A seventh [Law of Nature] is, that in revenges, (that is, retribution of evil for evil,) men look not at the greatness of the evil past, but the greatness of that in the good to follow. Whereby we are forbidden to inflict punishment with any other design, than for correction of the offender, or direction of others… revenge without respect to the example, and profit to come, is a triumph, or glorying in the hurt of another, tending to no end; (for the end is always somewhat to come;) and glorying to no end, is vain-glory, and contrary to reason; and to hurt without reason, tendeth to the introduction of war; which is against the law of nature; and is commonly styled by the name of cruelty.
-Thomas Hobbes, Leviathan: Chapter XV. Of other Laws of Nature
For rulers are not a terror to good works, but to the evil. Wilt thou then not be afraid of the power? do that which is good, and thou shalt have praise of the same: for he is the minister of God to thee for good. But if thou do that which is evil, be afraid; for he beareth not the sword in vain: for he is the minister of God, a revenger to execute wrath upon him that doeth evil.
Principles for Civil Punishment
I shall assume, without argument from the outset, the principles which Hobbes outlined above. Punishment must necessarily have as its end future good and not avenging the past. Thus, it is an unashamedly consequentialist as opposed to retributive account of punishment.
There are three main future goods, or objectives, which civil punishments are meant to accomplish, in order of priority:
(1) Restoration/Reform: To correct the offender and to provide him with the means to become a full fledged member of the commonwealth.
(2) Deterrence: To be a “terror” to evil, to deter both the offender from committing crimes in the future and others in the commonwealth from committing crimes.
(3) Protection: To prevent the offender from harming anyone else in the commonwealth.
I shall break down my application of those principles into two parts: Non-capital crimes and capital crimes.
Now first with non-capital crimes.
The Superiority of Stripes over Jail: A Thought Experiment
I would suggest that we provide corporal punishment as a substitute for jail time. The idea of corporal punishment however seems to provoke visceral reactions which would require me to do some “intuition pumps” with thought experiments to make it seem more plausible before presenting my arguments proper.
Suppose a region proposes the following “penal exchange” deal. A criminal can have their prison sentence reduced by a year (or six months, etc) for every stroke of the cane/lash of the whip, etc, they are willing to receive. Of course this policy comes with the usual caveat that it does not apply to capital crimes or psychopaths or serial killers or whatever.
I am fully willing to bet that by the end of the month, half of their prisons would be empty.
The fact is that for all the alleged cruelty of corporal punishment, it is much more humane than prison. Corporal punishment, no matter how brutal, inflicts wounds which can be healed with time. A long prison sentence takes away a felon’s time itself, and our time on earth can never be retrieved.
Prima facie, it seems that corporal punishment is preferable to jail time. Let’s turn these intuitions into a more concrete argument. I would propose in place of our status quo a “stripes-for-jail-time” scheme where a prisoner can choose to reduce their sentence in jail by agreeing to undergo more stripes.
As already noted, punishment should first and foremost be restorative and reformative. As such, the default mode would be incarceration with opportunities offered in prison for reform and improving themselves. Rehabilitation programs, courses to acquire skilled diplomas, study for school exams for free or whatever.
However, we ought to also respect human agency and recognise that we cannot force a person to reform if he does not want to. Reform ought to be voluntary. Thus, if he rather wants to be let out, then he can choose to trade his jail time for stripes. If he chooses not to be reformed by the state, then at least the state can deter him and others from crime by communicating to him in lashes the consequences of their crimes.
I would argue that this trading scheme would be superior because the thing about prison is that by isolating a criminal from society, you may protect society, but you would also isolate him from all good influences from society, particularly if he has a family outside. It also removes the criminal’s reason to become a better person. If you take that away from him, he may completely despair and would become a hardened criminal and never become better. With corporal punishment, at least you can achieve the deterrent effects of punishment by communicating to him the raw consequences of his crimes as well as return him to society which gives him a reason to reform and become better.
Thus either way, the primary end of both is the same, reform, whether within prison or without, with deterrence as the secondary objective in the event that he wants to be let out immediately.
However there are some crimes so horrible, such as capital offences, for which mere stripes do not seem to be adequate. We now turn to these.
Dismemberment for Capital Offences
There are some who are so hopelessly irreformable and/or too risky to let out into society given the great harm they would cause, i.e. psychopaths or serial killers or repeat capital offenders. Because there is little to no future good to be gained from keeping them around but only much costs, therefore their executions would be justified, this is harmonious with the consequentialist principle that punishment aims at a future good.
How about those who commit grievous capital offences and yet are not recalcitrant nor irreformable? For these I would recommend dismemberment in place of a life sentence or execution.
Dismembering the offending limb of a criminal would have serve the objectives outlined above, for both himself and society. The sheer horror of living without a limb would serve as an effective deterrent to all future offenders. For the offender himself, the loss of the offending limb would serve as a permanent mark of shame, both for himself and to others, and a reminder of the gravity of his crimes that he might not offend again. And of course, disability would reduce the risk of him being able to offend again. However this is also in harmony with the Hobbesian principle that punishment should aim at future good, and by allowing him to live, we give him a chance to repent of his crime and to reform himself.
While it is a no-brainer common sense that obviously losing a limb is preferable to losing a life, it may seem prima facie intuitive that it might be better to remain in jail, for the rest of one’s life, than to lose a limb. However I wish to call this assumption into doubt by the following considerations:
Is it truly better to keep all of one’s limbs while being stuck in prison for the rest of one’s life, when being so stuck would deny one the chance to experience all of life’s riches and possibilities in the outside world? What is the point of keeping all of one’s limbs if one’s use of it is confined to the prison walls? What is the point? It seems rather plausible to me that being condemned in prison for life would simply condemn that person to utter despair as there is nothing more for him to life for.
Losing a limb on the other hand is a horribly traumatic event, (which is precisely the point if it is to have deterrent effects), but one still has life’s possibilities and experiences in the outside world to enjoy, family, friends, etc, albeit without a limb. All the previous arguments about how pain from stripes is preferable to prolong despair in prison can be easily adapted here, the lost of a limb is preferable to the lost of all of life’s possibilities in permanent imprisonment.
We could simply set up another thought experiment here. If you gave all life imprisonment prisoners a choice, lose a limb and be set free, or stay in jail for life, which would he choose?
Conclusion: Respecting Human Agency and Society’s Reformative Capabilities
My proposals may sound horrible, however upon deeper reflection, it is a rather “liberal” proposal in that it is focused upon the hope of reform and restoration for the offender. It prefers to give people a chance to reintegrate with society and to benefit from society’s goodness than to deny him all of society’s reforming potential by locking that person up, whether temporarily or for life.
But most of all my proposal respects human agency. Repentance and rehabilitation has to be voluntary. Offenders are reminded that at the end they are still free agents who chose their crimes, and can now proceed to choose their civic restitution and manner of restoration to society. My “exchange policy” gives back to criminals a measure of agency and dignity in choosing their form of restitution to the commonwealth, either in maintaining the public expectation that disobedience to the law is to be feared by receiving the stripes, or be restored as citizens through reform in prison. Thus they can choose their restoration by the state in prison or in the world after they have received their stripes.
For more serious capital offences, a more permanent and visible mark of their crimes would be necessary to deter them and others from committing it. As such dismemberment and release would be in harmony with all the goals above, including that of giving a person a chance to become better in the world and to live in it. (Alternatively maybe we could also have a life imprisonment or lose a limb scheme.) Finally executions are only reserved for those who are capital offenders and who clearly pose a high risk of reoffending.
In the end the general rule of my proposal is:
Incarcerate and reform those willing to be reformed by the state.
Maintain the fear of disobedience with stripes for those who choose their reform in the world.
Dismember capital offenders to leave a permanent mark of horror.
As I discuss this novel proposal I find my ideas evolving in response to some of the good objections of others.
One objection to the dismemberment over life imprisonment scheme is that a dismemberment cannot be reversed in the same way that the death penalty cannot be reversed if there is a miscarriage of justice.
It then struck me that there could be a reasonable modification to my proposal to accommodate this objection. Instead of compulsory dismemberment we simply put dismemberment as an alternative to perpetual imprisonment. If a court of law finds someone guilty of a capital offence, he would be given a choice, he could choose to be dismembered, and then be set free at once, or he could choose to remain behind bars until he is vindicated.
Now only the convict himself can truly know whether he has committed the crime. Thus even if a court of law finds him guilty, he can choose to remain in prison, hoping to be vindicated eventually. But if he knows that he has been rightly condemned, then he is given the option of getting dismembered so that he can return back to society immediately.
This isn’t a choice which needs to be made at sentencing. The convict can choose anytime to get dismembered, but in the mean time he remains in prison until he decides to do so.
I think one aspect of my proposal which I find advantageous over the status quo is that it gives the offender considerable agency over their punishment and over their future. They are given a choice how to proceed with their lives after their offence, i.e. remain in jail and receive state help in rehabilitation or await vindication, or be set free at once and let the outside world change them by going through stripes or dismemberment.
There is an interesting case in Aceh where two man was caught in a crime where they can choose to be subject to national law and be jailed, or Islamic law and be caned, they chose to be caned. A tiny anecdotal evidence for my essential claims.