Originally Posted by PhillyRunner
Why stop with executions? Perhaps we should consider making punishment for many criminal offenses a matter of public shaming. Why not publicly humiliate criminals as part of the punishment for their behavior?
As many of us have previously discussed on this board, there are generally two theories that underlie criminal punishment -- utilitarianism and retributivism. Utilitarianism says that we should punish people to the extent that it minimizes the costs of criminal behavior (including both crime and punishment) generally. Therefore, if additional punishment won't reduce crime by a sufficient amount to justify the added expense of the additional punishment, we shouldn't do it. Retributivism, on the other hand, says that we should punish people in recognition of society's judgment that certain behavior is, by assumption, wrong.
Unfortunately, retributivism gets a bad name because people associate it with the pejorative connotations of the term "retribution" (i.e., something akin to "vengeance"). In fact, however, retributivism simply represents a logical relationship between action and consequence. I think we would all agree that it would make no sense for a judge to say, "Mr. Smith, we find you innocent of crime and are therefore sentenced to three years in prison." Likewise, the inverse would make no sense -- to wit, "Mr. Smith, we find you guilty of murder and are therefore sentenced to no punishment." In other words, retributivism says that we punish people for criminal behavior because we have determined that the behavior is worthy of public opprobrium, even if the punishment would not be justified by a utilitarian cost-benefit analysis.
Criminal justice systems in civilized societies are almost always an amalgam of the utilitarian and retributivist schools of thought. In many of our own communities (including Philadelphia), however, I tend to think that retributivism has been demoted in importance by certain segments of the community who see that basis for punishment (however inappropriately understood in their own minds) as barbaric and uncultured. Therefore, the idea that people should be punished because they have committed an act that is, by assumption, worthy of punishment has diminished. (Mind you, I would bet that the people who most fervently oppose retributivism are the same people who are at the least risk of being victimized by criminal behavior.)
As the relationship between utilitarianism and retributivism is thrown further out of balance, it should not be surprising that we have increasing difficulty getting control of crime in our city. Analyzing criminal justice solely from the utiliarian perspective, it would be a mistake to think that imprisonment provides much of a deterrent against crime. In 2002, the Dept of Justic published a study on recidivism, which found that 2/3 of released criminals were rearrested within three years of being released from prison, the majority of whom were convicted again of having comitted a crime. (Of course, by trying to meet the utilitarian argument on its own terms, we have not even considered the moral propriety of a sytem that would accept criminal behavior as "acceptable" so long as costs to society are minimized. Indeed, therein lies one of the fundamentally disturbing aspects of utilitarian criminal theory -- that it treats some criminal behavior as acceptable if the calculus happens to work out.)
Back to the relationship between utilitarian and retributivist thinking, somewhere along the way, a strain of social relativism seems to have convinced a significant number of people that there is something inappropriate with judging people for their actions. In many ways, this has been beneficial -- see, e.g., increased tolerance for "non-traditional" lifestyles; however, it seems to me that this mode of thinking has been an unmitigated disaster when applied to criminal law. Thus, though it may be well appropriate to decide that certain activities (e.g., homosexual intercourse) are not worthy of punishment, it does not follow that the activities that remain criminalized (e.g., rape) are any less worthy of punishment. Yet, that is exactly what seems to have happened, under the guise that, as a society, the less we punish criminals, the more culturally "evolved" or "sophisticated" we are.
With this imbalance in mind, it seems to me that one of the best ways to combat criminal behavior -- in Philadelphia and elsewhere -- is to remind the criminals (and all members of our community) that criminal behavior has been judged to be wrong. Thus, punishment should follow as a consequence of criminal behavior not solely because it is hoped to reduce future criminal behavior, but rather as a public form of recognition that criminal behavior violates the social mores of our community. By way of example, I don't believe in the death penalty because I think the benefits outweigh the costs; rather, I believe in the death penalty because I think there is no other appropriate way to express public condemnation of the single worst crime that someone can commit.
Thus, I am not suggesting that punishments themselves should necessarily be harsher; but rather more broad-based. Let's remind criminals and the public, in a very public way, of the judgment we have attached to criminal behavior. Beat your spouse or child, you will spend X years in jail, during which once a week you will be forced to stand outside City Hall at lunch hour, rain or shine, with a sign identifying you by name as a domestic abuser. I'm not saying that we should bring back the stocks or let anyone throw tomatoes. But if an individuals commits an act that is, by assumption "wrong," they should be placed directly in the glare of the public eye as someone worthy of condemnation. If we want to get a handle on the problem of crime in this city, the first place we can start is by reminding ourselves of what I think is a pretty commonly shared belief that criminal behavior is "wrong" and should be treated as such. To think otherwise is to engage in a logical fallacy that is just as nonsensical as imprisoning a man who has just been found innocent of any crime.
To be sure, I believe, as an adjunct to the balance between rehabilitation and retributivism, in the ideals of rehabilitation. Once a criminal has served the punishment in recognition of his/her behavior, we should do everything possible to reintegrate that individual into society. And perhaps public humiliation would make that type of reintegration more difficult. But rehabilitation is a separate (and, in some ways, incompatible) concern from punishment; and for the sake of reintroducing the sense of shame that should accompany criminal activity, rehabilitation may be forced to take some extra effort.
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