Kolber's Punishment for the Greater Good
A summary from the author
Adam Kolber’s new book, Punishment for the Greater Good, sounded like it could be of interest to readers of this blog, so I invited Adam to share a brief summary here. Enjoy!
More than ten million people are incarcerated around the world, even though punishment theorists have struggled for centuries to morally justify incarceration and other punishment practices. Efforts so far are incomplete, referencing parts of theories that have yet to be fleshed out. What can philosophers say about the justification of incarceration today?
Retributivists claim that people deserve punishment because of their wrongdoing. Punishment can be morally justified, they say, provided it is proportional to wrongdoing. Consequentialists, by contrast, claim that if punishments like incarceration are justified, they are justified because they lead to good consequences, such as crime prevention and offender rehabilitation, that more than make up for the suffering and other bad consequences they inevitably cause. In my new book, Punishment for the Greater Good (Oxford University Press, June 2024), I argue that a “pure consequentialist” approach (one that denies the value of deserved suffering) is better than the “standard retributivist” approach (which justifies punishment based on moral desert but accepts consequentialist principles when deontology is silent) if we seek to address incarceration in the here and now.
In the book, I identify several problems with standard retributivism, but here I’ll mention one: Standard retributivists make proportional punishment central to their view but haven’t successfully explained how to determine when a punishment is proportional. Some scholars claim that we just haven’t figured out proportionality yet. But while this is never a satisfying response, it is particularly inadequate when we look at punishment, as I do in the book, from a here-and-now perspective. We can’t incarcerate someone today based on a promise to deliver an adequate theory of punishment sometime in the future.
Consequentialists, by contrast, don’t give proportionality a primary role. They seek to punish when doing so has net benefits. Since both crime victims and incarcerated perpetrators suffer, consequentialists generally seek to reduce total crime-related suffering. While many people overestimate the ability of incarceration to prevent crime, there is little doubt that it deters an enormous amount of crime and prevents the most dangerous offenders from regularly harming others. When incarceration is not a good tool for public safety, consequentialists oppose it and seek better tools. They don’t make people suffer just for the sake of past bad conduct.
Many find consequentialist punishment unappealing because it could lead, under some imaginable circumstances, to the punishment of the innocent, contrary to a firm deontological constraint that prohibits knowingly punishing in excess of desert. But reasonable retributivists will also punish the innocent, at least under sufficiently catastrophic conditions, as I argue in chapter 4 of the book: the dispute largely comes down to setting the threshold at which punishment of the innocent is permissible, and consequentialists plausibly have the better end of the dispute.
Even if we could perfectly assess proportionality, retributivist proportionality is unappealingly counterintuitive. Consider two equally blameworthy offenders named Sensitive and Insensitive. They are alike in all pertinent respects except for the amount they suffer in prison. Sensitive suffers tremendously, while Insensitive suffers too but manages to cope and make good friends. If these equally blameworthy offenders spend the same three years in prison, I claim that they have not been punished equally in any sense that matters from a moral perspective. Moreover, if Insensitive’s sentence was proportional, then retributivists need to explain what justifies the additional suffering we knowingly impose on Sensitive.
We could try to punish in ways that take sensitivities into account. But doing so leads to counterintuitive results as well. Suppose Sensitive suffers so much because, prior to prison, he lived a life of luxury. Few would welcome punishing Sensitive for a shorter duration (or in better conditions) to accommodate his wealth-induced sensitivity. Nevertheless, it’s hard to see why retributivists can knowingly make Sensitive suffer more than Insensitive when they are equally blameworthy. Consequentialists must take suffering into account too. But they’re not specifically committed to proportional punishment and so needn’t reach the particular counterintuitive results retributivists face here.
There are, of course, many challenges to consequentialism, but the book needn’t address them all. The reason is that standard retributivists, as I describe them, are consequentialists when deontology is silent. While it might seem unfair to saddle standard retributivism with whatever downsides consequentialism may have, there is a fundamental reason why punishment theorists who seek to address real-world matters tend to adopt features of consequentialism. Namely, to the extent they attempt to justify punishment practices in the here and now, retributivism without consequentialism tells us far too little to justify a punishment practice such as incarceration. To give just one example, even if retributivists are right that people deserve to suffer for their wrongdoing, it wouldn’t be enough to justify the extraordinary costs of creating prisons and separating inmates from their loved ones (who have no negative moral desert). Some broader moral commitments are required. Deontology itself is rarely spelled out in detail, and certainly not with sufficient detail for present day application: in the real world, we must assess the probability that a person is being used solely as a means to an end or the probability that a punishment is disproportionally excessive. Yet few offer sufficient description of which deontological constraints we must observe and how to weight them in a world of uncertainty.
The affirmative case for consequentialism arises, at least in part, from its comparative completeness. Armed with an axiology—a way of valuing what is good and bad—pure consequentialism is quite complete. While debates about the appropriate consequentialist axiology rage on, standard retributivists face nearly-identical challenges (and not just because they sometimes behave like consequentialists). In order to measure wrongdoing, for example, most retributivists consider the amount of harm an offender caused. Such measurements require them to decide whether to treat harms as bad experiences, dissatisfied preferences, or something else entirely. Since I conduct a comparative analysis of pure consequentialism and standard retributivism, I spend the better part of a chapter arguing that, if anything, pure consequentialism raises more manageable axiological questions than standard retributivism because pure consequentialists don’t assign intrinsic value to moral desert and needn’t wrestle with its associated mysteries.
Once consequentialists have an axiology and their best probabilistic assessment of relevant empirical facts, they can tell us how to behave in a wide variety of circumstances. Importantly, they can say quite a bit about whether an instance or practice of incarceration is likely better or worse from a moral perspective than some alternative. The empirical issues are extraordinarily complicated, but at least we know how to address them. (If a patient must choose between two forms of cancer treatment and the scientific evidence is conflicting, we can still do our best to pick one using relatively well-agreed upon methods of analysis.) With numerous choices, we may not know which option will lead to the greatest good, but we can often make choices for the greater good. It’s hard to ask for more in the here and now.
Imagine a car race with two competitors. If one car is missing too many parts to start, even its shabby competitor is superior. Similarly, if standard retributivism is too incomplete to yield verdicts about incarceration, then pure consequentialism is superior in the here and now, even if it has its own blemishes. Hence, my claim in the book is one of superiority, not adequacy. I claim that pure consequentialism is superior to standard retributivism, not that pure consequentialism is necessarily an adequate theory to adopt in the here and now. An adequacy claim would require a much deeper defense of consequentialism than I provide in a relatively short book and would require us to look at many other approaches to punishment than the two I focus on. Still, to the extent that I address popular forms of consequentialism and retributivism, if I succeed in arguing that pure consequentialism is superior to standard retributivism, I have provided you with at least some reason to increase your confidence in pure consequentialism’s adequacy as an approach to punishment in the here and now.
— Adam Kolber
Punishment for the Greater Good is available here (discount code: ALAUTHC4) or through request from your library here. For review copies, click here. This excerpt is adapted from a longer version at Marcus Arvan’s “New Work in Philosophy” substack.
Richard: Thanks for the post! As a general matter, I do think we should look for cheaper forms of deterrence all else being equal. In the last chapter of the book, I discuss a proposal by Mirko Bagaric and colleagues that hopes to release many incarcerated people to a system of surveillance outside of prison (involving audio and visual monitoring, along with use of a remote activated stun-device in the event of prohibited behavior). It seems like the plot of a bad movie, but to the extent it might actually reduce the harms of incarceration and allow people to lead more productive lives (with friends and family) outside of prison, it's worth some consideration, at least on a voluntary opt-in basis. We tend to think of incarceration as non-corporal punishment, but it still restricts freedom of motion and it certainly causes suffering (including the risk of uses of force like stun guns). If a surveillance proposal like this one can reduce incarceration (and its associated costs) while maintaining public safety and reducing the suffering of offenders and their loved ones, we can't just ignore it. And, of course, we must be alert to misuses of the technology and the risk that legislators over-rely on it in ways that increase total suffering.
Nonalt:
(1) You are correct. I focus on pure consequentialism that is "pure" in the sense that it denies the intrinsic value of retribution via desert. (Many of these ideas are spelled out in more detail in the book.)
(2) To the deontologists you describe, I would press them on their justification for collateral damage. I spend a good bit of time in chapter 5 arguing that even if retributivism could justify the intentional aspects of punishment, a full justification of some actual punishment must also address unintended but foreseen consequences (such as variable harms of depression and anxiety and risks of sexual assault, etc.).
(3) I'll have to reexamine the paper you reference, but as a general matter, I certainly believe there can be good consequentialist reasons for committing (with varying degrees of rigidity) to certain courses of behavior. Also, to the extent the "standard retributivists" I address are committed to some sort of consequentialist principles, a challenge to consequentialism would affect both theories.
Some questions for Adam: what are your thoughts on criminal justice reform? Should we be looking for "cheaper" forms of deterrence, like corporal punishment, in place of imprisonment in some (or many) cases? What do you think is the *weirdest* real-world implication of a consequentialist approach to punishment?