Learning Module

Punishment

MEET YOUR LECTURER

Barry Lam

Barry Lam is Associate Professor and Chair of the Philosophy Department at Vassar College, where he teaches about knowledge, rationality, the philosophy of language, life, death, and justice. He is also host and executive producer of Slate’s Hi-Phi Nation podcast, a show that blends philosophy with stories from everyday life, science, politics, the arts, and law. Season 4 of the show is dedicated to the philosophy of crime and punishment, taking the listener through the philosophical issues in criminal justice from criminalization, policing, imprisonment, and reintegration.

Lessons

1.

What Should We Criminalize: Moral Wrongs?

2.

What Should We Criminalize: The Common Good?

3.

Mens Rea Requirements in Criminalization

4.

Proportioning Verdicts and Punishments to Evidence

5.

Retributivist Justifications of Punishment

6.

Non Retributivist Justifications of Punishment

7.

Guilt and the Excuses

8.

Proportionality in Punishment

9.

Rule of Law for Discretion in Sentencing

10.

Should there be lifelong or permanent punishments?

Module Introduction

Administering criminal justice is one of the most coercive things a state can do to its own citizens. Lawmakers determine what counts as criminal, police determine who to arrest, detain, and in some cases even shoot, and judges decide how long the state can imprison a person, sometimes even execute them. Even after the official administration of punishment to a convicted offender is over, that person faces lifelong social consequences for their previous act. In liberal and democratic societies, the state claims to do all of this in our interest, and with our consent. What are the assumptions about justice and the morality of punishment underlying the practices of administering criminal justice, and are those assumptions sound?

Barry Lam, Chair and Associate Professor of Philosophy at Vassar College and producer of the Hi-Phi Nation podcast examines the philosophical assumptions underlying different stages of the criminal justice system, from beginning to end.

In the beginning is the need for lawmakers to decide what acts, and what states of mind, to criminalize. Our first series of videos look at the variety of reasons for these decisions, from dangers to the public, the need to solve messy social problems, to the demands of the public themselves. We examine what kinds of reasons are legitimate, and what kinds of reasons are illegitimate, when determining laws of criminalization.

In the next series of videos, we look at the relationship between moral responsibility and criminal responsibility. In everyday moral life, we know intuitively when to blame and when to excuse people who wrong us. How much of those practices carry over to how we punish criminal wrongdoers, and how much of them should carry over? We will look at the importance of intention and knowledge, and other states of mind, to moral responsibility, and look at the ways in which the law does and does not excuse criminal wrongdoers the way we excuse moral wrongdoers.

In our final series of videos, we will look at questions about why we should punish, how much, and who gets to decide these questions. We will examine views that say we should punish because it is good for the perpetrator, that we should punish because it is good for society, and that we should punish because perpetrators simply deserve it. We will look at theories that purport to tell us how much punishment a person deserves, and for how long, and we will look at the justice of giving judges, rather than the public or lawmakers, all of the power in determining lengths of punishment.

Learning Outcomes

Understand the philosophical issues surrounding what acts are criminalized and why.
Identify who has power in the criminal justice system and why they have such power.
Understand the connection between moral responsibility and criminal responsibility.
Identify the moral and political reasons for criminal punishment, and why those reasons may be contradictory.
Develop ways to question the criminal justice system based on your own moral and political commitments.

LESSON ONE

What Should we Criminalize: Moral Wrongs?

By the end of this lesson, you will be able to:

Apply the theory that we should only criminalize actions if they are intrinsic moral wrongs
Identify a primary justification for limiting criminalization to moral wrongdoings
Assess this theory of criminalization in light of its implications in a range of cases

Watch

Comprehending the argument

1. Which of the following actions is LEAST likely to be criminalized if we only criminalized malum in se actions?

Killing a family relative to inherit their wealth

Fantasizing about becoming a bank robber

Taking a container of cookies from a store without permission and without paying for it

Correct! Wrong!

2. Maya believes that the only actions the government should criminalize are moral wrongdoings. According to the video, which TWO of the following claims is Maya most likely to give to justify this belief of hers?:

Please select 2 correct answers

Criminal punishment should mirror our moral practices as much as possible

This makes it easier to know if an action you’re considering doing would be a crime

Restricting crimes to moral wrongdoings protects human freedom and autonomy

Correct! Wrong!

Evaluating the argument

Kathy wishes she could get the newest cell phone she keeps seeing ads for online, and comes up with an idea for how to get it. Below is the sequence of actions that end with her successfully getting the cell phone of her dreams. Choose the moment in the story that you think Kathy starts engaging in activities that should be criminalized.

1. Kathy watches the cell phone ad and loves what she sees, but realizes that she can’t afford the phone (start)
2. Kathy starts fantasizing about stealing some valuable object from her parents and then selling it to get the money
3. Kathy starts noticing all the valuable things in her parent’s home and thinking about which ones would be valuable enough but also easy enough for her to steal
4. Kathy makes a plan to sneak into her mom’s jewelry box and steal a necklace that’s worth a lot of money but that her mom never really wears
5. Kathy executes the plan, taking the necklace and hiding it in a pocket of her bag, until she can figure out where to sell it
6. Kathy finds a pawn shop, goes up to the counter and pulls out the necklace for the owner to assess its value
7. When the pawn shop owner offers an amount high enough for Kathy to afford the new phone, Kathy agrees, and sells him the necklace
8. Kathy uses the money from the sold necklace to buy the new phone
9. When she gets home, Kathy excitedly rips open the package, sets up the phone, and starts using it. (end)

LESSON TWO

What Should We Criminalize: The Common Good?

By the end of this lesson, you will be able to:

Explain how free riders can lead to collective action problems
Describe how criminal law can be used to solve collective action problems and promote the common good
Identify one key problem with this “governing through crime” approach to criminalization

Watch

Comprehending the argument

A key strategy in fighting the spread of a contagious virus in a country is to vaccinate a high enough percentage of the country’s population that “herd immunity” is achieved, leaving the virus without enough hosts to continue transmitting and surviving within the community. How might free riders create a collective action problem in a country’s effort to achieve herd immunity through mass vaccination?

Since herd immunity can be achieved without every single individual in the community getting vaccinated, some individuals decide not to bother getting the vaccine themselves, counting on enough of their fellow citizens to get vaccinated that the community threshold for herd immunity is achieved.

In this way, these individuals become “free riders,” reaping the benefits of everyone else’s willingness to get vaccinated without having to bear any of the logistical issues or minor health risks of getting vaccinated themselves.

As more and more people see the advantages of free riding, more and more people choose not to vaccinate themselves

At some point, enough people choose to become free riders that there aren’t enough people collectively acting to get themselves vaccinated, and the community therefore fails to achieve herd immunity, thereby putting everyone — including the free riders — at greater risk of infection.

1. Citing studies showing that the consumption of sugary drinks increases the risk of various health problems, the mayor of a large city proposes a law to criminalize and impose a steep fine on the sale of popular sugary drinks in the city. As someone who believes in “governing by crime,” which TWO of the following arguments is the mayor most likely to give to defend this proposal?

Please select 2 correct answers

It’s immoral to sell beverages that have been proven to put consumers’ health in danger, so shop owners that sell such drinks deserve to be punished

Even though people know sugary drinks are bad for them, they are too addicted to stop drinking, so the government has to create conditions that change their consumption behavior

The companies who produce these beverages have become too wealthy and need to pay their fair share for the problems they have helped to create

Criminalizing and fining the sale of these drinks makes this behavior unprofitable, so it’s the best way to stop store owners from continuing to contribute to this public health problem

Correct! Wrong!

2. According to the video, what is one undesirable consequence of the U.S. government’s decision to rely heavily on the criminal law to solve social problems?

U.S. citizens have greater incentive to find ways to create new social problems

The number of prisoners in the U.S. is now higher than that of any other country in the world

There are too many lawyers in the U.S.

More Americans have turned to drugs to deal with their problems

Correct! Wrong!

LESSON THREE

Mens Rea Requirements in Criminalization

By the end of this lesson, you will be able to:

Distinguish crimes with mens rea requirements from strict liability crimes
Recognize a central criticism of the use of mens rea requirements as a tool for social engineering
Evaluate arguments for and against the inclusion of mens rea requirements in criminal statutes

Watch

Comprehending the argument

1. In some U.S. states, selling alcohol to a minor can lead to a criminal conviction even if the seller believed that the customer was old enough to buy alcohol. Based on this description, how do these states classify the crime of selling alcohol to minors?

As a crime that requires mens rea

As a strict liability crime

As a common sense crime

Correct! Wrong!

2. Kant is opposed to social engineers in the government treating mens rea requirements in criminal law as a tool for promoting the common good because he believes doing so is morally equivalent to:

Taking revenge on a wrongdoer, with the idea that justice requires “an eye for an eye”

Trying to rehabilitate someone who is in prison for committing an egregious wrong

Scapegoating an innocent person as a means of preventing a violent riot

Correct! Wrong!

Evaluating the argument

Sarah went onto a popular online website and purchased a used laptop at a surprisingly great price, not knowing that the laptop she bought had been stolen by the seller. There's a law against buying stolen goods, and when police investigators discover Sarah’s purchase, they pick her up for questioning, during which she convinces them that it never even crossed her mind that the laptop might be stolen. In your opinion, should the police charge her with the crime of buying stolen goods? Which of the following answers most closely matches your opinion?

No, they shouldn’t. In fact, there shouldn’t be any laws against buying stolen goods. The only criminal is the person who stole the laptop. Other people, like Sarah, can’t be expected to investigate the proper ownership of every item they want to buy. There’s nothing wrong with her just looking to get the best deal she can.
No, they shouldn’t. It makes sense to have a law against buying stolen goods, but only if it is applied in a reasonable way, to prosecute people who intentionally buy stolen goods despite knowing they were stolen. Sarah clearly does not fit into this category, since she had no idea the laptop was stolen.
Yes, they should. Given the “surprisingly great price” of the laptop, it was Sarah’s responsibility to realize something suspicious might be going on, and to inquire further into the legitimacy of the sale before going through with it. By not doing so, she helped the thief make money from their crime and in this way became part of it.
Yes, they should. We criminalize the buying of stolen goods because it makes people less likely to buy them, thus making others less motivated to steal them in the first place. But this strategy only works if prosecution of the buyers often ends in their conviction and punishment -- a virtual impossibility if it requires proving the buyer made the illicit purchase intentionally. So despite Sarah’s probable innocence here, our fight against the scourge of theft requires eliminating any chance for buyers of stolen goods to make excuses as they contribute -- wittingly or not -- to the perpetuation of this societal evil.

LESSON FOUR

Proportioning Verdicts and Punishments to Evidence

By the end of this lesson, you will be able to:

Contrast several alternative systems of verdict options available to a jury as it determines the guilt of a defendant in a criminal trial
Explain how the frequency of plea deals affects which system of verdicts and punishments criminal defendants effectively face in the US
Evaluate arguments for and against adopting a proportionate system of verdict options in place of the binary system currently used in US criminal cases

Watch

Comprehending the argument

1. Yasmin is a juror in a criminal case. Based on all the evidence presented, Yasmin is pretty sure the defendant didn’t commit the crime. Although there are a couple of loose ends that leave her with a bit of uncertainty, she firmly believes that there’s not enough evidence to justify punishing him at all -- or even to justify having continued suspicions hanging over him after the trial. Which of the verdict systems discussed in the video would allow Yasmin to choose a verdict that most precisely reflects her judgment in this case?

The binary system used in the US (“Guilty” or “Not Guilty”)

The three-option system used in Scotland (“Guilty,” “Not Guilty,” or “Not Proven”)

The four-option system proposed by some philosophers (“Definitely Guilty,” “Probably Guilty,” “Probably Innocent,” or “Definitely Innocent”)

A percentage system, ranging from “0% Guilty” to “100% Guilty”

Correct! Wrong!

2. Which of the following statements about plea bargains in US criminal cases is NOT true?

Many more US criminal cases are settled through plea deals than through trial by jury

Because of the frequency of plea deals, the punishments given to “Guilty” defendants in US criminal cases tend to look more like the punishments imposed in a proportionate verdict system than like the punishments imposed in a binary verdict system

The frequency of plea bargains in the US means that many criminal defendants who end up serving prison time likely would have been set free if their case had gone to trial

Plea deals undermine the legitimacy of the US criminal justice system because they require that the defendant’s guilt be proven beyond a reasonable doubt

Correct! Wrong!

Evaluating the argument

In light of the arguments given in the video, which of the following statements best reflects your view on whether the US should stick with its current binary system or adopt a more proportionate system of verdicts for criminal cases?

The US should stick with its current binary system, whose very high burden of proof for guilt minimizes the chance of a truly innocent person being mistakenly found guilty and punished
The US should adopt a maximally proportionate system (like the percentage system), whose wide range of verdict options allows jurors and judges to issue verdicts and punishments that reflect as precisely as possible their degree of certainty in the defendant’s guilt
The US should adopt a moderately proportionate system (like the Scottish or four-option systems), whose limited range of verdict and punishment options allow jurors and judges to express their judgment with somewhat greater precision, but also ensure that relatively high levels of certainty of guilt must be met before a defendant receives any punishment or stigma whatsoever

LESSON FIVE

Retributivist Justifications of Punishment

By the end of this lesson, you will be able to:

Distinguish punishment from other ways a government might impose burdens on its population
Describe the retributivist justification of punishment
Classify and assess arguments for and against retributivism

Watch

Comprehending the argument

1. In some countries, every citizen is obligated to serve in the military for some minimum period of time despite the fact that such service is often dangerous, requires delaying certain life choices, and wouldn’t be voluntarily chosen by many. Does this government-mandated military service count as a form of punishment?

Yes, it knowingly imposes involuntary risks and burdens on citizens, so it counts as punishment

No, the risks and burdens involved aren’t harmful enough to count as punishment

No, the burdens aren’t being imposed with the specific aim of giving people their just deserts for wrongs they’ve committed, so they don’t count as punishment.

Correct! Wrong!

2. Declaring himself to be a retributivist, George argues that offenders should not be given access to substantial, degree-conferring educational programs while in prison. Which of the following lines of reasoning is George most likely to give in opposing education in prisons?

Such programs are a waste of money since they’re unlikely to make offenders into more ethical, law-abiding people

Educating offenders is asking for trouble since it will just give them the capacity to pursue their criminal projects more intelligently when they are released

Education is a privilege that enhances the learner’s life, and criminal offenders deserve punishment, not such privileges

Surveys of crime victims show that they are strongly opposed to prison education programs for those who perpetrated the crimes against them

Correct! Wrong!

Evaluating the argument

In your opinion, which of the following is the strongest argument against retributivist punishment?

LESSON SIX

Non Retributivist Justifications of Punishment

By the end of this lesson, you will be able to:

Distinguish consent-based justifications from social engineering-based justifications of punishment
Identify limitations in the effort to justify punishment on contractualist grounds
Use your understanding of several major challenges to social engineering justifications of punishment to criticize a concrete criminal law proposal

Watch

Comprehending the argument

1. Match each statement to the nearest justification of punishment:

Evaluating the argument

Citing studies showing that the consumption of sugary drinks increases the risk of various health problems, the mayor of a large city proposes a law to criminalize and impose a steep fine on the sale of popular sugary drinks in the city, in an effort to change the consumption patterns of people who are otherwise too addicted to these drinks to stop doing what they know is bad for them. The proposal was met with mixed responses from the public, with a substantial group of residents strongly opposed. In your opinion, which of the following lines of argument given by the opposition makes the most convincing case against this attempt to “govern by crime”?

Ineffectively designed: It’s outrageous to stigmatize store owners as criminals and likely put them out of business with massive fines merely for selling sugary drinks -- especially since the stores with the most to lose if forced to stop selling these products would be small businesses most frequently owned by people who already face more than their fair share of disadvantages within the community.
Ignores reasonable differences: While the aim of this proposal seems well-intentioned, the mayor has terribly miscalculated the incentive structure needed to promote healthier consumption choices. Not only are the proposed consequences excessively severe, but in some cases, the interests of sellers and consumers might lead to the creation of a black market for these drinks. Better to simply impose a small tax on these items; better yet to subsidize the consumption of healthier drinks.
Unfairly harsh: Just because the mayor and others prioritize physical health to such a degree that they’re willing to sacrifice significant amounts of time, money, and everyday pleasure to maintain their own good health, that doesn’t mean there aren’t other residents with different priorities. In fact, many residents aren’t interested in making such sacrifices for the sake of their health. The proposal assumes that these less healthy choices must be irrational, even unethical, but in fact they simply reflect a different set of values, no more “criminal” than the mayor’s.

LESSON SEVEN

Guilt and the Excuses

By the end of this lesson, you will be able to:

Distinguish between doing something wrong and being guilty for it
Understand the difference between a moral excuse for a crime and a legal excuse
Connect appropriate feelings of guilt with when someone should be punished for a crime

Watch

Comprehending the argument

Which of the following is not a legal excuse:

Coercion

Insanity

Involuntary intoxication

Indoctrination

Correct! Wrong!

Which of the following is true?

There are some situations where someone commits a crime but is morally blameless for it, even though the law says they should be held legally guilty.

If someone is impoverished enough, they will not be considered guilty for crimes they commit.

If someone steals in order to feed their addiction, they will be legally blameless for the crime.

The law is a perfect reflection of our moral feelings of guilt.

Correct! Wrong!

According to the video, which of the following is a good test as to whether someone should be held legally guilty for a crime?

Is there a law on the books that the person clearly committed?

Would a jury find the person guilty?

Would a reasonable person, if they did the crime, feel guilty for having done it?

Would a President offer a pardon to the person for the crime?

Correct! Wrong!

Critical Thinking

After Joe’s bad accident, his doctor prescribed him opioids to manage the pain, downplaying questions from Joe’s family about possible side effects, and by the time Joe recovered from his injuries, he had developed an addiction to opioids. Months later, in order to feed his addiction, Joe started committing petty property crimes like theft and purchasing illegal opioids until he got arrested. How do you think the legal system should handle Joe’s case?

LESSON EIGHT

Proportionality in Punishment

By the end of the lesson, you will be able to:

Understand what it means to say that “the punishment should fit the crime”
Explain the difference between “cardinal” and “ordinal” proportionality
Explain the problems with relying on each of these notions of proportionality when determining a punishment
Consider the importance of generating social goods through systems of punishment
Formulate your own judgment about how much to punish someone for a crime.

Watch

Comprehending the argument

1. Which of the following definitions represents ordinal proportionality?

A person has been convicted of stealing a woman’s purse, which typically carries a sentence of 7 days in jail. However, because the individual does it with a loaded gun, the punishment is doubled to 14 days.

A person has been convicted of stealing money from the cash register of their employment. The employer has decided that as punishment, the employee must give the employer money from his wallet of equal value to the money that they stole.

Correct! Wrong!

Critical Thinking

Suppose that, in the heat of the moment after years of bullying, a person punches their bully in the face and is arrested for assault. The typical sentence for intentional assault is 5 days in jail. Which of the following best captures what you think about the case:

Based on the example of the candy thief in the video who cannot control himself, what do you think is the best form of punishment for the child after he is found out by his parents?

LESSON NINE

Rule of Law for Discretion in Sentencing

By the end of this lesson, you will be able to:

Identify criticisms over imposed mandatory minimums for crime
Evaluate the impact of aggravating and mitigating factors on the severity of a crime
Understand the costs and benefits of judicial discretion on allocating punishment
Explain the divide thought between advocates of judicial discretion and advocates of the rule of law

LESSON TEN

Should there be lifelong or permanent punishments?

By the end of this lesson, you will be able to:

Identify examples of the “collateral consequences” of incarceration
Distinguish desert-based justifications from “liability”-based justifications of lifelong collateral consequences
Adjudicate arguments for and against the justice of collateral consequences

Watch

Comprehending the argument

1. In an effort to convince the members of a legislative committee on criminal justice reform to work toward the elimination of collateral consequences, the director of an offender-advocacy organization tells the stories of several sympathetic offenders, describing how these consequences of incarceration have perpetuated inescapable cycles of poverty, desperation, and criminal activity in their lives. Which of the following conditions is the director LEAST likely to have cited as an example of the collateral consequences faced by these individuals?

Being rejected for jobs for which they are well qualified

Being denied access to the prison library

Being denied the right to vote in government elections

Struggling to build new friendships and romantic relationships

Being unable to get a car loan

Correct! Wrong!

2. Although Sharon isn’t a retributivist, she believes that criminal offenders are liable to harm, so it’s justified for them to face collateral consequences of their incarceration after being released. Which of the following statements best captures her reasoning about collateral consequences:

People who engage in criminal activity undermine their moral worth and deserve to face collateral consequences even after being released from prison.

Collateral consequences are barriers to successful reintegration and a leading cause of social problems affecting the offenders, their families, and their communities; for the good of society, we must eliminate collateral consequences.

Offenders who have finished serving their official prison sentence have fully paid their debt to society and deserve to be returned to full moral status -- and this includes not subjecting them to collateral consequences.

It’s unfortunate that offenders face collateral consequences, and we should try to limit their impact; but given that the return of offenders into society creates risks and burdens, it’s only fair that these burdens fall on the offenders themselves rather than on law-abiding citizens.

Correct! Wrong!

Evaluating the argument

Which ONE of the following statements best captures the position you find most convincing regarding the collateral consequences of incarceration faced by released offenders?

People who engage in criminal activity undermine their moral worth and deserve to face collateral consequences even after being released from prison.
It’s unfortunate that offenders face collateral consequences, and we should try to limit their impact; but given that the return of offenders into society creates risks and burdens, it’s only fair that these burdens fall on the offenders themselves rather than on law-abiding citizens.
Collateral consequences are barriers to successful reintegration and a leading cause of social problems affecting the offenders, their families, and their communities; for the good of society, we must eliminate collateral consequences.
Offenders who have finished serving their official prison sentence have fully paid their debt to society and deserve to be returned to full moral status -- and this includes not subjecting them to collateral consequences.