Jul 10, 2021
How Criminal Punishment Should Work
On the topics of adult vs juvenile justice and prison education
To come to any conclusions about how criminal punishment should work, what punishment is for must first be understood.
In an effort to find a good answer to that question I will examine two philosophical theories of punishment, Retribution theory, and Moral Education theory, and argue that the former is a better theory on which to base a system of criminal punishment.
Following that, I will then compare aspects of the current American criminal legal system to what Retribution theory says is how it should work.
There are two claims that hold up Retribution theory: first, it is claimed that when someone commits an immoral/criminal act (the two will be equated for the purpose of philosophical analysis), they create a wrong that must then be righted; the victim, and society at large due to the criminal’s violation of the social contract, were harmed, and the only way to make up for that harm is to harm the criminal back.
Aristotle, advocating this system, wrote that “the law looks only to the difference created by the injury and treats men as previously equal, where the one does, and the other suffers injury… and so this unjust, being unequal, the judge endeavors to reduce to equality again.”(1)
The second claim that justifies retribution comes from Immanuel Kant and is that, because, according to him, people must not be treated as means towards some end but rather as ends in themselves, those who commit immoral/criminal acts do treat others as means to their own end and therefore deserve to be treated the same way.
“The undeserved evil which anyone commits on another is to be regarded as perpetrated on himself.”(2)
Moral Education theory, on the other hand, states that:
The purpose of punishment isn’t either of these claims, to restore equality or to give people what they deserve, but rather that it is to teach the criminal about morality.
Moral education theory is similar to Deterrence theory in that it recognizes the societal goal of deterring crime, but it differs from this theory as well by saying that deterrence will be a result of the educative purpose of punishment and not the purpose of punishment itself.
Jean Hampton writes that “punishment is intended as a way of teaching the wrongdoer that the action she did (or wants to do) is forbidden because it is morally wrong and should not be done for that reason.”(3)
I believe the Retribution theory is right and the Moral Education theory is wrong because the latter fails to recognize people as morally autonomous beings.
Morally autonomous beings have the freedom to act as they will, but also the responsibility to not do wrong.
Should a free being choosing to act immorally/criminally, they have abandoned their responsibilities, and therefore give up their freedom.
Kant and Aristotle’s principles of retributive justice are upheld by treating those who commit crimes as equals, equally autonomous, and equally responsible for their actions as anyone else, and therefore society respects their choices by treating them as they treated others.
In contrast, Moral Education theory says that those who act immorally/criminally just don’t know their responsibilities yet, so they must be taught them. Hampton uses an example to explain this point: “a father who punishes his child explains that he does so in order that the child “learn his lesson.”
But the reason a moral education type of punishment is used for children is that they are not morally autonomous beings; children do not, nor are they yet expected to, know right from wrong, and thus they are under the supervision and authority of their parents.
Adults are free from supervision and authority precisely because they are expected to know right from wrong, thus they deserve retributive justice.
As just put forward, it is correct for Moral Education theory to be applied to children, which is partially what the juvenile justice system is for.
The Juvenile Law Center writes that
“Since the establishment of the first juvenile court in Cook County, Illinois in 1899, states have recognized that children who commit crimes are different from adults; as a class, they are less blameworthy, and they have a greater capacity for change.”(4)
As an example, in Roper v. Simmons (2005), the Supreme Court ruled that capital punishment, a punishment allowable under Retribution theory, was “cruel and unusual punishment” prohibited by the Eighth Amendment for a juvenile: “[a] lack of maturity and an underdeveloped sense of responsibility are found in youth more often than in adults and are more understandable among the young.”(5)
Capital punishment, by its nature, prevents moral education or rehabilitation, another, similar, goal of juvenile justice, therefore it is wrong as a punishment for children.
Now, while capital punishment is a difference between Moral Education theory and Retribution theory and their respective legal systems, and while there are still many problems with the juvenile justice system, some of them stemming from treating juveniles as adults, and likewise there are many problems with the criminal legal system, some of them stemming from treating adults as children, one specific aspect of both theories and systems should actually be the same: prison education.
It may at first seem counter to my whole argument to claim that Retribution theory warrants educating inmates, but consider that this is a philosophical theory of what the purpose of punishment is, and that has been established as giving the criminal what they deserve.
However, even Kant recognized that doing exactly what the criminal did back to them would be problematic; should we expect the state to rape rapists? So he advocated a system of proportional punishment, and the US has created that system through prisons.
Considering the removal of a person’s freedom as their punishment, then the more severe their crime, the more of their freedom should be taken away through longer sentences.
Thus, education within prisons shouldn’t interfere with the primary purpose of punishment, nor its implementation, so it ought to be provided to help advance the secondary goals of moral education, deterrence, and rehabilitation.
The Prison Studies Project writes that “in 1965, President Lyndon Johnson signed the Higher Education Act, which allowed people in prison to begin receiving Pell Grant funding for college courses in 1972,”(6) and due to the fact that most inmates would struggle to pay for their own education, these grants were essential.
However, “In 1994, President Bill Clinton signed into law the Violent Crime Control and Law Enforcement Act, making incarcerated people ineligible to receive Pell Grants and eliminating their access to postsecondary prison education,” and issues of funding and access persist to today.
One reason for this situation was illuminated during the 2014 New York gubernatorial race where Republican candidate Rob Astorino responded to Governor Andrew Cuomo’s proposal to spend more on college education in prisons.
Astorino argued it is unfair towards everyone who has to spend their own money to go to college, joking that instead of saving for his son “maybe we should sit him down and explain how to rob a bank.”(7)
Due to this kind of backlash Governor Cuomo ended up backing down, but Astorino’s argument is incorrect if the US prison system is to follow the Retribution theory.
Retribution theory doesn’t require the state to be any harder on criminals than is called for by a proportional response to their crime through the removal of their freedom; withholding education need not be part of the punishment.
Indeed, Astorino’s argument only works if his son values his freedom at a cost lower than the tuition he’s expecting to pay.
In conclusion, while the Retribution theory ought to be applied to the criminal legal system, the Moral Education theory is a better fit for the juvenile justice system, and both theories in fact allow for more investment in educating inmates in order to reduce recidivism.
A 2013 Rand Corporation study found that “inmates who participate in correctional education programs have 43 percent lower odds of returning to prison than those who do not,” and the findings also “suggest that prison education programs are cost-effective, with a $1 investment in prison education reducing incarceration costs by $4 to $5 during the first three years post-release.”(8)
It seems that there is little reason then not to expand prison education.
More on Similar Topics
Works Cited
- Joel Meyer, Reflections on Some Theories of Punishment, 59 J. Crim. L. & Criminology 595 (1969). https://scholarlycommons.law.northwestern.edu/jclc/vol59/iss4/12/.
- Kant, Immanuel. “The Doctrine of Right.” Moral Theory: an Introduction, by Mark Timmons, Rowman & Littlefield Publishers, Inc., 2013, pp. 478–480.
- Hampton, Jean. “The Moral Education Theory of Punishment.” Philosophy & Public Affairs, vol. 13, no. 3, 1984, pp. 208–238.
- “Youth in the Justice System: An Overview.” Juvenile Law Center, jlc.org/youth-justice-system-overview.
- Roper v. Simmons, 543 US 551 (2005).
- “Overview of Prison Education Policies.” Prison Studies Project, 15 Sept. 2011, prisonstudiesproject.org/overview-of-prison-education-policies/.
- Adler, Jerry. “The Amazing Results When You Give a Prison Inmate a Liberal Arts Education.” Smithsonian.com, Smithsonian Institution, 1 Nov. 2014, www.smithsonianmag.com/innovation/amazing-results-when-you-give-prison-inmate-liberal-arts-education-180953041/?page=2.
- Lois M. Davis. “Education and Vocational Training in Prisons Reduces Recidivism, Improves Job Outlook.” RAND Corporation, 22 Aug. 2013, www.rand.org/news/press/2013/08/22.html.
