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The Nature of Punishment Revisited: Reply to Wringe

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Abstract

This paper continues a debate about the following claim: an agent punishes someone only if she aims to harm him. In a series of papers, Bill Wringe argues that this claim is false, I criticize his arguments, and he replies. Here, I argue that his reply fails.

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Notes

  1. Boonin says that such claims are “almost universally accepted” by philosophers of punishment (2008: 13–14, n14; cf. Hanna 2013: 593, n5). Those who think that such claims make punishment especially hard to justify include Berman (2008: 267), Boonin (2008: 12-17), Tadros (2011: 1, 265), and Zimmerman (2011: 7-10, 164).

  2. For versions of this argument see Boonin (2008: 12-15), Hanna (2009: 330-31), Honderich (1969: 1), Lee (2019-363-64), Ten (1987: 15), Wasserstrom (1982: 476), and Zimmerman (2011: 9-10). I say “typically” because it’s possible for an agent to punish someone that the agent knows isn’t culpable and because psychiatric commitment can be used to punish (see section 3 below and cf. Hanna 2017: 974).

  3. There are many other objections to AHR and to the standard argument for it that I won’t discuss. The most common ones misinterpret what AHR means by “aims” or “harm.” For responses to these and other well-trodden objections see Boonin (2008: 6-17), Hanna (2014: 593-94), Lee (2019: 371, 377-79), and Zimmerman (2011: 3-10, 19-21).

  4. Wringe uses several synonyms for “harmful.” I’ll stick with “harmful” to avoid confusion.

  5. Wringe seems to agree (Wringe 2019: 8, n19). As for the other conditions, 2–4 are clearly satisfied. And Wringe seems to think that 5 can be satisfied by background features of the legal system (ibid.: 6–7). We can stipulate that these features are present or opt for some stipulations that I suggested in my previous reply (Hanna 2017: 971, n7).

  6. Thanks to a referee.

  7. For overviews of these theories see Bradley (2015) and Crisp (2017).

  8. Kazez endorses such a theory (Kazez 2007: 65–68, 79).

  9. Cf. Bradley (2012: 395, 2015: 7-8), Crisp (2017: Sect. 1).

  10. Cf. Hanna (2017: 971). Alternatively, Wringe might deny that the sentences in these cases are harsh because they can be described in unharsh ways. For example, he might say that the sentence in Judgment* isn’t harsh because it can be described as “sentencing someone to do what they’ve already done,” which isn’t harsh (thanks to a referee). This reply doesn’t obviously work. Recall, Wringe thinks that we can punish someone harmlessly, so long as we treat her harshly. In such cases, we can describe the treatment in an unharsh way: whatever feature of the case makes the treatment harmless can be used to describe it that way. To make the reply work, Wringe would need principled reasons to use descriptions that get his desired results in these cases and that avoid the problematic results in mine. He gives none. And, as I argued in my previous reply to Wringe, it’s not obvious that there are any (Hanna 2017: 971–72).

  11. He thinks that, in modern legal systems, punishment is inflicted by collective agents like states and political communities, not by individual officials like judges (Wringe 2019: 4, 7).

  12. Zimmerman proposes this variant (2011: 19–20). In my previous reply to Wringe, I said that Zimmerman’s variant can deal with such cases (Hanna 2017: 973, n12). Wringe misunderstands this part of my discussion (Wringe 2019: 7, n15). For the record, I’m inclined to accept AHR as is. Even if Thief is punished, I’d say that Judge doesn’t punish him – she just unwittingly helps others to do so. I won’t defend this claim here.

  13. Ristroph describes a somewhat similar case that can also be used to argue against AHR (Ristroph 2008: 1399–1400). I don’t have the space to do justice to her case here, but I’d say similar things about it.

  14. The above conditions may need to be qualified in certain ways, but I won’t try to refine them here (thanks to a referee for pressing me on this point). Also, note that these are just sufficient conditions. There may be other sufficient conditions. I take no stand on what the full set of necessary and sufficient conditions is.

  15. Thanks to a referee for pressing me to add details to this case.

  16. Cf. Husak (2008: 76). In my previous reply to Wringe, I argued that legal punishment isn’t necessarily a response to wrongdoing (Hanna 2017: 974–75).

  17. Compare these remarks of Wringe’s: “Can we say anything general about the kinds of expressive purpose that are essential to punishment? Not much, I suspect. Clearly not any expressive purpose will do… There must at least be reasons for taking the harsh treatment to express something about the wrongdoing (or [about] the character or motivations of the [wrongdoer]” (2019: 5; cf. Feinberg 1965: 402–3).

  18. Wringe would likely endorse the first objection because he endorses a similar objection to the standard argument for AHR (cf. Wringe 2013: 870). He’d reject the second objection because he denies the moral condemnation claim (Wringe 2019: 5–6) For arguments against the claim see Hanna (2017: 974-75) and Lee (2019).

  19. To clarify, I’m not saying that strict liability punishments are never responses to culpability. In many such cases, even though we don’t require evidence of culpability for conviction, we might still know or at least believe that the punishee is culpable. My point is just that it’s possible to impose strict liability punishments on people who we know aren’t culpable. We might do this to enhance deterrence, say. Thanks to a referee for pressing me here.

  20. Objection: the fact that he’s non-culpable due to mental illness entails the absence of mens rea (thanks to a referee). Reply: this is false. The law often defines mens rea in terms that even non-culpable mentally ill defendants can satisfy (cf. §2.02 and §4.01 of the Model Penal Code). As Morse and Hoffman put it: “Crimes are defined by their ‘elements,’ which always include a prohibited act and in most cases a mental state, a mens rea, such as intent… Even if the state can prove all the elements beyond a reasonable doubt, the defendant may avoid criminal liability by establishing an affirmative defense of justification or excuse” (2007: 1074). They go on to give examples where insanity defenses were successful despite the presence of mens rea, so understood: “The examples of Daniel M’Naghten and Andrea Yates … demonstrate that even the most delusional or hallucinating person can form the requisite mental state. M’Naghten … surely intended to kill a person. Likewise, Andrea Yates … surely intended to kill [her] five children” (ibid.: 1089–90).

  21. US courts recognize the possibility of such punishment and interpret the Constitution’s ban on bills of attainder as prohibiting it. For an overview of relevant case law see Dick (2011). My case is modeled on the one in United States v. Lovett, 328 U.S. 303 (1946). According to the Lovett court, “Legislative acts, no matter what their form, that apply … in such a way as to inflict punishment on [people] without a judicial trial, are bills of attainder prohibited by the Constitution.” See also United States vs. Brown, 381 U.S. 437 (1965): “The Bill of Attainder Clause … was intended to implement the separation of powers among the three branches of the Government by guarding against the legislative exercise of judicial power [and] is to be liberally construed in the light of its purpose to prevent legislative punishment.” Thanks to a referee for pressing me here.

  22. He cites a section of his earlier paper where he discusses some hypothetical cases that he seems to think are cases of harmless punishment (Wringe 2013: 867). But since they’re hypothetical, they don’t support his premise. And they’re not obviously cases of harmless punishment anyway, as I argued previously (Hanna 2017: 971, n8).

  23. His talk of failure is suggestive, though. The sections of his 2013 paper that he cites contain what seems to be an argument against AHR that appeals to the claim that harmless attempts at punishment are failures if AHR is true. Lee shows that this argument fails (Lee 2019: 371–72, 379 n57).

  24. Boonin argues that many of those who think that there are cases of harmless punishment misunderstand the concept of harm (Boonin 2008: 6–17; cf. Hanna 2014: 593). Wringe does this at points (cf. Hanna 2017: 971, n8).

  25. A qualification: I take no stand on whether the sciences can test such claims by probing our intuitions. Wringe doesn’t cite any empirical research purporting to show that we have intuitions about punishment that are inconsistent with AHR.

  26. See, e.g., Boonin (2008: 16-17, 213, passim), Hanna (2009: 331, 2014: 592-95), Zimmerman (2011: 164-5). Cf. Sayre-McCord (2001: 503-10).

  27. See, e.g., Husak (2008), Wellman (2017: 172-191), Tadros (2011: 2).

  28. They typically argue that there are viable alternatives to legal punishment that don’t aim to harm. See, e.g., Boonin (2008: 213-75) and Hanna (2009: 332-47; 2014: 600-602). Cf. Sayre-McCord (2001: 503-10).

  29. Boonin (2008: 15-17, 234), Hanna (2009: 331; 2014: 595-97), Sayre-McCord (2001: 507), Zimmerman (2011: 165-75).

  30. I discuss them elsewhere, identify some problems with them, and offer a better explanation (Hanna ms).

  31. Thanks to Stephen Galoob and to two referees for comments.

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  1. Drexel University, Department of English and Philosophy, MacAlister Hall, Room 5044, 3250-60 Chestnut Street, Philadelphia, PA, 19104, USA

    Nathan Hanna

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Hanna, N. The Nature of Punishment Revisited: Reply to Wringe. Ethic Theory Moral Prac 23, 89–100 (2020). https://doi.org/10.1007/s10677-019-10047-1

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