Abstract
Recent trends in crime control have given new energy to an age-old question, namely what kinds of activity qualify as punishment. In addressing this question, jurists and scholars have often employed a logic that either restricts interpretations of punishment to traditional forms (e.g., prison, probation, death penalty) and functions (e.g., deterrence and retribution), or expands them to include the broader forms and functions of social control. This paper examines these opposing logics and considers an alternative logic based in common stipulations in power theory. Within this particular framework, punishment is conceived as action that is necessarily relational, intentional, personal and coercive.
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Notes
SOCC laws have been enacted in 17 states. They allow for the incarceration of certain sex offenders in the prison and mental health systems, when commitment to prison alone has been the presumptive sentence for offenders deemed competent to stand trial. For offenders deemed “sexually violent predators,” SOCC mandates indeterminate custody in a [treatment] facility once the prison sentence has been served. Registration/Notification (RN) laws have been implemented in every state in the U.S. and have gained popularity internationally as well (see Levi 2008). Though variations in program structure exist, RN laws generally require that persons convicted of sex offenses register and update their whereabouts with local police departments and that citizens be notified, or have a means of knowing, when a sex offender resides in their community.
Feinberg cites the case of Flemming v Nestor (1960), in which the U.S. Supreme Court similarly ruled that a regulatory action, namely retroactive deportation and denial of social security benefits for prior involvement in the Communist Party, was not punitive.
These types of deliberations over form and function semantics and attributes can be seen across a variety of punishment definitions. For example, Sutherland and Cressey (1974:298) define punishment as that “which is inflicted by the group in its corporate capacity upon one who is regarded as a member of the same group…. that involves pain or suffering produced by design and justified by some value that the suffering is presumed to have.” E. O.Wright (1973:22) defines punishment as the physical force of the state to control the lives of people the state defined. Morris (1995:156) defines punishment simply as deprivations imposed in the event of wrongful conduct by someone in a position of authority. Van den Haag's (1975:8) defines it as a deprivation or suffering imposed by law, whereby some sort of retribution for a past law-like norm violation is implied.
Variations of these questions were originally posed by Rothman (1981) and Mayer (1983) as analytical tools in the study of social control reform. To appropriately distinguish cases of social control, Rothman and Mayer suggest that researchers be guided by one or some combination of the following questions: "by whom," "for what purpose," "why this form," and/or the "level of control.”
In the government-at-a-distance literature (i.e., Rose and Miller 1992; Crawford 1997; Giddens 1990; Rhodes 1995) it is argued that “modern power and government are formulated to work in ways other than through direct intervention” (Frauley 2007). This form of indirect rule can be expressed as “constitutional distance,” whereby the responsibility for social order and welfare is diffused outward to non-state institutions, agencies, and citizens (Rose 1994).
While Bronsteen et al., view this claim as plausible, they ultimately disagree with [retributivist] claims that the mere imposition of anything by the state communicates condemnation and thus punishment. They assert that the “something” must involve a negative experience.
One could take this assumption a step further and argue, as Bronsteen et al. (2010) have, that if certain results are foreseeable (e.g., stigma, humiliation), then they are also intentional.
This is not to say that the blanket question of opportunity to choose covers all of the contingencies associated with distinguishing punitive cases. Indeed, there are subtleties that complicate free will, such as the range of available alternatives (Lamb 1994) and the benefits conferred by these alternatives. There are also differences in opinion regarding what involuntary means. Etzioni (1968) argues that involuntary means to deprive actors of the opportunity to choose, whereas Kuhn (1963) contends involuntariness need not go to the extreme of no choice, but to the point where power is so one-sided that the outcome is highly predictable.
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I would like to thank anonymous reviewers Bob Langworthy and Bob Bohm for their helpful comments and encouragement in the preparation of this manuscript.
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Lucken, K. You Say Regulation, I Say Punishment: The Semantics and Attributes of Punitive Activity. Crit Crim 21, 193–210 (2013). https://doi.org/10.1007/s10612-012-9166-z
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DOI: https://doi.org/10.1007/s10612-012-9166-z