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Penal sadomasochism

Notes on:
Shafer-Landau, Russ, “Can Punishment Morally Educate?”

Is it possible to construe punishment as a good thing?

Shafer-Landau looks critically at the theory of punishment as moral education put forth by Jean Hampton and Herbert Morris.

“Punishment is paternalistic if and only if it attempts to confer a benefit on the offender while limiting his liberty against his will.” Can Hampton and Morris avoid the charge? […or not avoiding it, suggest a revaluation of paternalism?]

It is important to the Hampton and Morris theories that the punished individual end up “freely attached to the good”. This requires that autonomy be guarded; mere behavioral conditioning will not do.

But on its surface and perhaps deep down as well, this is problematic. How can we freely attach someone to values by force? [But how did we get attached to any value except by force? Let’s start with the fact we are brought into the world kicking and screaming and each good or halfway decent thing we learn to do from then on usually has some element of coercion at its inception—to not cross streets without looking both ways, to not steal, to not strike others, etc. A child who debuts with all the right impulses built-in would raise eyebrows. (I, perhaps, was such a child: My mother and other relatives recall me as an extraordinarily quiet and well-behaved baby. So much so that they worried sometimes that I had stopped breathing or whether there wasn’t something seriously wrong with me. But the well-behavedness was remarked right on through my teenage years… It is only well into adulthood that the sublimated rebellion burst into a career of moral terrorism that only grows more determined with the years. What values can I freely attach myself to?!)]

“The difficulty now confronting the educationist is that of providing a principled distinction between those autonomy infringements which are morally permissible and those which are not.”

“1. The moral educationist must explain why punishment is not a limitation on autonomy; 2. she must argue for the existence of an inalienable right to moral autonomy, for an exceptionless pro- [378] hibition on autonomy infringement; and 3. she must dissolve the apparent tension between an attachment to autonomy and the belief in inalienable rights, since the inalienable rights specify restrictions on the autonomy of the rights-holders.”

Incarceration is seen as playing an essential role in punishment, but it is not enough. It must, as Shafer-Landau interprets Morris, first make “offenders aware of the socially endorsed limits on behavior that members of the community expect one another to abide by. Second, a punitive response to wrongdoing conveys the extent to which society’s members are attached to the values underlying the prohibitions that the criminal has violated. Third, punishment ‘rights the wrong,’ allowing the criminal to repay the debt he owes. Finally, punishment provides an opportunity for redemption and forgiveness, a chance to restore relationships to the status quo ante.”

Shafer-Landau feels the first two points are unpersuasive. They assume a level of ignorance in criminals that is not common. Moreover, there is a gap between “an appreciation of the harm that results from violating society’s rules” and a genuine empathetic change of heart required by the educationist’s mission. Shafer-Landau finds the gap unconvincingly bridged.

The third goal is “obscure”. Exactly how repayment of a debt morally educates is not clearly made out according to Shafer-Landau. [Is the repayment, or, rather, just payment for anything really obscure? I supply labor to an employer, I am compensated for it, I use the compensation to buy bread. The thief steals bread, the thief is apprehended and made to pay a fine or lose a measure of his freedom in return for having skirted the payment (penalty) the rest of us would have made (suffered) for the bread. Tit for tat, what is so obscure? That the thief enjoys first and pays later? But we do that with credit. That the thief was rude? That he didn’t ask first? But a thief who says “thank you” to the bank teller, is not punished less for having taken the time. That the thief would never have paid if not apprehended? That he had no intention of paying now or ever? He is being made to pay extra for having had this intention. This intention is a very luxurious one to have. Some breads are priced higher than others…. This is what “payment” amounts to.

Now what does it have to do with moral education? Participating in a fair exchange is a way of showing something. Enforcing payment is a technique for modifying behavior to comport with moral dictates. But a moral education is more ambitious: it wants to foster such behavior from a certain motive. Supposing we can succeed with shaping the behavior, how do we foster correct motives? We do this by moral conditioning: by repeatedly subjecting our student of morality with expressions and illustrations of what a correct motive would be (respect for moral law, decency, the dignity of others, empathy for them, etc.), and then what? We observe and listen to them to see if we can make out if they not only walk the talk but manage it with a morally correct swagger. We do this until we get distracted by other things and then, barring indications to the contrary, we proceed to operate on the assumption of success. We have educated a moral citizen.

Perhaps the difficulty of the task is being confused with obscurity. If there is still something obscure here, it is hardly specific to how moral education happens. It would have more to do with assessing conviction in general—a problem afflicting as much professions of romantic love or authentic spirituality as moral earnestness. But pursuing this would take us to a plane far beyond any called for in the current discussion… How do we know what anyone’s real motive for anything is? More to the point, how do they know? {Editor’s note: Luno is here alluding to his pet problem, “reflexive moral knowledge.”}]

Forgiveness can only be accorded when there is genuine evidence of a change of heart, i.e., when there has been moral education. But we can only claim moral education has occurred when we have been given reason to forgive. Shafer-Landau finds this idea in Morris circular.

Why are we obligated to benefit the criminal at all? (Since this is clearly what the educationist intends: we must do for, not to, the wrongdoer.) Why especially in a world of “scarce social resources”? asks Shafer-Landau. Morris suggests that we would want to be helped if we were in the criminals shoes: “there but for the grace of God go we.”

But if that is so, if it is largely a matter of luck which among us is in behind bars, where does responsibility enter in? The educationist does not want to deny agency.

Moreover, Shafer-Landau continues, while we might imagine ourselves embezzlers, “How many of us, on the other hand, could see an unfortunate twist of fate turning us into rapists or murderers?”

[Shafer-Landau here is either terrifically unimaginative or dishonest. I can see circumstances driving me to murder before I can see those leading to my becoming an embezzler… and I don’t think this makes me more evil or a greater danger to society than one who can’t… In all honesty, an embezzler is the pettiest of criminals. Indeed, pettiness* itself eats away at the possibility of moral foundation more rapidly than the most heinous crime, for the latter entrains correction with greater speed and surety.

(*The pettiness we have in mind here is specifically male. It is the pettiness of bad faith, of a willful self-blinding to responsibility. It is the pettiness of doing what circumstances allow as though this were what one ought to do. Expediency becomes enshrined as principle, and an entire pseudo-moral infrastructure, the one we swim in, is founded upon it.)

There is a real puzzle about free will and our willingness to admit susceptibility to circumstances, and Shafer-Landau is right to confront the educationist with it. But what is the alternative? Attributing responsibility at all to any rational entity other than oneself is already to engage in the game of second-guessing what is good for others. Drop the moral agency requirement behind retribution and we may as well manage wrongdoers as we manage or cope with weather or natural disasters. We do what it takes to stop what hurts us. A hesitation to do only this—to do something more or less—is motivated by qualms whose origin entail the figuration of other worlds, e.g., moral dualisms. Then, of course, we are saddled with explaining the relation between worlds. This is as true for Shafer-Landau’s account as it is for Morris’s.]

Shafer-Landau believes “a persuasive account of how immorality necessarily impedes human flourishing” has not been given. How can we assume the wrongdoer’s true interests are not in fact reflected in his actions? Plato’s idea that no one genuinely desires the bad is not fully coherent to Shafer-Landau.

[The strongest defense of Plato’s view that no one genuinely desires the bad is that if apparent interests were all that we as observers are permitted to accord moral weight, then there would be no excuse not to forthwith eliminate the wrongdoer. All qualms about human dignity, common humanity, etc. could be swept away as utterly irrational and immoral. The wrongdoer’s moral status would fall to the level of harmful bacteria. In particular, the feminine faith in the possibility of rehabilitation even in the face of extreme intransigence would have to be discarded. The key Weiningerian premise here is that while the vast majority of criminals are male almost none are purely male—a fact making such draconian measures morally and rationally inappropriate. We are then forced to assume at least the possibility that the criminal is either truly ignorant or morally incompetent but educable. Any third possibility regarding the moral status of the wrongdoer is cause for such treatment as we might accord a wild animal threatening our children—indeed, we may have fewer options.]

Shafer-Landau’s next criticism is that the educationist’s view entails indeterminate sentencing. “Insofar as a theory is paternalistic, there is no bar to according longer sentences to the morally recalcitrant than to the morally repentant, even if they have committed like offenses.”

How are we to recognize genuine repentance well enough to know that moral progress has occurred?

What of the “morally incurable”? Since no length of punishment shall educate them, what becomes of the educationist justification for punishment?

How are sentences for classes of crimes to be set in the first place if the educational needs of the criminal are to govern this and not the nature of the crime itself? A recidivist jaywalker may need more time in jail to learn his moral lesson than a one time murderer…

Shafer-Landau considers the possible educationist reply that an equal treatment principle would have to be part of the educationist program. “Thus we would treat people equally if we meted out sentences to those who stand in similar need of moral education. But there is no reason to suppose that those who commit identical crimes equally possess the feature which triggers equal treatment considerations, namely, an equal need for moral education.” This would seem to lead to different sentences for similar crimes. [The assumption that there is something wrong with the appearance of inequality here is highly suspect. “Equal punishment or treatment for equal crimes” is a near meaningless abstraction. Assuming any two crimes equal why would we need to make the further assumption that any two criminals are equal. What we must be intending in using the slogan is to preclude restrictions on certain kinds of discrimination intolerable on other moral grounds: merely because of class, race, etc., …but not sex. For here we must absolutely presume we are dealing with unequal criminals. Criminal justice systems ignore this at their moral peril.]

Shafer-Landau notes a difference between the Morris and Hampton theories. Hampton believes her theory can be exclusive, that it can provide all and the only justification for punishment we may require. Morris is open to strands from other traditions playing a part.

But then for Hampton’s view Shafer-Landau offers this challenge: “a justification for punishment is implausible if it does not allow punishment for the criminal known to be irremediably evil; Hampton’s proposal is such a justification; therefore her proposal in implausible.” But if anybody deserves punishment surely this person does, writes Shafer-Landau. […Or rather detention—and it is not that he deserves it as that we require it. Incapacitation is, one could argue, not a form of punishment at all so much as a form of societal self-protection. Punishment, per se, should be a term reserved for an act that either honors the autonomy (as in retribution) or benefits materially (as in the educationist’s program) its subject. That the act may or may not have social benefits is irrelevant to this characterization of the concept. Hence, incapacitation may be appropriate where punishment is not.

In defense of Hampton, retribution actually does not require that punishment be construed as evil—do we construe payment for goods purchased as evil? Punishment may be viewed as merely the price one pays for an exercised privilege. True evil would be an exhorbitant price exacted for nothing or little in return, more like an unconditional taking. Shafer-Landau seems wedded to the idea of indulging the passion surrounding retribution. This may well be a human male requirement but it is not conceptually necessary to retribution. Hampton rather sees the respect for autonomy in retribution as its only saving grace.]

Shafer-Landau is a little more amenable to Morris’s mixed justification theory. The problems here are those of separating the strands of justification and prioritizing them when they appear to conflict.

Posted by luno in moral education, Deontology, male criminality (Monday August 29, 2005 at 1:39 pm)

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