Criticism as Punishment: Retribution, Utility, and Outrage

In the field of criminal law, there are two main philosophical schools on how society is allowed to punish offenders. The first is the retributive school -- basically arguing that we can punish people solely based on how much they "deserve" to be punished, no more and no less. Punishment is seen as a matter of just deserts, apportioned to the moral culpability of the offender. We can't raise or lower punishments because might make society better off (a more severe punishment might serve as a superior deterrent, a less severe one might allow a brilliant scientist to continue his work unhindered by a jail term).

The second school is utilitarian (or consequentialist) -- it says we can punish because and only when society benefits from it. Deterrence (preventing further crimes) is a utilitarian rationale, as is incapcitation (preventing the criminal from committing more crimes) and rehabilitation (making the criminal a productive, socially beneficial member of society). We can punish up to point where all parties continue to reap a net benefit, but no further. This might mean we can't punish at all, in certain situations, where the social consequences of punishment would outweigh its gains. Alternatively, it might mean we'd be justified punishing completely out of accordance with moral fault if there were socially compelling reasons to do so. Hanging an accused thief by his entrails may be wildly out of sync with just deserts, but it would probably make other accused thieves think twice before picking pockets.

Retributivists and utilitarians are not friends. Utilitarians allege that punishment without social benefit is barbaric -- solely seeking to quench the victim's or society's thirst for blood. Moreover, punishment that isn't tailored to increase social benefit imposes huge costs on society by, for example, missing critical opportunities to change behaviors. Insofar as we are missing opportunities to, say, deter rape, a utilitarian would say that we are in a lot of ways responsible for the rapes we could have prevented but didn't. Retributivists counter that utilitarian punishment has no checks to insure it products the basic human dignity of the condemned and risks devolving into state-sponsored torture if the state claims a net benefit from it. On the other hand, it also provides an out for politically or economically-powerful individuals to escape liability for even the most horrific of crimes, if they claim that society would suffer more by their removal than it would gain through punishment. Because the idea of "social gain" is always indeterminate, punishment becomes solely the province of the poor and marginalized, and even can become a collateral weapon against social dissidents who are labeled "undesirable". This a just a sampling -- the literature in this field is rich and dense, and won't be resolved in the space of a blog post.

Outside the academy, though, I suspect most of us blend together elements of both schools. We want our mechanisms of punishment to achieve social goals -- make us safer, rehabilitate wrongdoers, recompense victims -- while still staying at least tied to some rational conception of culpability.

One other function of punishment that I think sometimes gets elided in these categories is the function punishment serves of communicating social outrage. When we punish someone by, for example, sending them to prison, we are implicitly communicating a message by society that the behavior they were convicted of is deeply offensive and wrong to our communal sensibilities. The longer or harsher the punishment, the more outrage we are communicating. In its simplest form, I think this can be folded into a retributive model. The claim that X conduct "deserves" Y punishment is another way of communicating the degree the wrongdoer has deviated from communal norms, and our ensuing anger. You could argue that this expressive function of punishment also serves utilitarian ends in the form of social catharsis, or checking the potential for vigilante justice.

I don't think this is per se invalid. One of the reasons I support hate crimes legislation is because I think it is important for society to send a message that such actions are not "taken in our name", are not silently endorsed by the majority, but represent an egregious violation of community standards whose voice is communicated most clearly through law. But sometimes, the expressive element of punishment bursts beyond the constraints of either retributive or utilitarian considerations and takes on a life of its own.

In Arizona v. Berger, the Arizona state supreme court upheld a mandatory minimum 200-year sentence with no possibility of parole against a 52-year old man with no prior criminal record after being convicted of possession of 20 images of child pornography (10 years per image, running consecutively). The sentence was greater than the mandatory minimum for murder, rape, aggrevated assault or (ironically) sexual assault of a minor under the age of twelve.

Commenting on the case, law professor Hanno Kaiser wrote:

The sentence in Berger is largely expressive conduct. It uses law as a means to display moral outrage. It is a celebration of moral hatred, as aptly described in the opening chapter of Michel Foucault’s Discipline and Punish....Here, the offender was technically not punished, if we require punishment to be a meaningful intra-societal answer to the offense. Rather, the boundaries of society have been redrawn so as to exclude the offender. Ejected from society into a natural state, society is free to wage war, to lash out and crush the offender, unrestrained by considerations of proportionality.

"The decision in Berger cannot be rationalized with arguments from traditional consequentialist [utilitarian] or retributive theories of punishment, as it violates every requirement of proportionality."

The legal machinations that gave us Berger constituted a situation where the expressive functions of punishment took on a life of their own, stretching beyond retribution or utility and instead violently ripping the offender out of society -- essentially rendering him a non-person. The motivating factor to writing the statute this way was neither to exact just retribution (there is no way possession of child pornography is worse than actually sexually assaulting a child), nor was it tied to utilitarian considerations designed to make society as a whole better off.

Rather, these sort of ratcheting effects in criminal law occur as legislators race to present themselves as more and more outraged by the behavior in question. The most efficient way to signal that outrage is to direct and support greater state violence against the wrongdoer. By contrast, once the targeted class is rendered extra-social -- as beyond the realm of the community or even moral personhood -- there is virtually no constituency or incentive to try and pull the rhetoric back down. Research on group dynamics indicates that the membership of like-minded organization will constantly push each other to adopt more and more extreme positions, particularly vis-a-vis the other. An arms race of moral self-righteousness ensues, wherein the targeted class is pushed further and further away from the type of communal bonds and empathies that might otherwise restrain us. Dehumanization and violence are the likely and predictable result of this treatment.

One way to think about this sort of behavior is to view it as self- rather than other-regarding. Retribution is premised off what the wrongdoer deserves. Utilitarianism looks at what makes all parties (offender, victim, and society) better off. The expressive function Prof. Kaiser describes at work in Berger, by contrast, is primarily directed at the critics themselves. It is designed to make them feel more secure in their moral personhood by drawing a clear line between themselves ("good") and the violators ("bad"). It also signals and affirms their membership in the group by participating or leading in the criticism -- nobody wants to be the guy who thinks child pornography is less bad than everyone else, and there are real risks of exclusion if one takes that role upon themselves. Consequently, while wrapped in the rhetoric of punishment, the sort of moral outrage that breaks loose from normal penological discourse is fundamentally self-indulgent -- it can claim neither to be doing justice as to the offender, nor to be particularly concerned with improving society, deterring future behavior, or protecting victims.

Prof. Kaiser limits his analysis to the legal system, which he says needs to be separated from "the moral system". I disagree, both because I think punishment is a form of moral expression, and because I think that in modern society, punishment is not the sole province of the state. There are non-legal sanctions one can impose upon someone or something accused of morally wrongful behavior: e.g., boycotting them, shaming them, or even simply morally criticizing them. These are properly construed as forms of punishment.

When I say that "criticism" is a form of punishment, I don't mean to say that it is something that should be avoided or something that requires a full-blown hearing to be justified. I'm merely expressing the (hopefully uncontroversial) idea that we criticize due to our belief that the target has done something wrongful. We often punish children by giving them a "stern talking to". Like all punishment, the language of criticism is wounding and hurtful (which is part of what makes it effective), consequently, it should not be deployed unless it is being used for a legitimate penological end. "Stop being a jerk", said to someone who just laughed at a child who broke their leg, is legitimate in a way that saying the same thing to a different, innocent person merely because you don't like them and you want to make them feel bad, or because you want to ostracize them from the clique of popular kids, is not. Criticism is thus part of the panoply of non-legal punishments we direct against wrongdoers. In many respects, it is the punishment of first resort (as it should be).

As a punishment, however, criticism ought to be restrained by the same considerations as all of its other cousins, that is to say, it must be reasonably related to either a retributivist or utilitarian rationale. If we are being retributivists, for example, our criticism needs to be tied to some rational conception of moral fault. The way we determine what is proper retribution is by comparison -- we look to how we criticize other moral failings, and try and figure out where the failing at bar falls with relation to its peers. The reason we know that 200 years is too much for possession of child pornography isn't because there is some transcendental ideal of "justness" which tells us how many years in prison is correct. The simplest way of knowing that the punishment is too harsh is that it exceeds that of crimes which we all agree are more serious (such as actually sexually assaulting a minor). Criticism can work the same way -- we look to see how we are criticizing other wrongdoers, compare the degree of moral fault between the past cases and the current, and adjust our current criticism so that it fits with the broader schema we've established. If we're criticizing a less serious act more harshly or more frequently than a more serious act, or vice versa, then we are not being retributive.

Of course, we don't have to be retributivist. Criticism can and often is utilitarian in nature -- seeking to reform the perpetrator or head off wrong doing towards victims rather than express a message of "you deserve criticism". This might justify directing more criticism towards an objectively less severe act, if, for example, we think that our criticism in this case is more likely to have a positive effect in the form of deterrence, behavioral modification, or justice. There are all sorts of reasons we might think that the effectiveness of criticism won't mesh perfectly with a list of the most grave wrongdoers. We might expect that less grave wrongdoers are more likely to listen to the critique and take it to heart, or we might have stronger connections with some persons or groups compared to others, giving our criticisms more weight. I'm sure there are others. All of these would justify directing more frequent or perhaps harsher criticism towards a less culpable wrongdoer, from a utilitarian perspective.

But if we're going to be utilitarian, we have to be utilitarian. Utilitarian considerations don't always counsel extra criticism or punishment. Indeed, they counsel the precise amount of criticism and punishment most likely to yield positive results. Sometimes, even retributively just criticism may not meet this burden, for a variety of reasons. Where criticism, punishment, or threat of punishment is likely to yield bad consequences, it must be dropped, because it isn't about "justice" in the abstract, it's about consequences on the ground. Often, this requires painful concessions that cut to the heart of our conception of just deserts. One would be hard pressed to find a man more deserving of being hauled in front of a war crimes tribunal that LRA head Joseph Kony. Yet it may well be that the only way to secure peace in Uganda, wracked for decades by civil war, is to drop ICC prosecution against him. Should they do so? A utilitarian would be hard pressed to say no. A retributivist would be hard pressed to say yes.

Just like legal punishments, non-legal punishments can very easily detach themselves from the bounds of these two limiting factors and take on the solely expressive purpose of signaling moral hatred. When this occurs, the same rules (or lack thereof) apply -- the ratcheting incentive and arms-race of evermore strident condemnation, the primary self-regarding (and thus self-indulgent) nature of the discourse, the removal of the alleged offender from the bounds of society, the presentment of the offender (and his or her defenders) is something less than human, and finally, violence. Last month in the UK, the occurrence of anti-Semitic acts exploded seven-fold compared to a year prior and more than doubled the previous month on record. The normal wardens against racism and hate proved themselves unable or unwilling to interpose themselves against the tide. Both the perpetrators, who cast even the beatings as being a sort of criticism against Israel, and the victims seem to agree on the cause. In Venezuela, a fifth of the country's Jewish population has fled the country, a synagogue was recently sacked, and the country's remaining Jews are quite clear on who they lay the blame upon, because one simply cannot say the things Chavez says and then be surprised or defensive when folks start physically assaulting Jews. In both nations, the primary instigator of this violence was "criticism" of Israel and Zionism that had become so poisonous, so far removed from considerations of justice or consequences, that it mutated from a call for dialogue between members of the human community, to a delineation seeking to establish who is human and who is not.

This isn't about criticizing "politely". Nor is it an argument against criticism, any more than objecting to the Berger sentence is an objection to legal punishment or the morally blameworthiness of possessors of child pornography. This is about the very predictable results of dehumanization enacted through "punishment" as an expression of moral hatred, as opposed to just deserts or utilitarian considerations. Render someone extra-social, and someone will take you up on it. The responsibilities to stay tethered to retributive or utilitarian goals if you are to punish is no small matter. People's rights, people's safety, and people's lives depend on it. In a real and significant way, the entire moral system depends upon it.