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Lecture 11

Philosophy 34-226 Lecture 11: Lectures 11-14 on Punishment

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University of Windsor

Lecture 11-14 on Punishment Kant's strict equality justification  Acknowledges criminals are rational; thus, punishing them is respecting their rationality  Focuses on the past  Criticism o Not everyone is rational o What is rational? Who is rational?  someone who's not reached the age of reason o Are there other ways for punishment? Deterrence (punishing someone for their past act; future-orientated)  Morality autonomy  Justification for utilitarianism  deterrence  Rehabilitation  not focusing on the act, more on the person; try to teach the person to re- enter the society (avoids consequentialism and retributism) Deterrence (3 elements)  Use the law to encourage and discourage behaviour  Utility  does deterrence work? o The nature of the act determines whether deterrence works o Consequence of breaking the law should be higher or more serious than the act itself o Less likely to get caught, more likely to commit the act o The timing aspect affect deterrence, also the idea of certainty (ex. being caught) o Deterrence works best with a high degree of certainty/probability o These are not philosophical question: these are psychology  Philosophical question o what's the moral good achieve for deterrence? (consequentialist/utilitarianist question) o Kant: why am I punished for a future act by someone else? o Legal positivism  notion of law as a coercive force o At what cost does it work? Is the cost sufficient?  **Utility is not the same thing as justice (utility cannot be the only value) deterrence might actually work with  If piracy act goes through, Kant would say the government is not respecting the citizens' rationality Rehabilitation  Psychological criticism o We cannot rehab someone 100% (can't ask for 100% compliance; people might commit the act again after rehabilitation)  some people can't be rehabilitated  Philosophical criticism o Does the state have the right to put people in rehab? o What is rehabilitation? How does it work? o ** Rehabilitation  Focuses on the person and not the act  Focuses too much on the person; misdirection of the punishment (why focus on the person and not the act?)  Comes mostly from Aristotle: Your acts do not exhaust you as a person; your person is deeper than the act  Ethics is about doing good for a person, and for society o If someone loses the moral sense, do you punish them? o The action still expresses a person; you are that action partially (you own that person)  you cannot over-emphasize person over action o The sense of justice is not achieved (they rehabilitated, so what?)  some people feel that justice wasn't served o Then again, what are the conditions of justice?  Rehabilitation  "re-habit"; changing a person's habit or giving the person a new habit o Re-offend doesn't mean rehabilitation; you cannot track rehabilitation  Rehabilitation assumes the person is more important than the action o Aristotle  good people sometimes do bad things, doesn't make them a bad person o Realizes the spirit of a person, recognizes the presence of a person o We are always more than our action  Kant's theory is simplistic: an act is clear; person is a vague mess  Each theory has their philosophical values. Which theory is better? Answer might be neither  Rehab might be a good thing: psychological growth; question is what are they? Are they just?  Prof argues  all the theories out there make the law messy: so what is the law? Restitution  libertarian view o What I believe is good is good o Who cares about the state? The state has no right to interfere with someone's thought  Restitution theory  presuppose that the state has no validity, the state is not a ("I create my own law")  you can't exchange person, but you can replace wealth Criminal insurance  everyone pays for the society, a criminal might repay the society/pays  back the system  Ex. why auto insurance? In case there's an accident, you will be covered  Best justification for punishment  the wrong doer stop doing wrong  Restitution asks for more than that ^ Article: Canadian Crime and American Punishment (Global and Mail) The Utilitarian Theory of Criminal Punishment  Richard Brandt  utilitarianism  Economy vs. punishment o Meeting certain economic/financial requirements  economic welfare o Illfare  meaning making people ill through punishment  Utilitarianism  deterrence  Incentive vs. disincentive  3 questions that a philosophical examination of systems of punishment needs to address: What justifies the infliction of pain on account of past acts? Are there valid general principles of punishment? What sorts of defenses should excuse from punishment?  Development of Questions o Morris & Kant  past bad action must be punished o Consequentialism  bad actions are bad because the consequences are bad o Utilitarianism  actions are judged based on if consequences are for the good of the greatest number o Punishment is a complex action o Utilitarianism says rules have consequences, the greatest good is followed by the great set of rules  Brandt is a rule utilitarian (RU): o Actions should be guided by a set of rules or prescriptions that lead to the maximum net expectable utility. (greatest good for greatest number)  The general rationale for the RU system is based on these 3 premises: Fear of punishment typically deters criminal behaviour (the more serious the punishment, the more easier to deter criminal behaviour) Imprisonment or fines make repeat criminal behaviour less likely Imprisonment in any case stop the criminal from harming society while in prison  To answer the first question: what justifies punishment? It produces more good than evil. If that turned out to be wrong, the utilitarian would say: don't punish. o It depends if the punishment results more good or evil o hoping to do more good than evil in the society o If not maximizing more good in society through evil, you do not punish  Q2: Are there general principles of punishment? o Punishment  not being too harsh or not being too easy o Kant's punishment (used by Canadian gov); not Brandt's approach  he uses punishment depending on the severity of the crime o Answer: that a punishment for a particular sort of crime should be chosen so that if we punished less severely, we would likely lose some utility. But if we punish more severely, we would also lose some utility.  Clearly this will be almost impossible to achieve in practice. But it is the ideal to which we should strive. o The severity of the punishment affects the crime being repeated o The more severe the crime, the more severe the punishment o Certainty  If you're more certain to be caught, the more likely the action will be deterred o The criminal always try to figure out the certainty and severity o Deterrence only works if you understand the psychology of human being o Rule utilitarianism is more open to other approaches (Brandt  punishment is complex; thus, requires other levels of knowledge); Kant only focuses on the philosophy o In Brandt's approach, in turn makes punishment messier  Bentham argues about exculpating excuses for punishment: o Relevant law passed after the act of the accused o Law had not been made public o Criminal was an infant, insane, or was intoxicated o Crime was done under physical compulsion o Person was ignorant of the possible consequences of the act (or was acting upon an innocent misapprehension of the facts; thought he was doing good) o Motivation to commit crime was so strong that no threat of law could prevent the crime  Rule Utilitarianism in Civil Law o Brandt argues that criminal laws can be used in civil laws to make sure no harm is being done, to deter bad behaviour, to maximize social good o The Kantian approach (you do the crime, you do the time) o Civil law is about deterrence o Brandt thinks his approach is better than retributive approach Retributivist (Morris/Kant)  Punishment is used for past bad action (a Kantian approach)  Punishment for morris is not about rehab/therapy, punishment should be harm, not a good (like Kant)  Institution of Therapy o Morris thinks therapy is problematic, not enough to philosophy, whereas Brandt thinks it's good  Implications of therapy (Morris thinks these are what therapy is): Criminal is not thought to be at fault, but rather suffering from a condition (external issue to the criminal) Criminal needs to be helped (not harmed), rather than deprived of something valuable (have to be re-taught) Criminal is not thought to owe a debt to society and is not eligible for forgiveness (if it wasn't your fault, you cannot ask for forgiveness) Therapy is neither proportional to the crime nor restricted from being cruel (all the experts are on the gov's side, it undermines the free rational of the person) Better preventive care could be delivered by not waiting until a crime has occurred (we can use law to prevent crime in taking place; the gov thinks we are all suspects) Since therapy is beneficial, there is less of a need for safeguards to protect innocents  Morris' Own View: 2 key ideas  fairness and contract o Fairness is basically Kant's view  direct punishment (do the crime, do the time) o If you know the law and still break it, you should be punished (fairness) o Punishment is simply redress  We all engage in social contract  individuals are all free rational beings, we compete for other people's goods  theory of law of nature  thus we form a social contract to agree on compliance (laws and rules)  The law and rules are above us all  Rules and laws are a form of social contract  Break the laws, you break the social contract  Thus, you should be punished for breaking the contract  The ones breaking the contract undermines the society, they are not holding their side of the contract , unfaithful to the rest  Punishment is like paying back what was taken, trust is broken  Morris argues harmed individual is violated, the society is violated as well  It's difficult to repay that trust to the society, thus Morris is not a restitutionist  Questions o Is Morris' view right or wrong? o Are there any limitations if you accept the contractual theory? Limitations for the state The Moral Education Theory of Punishment (Jean Hampton)  Punishment focuses too much on the act, and not on the person  Punishment should be evil, a harm  Her analysis is different than other thinkers except Brandt  Hampton's Approach o Non-retributist o She accepts the notion of deterrence from Brandt, but for her, deterrence is not as important (not her focus) o She focuses on the person , looks at the past action with the connection of the person  Her view o Moral education  moral boundaries o She argues other forms of punishment doesn’t involve moral boundaries o Moral boundaries teaches the criminals about morality, changing the person, moralizing a person o She thinks retributists miss the complexity of a person o To her, people commits a crime because they misunderstands morality, loses a sense of morality o Because she understands crime differently, means she understand punishment differently o Harm restored is not enough for
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