Punishment: Why the State Does It at All

Why it needs justifying at all

This is the question MU's word "justification" is asking, and the answer must be stated sharply.

Everything the criminal law forbids, the state does when it punishes. Imprisonment is confinement. A fine is a taking of property. Execution is killing. If a private person did these things they would be crimes, and the state's doing them is not made harmless by the fact that it does them in a courtroom.

Two consequences follow.

Punishment is a prima facie wrong that requires a positive justification. Not a neutral administrative act that requires only authority.

A justification must answer three separate questions, and confusing them causes most of the muddle in this area.

Why punish at all? The general justifying aim.

Whom may be punished? Only the guilty, and only for what they did.

How much? The measure of the sentence.

The reason this matters is that different theories answer different questions best, and the mature position, which chapter 490 sets out, is that they can be combined: a deterrent or protective aim can be pursued within limits set by desert. A student who separates the three questions can write that answer.

The responsibility of the modern state to punish

MU's topic 2.4.1 asks not whether the state may punish but why it must, and there are five answers.

1. It has taken the right away from everybody else. In a state of nature each person may punish a wrong done to them, as Locke says expressly. The state removes that right, and having removed it, it owes the citizen the thing it took: a system that responds to wrongs. A state that will not punish has disarmed the victim and done nothing in exchange.

2. Only impartiality makes punishment tolerable. Locke's three inconveniences again. Private punishment is administered by somebody who is a party, and self-love makes them partial, so the same wrong produces different responses depending on the strength and temper of the victim. A public authority is the answer to that, and it works only if it actually acts.

3. Private vengeance escalates. A wrong avenged privately produces a counter-wrong, and feud replaces adjudication. The state's monopoly of force is worth nothing unless it is exercised.

4. It is the condition of the state's own claim to obedience. If the state cannot protect, Hobbes says obedience lapses. A state that does not punish assault is not protecting.

5. The victim's standing. The modern justification most emphasised: punishment publicly declares that what was done to this person was a wrong against them and against the community, which no compensation payment does.

And with the responsibility come limits, which is why the topic sits in this module rather than in criminal law. A state that punishes the innocent, punishes disproportionately, punishes without a hearing or punishes for what a person is rather than what they did has not discharged the responsibility; it has committed the wrong the responsibility exists to prevent.

Deviation

MU's third word is "Deviation", and it means the ways punishment departs from its own justification. Naming them here sets up chapters 520 and 530.

Disproportion, where the sentence exceeds anything the offence could warrant.

Selectivity, where the same offence attracts different treatment depending on who committed it.

Punishment of the innocent, whether by error or, in the utilitarian objection at chapter 660, by design.

Punishment beyond the sentence, where prison conditions inflict what no court imposed. This is what Sunil Batra is about at chapter 510.

Punishment of status rather than conduct, where a person is dealt with for what they are.

A worked example

A man is convicted of stealing a mobile phone.

Is what follows punishment? Apply the five elements. A hardship, yes. For an offence, yes. On the offender, yes. Intentionally administered by others, yes. By the authority of the system, yes.

Now vary it. He is ordered to pay the owner the value of the phone. That is compensation, and it would be owed even if there were no criminal law at all.

Vary it again. He is sent to a de-addiction programme because the theft was to fund a dependency. Is that punishment or treatment? It is imposed for the offence, by the court, against his preference, so it satisfies the elements. But its measure is what he needs rather than what he did, and if the programme takes four years while the offence would carry three months, the theory of punishment has been left behind.

And again. He is refused bail, and spends eleven months in custody before trial, at the end of which he is acquitted. Nothing here is punishment on the definition, because there was no offence and no finding. That is precisely why the situation is troubling: he has undergone the whole of what punishment consists in, without any of the elements that justify it.

That last variation is worth an answer of its own if the question allows it, because in India a very large proportion of prisoners are undertrials, and every justification in this chapter is unavailable for them.

Distinctions that carry marks

Quick revision

1. Five elements: hardship; for an offence; on the offender; intentionally administered by others; by an authority of the system offended against.
2. Not compensation, a fee, treatment, preventive detention, or revenge.
3. It needs justification because the state deliberately does what the criminal law forbids: confining, taking, and at the limit killing.
4. Three separate questions: why punish at all; whom may be punished; how much. Different theories answer different ones best.
5. The responsibility to punish: the state took the right of private punishment away; impartiality requires a public authority; private vengeance escalates; protection is the condition of obedience; and punishment declares the victim's standing.
6. Deviation: disproportion, selectivity, punishment of the innocent, punishment beyond the sentence, and punishment of status rather than conduct.

Test yourself

1. Define punishment by its elements. It is the intentional imposition of hardship or deprivation on an actual or supposed offender, for an offence against a rule, administered by human beings other than the offender, under the authority of the legal system against which the offence was committed. All five elements matter: removing the requirement of an offence leaves arbitrary harm, removing the requirement that it fall on the offender leaves punishment of the innocent, and removing the requirement of constituted authority leaves a lynching.

2. Why does punishment require justification when other state action does not? Because the state, in punishing, deliberately does the very kind of thing the criminal law exists to prevent private persons doing. Imprisonment is confinement, a fine is a taking of property, and execution is killing, and none of these ceases to be a harm because it is imposed in a courtroom. Punishment is therefore a prima facie wrong requiring a positive justification, and not a neutral administrative act needing only authority.

3. What are the three questions a theory of punishment must answer separately? Why punish at all, which is the general justifying aim; whom may be punished, which is answered by desert, since only the guilty and only for what they did; and how much, which is the measure of the sentence. Keeping them apart is what allows a combined theory in which a deterrent or protective aim is pursued only within limits set by desert, and confusing them is the source of most of the muddle in this area.

4. Why does the modern state have a responsibility to punish, and not merely a power? Because it has taken from every citizen the right to punish wrongs done to them, and owes in exchange a system that responds. Because private punishment is administered by a party whose self-love makes them partial, so only a public authority can be impartial, and an authority that does not act supplies nothing. Because private vengeance escalates into feud. Because protection is the condition of the state's own claim to obedience. And because punishment publicly declares that what was done was a wrong against the victim and the community, which compensation does not.

5. What does "deviation" mean in this topic, and give examples. The ways in which punishment departs from the justification that alone makes it permissible. Disproportion, where the sentence exceeds anything the offence could warrant. Selectivity, where the same offence is treated differently according to who committed it. Punishment of the innocent, whether by error or, as the utilitarian objection has it, by design. Punishment beyond the sentence, where prison conditions inflict what no court imposed. And punishment of status rather than conduct, where a person is dealt with for what they are rather than for what they did.