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Prison on Appeal: The Idea of Communicative Incarceration

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Abstract

In the classic abolitionist text, Prison on Trial, Thomas Mathieson argues that imprisonment cannot be justified by appeal to any standard punitive aim: rehabilitation, deterrence, incapacitation, or retribution. The aim of this paper is to give prison an ‘appeal hearing’: to examine whether it can be justified by a set of punitive aims not considered by Mathieson. In particular, it asks whether imprisonment can be justified by the ‘communicative’ theory of punishment proposed by Antony Duff. Duff sees imprisonment as having an important role in a properly ‘communicative’ system of criminal justice: to serve as the ultimate sanction for offenders who fail to comply with other forms of punishment; to shock offenders into repentance for their crimes; and to communicate to offenders in a symbolically appropriate way the seriousness of their offence. This paper argues that each of Duff’s rationales fails: using prison as an ultimate sanction violates the communicative principle of treating offenders as responsible moral agents; the evidence suggests that prison will impede rather than facilitate repentant understanding; and while prison might be able to express censure, it is not rationally connected to enabling a meaningful moral dialogue. As such, it concludes that this particular appeal hearing for imprisonment fails.

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Notes

  1. For an excellent overview of the philosophical literature on punishment per se, see, R.A. Duff and David Garland (Eds.), A Reader on Punishment (Oxford: Oxford University Press, 1994).

  2. For an excellent summary of the philosophical work on proportionate sentencing, see Andrew von Hirsch and Andrew Ashworth (Eds.), Proportionate Sentencing: Exploring the Principles (Oxford: Oxford University Press, 2005).

  3. Antony Duff makes the same point about a lack of philosophical attention to forms of punishment in R.A. Duff, ‘Penal Communications: Recent Work in the Philosophy of Punishment’, Crime and Justice 20 (1996): pp. 1–97, at p. 57.

  4. On the death penalty, see Matthew H. Kramer, The Ethics of Capital Punishment: A Philosophical Investigation of Evil and its Consequences (Oxford: Oxford University Press, 2011); on torture, see Stanford Levinson (Ed.), Torture: A Collection (Oxford: Oxford University Press, 2004); and on corporal punishment, see Kevin Murtagh, ‘Is Corporally Punishing Criminals Degrading?’, Journal of Political Philosophy 20 (2012): pp. 481–498.

  5. Richard L. Lippke, Rethinking Imprisonment (Oxford: Oxford University Press, 2007); William Bülow, ‘The Harms Beyond Imprisonment: Do We Have Special Moral Obligations Towards the Families and Children of Prisoners?’, Ethical Theory and Moral Practice 17 (2014): pp. 775–789; and William Bülow, ‘Treating Inmates as Moral Agents: A Defense for the Right to Privacy in Prison’, Criminal Justice Ethics 33 (2014): pp. 1–20.

  6. Imprisonment ‘seems’ to do this—but may not if one adopts the view that criminals forfeit their rights upon commission of a criminal act. See Christopher Heath Wellman, ‘The Rights Forfeiture Theory of Punishment’, Ethics 122 (2012): pp. 371–393.

  7. Thomas Mathieson, Prison on Trial (Winchester: 3rd edn. Waterside Press, 2006).

  8. Ibid., pp. 27–54.

  9. Ibid., pp. 55–84.

  10. Ibid., pp. 85–107.

  11. Ibid., pp. 108–140.

  12. For instance, standard texts on the philosophy of punishment now include accounts of the communicative theory alongside more traditional retributivist and consequentialist theories. For example, see Thom Brooks, Punishment (Abingdon: Routledge, 2012).

  13. R.A. Duff, Punishment, Communication and Community (Oxford: Oxford University Press, 2001), pp. 149–151; R.A. Duff, Trials and Punishments (Cambridge: Cambridge University Press, 1986), pp. 282–283; R.A. Duff, ‘Punishment, Communication and Community’, in Matt Matravers (Ed.), Punishment and Political Theory (Oxford: Hart, 1999), pp. 48–68, at p. 60; Duff, ‘Penal Communications’, p. 66; R.A. Duff, ‘Alternatives to Punishment—or Alternative Punishments?’, in Wesley Cragg (Ed.), Retributivism and Its Critics (Stuttgart: Steiner, 1992), pp. 43–68, at p. 60; and R.A. Duff, ‘Punishment, Expression and Penance’, in H. Jung, H. Müller-Dietz and U. Neumann (Eds.), Recht und Moral (Baden-Baden: Nomos Verlasgsgesellschaft, 1991), pp. 235–248, at pp. 243–244.

  14. Duff, Punishment, Communication and Community, p. 152.

  15. Duff, Trials and Punishments, p. 283.

  16. Duff, Punishment, Communication and Community, p. 149; Duff, ‘Alternatives to Punishment—or Alternative Punishments?’, p. 60; Duff, ‘Punishment, Communication and Community’, p. 60; Duff, Trials and Punishments, p. 282; Duff, ‘Penal Communications’, p. 66; and Duff, ‘Punishment, Expression and Penance’, p. 243.

  17. For just a few notable examples, see Michael Davis, ‘Punishment as Language: A Misleading Analogy for Desert Theorists’, Law and Philosophy 10 (1991): pp. 311–322; Andrew Von Hirsch, ‘Punishment, Penance and the State: A Reply to Duff’, in Matt Matravers (Ed.), Punishment and Political Theory (Oxford: Hart, 1999), pp. 69–82; and Matt Matravers, ‘Duff on Hard Treatment’, in R. Cruft, M. Kramer and M. Reiff (Eds.), Crime, Punishment, and Responsibility: The Jurisprudence of Antony Duff (Oxford: Oxford University Press 2011), pp. 68–84.

  18. Joel Feinberg, ‘The Expressive Function of Punishment’, The Monist 49 (1965): pp. 397–423.

  19. Duff, Punishment, Communication and Community, p. xvii.

  20. R.A. Duff, Lindsay Farmer, Sandra Marshall and Victor Tadros, The Trial on Trial: Volume 3 (Oxford: Hart Publishing, 2007).

  21. Duff, ‘Punishment, Communication and Community’, p. 51.

  22. Duff, ‘Penal Communications’, p. 54.

  23. Ibid.

  24. R.A. Duff, ‘Can we Punish the Perpetrators of Atrocities?’, in Thomas Brudholm and Thomas Cushman (Eds.), The Religious in Response to Mass Atrocity: Interdisciplinary Perspectives (Cambridge: Cambridge University Press 2009), pp. 79–104, at p. 91.

  25. Duff, Punishment, Communication and Community, p. 92.

  26. Duff, ‘Punishment, Communication and Community’, p. 53.

  27. Duff, ‘Alternatives to Punishment—or Alternative Punishments?’, pp. 56–58.

  28. Ibid., p. 54.

  29. Duff, Punishment, Communication and Community, p. 106.

  30. Duff, ‘Alternatives to Punishment—or Alternative Punishments?’, pp. 55–56.

  31. Duff, Punishment, Communication and Community, p. 98.

  32. Duff, ‘Alternatives to Punishment—or Alternative Punishments?’, p. 60.

  33. Duff, ‘Punishment, Expression and Penance’, p. 244; and Duff, Punishment, Communication and Community, p. 147.

  34. Ibid.

  35. Ibid., p. 149.

  36. Ibid., p. 152.

  37. Duff, ‘Penal Communications’, p. 14.

  38. Ibid.

  39. See the discussion of Hegel’s theory of punishment in Thom Brooks, Hegel’s Political Philosophy: A Systematic Reading of the Philosophy of Right (Edinburgh: 2nd edn., Edinburgh University Pres, 2013), p. 44.

  40. Von Hirsch, ‘Punishment, Penance and the State: A Reply to Duff’.

  41. Duff, ‘Penal Communications’, p. 45.

  42. Duff, ‘Punishment, Communication and Community’, p. 55.

  43. Duff, Trials and Punishments, p. 283.

  44. Duff, ‘Penal Communications’, p. 53.

  45. Quoted in Abdullahi An-Naim, Toward an Islamic Reformation: Civil Liberties, Human Rights, and International Law (Syracuse, NY: Syracuse University Press, 1990), p. 114.

  46. Michael Ignatieff, ‘State, Civil Society and Total Institutions: A Critique of Recent Social Histories of Punishment’, Crime and Justice 3 (1981): pp. 153–192.

  47. Duff, ‘Punishment, Communication and Community’, p. 52.

  48. Murtagh, ‘Is Corporally Punishing Criminals Degrading?’, p. 16.

  49. Gresham Sykes, The Society of Captives: A Study of a Maximum Security Prison (Princeton, NJ: Princeton University Press, 1958).

  50. Ben Sykes, ‘Depth, Weight, Tightness: Revisiting the Pains of Imprisonment’, Punishment and Society 13 (2011): pp. 509–529.

  51. A.J. Skillen, ‘How to Say Things with Walls’, Philosophy 55 (1980): pp. 509–523, at p. 523.

  52. Lynne Goodstein, Doris Layton and R. Lance Shotland, ‘Personal Control and Inmate Adjustment to Prison’, Criminology 22 (1984): pp. 343–369.

  53. Marguerite Schinkel, ‘Punishment as Moral Communication: The Experience of Long-Term Prisoners’, Punishment and Society 16 (2014): pp. 578–597, at p. 590.

  54. Donald Clemmer, The Prison Community (New York: Holt, Rinehart and Winston, 1958).

  55. For example, see Samuel L. Myers, Jr, ‘The Rehabilitation Effect of Punishment’, Economic Inquiry 18 (1980): pp. 353–366.

  56. Alison Liebling and Ben Crewe, ‘Prison Life, Penal Power and Prison Effects’, in M. Maguire, R. Morgan and R. Reiner (Eds.), The Oxford Handbook of Criminology (Oxford: 5th edn., Oxford University Press, 2012), pp. 895–927, at pp. 913–914.

  57. Duff, ‘Penal Communications’, p. 62.

  58. Duff, ‘Punishment, Expression and Penance’, p. 242.

  59. Duff, ‘Alternatives to Punishment—or Alternative Punishments?’, p. 60.

  60. Duff, Punishment, Communication and Community, p. 150; and Duff, ‘Punishment, Expression and Penance’, p. 243.

  61. Ibid.; and Duff, ‘Penal Communications’, p. 66.

  62. Duff, Punishment, Communication and Community, p. 149.

  63. Christopher Bennett, The Apology Ritual: A Philosophical Theory of Punishment (Cambridge: Cambridge University Press, 2008), p. 190.

  64. Duff, ‘Punishment, Communication and Community’, p. 58.

  65. Duff, ‘Penal Communications’, p. 54.

  66. For a very useful discussion of the necessary conditions of genuine dialogue and the difficulties it poses for Duff’s theory, see Kimberley Brownlee, ‘The Offender’s Part in The Dialogue’, in R. Cruft, M. Kramer and M. Reiff (Eds.), Crime, Punishment and Responsibility: The Jurisprudence of Antony Duff (Oxford: Oxford University Press, 2011), pp. 54–67.

  67. Ibid.

  68. On this point, see the essays in Shadd Maruna and Russ Imarigeon (Eds.), After Crime and Punishment: Pathways to Offender Reintegration (Cullomptan: Willan, 2004).

  69. Duff, Punishment, Communication and Community, p. 149.

  70. Ibid., p. 151.

  71. Victor Lund Shammas, ‘The Pains of Freedom: Accessing the Ambiguity of Scandinavian Penal Exceptionalism on Norway’s Prison Island’, Punishment and Society 16 (2014): pp. 104–123.

  72. Bennett, The Apology Ritual, p. 196.

Acknowledgments

Previous versions of this paper have been presented to the Centre for Criminological Research Seminar, the Faculty of Social Science Annual Conference and to the Political Theory Workshop, all at the University of Sheffield. Many thanks to the audiences for valuable comments. Special thanks also to Stephen Farrall, Christopher Bennett, Cormac Behan and Alejandro Chehtman for invaluable comments and critiques of the ideas in this paper.

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    Alasdair Cochrane

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Cochrane, A. Prison on Appeal: The Idea of Communicative Incarceration. Criminal Law, Philosophy 11, 295–312 (2017). https://doi.org/10.1007/s11572-015-9371-4

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