- (I will note that probable and significant punishment could also encourage some legitimate reporting, as partially seen in the #MeToo movement, which seems to be a potential benefit of punishment that I did not really address in the previous article.)
- Distracting from actual/other offenders
- This is the idea that if the wrong actor is punished (or only some of the offenders are punished), then the actual (or other) offenders will get off without punishment as the society/punisher assumes its work is done.
- This is a particularly clear/well-acknowledged problem when it comes to scapegoating.
- Direct (administrative) costs of the overall process and punishment
- The first aspect to this is procedural: investigations, trials, and the many related activities can be expensive for both the (potential) punisher and the (alleged) offender.
- The second aspect is the punishments themselves: for example, keeping someone in prison costs money; parole officers cost money; etc.
- Disincentivizing reporting/testifying
- Take for example punishments for fraternities on campuses: if someone in the fraternity is considering whether to report an instance of serious hazing, they may hesitate to do so in fear that it would seriously hurt their fraternity.
- Another major example of this is mental illness and pilots, where one sees a catch-22 in that pilots may not want to report their problems for fear that such information would result in their grounding or firing.
- Chilling effect (and otherwise deterring good actions)
- Punishment can deter bad activity, but sometimes it can also deter potentially good activity, especially if people fear doing something wrong or messing up. I argue this is sufficiently distinct from the previous category (discouraging reporting) in that it is not about providing information about “a” crime or problem, but rather a fear that certain actions could themselves be targeted for punishment.
- Consider for example an employee that may not want to take on high-risk high-reward projects for fear that it could look bad on his record or upset his boss (see the middle of page 15 of this transcript for a great example of this problem).
- Another example in business: an employee might be afraid to criticize a bad proposal in fear that his coworkers/superiors might retaliate for doing so (especially if they had witnessed or experienced such retaliation previously).
- At an even broader level, the policy/punishment can be openly targeting a potentially good thing: consider laws that restrict the use of medicine like pharmaceutical CBD to treat seizures (or even the research into such treatments).
- This chilling effect especially occurs when the laws or rules are unclear and/or the punishment is significant.
- (Risk of) Retaliation
- This simply refers to the idea that the punished actor may retaliate against the punisher.
- For example: a foreign country may retaliate against sanctions by attacking oil infrastructure; a cartel may retaliate against raids by attacking police.
- (Perceptions of) Bias
- Whether it is the punished, victims, or other bystanders: some people might feel that a punishment is inconsistent with lenience in other cases (or vice versa). This can breed animosity and undermine the system’s legitimacy, among other problems.
- Behavioral modeling and/or validation of action
- This can be seen somewhat as a foil/counter to “formalization” (mentioned in the previous article) in that punishing someone for something can send a signal that a supposedly-credible authority figure endorses punishment, which could in some situations lead to “vigilantes” (including classic lynch mobs that feel emboldened by what they might interpret as validation of their frustrations).
- Children, for example, might copy their parents’ actions in punishing a sibling.
- On an international scale, some countries might point to American laws (for example) as a justification for their own laws punishing minor offense ABC with the harsh punishment XYZ.
And the list goes on…
Clearly, the drawbacks of punishment can be very significant and can even be more numerous/diverse than the benefits; one might argue that this partially explains the reasoning for Blackstone’s Formulation (and the related principle of presuming “innocence until proven guilty beyond a reasonable doubt”). Regardless, I hope that this article helps you not only to understand the complexity of punishment decisions, but also how and why to break down principles such as punishment into smaller arguments/concepts. And as usual, you can add thoughts or ask questions in the comment section!