Abstract
Since 1900, debates about the justification of punishment have also been debates about the cause of crime. In the early twentieth century, the rehabilitative ideal of punishment viewed mental illness and dysfunction in individuals as the cause of crime. Starting in the 1970s, retributivism identified the immorality of human agents as the source of crime, which dovetailed well with the “tough-on-crime” political milieu of the 1980s and 1990s that produced mass incarceration. After surveying these historical trends, Wirts argues for a social critical view that crime is best understood as a product of an unjust society, not faulty human beings. This view should take the lessons learned by the critiques of rehabilitation, however, and resist the tendency to reduce human beings to recipients of social services.
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Notes
- 1.
While Victor Bailey (2019) describes the rehabilitative ideal in his book, he also critiques the standard story that the rehabilitative ideal was as dominant in the early twentieth century.
- 2.
Though rehabilitation is not very common penal practice today, it does undergird the civil commitment system in the United States. Indeterminate or permanent incapacitation lives on through this practice, where people who are not convicted due to mental illness or those with some kinds of disorders who are committed without ever committing a crime are incapacitated in “hospitals.” See, for example, Hamilton-Smith (2018).
- 3.
In the 1950s, John Rawls and H. L. A. Hart both advanced mixed theories of punishment that drew both on utilitarian justifications for punishment and on some retributivist tenets. In 1955, Rawls introduced his approach to punishment in his famous “Two Concepts of Rules.” There, Rawls argued that, while the practice of punishment itself was justified by appealing to utilitarian principles, the actual application of the practice through rule to any particular person was justified by the retributive principle of guilt (1955, 4–7).
- 4.
The Royal Commission on Capital Punishment that convened from 1949 to 1953 officially recommended that the M’Naghten Rule be amended along similar lines as the MPC test. The Commission recommended the following language: “The jury must be satisfied that, at the time of committing the act, the accused, as a result of disease of the mind (or mental deficiency) (a) did not know the nature and quality of the act or (b) did not know that it was wrong or (c) was incapable of preventing himself from committing it” (Royal Commission on Capital Punishment 1953, 111). To count as diminished responsibility under the Homicide Act of 1957, a criminal defendant must show that they were “suffering from such abnormality of mind (whether arising from a condition of arrested or retarded development of mind or any inherent causes responsibility, or induced by disease or injury) as substantially impaired [their] mental responsibility” (Homicide Act of 1957 [5 & 6 Eliz. 2 Ch. 11], Pt. 1, sec. 2).
- 5.
- 6.
Michael Davis helpfully argued that we should shed the utilitarian/retributivist distinction and replace it with an empirical/conceptual conception (2009, 89).
- 7.
- 8.
Royko’s disdain for criminals also took on racial tones in his 1993 article contrasting Rodney King to Barbara Meller Jensen, a German woman who was murdered when she got lost and ended up in a “low-income, high-crime area” (Royko 1993). He went on to complain that King’s beating got too much attention, while Jensen’s murder was quickly forgotten:
Despite his troubles, Rodney King is a lucky guy. He is a criminal by trade, having served time for armed robbery. He was beaten after driving drunk and being chased at dangerously high speeds, putting innocent motorists at risk. He was a social menace. In contrast, Mrs. Jensen was a law-abiding, useful person: a therapist for handicapped children. She had gone to Florida because her husband, a biologist, needed solitude to complete a book. She wasn’t a threat to anyone. (Royko 1993)
Of course, one cannot impute every view that Royko articulated in his decades as a well-loved columnist to Moore just because Moore quoted him at length in one paper in 1988. But the sentiment of these two columns is consistent. Those who commit crimes deserve harsh punishments, not our sympathy. Because we care about the victims of crimes, we are justified in retributive feelings, and the institutions of the state should carry out punishments in accordance with these retributive feelings.
- 9.
- 10.
For a nuanced discussion of the legitimacy of punishing poor Black people in the United States, see Shelby (2016).
References
Adelsberg, Geoffrey, Lisa Guenther, and Scott Zeman. 2015. Death and Other Penalties: Philosophy in a Time of Mass Incarceration. New York: Fordham University Press.
Alexander, Michelle. 2012. The New Jim Crow: Mass Incarceration in the Age of Colorblindness. Rev. ed. New York: New Press.
Allen, Francis A. 1981. The Decline of the Rehabilitative Ideal: Penal Policy and Social Purpose. New Haven, CT: Yale University Press.
Alschuler, Albert W. 2003. “The Changing Purposes of Criminal Punishment: A Retrospective on the Past Century and Some Thoughts about the Next.” University of Chicago Law Review 70, no. 1 (Winter): 1–22.
Bailey, Victor. 2019. The Rise and Fall of the Rehabilitative Ideal, 1895–1970. Abingdon, UK: Routledge.
Blumstein, Alfred, and Soumyo Moitra. 1979. “An Analysis of the Time Series of the Imprisonment Rate in the States of the United States: A Further Test of the Stability of Punishment Hypothesis.” Journal of Criminal Law & Criminology 70, no. 3 (Autumn): 376–90.
Dagger, Richard. 1993. “Playing Fair with Punishment.” Ethics 103, no. 3 (April): 473–88.
Davis, Angela Y. 2003. Are Prisons Obsolete? New York: Seven Stories.
Davis, Michael. 1990. “Recent Work in Punishment Theory.” Public Affairs Quarterly 4, no. 3 (July): 217–32.
———. 2009. “Punishment Theory’s Golden Half Century: A Survey of Developments from (about) 1957 to 2007.” Journal of Ethics 13, no. 1 (January): 73–100.
Feinberg, Joel. 2008. “The Classic Debate.” In Philosophy of Law, 8th ed., edited by Joel Feinberg and Jules Colman, 625–29. Belmont, CA: Wadsworth.
Hamilton-Smith, Guy. 2018. “The Endless Punishment of Civil Commitment.” Appeal, September 4. https://theappeal.org/the-endless-punishment-of-civil-commitment/.
Hampton, Jean. 1992. “Correcting Harms versus Righting Wrongs: The Goal of Retribution.” UCLA Law Review 39, no. 6 (August): 1659–702.
———. 1998. “Punishment, Feminism, and Political Identity: A Case Study in the Expressive Meaning of the Law.” Canadian Journal of Law and Jurisprudence 11, no. 1 (January): 23–45.
Hart, H. L. A. 2008. Punishment and Responsibility: Essays in the Philosophy of Law. 2nd ed. Oxford: Oxford University Press.
Legal Information Institute. 2022a. “Model Penal Code Insanity Defense.” Wex Legal Dictionary. Cornell Law School. Accessed April 6. https://www.law.cornell.edu/wex/model_penal_code_insanity_defense.
———. 2022b. “M’Naghten Rule.” Wex Legal Dictionary. Cornell Law School. Accessed April 6. https://www.law.cornell.edu/wex/m%27naghten_rule.
Moore, Michael S. 2010. “The Moral Worth of Retribution.” In Responsibility, Character, and the Emotions: New Essays in Moral Psychology, edited by Ferdinand Schoeman, 179–219. Cambridge: Cambridge University Press.
Morris, Herbert. 1968. “Persons and Punishment.” Monist 52, no. 4 (October): 475–501.
———. 1981. “A Paternalistic Theory of Punishment.” American Philosophical Quarterly 18, no. 4 (October): 263–71.
Morse, Stephen J. 2021. “Before and after Hinckley: Legal Insanity in the United States.” Faculty Scholarship at Penn Law. 2252. https://scholarship.law.upenn.edu/faculty_scholarship/2252.
Murphy, Jeffrie G. 1973. “Marxism and Retribution.” Philosophy & Public Affairs 2, no. 3 (Spring): 217–43.
Pfaff, John F. 2017. Locked In: The True Causes of Mass Incarceration—and How to Achieve Real Reform. New York: Basic.
Rawls, John. 1955. “Two Concepts of Rules.” Philosophical Review 64, no. 1 (January): 3–32.
Reiman, Jeffrey. 2007. “The Moral Ambivalence of Crime in an Unjust Society.” Criminal Justice Ethics 26, no. 2 (Summer/Fall): 3–15.
Richie, Beth E. 2012. Arrested Justice. Arrested Justice: Black Women, Violence, and America’s Prison Nation. New York: New York University Press.
Royko, Mike. 1981. “Nothing Gained by Killing a Killer? Oh Yes, There Is.” Los Angeles Times, March 13.
———. 1993. “Rodney King and a Double Standard.” Chicago Daily Tribune, April 6. https://www.chicagotribune.com/news/ct-xpm-1993-04-07-9304070056-story.html.
Rothman, David J. 1990. The Discovery of the Asylum: Social Order and Disorder in the New Republic. Rev. ed. Boston: Little, Brown.
Royal Commission on Capital Punishment. 1953. Royal Commission on Capital Punishment, 1949–1953: Report. London: H. M. Stationery Office.
Sechrest, Lee, Susan O. White, and Elizabeth D. Brown, eds. 1979. The Rehabilitation of Criminal Offenders: Problems and Prospects. Washington, DC: National Academy of Sciences.
Shelby, Tommie. 2016. “Punishment.” In Dark Ghettos: Injustice, Dissent, and Reform, 228–51. Cambridge, MA: Belknap.
Sher, George. 1987. Desert. Princeton, NJ: Princeton University Press.
Stolberg, Sheryl Gay, and Astead W. Herndon. 2019. “Lock the S.O.B.’s Up: Joe Biden and the Era of Mass Incarceration.” New York Times, June 25. https://www.nytimes.com/2019/06/25/us/joe-biden-crime-laws.html.
von Hirsch, Andrew. 1985. Past or Future Crimes: Deservedness and Dangerousness in the Sentencing of Criminals. New Brunswick, NJ: Rutgers University Press.
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Wirts, A.M. (2023). Is Crime Caused by Illness, Immorality, or Injustice? Theories of Punishment in the Twentieth and Early Twenty-First Centuries . In: Altman, M.C. (eds) The Palgrave Handbook on the Philosophy of Punishment. Palgrave Handbooks in the Philosophy of Law. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-031-11874-6_4
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