Punishment

What are we trying to achieve?

One of Perth's most experienced criminal lawyers, Tom Percy KC, has publicly questioned the effectiveness of imprisonment.

It raises a deceptively simple question:

Does our present system of punishment work?

But before we can answer that, surely we must ask another question:

What do we mean by “work”?

If the purpose of punishment is to reduce offending, rehabilitate those who offend and make society safer, then those outcomes should provide some measure of whether our approach is succeeding.

But perhaps punishment serves another purpose.

Is it intended to deter?

To protect society?

To express society's condemnation of wrongdoing?

To make an offender suffer because they have caused suffering?

And at what point does just punishment become revenge?

That last question may be uncomfortable, because it requires us to examine not only the person being punished, but ourselves.

Before we cast the first stone, perhaps our first port of call should be our own motives.

I have a personal reason for asking this question.

In my own case, I was sentenced to ten years' imprisonment with hard labour.

When I entered prison, I was assigned to the carpentry shop. There I could work, learn a trade and serve my sentence in reasonably tolerable circumstances.

Yet prisoners sentenced to what was called light labour could be assigned to the wood heap, struggling in the sun and rain chopping wood for the prison boiler.

I found the contradiction difficult to understand.

On paper, hard labour sounded like the harsher punishment.  In practice, my experience of it was quite different.

So, what was the sentence actually intended to achieve?

Was “hard labour” intended to rehabilitate me? To deter me? To punish me? Or did the words themselves serve another purpose—to demonstrate publicly that wrongdoing was being met with a severe response?

I cannot know what was in the judge's mind. But the experience left me with a question that has remained with me:

How much of punishment is designed to change the person being punished—and how much is designed to satisfy society's need to see that person punished?

And there is an even more uncomfortable question:

When does society's legitimate demand for justice cross the line into a desire for revenge?

What Are We Trying to Correct?

Perhaps we can begin with something much closer to home.

When a child does something wrong, what should a parent do?

Do we immediately impose the harshest punishment available?

Or do we begin by explaining what was wrong and why?

If that is enough, perhaps nothing more is required.

If it is not, we may impose a consequence.

If the behaviour continues, that consequence may become progressively more serious.

But surely the objective should not be to make the child suffer simply because we are angry.

The objective is to help the child understand, correct the behaviour and, where necessary, protect others from that behaviour.

The principle is simple:

Begin with the least restrictive response reasonably capable of achieving a legitimate purpose. Escalate only when a lesser response is inadequate, or when the seriousness of the harm requires it.

That does not mean there should be no punishment.

Nor does compassion require society to tolerate continuing harm.

There will be circumstances where imprisonment may be necessary to protect others.  

But if a less restrictive response can adequately achieve the legitimate purpose, what is gained by imposing a more severe one?

So why should we not at least ask a similar question of our criminal justice system?

What are we trying to achieve when we punish?

An adult citizen is not a child, and the State is not our parent.

But the underlying question remains useful:

Should we begin with punishment, or with the result we are trying to achieve?

If the legitimate purpose can be achieved without punishment, why punish?If a warning is sufficient, why impose a fine?If a community-based consequence is sufficient, why imprison?

And if none of those measures can adequately protect others from serious harm, then perhaps a greater restriction becomes necessary.

Starting at the lower end does not mean ignoring the seriousness of the conduct.

Some behaviour causes such grave harm, or presents such an immediate danger to others, that a stronger response may be necessary from the outset.

But there is another reason for caution.

Society had decided that I had committed a serious crime and sentenced me accordingly.

But society was wrong.

That gives me another reason to be cautious about punishment.

Once we give the State the power to punish, we must remember that the institutions exercising that power are human—and human institutions can make mistakes.

The greater the punishment we impose, the greater the consequences when we get it wrong.

Where should we draw the boundary?

A free society should be slow to restrict the speech and actions of its citizens merely because others disapprove of them.

Difference is not necessarily harm.

Offence is not necessarily injury.

Disagreement is not necessarily wrongdoing.

But freedom cannot mean an unlimited entitlement to inflict serious harm upon others.

So before invoking the power of the state against another person, perhaps we should ask:

Has serious harm been caused, or is there a sufficient risk of serious harm to justify intervention? 

Does society need to intervene?

What is the least restrictive intervention reasonably capable of achieving the legitimate purpose?

And only then:

What punishment, if any, is necessary?

We should be careful not to turn the machinery of punishment into a weapon against people merely because we dislike them, disagree with them, or disapprove of the way they live.

If punishment does not repair what can be repaired, does not make society safer, does not deter, does not rehabilitate, and serves no other legitimate purpose—

what exactly are we punishing for?

Perhaps that brings us back to the uncomfortable question with which we started.

Punishment may sometimes be necessary. At times it may need to be severe. Society has both a right and a responsibility to protect people from serious harm.

But severity alone cannot tell us whether a punishment is just.

We must first know what we are trying to achieve.

 And if, after guilt has been properly established, the only answer left is that we want the person who caused suffering to suffer in return, perhaps we should ask:

Is that justice—or revenge?