A couple of weeks ago I wrote about the way that public protection, which hardly featured when I studied moral philosophy 30 years ago, now dominates debates about the justification of punishment.The was a good example in the first leader of a recent Spectator. It began:
One of the many ludicrous Liberal Democrat policies which Tories enjoyed rubbishing during the general election was their plan to send far fewer criminals to prison. But, alas, it seems that some bad ideas are infectious. Last week Ken Clarke, the new Justice Secretary, suggested that we can no longer afford to keep so many prisoners — so we should sentence fewer, and for shorter periods
And went on to justify this view with the following argument:
It may well cost £29,600 to keep someone in prison for a year. But we must set against this the fact that the average prisoner commits a remarkable 140 crimes per year before incarceration — and, according to the Home Office, the average crime costs £2,970. So out on the streets, the prisoners inflict £406,000 of damage (including the £30,500 cost of sentencing them in a crown court).
That piece of accounting was the only argument used.
As I said in the original post, once you start justifying punishment on purely utilitarian grounds it is hard to account for our sense that the punishment should fit the crime.
In fact, it becomes hard to say why punishment should be confined to the guilty. The argument above is a good example. If your only concern is saving money, why not intern the whole young male population of certain neighbourhoods?
The Spectator mind-set is an odd combination of traditional British Conservatism and right-wing American nutjobbery. While it would be a mistake to romanticise the traditional Conservatives - they would be happy to call out the militia if their property were threatened - in this leader the nutjobs are clearly in the ascendancy.
Fortunately, Kenneth Clarke has more sense.
1 comment:
That piece of accounting was the only argument used.
But it's only seeking to argue against a specific contrary claim, viz., that "we can no longer afford to keep so many prisoners". To read the author as trying to set out the general basis of pubishment as such is grossly uncharitable.
once you start justifying punishment on purely utilitarian grounds it is hard to account for our sense that the punishment should fit the crime
It sounds a bit weird to me for a liberal (big or small L) to be simply dismissing 'utilitarian' reasoning per se in context of appealing to 'moral philosophy' (Bentham and the Mills anyone, or even Green...). Obviously, crude cost/benefit calculations are just... crude, but it is not unreasonale to think 'utilitarian' reasoning itself best explicates what you oppose it to, namely our sense that such-and-so severity of punishment best fits such-and-so crime.
To give an admittedly simplistic example: a violent rape, on average, might be considered to inclict far greater pain on the victim than (say) pilfering stationery at work. Therefore (or so one form of utitilarian reasoning might go), it is worthy of far greater punishment.
As for the general claim you object to, one way to look at is to see it as a 'second order argument' rather than a 'first order' one, arguing that our sense of the legitimacy of punishment as such is best rationalised on the grounds that punishing the infliction of harm does, in the medium to long term, reduce the rate of such infliction. This 'second order' thought isn't directly applied in the sense of justifying any particular punishment - rather, it merely justifies punishment per se.
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