Punishment Deserved

Ken Lay, close friend of both presidents Bush, Jeffery Skilling, and a group of other inglorious bastards managed the most massive fraud scheme in American history with Enron Corporation. Investors lost over 70 billion dollars and 30,000 employees lost their jobs and pensions. Enron traders purposely created havoc in the distribution of electricity in California at great social cost. When a forest fire shut down a major transmission line into California, cutting power supplies and raising prices, Enron energy traders celebrated. "Burn, baby, burn. That's a beautiful thing," a trader sang about the massive fire.

Do they deserve punishment? Perhaps they had no control over their choices to lie, cheat and steal. Their behavior can be explained wholly naturalistically; it was determined. Psychologists can offer various internal reasons for their behavior, and criminologists can explain their behavior based on external factors and organizational behavior. They were convicted of various crimes, but if their choices were determined, did they lack “free will,” and did they deserve punishment?

Pereboom and Caruso (chapter 11) argue that free will skepticism rules out retributivism, which is punishment based on the principle that an offender deserves to be punished. They favor and present an excellent discussion of the utilitarian justifications for punishment, deterrence and rehabilitation, but give short shrift to the deontological justification for punishment, which I think merits more attention.

Retributivism justifies punishment in terms of moral concepts of rights, desert, moral responsibility and justice, not social utility. It seeks the just punishment, not the socially useful punishment; i.e., the punishment the criminal deserves. It is punishment society has a right to inflict, and the criminal has a right to demand. This goes back to the social contract. We yielded some of our natural freedoms to a sovereign power that acts as a repository and administrator of those freedoms. The civil society requires that we voluntarily follow the rule of law, but not all will, so punishment is necessary to ensure that we maintain the civil society. Kant uses a debt metaphor. Some will seek to “withdraw” from the repository of freedoms some of that which they have yielded. Punishment is the “just desert” required of the criminal to repay their “debt to society.” Kant said that the criminal “must first be found deserving of punishment before any consideration can be given to the utility of this punishment for himself or his fellow citizens…. The law concerning punishment is a categorical imperative ….”

Perhaps the question comes down to what we mean by “deserving of punishment.” I think Pereboom and Caruso dismiss it too easily. The fact that our choices are the result of heritable traits and social causes does not mean that under some theoretical concept of free will we cannot be found to deserve punishment for criminal acts. It means we need to evaluate carefully, and as Kant said, first, whether an individual deserves punishment, and thereafter, using utilitarian thinking, determine what that punishment should be. I would posit that the moral justification for punishment is deontological, and the aim or goal of punishment is utilitarian.

There is a moral dimension to the function of punishment in our society, and it is directly related to our written social contract, the Constitution, which provides that no state shall deprive any person of life, liberty, or property without due process of law. Due process of law requires that a man be found deserving of punishment before it can be inflicted, regardless of social utility.