The Case Against Punishment: Retribution, Crime Prevention, and the Law.

Vol. 15 No.3 (March 2005), pp.234-237

THE CASE AGAINST PUNISHMENT: RETRIBUTION, CRIME PREVENTION, AND THE LAW, by Deidre Golash. New York: New York University Press, 2005. 240pp. Cloth $45.00. ISBN: 0-8147-3158-9.

Reviewed by Jeremy D. Ball, Department of Criminal Justice Administration, Boise State University. Email: jeremyball@boisestate.edu .

In THE CASE AGAINST PUNISHMENT, Deidre Golash provides plausible and convincing approaches to understanding the philosophies and theories of punishment. She argues that punishment, as currently applied, is not successful and, in many ways, results in more harm than good. Punishment often is not justified and lacks consistency with its original intentions. Golash proposes to eliminate punishment altogether – albeit gradually. Although I am not convinced of the practicality of this proposal and may disagree with some of the logical thrust behind some of her conclusions, she illuminates irregularities in the theories of punishment that have survived the ethos of the State. It is important first to summarize the content of THE CASE AGAINST PUNISHMENT prior to critiquing the book.

CONTENT SUMMARY

The concept of punishment requires the state to impose harm on convicted offenders. The true thrust behind this work, though, is not whether punishment should be harmful but whether the theories of punishment make sense. As Golash notes, “we ought not to impose such harm on anyone unless we have a very good reason for doing so” (p.1). Scholars have suggested that the harm of punishment is justified in three different ways: the harm is for the good of society, the harm is good in itself, and punishment is not considered harm to the offender.

There are several theories that scholars use to bolster justifications for punishment – namely, incarceration. The first theory Golash addresses is utilitarian theory where more good is resolved than harm. The main thrust behind the utilitarian theory of punishment is prevention. There are three main preventive effects of punishment – deterrence, incapacitation, and rehabilitation – given that punishment serves the greater good of society. Deterrence presents a threat of negative consequences to prevent offenders from engaging in criminal activity in the future. Incapacitation is the restraint of freedom to prevent offenders from engaging in criminal activity during the period of confinement. Finally, rehabilitation presumes that offenders will be less likely to engage in criminal activity after they have been successfully “treated.”

Golash suggests that, for the utilitarian theory of punishment to be successful, it must not only prevent more harm than it causes, but also that the ends of punishment cannot be met by other alternatives. It is difficult to predict the “dangerous” which puts at odds the conclusion that punishment – to a logical end – will prevent dangerous acts. Although one can agree that it is wrong [*235] to punish the innocent to serve the greater good, Golash articulates that punishment which produces harm to offenders may also be wrong for those who are guilty.

Another theory of punishment is the retributive theory, which states that offenders who are deserving (or, blameworthy) should receive punishment. Justification is derived from the wrongfulness of the act committed by offenders. The punishment – that is, the intentional and justified infliction of harm – serves to annul the crime. Punishment is only considered for the wrongfulness of the act, not to prevent future wrongdoing. Within this theory, some have argued that punishment is used as vindicating victims. Punishment is a “metaphorical annulment” giving notice to the public that a particular crime was wrong rather than a specific annulment of the criminal act. Punishment is considered an expression of justified anger by the victim due to the violation of trust demanded by society. Those who benefit from the law consent to punishment according to that law; it is a social contract between society and its members. Because of this social contract, it would be unfair to allow particular citizens to benefit from society without restraining their own bad impulses.

Golash argues that retributive punishment does not annul the crime but the will of offenders – that is, offenders will be free without restraint and, therefore, punishment addresses the will of offenders toward wrongdoing. In other words, the victims are never fully restored to the positions they were prior to the criminal act. The conclusion is that a victim has no right apart from her own right to vindicate the offender’s wronging of her. Golash suggests that criminal wrongs cannot be undone, and doing additional harm to the offender only compounds certain social ills that may be highly correlated with the offender’s need for criminal fulfillment. Again, Golash argues that punishment is not the only alternative. Retribution demands a consequence, but that consequence does not necessarily implicate punishment. In the end, if this system demands punishment for those who are deserving, then why are those who deserve good not receiving good?

Another theory Golash reviews is that punishment is sought as a self-defense mechanism. Unlike the social contract approach in retribution theory, the state no longer assumes consent to the social contract. As with self-defense, punishment must be proportional to the offense. Unlike retribution, punishment is not concerned with the moral wrongfulness of the act but is concerned about the specific harm created by offenders. As with self-defense, additional harms are unnecessary and not justified.

Golash argues that punishment as self-defense does not flesh out important differences. First, self-defense requires force to defend against an imminent attack. As with previous theories, the force of punishment is not essential; there are always other alternatives. Second, self-defense requires that those defending themselves impose the harm. Punishment is often a response by the state for social harms, as opposed to personal injuries to individuals. Third, if punishment is self-defense, then it should be imposed to prevent imminent [*236] acts; however, punishment is retrospective. Therefore, punishment is not a self-defense mechanism.

A final theory summarized by Golash is that punishment is a way to communicate to offenders and others about changes that must occur in one’s moral character. This theory justifies punishment “both on the ground that the state has a legitimate interest in the moral good of its citizens . . . and on the ground that the rights of others are invaded by such acts” (p.123). In other words, punishment is for the good of the offender – as opposed to the good of society – and serves to communicate the wrongfulness of offenders’ acts. Punishment, in promoting good moral character, can restore lost and damaged relationships.

In order for this theory to operate correctly, offenders must have an attachment to the state as a parent has attachment to a child. Without such connectedness, offenders will not be receptive to the communications and will not change their moral character. Also, hard treatment – or, prison – alone cannot restore relationships. As with other theories, Golash suggests that there are alternatives to the imposition of punishment in order to achieve moral reform in any particular offender.

Golash suggests that “hard treatment” is not likely to produce the desired results. In the end, what is the solution? Golash asserts that eliminating certain social ills – income inequality, poverty, social disorganization, and family stress – would likely be more successful than punishment. She argues that there are many correlates to crime that can be addressed without harming offenders and following the skewed logic that it involves. Addressing social ills – such as income inequality and unemployment – may be a better strategy for dealing with social and psychological causes of crime. Punishment would no longer be a necessary mechanism for crime prevention and management.

Golash freely admits, though, that responding to social ills cannot prevent all crime; social policy changes may not prevent as much crime as punishment currently does. “The harms – and the wrongs – done by crime cannot be undone, and for many victims of serious crime life will never be the same” (p.161). What is the alternative to punishment for these situations? Golash has a few suggestions. First, the communication can occur through trial procedures and symbolic condemnation, thus operating more like a civil lawsuit. Second, vindication of victims’ rights can occur through some kind of compensation by the offender. Although victims may never receive compensation, there is inherent value in prosecuting a case and maintaining a record in the offender’s file. Finally, opportunities are provided for reconciliation between offender, victim and the community, moral change is promoted through personal attachments and integrative shaming techniques, and community is protected through support groups of previous victims.

COMMENTARY

Golash provides a good synthesis of the theories of punishment, addressing important and relevant nuances of the purposes and rationales for criminal sanctions with a fresh, yet skeptical, outlook. [*237]

The author espouses a particular political perspective that relies heavily on social awareness and that may not be agreeable to the conservative right. Although she did not engage in political brow-beating or promote an overt political agenda, the political bent to her discussion of punishment is clear.

Moreover, although Golash may adequately argue why current punishment regimes do not meet the terms of theory, she ignores the practical world of the political environment. Public policy of punishment is often driven by political constituencies, and this needs to be considered when giving recommendations to eliminate punishment. Although punishment can be disassembled for failure to meet basic needs of particular theories, political constituencies may overwhelm the voice of reason.

Golash fails to recognize the important role played by criminal punishment in maintaining social order. Although the process of delivering sanctions may result in more harm than good, without punishment, some would argue, chaos will ensue. Without the full leverage of the State, order may be lost for quite some time. It is difficult to imagine what eliminating punishment would do to the order of society.

In addition, Golash could have bolstered her argument by assessing more social science research. Although she briefly summarizes a few statistics, there is a wealth of social science studies on all the questions she addresses, and that literature should be taken into account.

Finally, some of the solutions offered in the last chapter of the book are tenuous at best. For example, even though Golash argues that public policy should not inflict more harm than good, some of her policy suggestions do just that. One of her solutions is to equalize income inequality as a replacement for punishment. First, she fails to accept that the United States is a capitalist society where competition is encouraged. To even the economic playing field in the interest of preventing criminal activity would likely injure innocent lives. In other words, to finance some of her solutions would require taking money out of the pockets of many who are entirely innocent.

In the end, though, Golash fleshes out the arguments of each theory of punishment and reveals their inconsistencies. Scholars in the field often address the notions of prevention and retribution without understanding all of the nuances of the theory that underlies their investigation. This is a book that can spur good discussion and stimulate critical thinking.

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