Nathan Hanna (Syracuse University) has posted Facing the Consequences: The Abolitionist Challenge on SSRN. Here is the abstract:
I argue that standard consequentialist considerations offered in support of punishment make for a weaker case than is usually assumed. This is because consequentialist arguments for punishment rely on an overly broad conception of punishment that overlooks some of punishment’s essential characteristics. I argue in favor of a narrower conception that highlights the possibility of substantive, non-punitive alternatives to punishment capable of securing many of the same good consequences as punishment. In light of this possibility, I argue, Abolitionism, the view that punishment is unjustified, poses a serious challenge to consequentialist justifications of punishment.
Hanna identifies the intention or aim of inflicting harm as an essential characteristic of punishment, and then argues that alterantive practices can achieve the benefits that consequentialists argue flow from punishment. From the text:
This suggests that such techniques [which do not aim at harm] can also deter. This should be obvious in light of the fact that incapacitative techniques and forced compensation, even if applied without the aim to impose harm or suffering, can nevertheless inflict harm and suffering incidentally. Even confinement that is not designed to harm offenders will nevertheless harm them in various ways. Similarly, terms of probation that are not designed to be difficult will nevertheless often be so. And forcing offenders to furnish compensation, even if only to have them fulfill their obligations, can nevertheless be burdensome and difficult. Because of this, these techniques can deter even when employed by an abolitionist enforcement system. Moreover, an abolitionist system can, consistent with its aim to minimize the harm and suffering inflicted, nevertheless do various things to take advantage of and amplify these effects. It can, for example, publicize information about the techniques it uses and the harms those techniques inflict – effectively issuing the threats Ellis and Farrell think important – even as it strives to humanize those techniques and to develop less harmful ones. Doing so makes sense in light of abolitionist aims if it ends up reducing the amount of harm inflicted.
Recommended. I have a small worry. On the basis of my first read of this article, it seems that the premise–that aim at harm is essential to punishment–is based on a deontological conception of punishment as retribution. But consequentialists do not accept this idea: for consequentialists, justified punishment must aim at producing net benefits. Harm is not inflicted for its own sake, but only because of the benefits that it produces over the available alternatives. Of course, if there are superior (but not intentionally harmful) alterantives that produce greater net benefits, then consequentialists will (by definition) prefer these alternatives.
Another way of getting at this difficulty is to point out that from the consequentialist perspective intention or aim is simply irrelevant in itself. Consequentialists would only care about aim if the aim somehow produced consequences that were independent of the act of punishment. It is possible that this might be the case–for example, if communication of an aim to harm increased deterrence, then a consequentialist would care about the aim. Assuming, as Hanna does, that the aim to harm does not affect deterrence, then I cannot see why a consequentialist would adopt a conception of punishment that make aim to harm criterial for an action being punishment. Instead, a consequentialist would naturally define punishment in terms of the features that produce deterrence, e.g., in terms of punishment creating a state of affairs that the punished individual would prefer not to enter. This means that consequentialists, as opposed to deontologists, could embrace Hanna’s alterantives as forms of punishment.
Of course, it is open to Hanna to affirm the deontological conception of punishment and reject the consequentialist attempt to conceptualize punishment in a nonretributive manner. But the premises that lead to affirming retribution as essential to punishment will provide the deontologist with an argumentative wedge that might be exploited to justify punishment on deontological grounds.
Putting this worry aside, I very much enjoyed the paper.