Abstract
The reform of offenders is often said to be one of the morally legitimate aims of punishment. After briefly surveying the history of reformist thinking I examine the ‘quasi-reform’ theories, as I call them, of H. Morris, J. Hampton and A. Duff. I explain how they conceive of reform, and what role they take it to have in the criminal justice system. I then focus critically on one feature of their conception of reform, namely, the claim that a reformed offender will obey the relevant laws for moral reasons. I argue on consequentialist grounds that this requirement is objectionable. Consequentialism has always accepted reform as one legitimate goal of punishment, but it will not accept the narrowly moral conception of it that we find in the quasi-reform theorists. I situate my criticism within criminal law theory, but I also consider the claim in moral theory that acting from moral motives has intrinsic value.
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Notes
In an essay of 1896 J. M. E. McTaggart attributed a ‘reformatory’ theory to Hegel (McTaggart 1918, 132 f). O. W. Holmes had earlier spoken generically of a reform view. See next note.
Morris seems to have in mind his earlier theory (1976). There he criticizes the claim that criminal behavior is a sort of illness that calls for therapy, not punishment. The therapeutic interventions that could be taken with regard to those who break the law might completely and forcibly transform their personalities (Morris 1976, 42–3).
I take it that Bentham (1982) and Sidgwick (1908) do not claim that moral reform is necessarily better for the person who is changed in this fashion. However, if a consequentialist accepted certain ‘Objective List’ conceptions of well-being she could include virtue as a component of a person’s well-being, so that bringing about her moral improvement would be good for her.
In his brief explicit discussion of reform (Duff 2001, 108–9) he does not say anything about the offender’s motive or reason for conforming to the law. But there are clear suggestions that he believes her motive will be moral, in some sense. First, Duff always stresses the continuity of aims in the various phases of the criminal process. And when discussing the aims of the trial and conviction phases, he explicitly says that they seek to have offenders “recognize the wrongfulness of their past crimes and refrain from future crimes for that reason” (2001, 81). This suggests that punishments will have the same aim. Second, the institutional processes that Duff discusses as, initially, alternatives to punishments but, in his view, conceivably instances of it—‘criminal mediation’, probation, specialized programs for abusive men, and community service orders—are all described as ways of confronting offenders with the moral wrongfulness of their own behavior (2001, 93–4, 98, 101, 103, 105). It is a natural inference to read Duff as adding that the desired result of such processes is a commitment by the offender to refrain from the relevant behavior because it is wrong. Finally, scattered remarks suggest exactly this conclusion: the goal in punishing is to have offenders refrain from crime because it is morally wrong or obey the law because it is morally right (1986, 263; Cp. 272, 273, 278). See also: “her recognition of the wrong she has committed” (2001, 98); “the thought that such conduct would be wrong” (2001, 118); “to see and accept that it was wrong” (2001, 122).
Kant made an a priori philosophical argument to the effect that legal obligations in general “can be only external” (Kant 1991, 46). T. H. Green, apparently thinking of Kant’s claim, takes it to mean that legal obligations “are not duties of acting from certain motives” (Green 1986, 19). On the ‘externality’ of legal obligation in general, see also Hart (1961, 168–76). Writers focused on Anglo-American criminal law tend to accept as established doctrine that motives are generally irrelevant in the formulation of offenses and justifications, although they might be relevant to other issues like mitigation (Holmes 1963, 42; Hall 1960, 83–93; Gross 1979, 103–13). Compare Duff (2001, 67–8), which appeals to his ‘liberal communitarianism’, and Duff (2002, 168–74).
The deontology of W. D. Ross is ‘objectivist’ about moral right and wrong, in the sense that it asserts that motives never make a difference in the rightness or wrongness of an action (Ross 1930, 7). Ross seems sympathetic to the claim that the substantive criminal law should be objectivist in an analogous way (1930, 60). The moral theory of Kant may be objectivist about moral rightness and wrong (Sverdlik 2011, chs. 5 and 6).
For possible exceptions, see Holmes (1963, 52–3); Hall (1960, 89, n. 76); Gross (1979, 105–6); Gardner (2007, 91–120, esp. 107–8; 141–53, esp. 146–9); Husak (2010). Cp. Duff (2002, 174–9). Even writers who believe that on some occasions some motives legitimately matter in the substantive criminal law do not assert that the sense of duty is ever such a motive.
The question applies to the actions described as morally worthy in Markovits (2010). Markovits asserts that an action motivated by the correct moral reasons has moral worth, even if the agent does not think of her action as morally obligatory.
It is true that there are forms of consequentialism that assert, in effect, that acting from certain motives has intrinsic value. And, as I noted, it is possible for a consequentialist to hold that virtue is a component of a person’s well-being. I will return to these possibilities below.
The same point would seem to hold with respect to any theorist, consequentialist or otherwise, who claims (like Plato) that virtue is necessarily good for a person. But there are further issues that arise if punishment is to be imposed for the good of the offender herself.
A careful re-formulation of Hart’s remarks would need to assess the validity of the criticism that quasi-reformists make that Hartian ideas allow one to say that interventions like involuntary neurosurgery count as reform.
References
Allen, F. (1981). The Decline of the Rehabilitative Ideal. New Haven: Yale University Press.
American Friends Service Committee. (1971). Struggle for Justice. New York: Hill and Wang.
Bennett, C. (2008). The Apology Ritual. Cambridge, England: Cambridge University Press.
Bentham, J. (1982). An Introduction to the Principles of Morals and Legislation. London: Methuen. Published 1789.
Cruft, R., Kramer, M., and Reiff, M., (Eds.) (2011). Crime, Punishment and Responsibility: The Jurisprudence of Antony Duff. Oxford: Oxford University Press.
Duff, R. A. (1986). Trials and Punishment. Cambridge, England: Cambridge University Press.
Duff, R. A. (2001). Punishment, Communication, and Community. Oxford: Oxford University Press.
Duff, R. A., (2002). Virtue, Vice, and Criminal Liability: Do We Want an Aristotelian Criminal Law? Buffalo Criminal Law Review 6 (1), 147–84.
Duff, R. A. (2007). The Intrusion of Mercy. Ohio State Journal of Criminal Law 4 (2), 361–87.
Duff, R. A. (2011). In Response. In Cruft, Kramer, Crime, 375–7.
Ewing, A. C. (1929). The Morality of Punishment. London: Kegan, Paul, Trench, Trubner.
Farrington, D. and Webb, B. (2006). A Half Century of Randomized Experiments on Crime and Justice. Crime and Justice 34, 5–132.
Feinberg, J. (1984). Harm to Others. Oxford: Oxford University Press.
Gardner, J. (2007). Offences and Defences Oxford: Oxford University Press.
Green, T. H. (1986). Lectures on the Principles of Political Obligation. Cambridge, England: Cambridge University Press. Published 1883.
Gross, H. (1979). A Theory of Criminal Law. New York: Oxford University Press.
Hall, J. (1960). General Principles of Criminal Law. 2nd ed. Indianapolis: Bobbs-Merrill.
Hampton, J. (1984). The Moral Education Theory of Punishment. Philosophy and PublicAffairs 13 (3), 208–38.
Hampton, J. (2007). The Intrinsic Worth of Persons. New York: Cambridge University Press.
Hart, H. L. A. (1961). The Concept of Law. Oxford: Oxford University Press.
Hart, H. L. A. (1968). Prolegomenon to the Principles of Punishment. Punishment and Responsibility. Oxford: Oxford University Press, 1–27.
Hegel, G. W. F., (1991). Elements of the Philosophy of Right. H. B. Nisbet (Trans.) Cambridge, England: Cambridge University Press. Published 1821.
Holmes, O. W., Jr. (1963). The Common Law. Cambridge, Mass.: Harvard University Press. Published 1881.
Hurka, T. (2001). Virtue, Vice, and Value. Oxford: Oxford University Press.
Husak, D.(2010). Motive and Criminal Liability. The Philosophy of Criminal Law. Oxford: Oxford University Press, 53–68.
Kant, I. (1964). Groundwork of the Metaphysic of Morals. H. J. Paton. (Trans.) New York: Harper and Row. Published 1785.
Kant, I. (1991). The Metaphysics of Morals. M. Gregor (Trans.) Cambridge, England: Cambridge University Press. Published 1796.
MacKenzie, D. (2006). What Works in Corrections. Cambridge, England: Cambridge University Press.
Markovits, J. (2010). Acting for the Right Reasons. Philosophical Review 119 (2), 201–42.
Matravers, M. (2000). Justice and Punishment. Oxford: Oxford University Press.
Matravers, M. (2011). Duff on Hard Treatment. In Cruft, Kramer, Crime, 68–83
McTaggart, J. M. E. (1918). Punishment. Studies in Hegelian Cosmology. 2nd ed. Cambridge: Cambridge University Press, 129–50.
Moberly, W. (1968). The Ethics of Punishment. Hamden, Conn.: Archon Books.
Morris, H. (1976). Persons and Punishment. On Guilt and Innocence. Berkeley, CA: University of California Press, 31–58.
Morris, H. (1981). A Paternalistic Theory of Punishment. American Philosophical Quarterly 18 (4), 263–71.
Murphy, J. (2011). Repentance, Mercy, and Communicative Punishment. In Cruft, Kramer, Crime, 27–36.
Plato (1979). Gorgias. T. Irwin (Trans.) Oxford: Oxford University Press.
Rashdall, H. (1924). The Theory of Good and Evil. 2nd ed. London: Geoffrey Cumberledge.
Rawls, J. (1955). Two Concepts of Rules. Philosophical Review 64 (1), 3–32.
Reiff, M. (2005). Punishment, Compensation, and Law. Cambridge, England: Cambridge University Press.
Ross, W. D. (1930). The Right and the Good. Oxford: Oxford University Press.
Sechrest, L., White, S. and Brown, E., (Eds.) (1979). The Rehabilitation of Criminal Offenders: Problems and Prospects. Washington: National Academy of Sciences.
Shafer-Landau, R. (1991). Can Punishment Morally Educate? Law and Philosophy 10 (2), 189–219.
Sidgwick, H. (1908). The Elements of Politics. 3rd ed. London: Macmillan.
Sverdlik, S. (2011). Motive and Rightness. Oxford: Oxford University Press.
Tasioulas, J. (2006). Punishment and Repentance. Philosophy 81 (316), 279–322
Tasioulas, J. (2011). Where is the Love? In Cruft, Kramer, Crime, 37–53.
Tudor, S. (2001). Accepting One’s Punishment as Meaningful Suffering. Law and Philosophy 20 (6), 581–604
Acknowledgments
I am grateful for comments from two referees, Douglas Husak, Robert Howell, Luke Robinson and Justin Fisher.
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Sverdlik, S. Punishment and Reform. Criminal Law, Philosophy 8, 619–633 (2014). https://doi.org/10.1007/s11572-013-9226-9
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DOI: https://doi.org/10.1007/s11572-013-9226-9