Law and order: the question of punishment

Some weeks being a columnist is tougher than it looks. I had no sooner finished my item for this week on the “Troubles at Acadia” than the two sides went back to the table. And a fine column it was, too: pithy and spirited, drawing attention to two levels of the problem, one longer standing than and causative of the other, critical yet (re-) constructive, getting the good guys and bad guys sorted out, and caring about those students who wish to develop their intellectual lives here.

Cripes, it even had sort of an insight, and mentioned John Ralston Saul. Ah, well….

The issues of punishment in Canada are a lot less clear and the underlying problems they address more intractable. Punishment operates at gut level in populist moments in our country, where folks believe they know what’s to be done even if they have very little specialized knowledge or general understanding.

Such populism can be very dangerous in a democracy, where what should serve the polity is the best thinking of the population, not their “common sense”. But equally in democracy, sometimes the common sense of the people is dead right. (Well … perhaps not so much in Mike Harris’s Ontario.)

Punish to right a moral wrong

There are a number of theories that justify punishing wrongdoers when we’re confident we know what’s wrong. In one, we punish to right a moral wrong.

This traditional “eye for an eye” conception has been supplemented by the assertion that punishment is a way of standing up for our integrity as a society, a declaratory exercise in collective identity. And retribution seems to answer to the right of victims to have their suffering acknowledged.

A second theory calls upon us to punish only so as to maximize the well-being of all. Punishment, as inflicted pain, can awaken and reorient wrongdoers to their interest in a more rational, happier human life.

It separates wrongdoers from society, limiting their potential for harm to others, and can serve as a deterrent, enhancing our sense of security.

A third theory is rehabilitative. The Platonic claim is no one does wrong knowingly. To do wrong, one must be suffering an inadequate understanding of why what one has done is, indeed, wrong.

Or it’s to have lost the ability to control one’s actions, to be acting from causes over which one has insufficient control, whether these be the cruelty of others, insufficient parenting, poverty, racism or the effect of violent television, video games and gangsta rap on the development of our moral imagination, sensitivities and proclivities.

Punishing folks by inflicting pain for what they don’t understand or for that over which they have no effective control is just stupid. It’s like kicking a door that one walked into as punishment for being closed.

Much better, rehabilitationists say, to help the wrongdoer recover from his condition and forged incapacities, not by inflicting pain, but by showing compassion and understanding and by ameliorating the underlying causes of their conduct.

However, these theories are incompatible. For instance, sometimes a jail sentence, to meet the demand for retribution, makes the wrongdoer and the rest of us worse in all respects, giving victims only symbolic relief and society no enhanced protection from harm by others.

Legal equality

In democracy, we are presumed equal before and under the law. This seems to require that we have applied to us the same theory of punishment, and we should receive the same punishment as others receive for commensurate acts of wrongdoing.

However, it also appears we’re not in the same condition socially or psychologically. Punishment for one wrongdoer could conceivably help him and society broadly while the same treatment for another might well make him and society worse.

Effective punishment might mean that we work both from an incoherent, mixed theory of punishment, as above, and that we choose to treat citizens as significantly unequal before and under the law. This is troubling.

But if we proceed in this confusing way, who decides who gets what sort of punishment: the police, judges, social workers, psychologists, or juries? Are we so sure of who has what sort of effective capacities when they act against our norms? And are we so sure of what’s right and wrong?

The current Conservative push for tougher law and sentencing reveals they believe they have these issues sorted out. I remain less convinced.