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January 1, 2020

The Principle of Prosocial Punishment

Hello everyone, and thanks, Doug, for inviting me to guest-blog.  I'm Joshua Kleinfeld, and I teach and write about criminal law and procedure, on the one hand, and political, legal, and moral philosophy on the other.  Doug was kind enough to give me a somewhat open-ended mandate with regard to topic, and I thought I’d take the opportunity to do something I’ve always wanted to do: share my inchoate philosophical musings about criminal justice with others—to think aloud and in public, as it were—and thus learn how my half-formed ideas strike other criminal lawyers, find out about relevant literature, uncover strong objections before publishing in more formal venues, and generally invite communication while my ideas are still in diapers.  I would never have done this before tenure.  Even now, I confess to some nervousness.  But, well, here goes…

In an article a few years ago, I was analyzing the roots of America’s harsh and continental Europe’s more mild criminal punishment.  After noting certain patterns of banishment and devaluation on the American side, I found myself writing these sentences: “Crime is supposed to be antisocial; punishment should be prosocial.  But American punishment has morphed into its own enemy: it has become antisocial itself.”  That felt like an epiphany.  In a later piece, I tentatively sketched a principle of punishment entitled, “The Principle of Prosocial Punishment”:

The principle of prosocial punishment holds that criminal punishment should aim, both expressively and functionally, to protect, repair, and reconstruct the normative order violated by a crime while at the same time minimizing the damage to the normative order caused by punishment itself….

Consider the effect on society’s normative order of torturing offenders as a form of punishment. The ordinary objection is that torture violates the human rights of the offender.  [The principle of prosocial punishment] observes that torturing an offender would also have collateral effects on the prevailing moral culture.  A community that tortures as punishment is one in which a set of Enlightenment humanist values related to the infliction of pain will be unable to take hold of the culture or will lose their cultural grip.  Torturing thieves, for example, might succeed in affirming society’s commitment to property rights, but in so doing it would undermine a series of collateral values that are also necessary to maintaining social life.  Torturing thieves would also damage the emotional basis of social life, especially if anyone in the society loves the offender or cares about others like the offender….

The principle of prosocial punishment … thus has both an affirmative, justificatory dimension and a negative, prohibitory dimension.  Affirmatively, the principle means that punishment must be of such a form and such severity as is necessary to overcome culturally the message of the crime.  In its negative, prohibitory dimension, the principle means that punishment cannot itself become antisocial, cannot itself express norms contrary to maintaining shared ethical life…. The fundamental challenge of punishment is thus to take action against offenders sufficient to deny the messages of their crimes without thereby undermining collateral norms. The principle of prosocial punishment centers on that challenge.

Although published, that definition and explanation of the principle was explicitly just a sketch; the book or article entitled “Prosocial Punishment” has yet to be written.  I have high hopes for the principle.  It seems to me that it is distinct from any retributive and any conventionally utilitarian idea of what punishment is supposed to be or do.  Neither desert, nor deterrence, nor incapacitation, nor rehabilitation is punishment's point on a prosocial view.  If the principle is right, the conventional list of four purposes or justifications of punishment must make way for a fifth. 

But those are the giddy thoughts.  Can the principle of prosocial punishment really carry that much weight?  Does it seem obvious or uninteresting to those not in the grip of my assumptions?  Does it seem unhelpful to those engaged in the practical work of criminal justice reform?  Is the definition above—“criminal punishment should aim, both expressively and functionally, to protect, repair, and reconstruct the normative order violated by a crime while at the same time minimizing the damage to the normative order caused by punishment itself”—optimally phrased? 

The question that troubles me most is how to effectively formulate the addition to the list of four purposes or justifications of punishment.  In the published sketch, I wrote, to my embarrassment: “Criminal law judges, lawyers, and teachers, philosophical punishment theorists, and penal codes themselves commonly list four justifications for punishment: retribution, deterrence, rehabilitation, and incapacitation.  Some include a fifth: expressive condemnation.  There should be a fifth principle, but it should be a different fifth principle than 'expressive condemnation.’ The five should be: retribution, deterrence, rehabilitation, incapacitation, and normative reconstruction, where the last is understood according to the principle of prosocial punishment.”  Yuck.  “Normative reconstruction … understood according to the principle of prosocial punishment” is not exactly compelling prose—or even particularly intelligible.  I can't imagine real penal codes, judges, or lawyers talking that way.  How can I fix that?

January 1, 2020 at 03:00 PM | Permalink


Since you asked, a few points.

1. Your equivocating ("share my inchoate philosophical musings") is an academic affectation that annoys the shit out of lawyers. How about you do your best thinking before asking us to waste our time reading your "think[ing] out loud" so you can later weasel out of it? Our time is valuable. Don't expect us to waste it if you can't be bothered to think before you write.

2. Say what you mean. Jargon is coin of the academy, but it's meaningless word salad to us. If you're shooting blanks, be pretentious and bury it in jargon. If you've actually got a thought buried in there, just say it.

3. Beware of logical fallacies: “Crime is supposed to be antisocial; punishment should be prosocial." Aside from whatever the hell that's suppose to mean, why? It's begging the question.

And welcome to SLandP.

Posted by: shg | Jan 1, 2020 4:02:47 PM

In addition to saying thanks for being here, Joshua, and at the risk of giving shg too much credit, I really want to pick at this notion that "Crime is supposed to be antisocial; punishment should be prosocial."

On the first part, two initial thoughts/questions: (1) what work is "supposed to be" doing in this account of crime? Are you saying that criminal offenders are generally seeking to damage the normative order, or are you saying only that, by definition, when a society creates a criminal offense it is necessarily making that activity "antisocial"?; (2) I ask question 1 here in part because I think these days a lot about drug crimes (or which there are lots and lots). These days, is a marijuana crime in Alabama antisocial while it is not California? Was it antisocial in Illinois yesterday, but not today? I suspect you are mostly thinking about violent/victim crimes in this context, but I want to be clear because what you mean calling crime "antisocial" may help inform my understand of what you mean by prosocial punishment.

Speaking of prosocial, two initial question on this front: (1) how does your vision compare/contrast with notions of restorative justice? I am not an expert on that literature/thinking, but it seems in a similar vein; (2) does your vision of prosocial punishment come with any viable measure or metrics for assessing if and when a punishment system or any particular punishment is furthering this purpose? We have, of course, highly imperfect metrics on the other purposes (usually "feelings" for retributivism and crime or recidivism rates for the other purposes), so I am not hoping for a lot. But I am wondering if there is any way to dispute an assertion that we are already functionally doing as well as we might expect to "protect, repair, and reconstruct the normative order violated by a crime while at the same time minimizing the damage to the normative order caused by punishment itself." After all, we do not formally torture (or use traditional physical punishments) in the US, even though there are very strong arguments that retribution, deterrence, rehabilitation, and incapacitation might all be well served by such punishments.

Posted by: Doug B | Jan 1, 2020 10:56:22 PM

Thank you for this thoughtful post and conversation. The criminal code and process has ways account for degrees of harm and intention in committing a crime, although sloppy ones. What about punishment that itself damages people and thus changes the norms about damaging people? It seems like what you are getting at is a negative—not a positive. Punishment/government should not damage and disable people subjected to it to the degree that they create new norms of acceptable

Posted by: Joseph Albert | Jan 2, 2020 9:31:12 AM

harm—undermining our norms about harming others. As you said, “minimizing the damage to the normative order caused by punishment itself.”

Posted by: Joseph Albert | Jan 2, 2020 9:34:41 AM

I think retribution, deterrence, and incapacitation are reasonable and acceptable norms of restorative justice...as long as these principle norms do not interfere with rehabilitation. For what good is "restorative" justice if it takes away the opportunity for the wrongdoer to to rehabilitate him/herself for the short term and, most importantly, for the long term?

Posted by: tommyc | Jan 2, 2020 9:37:43 AM

Professor Kleinfeld: I think this question cannot be fully addressed without addressing race/slavery/the American need to justify oppression of the "other". Don't get me wrong, European cultures have done more than their fair share of oppressing people, but they are/were more homogeneous on racial lines than the US. Does that affect their ability to see people convicted of crimes as people worthy of humane treatment and dignity.

Posted by: defendergirl | Jan 2, 2020 1:07:49 PM

Doug's first question gets to the heart of the matter. Society invents crime so every crime is by definition antisocial. If punishment has become antisocial too that is just another way of saying that the state is committing a crime, which is self refuting. One can't commit s crime against oneself.

Posted by: Daniel | Jan 3, 2020 4:36:28 PM

What you're saying feels like a repackaging of the restorative justice model, which is designed to meet the various needs (those of the accused, the complainant, and their respective communities) created by the underlying misconduct. if so, then call it that and apply it. If not explain the difference. To me it's not really clear.

Posted by: Cleveland Attorney | Jan 5, 2020 3:15:09 PM

Enjoyed this piece and I also wanted to say that your article in the Stanford Law Review was really superb. I once tried to develop, though very briefly in a book on sexual offences, the notion of "constructive censure" as the principal moral justification for punishment. I am not sure it is any better than normative reconstruction! But we seem to be thinking along the same lines.

Posted by: Tom, Ireland | Jan 11, 2020 6:19:16 PM

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