Sentencing Law and Policy

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?

Welcoming the a new year with a new guest blogger, Professor Joshua Kleinfeld

One reason my 2019 went out on a high note is because I received a note earlier this week from Professor Joshua Kleinfeld who reported that he had been "working on a set of ideas and jottings about criminal punishment that are ... essentially blog posts looking for a blog."  I was pleased that he thought of this blog as a potential locus for his "ideas and jottings," and regular readers know that I am always eager to utilize this digital soap-box in all sorts of ways to provide a platform for all sorts of voices.

So, I am excited to welcome in 2020 by welcoming Prof Kleinfeld as a guest blogger here.  Prof Kleinfeld has already indicated to me that he has some evocative thoughts on the Supreme Court's work on mens rea issues, as well as "more philosophical musings ... about 'intelligibility' as a principle of punishment."  Needless to say, I am eager to read what he has to say on these topics and perhaps others, and I am pleased to be able to share his writing here.  Prof Kleinfeld noted to me that he looking to initiate conversation around his ideas and jottings, so I hope readers will share my eagerness to interact with him in via this forum.