The Problem With Punishment Letters from Michael Foucault & David Boonin

About the Problem of Punishment:

David Boonin is an associate professor of philosophy at the University of Colorado, Boulder. He is the author of several other books including A Defense of Abortion and Thomas Hobbes and the Sciences of Moral Virtue. He works on examining the problem with a system that rewards punishment, particularly through dissecting the morality between state interference and human capital.

Below will be an analysis on his current essays written in 2008:

The idea of legal punishment involves treating others intrinsically differently than those who break the law compared to those who do not. Even if we assume that those who break the law are responsible and accountable for their actions, on a moral level this raises a question concerning moral relativity and whether or not intentional harm by the state is morally permissible for crime.

In his book, Boonin, contemplates on three conclusions he has investigated through understanding the philosophical problems of legal punishment. One claim throughout the book is identifying the rhetoric behind moral permissibility in crime. Moral permissibility is dissected through a contemplative look at the definition of crime and can be deconstructed through understanding the origin of psychiatric power.

Foucault in his novel Psychiatric Power published in (1973) speaks to the relativism and moral construction of state powered punishment which was established after the end of monarchies in 16th century Europe.

He states,

“In actual fact, there was an extremely clear and quite remarkable formalization of this microphysics of disciplinary power. It is found quite simply in Bentham’s Panopticon. What is the Panopticon? It is usually said that in 1787 Bentham invented the model of a prison, and that this was reproduced, with a number of modifications, in some European prisons. In fact, Bentham does not even say that it is a schema for institutions, he says that is is a mechanism, a schema which gives strength to any institution, a sort of mechanism by which the power functions, or which should function in an institution will be given maximum force (1973).”

Both Foucault and Boone argue the ethical dillema behind institutions of power, and, yet, have an unwavering understanding that the orchestration of power within communal systems is as essential or elemental as light from the sun. However, the moral dillema lies in the construction of power as a way to enforce attributes of moral subjectivism and behavior.

Boone defines power as the following:

“When we talk about the permissibility of legal punishment, what, precisely, do we mean? A general answer to this question is easy: we mean such practices as the state’s imposition of monetary fines, forced incarceration, bodily suffering, and in – extreme cases – death (2008), Boone, concludes his argument on the definition of punishment by looking at a young pregnant girl who wishes to have an abortion would somehow be punished for her bodily rights and therefore, have that right somehow stripped away from her. Ultimately, leaving the person who is on the receiving end of the punishment in worse conditions.

By looking at the examination of the construction of the psychiatric system and the model of prison by Foucault and deconstructing the definition of punishment through the same systems, Boones argument addressing the relationship between power and punishment can only have one consequence: harm. Thus, leaving the question: “can we have punishment and power without harm?”

Boone writes, “But that is the basis of the moral permissibility of punishment which is grounded in this very fact. A definition of punishment that incorporates the harm requirement would therefore seem to beg the question against such a position, ruling out the possibility that punishment might by justified as ultimately good for the person punished by definitional fiat (2008).”

The Community Service Objection

Therefore, understanding the relationship between crime and punishment is important in capturing the definition of a punishment without the harm requirement. Boone writes, while the masochist objection focuses on anomalous people who seem not to be harmed by treatments that would harm most of us, this objection focuses on a somewhat anomalous punishment that seems no to harm most people (2008).

This uncontroversial look at form of punitive treatment is the cases in which individuals are sentenced to perform community service.

Adler, in particular, has argued that, at least for offenders who want to accept their punishment because they believe they will benefit from it in the long run, mandatory community service is a genuine punishment but is not harmful to any significant offender (1991).

However, this approach is hardly recognized as legitimate punishment because the effects tend to intrinsically benefit the offender. For instance, if one had an already predisposed desire to ‘help others’ like coaching a cheerleading team or visiting an animal shelter than the rationale definition of punishment would not apply to the consequences at hand. Moral subjectivism can be conjured when dissecting the pros and cons of punishment as restitution for crime. For instance, in Kant’s metaphysics the nature of wanting to increase one’s sense of self, out of purely selfish motives, is seen as an act that could be argued as unjust and formerly narcissistic. Treating narcissistic behavior without intentional harm could subjugate an individuals pre-conscious motives connected to their internal or external values i.e., finishing community service may just represent an ends to a mean and not stand for any moral or ethical restitution.

Will change take place when operating without intentional harm?

Adherence to communal discipline may be a highly adaptive response to systems of power and moral integrity.

For instance, in Psychiatric Power (1971), Foucault, critiques the harmony between the family system and the systems of power. He feels as though the interaction between the family and the systems of power are actually symbiotic to one another. Although, Foucault is reluctantly advocating for communal punishment, there is a connection between associations of communal orders of behavior compared to systems operating from intentions of harm vs. social rejection.

For instance, when the state fines an individual for getting into the car while intoxicated there is a presumption that what the state is expressing is a disapproval of your behavior. The very nature of punishment is a retroactive symbol for societies disapproval of the offender’s act.

So, What’s the Problem With Punishment?

If we know that punishment has a intrinsic motive to harm an individual within systems of power as an attempt to control and modify behavior that could be potentially harmful to society, than from a utilitarian lens, punishment may be a justifiable act (even though Boone denies utilitarianism as an argument for punishment as moral theory which blurs the line between moral subjectivism). The use of punishment could be argued through a consequentialist moral solution.

Yet, moral subjectivism and social construction can blur the lines between understanding the moral proclivities of ‘right’ and ‘wrong.’ The Problem with punishment as Boone states it, first, the problem with punishment involves drawing a line between different sets of people and treating the members of one group differently from the members of an other. Second, punishment involves not merely involves treating members differently from the other, but involves harming the members of that group. The basis of harm may hold moral relativism but it is important to make the moral argument for the harm of those who should be punished and those who are of the other group. Here is where the problem of punishment is set: since it is considerably more difficult to justify intentionally harming someone that it is to justify merely foreseeably harming her, the problem of punishment is even greater than it might have first seemed.

The state then uses a system that equates the offenders behavior to a sort of primal civilization that uses statutes of ‘an eye for an eye.’ If the punishment involves the state treating some of its citizens in ways that would be clearly wrong to treat others; the problem begins with explaining its moral permissibility.

Therefore, utilizing systems to enforce societal compliance can be seen as an ultimate means to an end for promoting a greater end to secure or safer society. Yet, understanding who is benefiting from the promotion of the laws can be another line undistinguishable to decipher. For instance, one could argue that punishing using the principle of the ‘rule’ utilitarianism version may serve as a means of punishing the innocent or guilty, as too, help promote the social good.

However, promotion of the public good can be misguided as those who have not broken the law are taken from their homes or asked to quarantine from a deadly virus which has had adverse affects on their emotional and psychological functioning. Thus, acting as a means of punishment without disapproval from the state.

What Can Neuroscience Tell Us About Behavior Change?

If the argument for punishment, indeed, maintains a stance of harming an offender who has committed an offense. Then how do we go about maintaining the a prori of utilitarian punishment as morally permissible?

Behaviorism is a principle discipline established, since the experiments of Pavlov which seeks to understand the brains conditioning. Behavior change is not promoted or established through punishment or harm. In fact, it can cause psychological harm and promote neural cell death. Neuroscience tells us that positive conditioning is the best method to help individuals recover and promote morally social behavior after an offensive act.

Punishment as Education

According to Boorne, “the moral education solution, like the reprobative solution, arises from the conjunction of two claims: the claim that the state should (or at least may) communicate the wrongness of the offender’s behavior to the offender and the claim that if the state should (or may) do this, then it is permissible for it to do so by punishing the offender (2008) – and punishing people to deter from committing future offenses is the hallmark of consequentialist approach to the problem of punishment.”

Yet, to assume that the moral education solution as a means of promoting education on a neural systems level is denying the intrinsic attribution to learned behavior change with classical conditioning taken into consideration.

This theory sees education as giving from fortuitous consequence, it is proclaimed that the good to be accounted for would be extent of the offender’s ‘moral growth.’ Therefore, Punishment would serve as a moral message to the offender.

This, if an offender were to understand and fully articulate the understanding of the moral education solution two things must happen according to Boorne, “The person being addressed must pay attention to the person addressing him, and he must understand what this person is saying. One argument is that the punishment must be harsh enough to get the offender to pay attention to the message; another maintains that it is necessary to get him to understand the message itself.” Thus, hoping that the offender will learn that what they did was wrong.

Thus, the right to carry out the threat of punishment should be thought carefully through, as the power within this is ethical decision by the state bares the harm of another’s life as an attempt to teach.

However is there a morally ethical solution that does not involve harm where harm is not due?

The disproportionate punishment objection looks to understand the degree of punishment that could have impacted the legally innocent. Therefore, the extent of treatment of punishment will be administered based on how the lives of the innocent were affected. Therefore, within systems of power, where social disapproval is used to teach moral lessons by means of harm… understanding, the rights of the innocent is important in understanding punishment as education.

While the ‘no excuses objection’ should be implemented to ensure that the moral law is adhered too there is a subjective line here as well. Thus, the examination of provoked and unprovoked assault and determining the differences between the two. Or understanding controlled and uncontrolled alcohol consumption and one’s moral intention or severity of negligence.

Therefore, if the individual had intent to harm or intent to drive should their actions be permissible for punishment? Could self-defense not be an example of exception of the harm punishment? Therefore, how can one conclude the morally ethical solution when no harm was caused to innocent people?

The theory of pure restitution concludes that ‘when offenders break the law, they cause wrongful harm to their victims. When people cause wrongful harm to their victims, this generates a debt: they owe their victims compensation sufficient to restore them to the level of well-being (Boonin, 2008).

Yet, with this notion that would mean we would need to work within a system of punishment that does not harm the innocent (conviction of the non-guilty) or those who have not harmed innocent victims.

If an immoral intent cannot be established for the offender or they were using self-defense could they be treated as ‘guilty’ by the state? Could the moral permissibility of harm be ethically justifiable?

If punishment is meant to serve as education, as an attempt to produce pro-social behavior, could the community service objection be sufficient enough to promote the public good without harming the offender?

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