Whether the punishment of criminals is morally acceptable and, if so, how it can be justified, is something that has been of interest to unbelievers of all stripes. But because it is such an emotional issue, it has unfortunately been the subject of a great deal of confused thinking. Although most freethinkers accept that society cannot function properly unless miscreants are brought to book, the majority are of the view that retribution is not an acceptable consideration when imposing a penalty. We are for instance told by Hector Hawton in his 1971 book Controversy; the Humanist/Christian Encounter that deterrence and rehabilitation are the only acceptable grounds of justification when it comes to punishment – even in the case of hanging and long terms of imprisonment. He assures us that “the concept of retributive punishment – i.e. making a man suffer because we think he deserves it – belongs to the religious tradition.” (P.73) Retribution is, however, not a religious idea, it is a legal concept. Moreover, Hawton seems to think that it is morally acceptable if we make a man suffer, even if we think he doesn’t deserve it because it will deter real criminals. Retribution has apparently become such a dirty word that even those unbelievers who are in favour of the death penalty shy away from admitting that it may be a valid ground for its retention or reintroduction. For example, in his book Forbidden Fruit; The Ethics of Humanism, Paul Kurtz argues that capital punishment may only be imposed but only if it deters. However, he disapproves of those people, many of whom he says are religious, who claim that it is morally just to execute someone who has been convicted of a heinous crime. (P.37 and 74).

Both of these writers seem to have revenge in mind rather than retribution. Although the two concepts share the same underlying psychological motivation, there are crucial differences. When a private person takes the law into his or her own hands and inflicts punishment to avenge a perceived wrong it is called revenge. There is usually no proof that the person has in fact done what he is accused of and he is not given an opportunity to speak in his own defence before he is punished. Retribution, on the other hand, is one of the grounds that a presiding officer in a criminal case takes into account in imposing a sentence after the accused has been found guilty beyond a reasonable doubt in a court of law. In doing so, the judge or magistrate takes into consideration the interests (which also includes the outrage) of the community to decide what the sentence should be. And although the State has a right to punish the wrongdoer, the penalty must be proportionate to the crime and the penalties imposed upon various persons for similar crimes should ideally be equal.

One important reason why retribution is regarded as unacceptable is that many people associate it with the “eye for an eye and tooth for a tooth” principle (known to the ancient Romans as the Lex Talionis). Jesus, for instance, condemned it in the Sermon on the Mount (see Mathew 5:38-39) while Thomas Hobbes described retribution as “evil for evil” in chapter 15 of his 1651 book Leviathan. (The English Philosophers from Bacon to Mill (ed) EA Burtt page 169). But contrary to popular belief, the Lex Talionis was designed to address wrongs in a just and equitable manner and did not sanction savagery. One important reason why it was the basis of much of the Mesopotamian monarch Hammurabi’s famous legal code (which was issued during his long reign from 1792 – 1750 BCE) was to prevent those who have been wronged from taking two or more eyes when they were only entitled to one. A group of people who did not believe in the Lex Talionis were the Nazis who were savages of the worst kind imaginable. When Reinhard Heydrich, Hitler’s chief of the Security Police and the deputy chief of the Gestapo, was for instance assassinated by two Czech resistance fighters near Prague on 29 May 1942, the Nazis exacted a terrible revenge. Approximately two thousand (2,000) Czechs and Jews were shot as a reprisal while a further 3,000 Jews were sent to extermination camps. In an unparalleled act of modern-day barbarism, the village of Lidice near Prague was wiped off the face of the earth. After the inhabitants had been carted off or killed, the Nazis burned the buildings, dynamited the ruins and levelled the ground on which the village had stood. (See William L Shirer The Rise and Fall of the Third Reich P.989 – 991).

That is one extreme. The other is to argue that punishment cannot be justified under any circumstances. One of these critics was the English anarchist philosopher William Godwin. In his work Enquiry Concerning Political Justice (volume 2 book 7 chapter 3) which appeared in 1793, he vehemently criticized the grounds for punishment which he identified as “restraint, reformation and example” and maintained out that the violence that had been committed by the offender is something of the past and that he is no longer a threat to anyone. (His son-in-law, the poet P B Shelly and author of the pamphlet The Necessity of Atheism, held similar views.) Another philosopher who opposed punishment was the nineteenth-century freethinker Friedrich Nietzsche. He claimed in paragraph 236 of his book The Dawn (1881) that punishment does not cleanse the criminal and does not lead to atonement but pollutes more than the crime. In the Genealogy of Morals (1887) he had the following to say on the subject: “It is not unthinkable that a society might attain such a consciousness of power that it could allow itself the noblest luxury possible to it – letting those who harm it go unpunished. ‘What are my parasites to me?’ it might say. ‘Might they live and prosper: I am strong enough for that!’” (Part 2 paragraph 10. Basic Writings of Nietzsche translated by Walter Kaufmann P. 508).

Opposition to punishment has increased in more recent times, particularly regarding the manner in which it is being administered by the State. Critics, to mention but a few, include the behaviourist psychologist BF Skinner in his 1948 novel Walden Two, the libertarian economist David Friedman (The Machinery of Freedom (1978)) and the leftist feminist Angela Davis who argues in her book Are prisons Obsolete? (2003) that incarceration is morally unacceptable.

Although it is hardly likely that the existing criminal justice system will be scrapped and punishment abolished, it is, nevertheless, open to serious criticism. Consider the following: although one of the most important functions of the State is to protect its citizens against crime, every form of punishment that is imposed by the courts would in itself be branded a crime if a private person were to take the law into his own hands and punish an offender in a like manner. Execution would be murder and corporal punishment would constitute assault with intent to do grievous bodily harm. Locking up a felon is tantamount to kidnapping while the imposition of a fine (particularly where a person is threatened with more draconian measures if he fails to pay) amounts to blackmail. Moreover, as pointed out earlier, the State has, in the light of its monopoly of the prosecution and punishment of offenders, a duty to protect its citizens against crime. Yet it refuses to compensate those who fall victim to crime as a result of a failure to carry out that duty. Then there are the levels of recidivism which are alarmingly high among those who have been convicted, incarcerated and subsequently released. In fact, there are indications that young people who are imprisoned as first offenders frequently emerge as hardened criminals after they have spent time in jail. Given the poor track record of the State in combating crime in this country, one may be forgiven for wondering whether the massive funds spent on maintaining the criminal justice system have been put to good use. The salaries of functionaries such as the police, the Prosecuting Authority, judges and magistrates, stenographers, interpreters and the administrative personnel take a huge chunk out of the budget while enormous amounts are further spent on the erection and maintenance of court buildings and an institution that is optimistically (or perhaps euphemistically) called the Department of Correctional Services. Yet there is little that can be shown at the end of the day for all these expenses.

Even so, no State can exist without a criminal justice system. It is the only way that its citizens can be forced to obey its laws. Total lawlessness, on the other hand, endangers the State’s existence by making effective government impossible. It could also have that effect if inhabitants of a country were to take the law into their own hands on a massive scale and punish criminals as they see fit. That is, of course, one reason why those people who make themselves guilty of such conduct are normally prosecuted.

What is thus the justification for punishment? Why do the courts sentence wrongdoers? Although a great deal has been written on the subject, the consensus seems to be that there are four grounds or objectives that need to be achieved when punishing criminals namely the rehabilitation of the offender, preventing or restraining him from committing a further crime, deterring others from following his example and, in satisfying the demands of the victim and community at large, making those who are convicted of serious crimes pay sufficiently for the outrages that they perpetrate. This is known as retribution. Michael Shermer argues in his book The Moral Arc (P. 371) that restorative justice should be acknowledged as a fifth ground. According to him, it complements retribution. Restorative justice is, however, a process and not a justification for imposing punishment. The parties to a criminal trial usually meet in such a case when the accused is willing to accept responsibility, agrees what the harm is that the complainant has suffered and is willing to make amends. When he subsequently appears in court and pleads guilty to the charge, he is sentenced in accordance with the agreement that the parties have reached. The aim of the sentence is to rehabilitate him. Restorative justice, the Supreme Court of Appeal held in a matter which I argued, has limited application and cannot be used where the accused has been charged with an extremely serious crime such as the rape of a child. See DPP v Thabethe http://www.justice.gov.za/sca/judgments/sca_2011/sca2011-186.pdf.

Although judges and magistrates like to pretend that the punishments that they impose satisfy all four of the accepted grounds, a moment’s reflection shows that this cannot be. One problem is that there is a to a certain extent an overlap between rehabilitation and prevention so that is sometimes difficult to distinguish between them. A much bigger problem is that rehabilitation is incompatible with certain forms of punishment. Capital punishment is first and foremost among these, but even incarceration can hardly be reconciled with the ideal of reform. If a prison is for example exclusively geared to rehabilitation, the objectives of deterrence and retribution are bound to suffer. The reverse is, of course, also true.

Those who propagate the rehabilitation of offenders to the exclusion of all else in order to combat crime are opposed to punishment as such. One of the proponents of this approach was the influential American psychiatrist Karl Menninger. He claimed in his 1958 article “Therapy not Punishment” (reprinted in Punishment and the Death Penalty (ed) R M Baird and S E Rosenbaum P. 41 – 49) that the criminal justice system does not deter, is archaic and does not take the interest and needs of offenders into account when sentencing them. According to him, all those who have been convicted and sentenced should be detained and treated until they are no longer a threat to society. It is the view of the psychiatric profession, he assures us, that “…nothing should be done in the name of punishment…” However, nowhere in his article does Menninger tell us how his prescriptions will ensure a safer society and he further makes no attempt to address the legitimate interests and expectations of the victim of the crime and the community.

It seems to me as if the rehabilitation of offenders can at best be described as an ideal and that the non-achievement thereof will not endanger the legitimacy of the criminal justice system. At any rate, the sentences that are imposed to rehabilitate criminals are unique and usually exclude direct imprisonment. Those who stand to benefit most from such sentences are first offenders who have committed crimes of a comparatively minor nature. Where someone has to be punished for a serious crime, however, the aims of deterrence, prevention and retribution figure prominently and are reflected in the sentences that are imposed. The State, as an abstract entity, surely has a different expectation of what a sentence is supposed to achieve than its citizens. It is hardly likely that the State inflicts punishment to exact retribution, namely to make the miscreant suffer. It is more interested in deterrence as it will ensure the safety of the government of the day.

Everyone seems to assume that the sentences that are imposed by the courts deter others from committing crime. However, I know of no research that confirms (or disproves) this belief. Various studies have, on the other hand, been conducted over the years to establish whether capital punishment, in particular, deters. These studies, unfortunately, are in conflict with each other – some found that executions did reduce the murder rate while others did not. The question that consequently arises under these circumstances is the following: if it is uncertain whether the execution of criminals deters others from killing innocent people, then it must be even more doubtful whether less draconian punishments discourage those who want to commit crime. This, of course, presents a problem to those who maintain that the only ground on which punishment can be justified is deterrence. They include such secularist luminaries as Charles Darwin and Bertrand Russell. Although I do not think that justification of punishment depends solely on its deterrent value, it is nevertheless essential that it achieves that goal, particularly in crime-ridden countries like South Africa. I shall return to this aspect later.

Although a multiplicity of grounds for sentencing an offender are recognized by the courts, some philosophers argue that only a single underlying rationale exists. One of these is JD Mabbott who maintained in an article that appeared in the journal Mind in 1939 (reproduced in Baird and Rosenbaum P. 17 – 29) that the manner in which criminal trials are conducted is indicative of the reason why criminals are punished. The fact that the State is, unlike a plaintiff in a civil suit, required to prove its case beyond a reasonable doubt, he says, clearly shows that retribution is intended. If the aim was to deter others from committing crime, so the argument goes, the onus would not have been set so high for then the authorities would have wanted to convict as many accused persons as possible. This in itself would have had a high deterrent value. But there are problems with this argument. The reason why proof beyond a reasonable doubt is required before conviction in a criminal trial is to make sure that a person is not wrongly punished. Moreover, there is to a certain degree a punitive element present in some of the rulings made in civil claims where the onus of proof must be discharged on a balance of probabilities. Delictual claims and punitive cost orders fall into this category. Mabbott’s argument is also attacked by Jan Narveson in his book The Libertarian Idea. He points out on page 228 that if deterrence is the object and the accused is, with the lower standard of proof, innocent when he is sentenced, those who need to be deterred may be aware of it, in which case they will probably reason that it serves to purpose to be law-abiding since the system is at any rate unjust. Narveson also points out that the purpose of the legal system is to eliminate harm to the law-abiding citizen while such an approach will be in direct conflict with it. Lastly, he argues that if an innocent person is punished, it will undoubtedly encourage the person who is guilty of the crime to continue with his nefarious activities because he will realize that the criminal justice system is dysfunctional.

Punishment can be seen as a consequentialist or a deontological process. If the former approach is adopted, then the aim is to achieve certain results. They may be general in nature such as maintaining the peace or the preventing aggrieved persons from taking the law into their own hands. However, the ideals that come to mind in relation to a consequentialist punishment are those of rehabilitation, deterrence and restraint. As pointed out earlier, it is sometimes difficult to determine whether deterrence has been achieved while in the case of rehabilitation and restraint, the problem is often whether these objectives have been sufficiently achieved. In the deontological approach (where punishment itself is regarded as good) retribution is the only ground for its existence. However, as we have seen, a number of people are of the view that retribution must be rejected as a justification for punishment because it sanctions savagery and cruelty or is somehow a manifestation of religiosity.

But is it really so unacceptable to insist on retribution when a criminal who has committed a particularly revolting crime is being sentenced? In the criminal case of R v Karg 1961 (1) SA 231 (A) the following was said at page 236 in explaining why retribution is still an important consideration in imposing punishment: “It is not wrong that the natural indignation of interested persons and of the community at large should receive some recognition in the sentences that Courts impose, and it is not irrelevant to bear in mind that if sentences for serious crimes are too lenient, the administration of justice may fall into disrepute and injured persons may incline to take the law into their own hands.” Walter Berns further argues in his essay The Morality of Anger (in Baird and Rosenbaum P. 151-159) that it is morally acceptable to be outraged when a shocking crime has taken place and that it is a uniquely human trait to pay criminals back and to derive pleasure from punishing those who are thought to deserve it. He points out that by punishing those who flout the laws that bind together decent men, we demonstrate that we are not isolated individuals who each pursue our selfish interests. Anger is justified, he says, towards those who violate the fundamental values of the community such as friendship and trust and by collectively punishing evildoers, we bring home to them that we care for our fellow man. And in her study of the evolution of revenge entitled Wild Justice, Susan Jacoby writes that “the anger that proceeds from unredressed suffering can be more terrifying than the original facts of suffering…” and that the aggrieved person not merely wants others to listen, but demands that something is done about the wrongs that he or she has suffered. (P.355).

These views differ radically from those who reject retribution. The utilitarian philosopher Jeremy Bentham (1748 – 1832), for instance, maintained in chapter 13 of his Principles of Morals and Legislation that “…all punishment is mischief: all punishment in itself is evil. Upon the principle of utility, if it ought at all to be admitted, it ought only to be admitted in as far as it promises to exclude some greater evil.” He proceeds to enumerate the instances where there should be no punishment; it should not happen, he says, unless the deed was “…mischievous upon the whole”, it should also be avoided, we are told, where punishment will be ineffective, where it will be unprofitable or too expensive and lastly where it is “needless”. (Burtt P. 843). Apart from being completely nonsensical, these views and prescriptions of Bentham are morally objectionable. He clearly has no empathy with the victims of crime; the whole process of punishment, in which he is obviously an unwilling participant, is a mechanical one. No human needs and emotions may play any role therein.

Opponents of retribution often compare it to a game of tit-for-tat. In the article of Menninger to which I referred earlier, he expresses his displeasure with the said “game”. It is, we are advised, a “foolish and futile” exercise that has to stop (P. 49). But in 1984 a book appeared that caused a stir. It was called The Evolution of Co-operation and was written by Robert Axelrod, a professor of Political Science at the University of Michigan. He requested experts in game theory to write a computer program for a tournament with a certain game known as the prisoner’s dilemma. The idea was to establish which strategy will ensure optimal co-operation between persons with conflicting interests. Seventy-six entries from six countries were received. To Axelrod’s surprise, it turned out that the simple computer program Tit for Tat was the winner by far. It resulted in the least distrust and conflict and encouraged maximal co-operation.

While Tit for Tat explains reciprocal altruism, it clearly also has implications for the criminal justice system. In those instances where A prejudices or injures B, there must be a punishment that can be inflicted on A to bring it home to him that such conduct is not acceptable and that if he wants to avoid it and/or have a harmonious relationship with B, he will need to mend his ways. Axelrod makes it abundantly clear that punishment is in the first place retributive in nature and that where the trust between the parties was mutually violated, “…revenge evoked revenge.” (P.85).

Where the goal is to deter third parties from following the example of the A or preventing A from repeating his objectionable conduct, other considerations come into play. Axelrod points out that in order for deterrence to succeed, the reputation of the party who administers punishment is crucial. That reputation must be that it is a bully and that all threats made by it must be credible. Where only two parties with equal power are involved, it will be difficult for anyone of them to acquire such a reputation. However, the situation is, theoretically at least, wholly different where the relationship between the State and its subjects is concerned. (P. 150 – 155).

It must now be clear why the deterrence of potential criminals worldwide, but particularly in South Africa, such a problem. With an ineffective police force, a largely dysfunctional criminal justice system, all the rights that are given to the accused and the abolition of draconian forms of punishment no one believes that the State is a bully whose threats to apprehend all those who contravene the law and punish them severely must be taken seriously. On the other hand, the type of measures that will ensure deterrence is simply not acceptable nowadays. Perhaps that is the price that we pay for being civilized.

What should our justification for punishment be in the light of these considerations? Those who believe in rehabilitation and deterrence to the exclusion of all else, seem to adopt the view, fashionable in some circles, that good intentions carry more weight than unpleasant facts. One of these facts is that the community and the victim of a crime, in particular, require an evildoer to suffer some harm to satisfy a deep-seated psychological need. (It is known in German as “schadenfreude” and in Afrikaans as “leedvermaak”.) A far more reasonable approach to sentencing is to concede that retribution is one of the most important reasons for the existence of the criminal justice system and for punishment in particular. It is also far easier to achieve than any of the other aims of punishment. That is not to say that deterrence, rehabilitation and prevention are not important. They are. But with the shrinking number of sentence options available to the courts and the greater sympathy towards criminals, their objectives will become increasingly difficult to achieve in future.

Christo Roberts

I am a retired Senior State Advocate and I live in Cape Town.


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