Punishment: Why the State Does It at All

In one line

Punishment is the deliberate infliction of suffering by the state on somebody it has found guilty, and because that is what it is, it needs a justification that ordinary state action does not.

In the wording a student can write in an exam: punishment is the intentional imposition of a hardship or deprivation on a person for a breach of a rule, by an authority constituted for the purpose and against the offender's will, and it requires justification because the state is doing to a person, deliberately, the very kind of thing the criminal law exists to prevent private persons doing to each other.

What punishment is

The standard analysis gives five elements, and an answer that lists them handles almost any question in this block.

1. It involves hardship or deprivation. Something the person would not choose: liberty, money, reputation, and at the limit life.

2. It is imposed for an offence against a rule.

3. It is imposed on an actual or supposed offender for that offence.

4. It is intentionally administered by human beings other than the offender.

5. It is imposed by an authority constituted by the legal system against which the offence was committed.

Every element is doing work. Remove the second and you have arbitrary harm; remove the third and you have punishing the innocent; remove the fifth and you have a lynching. When a question asks you to distinguish punishment from something else, it is one of these five that has been dropped.

What it is not

It is not compensation. Compensation looks at the victim's loss and restores it; punishment looks at the offender's wrong and imposes a deprivation. The same act may attract both, and they are different in aim, in measure and in who receives the benefit.

It is not a tax or a fee. A fee is a price for a permitted activity; a penalty marks the activity as forbidden. Two identical payments may be either, and which they are depends on whether the conduct is being priced or condemned.

It is not treatment. Treatment is directed at curing a condition, is measured by what the patient needs, and can be given to somebody who has committed no offence. Punishment is measured by what was done. The reformative theory at chapter 510 pulls hard on this line and the line still exists.

It is not preventive detention. Detention to stop a future harm is imposed on the basis of what somebody may do, not what they have done, and it lacks elements 2 and 3. Whether it can be justified at all is a separate constitutional question.

It is not revenge. Revenge is personal, unlimited, need not be inflicted by an authority, and need not be deserved. Punishment is imposed by a body with jurisdiction, is limited by rules, and requires guilt. The distinction between retribution and revenge is chapter 470's job and it is the distinction students most often collapse.