Most people believed that it is both necessary and proper for society to punish those who commit crimes.  Against this view there is a growing minority who see punishment for crimes as both a brutal and pointless.  It is pointless, they maintain, because it does not really deter or reform offenders.  It is brutal because it conceives of men as controlled in the last instance by the terror of the executioner.

This is the approach taken by Skinner in his popular book Beyond Freedom and Dignity, where he shows little sympathy for those who refuse to replace punishment with treatment or therapy.  A convenient foil for the charge of brutality is Joseph De Maistre.  Having lived through the French Revolution, De Maistre wrote of the good old days in the Ancien Régime under Louis XIV.  Back then, the state knew how to punish properly.  De Maistre provides us a horrific account of a properly run execution.  He directs our eyes to the offender.  The wretched man is solemnly placed into the competent hands of the executioner who calmly stretches out the prisoner on the rack.  We hear the cracking of bones under the blows of the rod, the thud and snap of a baseball bat hammered into a side of beef.  We want to turn away, but De Maistre forces us to listen to the piteous cries of the victim, and the pathetic pleas for a quick death.  In the end we see the twisted and broken body of the offender, covered with blood and empty of life.  The executioner steps before the watching crowd.  It recoils in terror at his approach.  He displays his blood-stained hands into which the authorities place a few pieces of gold for a job well done.  De Maistre’s justification for this gruesome rite is straightforward: "All grandeur, all power, all discipline or founded on the executioner.  He is the horror of the human association and the tie that holds it together."[i]

Skinner is quick to acknowledge we seldom tolerate such scenes today.  Yet he insists that all punishment shares to some degree the brutal conception of human control that is inherent in De Maistre’s account.  While much of Skinner’s charge is nothing more than rhetorical flourish, it does strike a raw nerve.  Most who are for the punishment of criminals would prefer to mitigate its connection with brutality and make it as humane as possible.  It is because of this that we tend to avoid all forms of corporal punishment, and feel constrained to make imprisonment the only legitimate technique for the punishment of offenders.  Even here there is constant pressure for improving prison conditions so that they will be more humane, less brutal.

This is not to say that imprisonment is the most prevalent sentence for criminal activity.  Quite to the contrary.  Most convictions end in probation, which in part is the result of overcrowded prisons that make it impossible to incarcerate all of those convicted of crimes.  It is also the result of a desire to keep first offenders out of prison because it is believed that the prison environment breeds criminality instead of smothering it.  It is also the inevitable outcome of the institution of plea bargaining.  It is only through plea bargaining that an overloaded criminal justice system can manage its workload without capsizing.  The Model Penal Code makes a virtue out of these practical necessities by permitting imprisonment only upon a showing that it is necessary for the protection of the public.  The American Bar Association has followed this lead by proposing that: "A sentence not involving confinement is to be preferred to a sentence involving partial or total confinement in the absence of affirmative reasons to the contrary."[ii]

For those who would do away with punishment altogether this is all to the good.  But for those who believe punishment for crime is both is both deserved and needed for deterrence, this attitude is cause for dismay.  In any event, it is imprisonment and not probation that is viewed by the general public as the appropriate punishment for most crimes because it is thought to be painful yet humane.

Historically, imprisonment did not develop as an alternative to corporal punishment from of a desire to reduce brutality.  In England, for example, imprisonment was first used to hold a person accused of a crime within the jurisdiction until the time of trial.  Imprisonment was not punishment.  It was security against the offender’s  attempt to escape trial.

Equally interesting is the fact that some of the most brutal aspect of early English criminal law had nothing to do with punishment for crime.  Trial by ordeal, which included various forms of torture, and trial by battle were simple techniques for assessing guilt or innocence.  They were aspects of the judicial process, comparable to modern rules of evidence.  They were not  perceived nor meant to apply as punishment for an offense.  

Only recently has imprisonment become the most prominent form of punishment for criminality, and only within the last century has it been urged on humanitarian grounds.  This is the result of the confluence of various historical trends.  All of them cannot be told here.  But two deserve special mention.  

The first was disgust with a lack of imagination.  At the start of the Industrial Revolution, corporal punishment was applied indiscriminately to all kinds of misconduct.  In the public’s mind many of these offenses hardly merited such extreme penalties.  Flogging or maiming for the theft of an item worth only a few shillings was far out of proportion to the gravity of the offense.  For this reason, it was often difficult to get witnesses for trials or to impanel juries who would convict.  In fact, merchants and manufacturers were in the forefront of penal reform since they wanted convictions.  The say this would happen only when there was a better fit between punishment and the gravity of the offense.

Second, it needs to be recalled that much of the impetus for penal reform came from the utilitarians, and primarily from the leadership and views  of Jeremy Bentham.  Bentham was very much interested in establishing forms of punishment that could be graded in degree of severity.  Only in this way could legislators attach just the right amount of pain to an offense to become a deterrent without offending our sense of justice.  According to Bentham, punishment below the amount would be ineffective and only make matters worse.  And punishment above this amount would only add unnecessary pain to society’s lot of misery.  Both of these mistakes were to be shunned by the devoted utilitarian.

To avoid this problem punishments must be quantifiable.  Fines and imprisonment obviously qualify.  Fines are very precise, to the penny as it were.  Imprisonment is less so.  The measure is in years instead of days or hours.  Still, it is better than corporal punishment.[iii]

The trend away from corporal punishment to incarceration was not for humanitarian reasons.  The motive was expediency.  To fit the punishment to the crime, and improve deterrence.  It was only after imprisonment had become the standard punishment that humanitarians pushed for its expansion as the only punishment for crimes.

Today, only a few states use some form of corporal punishment.  And capital punishment is seldom used, even when legal.  This is thought to be enlightened, an improvement over the brutal past.  I disagree.  Incarceration is fraught with problems so severe that a return to corporal punishment could be justified.  A step backward might better serve the ends of freedom and dignity than the system of punishment we have created.  In this sense, consider this essay a plea for brutality.

I do not believe imprisonment is a humane alternative to corporal punishment.  Even the most enlightened prison is in a profound sense inhumane.  The problem with imprisonment is that it is more than punishment.  It is also a coercive threat.  Plus an application of force.  It is the element of force that makes imprisonment so troubling.

The concepts of punishment, coercion, and force are different ideas, yet related.  Each has its own logic.  And each has its own justification.  Punishment is the application of a penalty - something aversive - for wrongdoing.  As Anthony Quinton argued some time ago (and it is a logical point tied to the very concept of punishment), only the guilty can be punished.  You cannot punish the innocent.  Punishment is something deserved.  And the innocent do not deserve to be punished.  You can hurt the innocent, but this is not punishment.  To punish you must have an offender.[iv]

It is also a feature of punishment that the person must understand why he is being punished.  It is not enough that we know a felon has committed a crime.  The felon must understand this as well.  Otherwise, punishments could never deter.  If punishment is to deter, wrongdoers present and future must understand the connection between crime and punishment.

There are numerous justifications for punishment.  Most are consequentialist.  There is the idea that punishment is needed to reform the offender.  There is the notion that punishment is needed to redress the moral imbalance caused by criminal acts.  Some believe that punishment is symbolic.  It shows society’s resolve to maintain a certain moral order.  

The simplest justification is that punishment deters.  We punish to make people obey the law.  To avoid punishment, potential wrongdoers behave.  This is the essence of successful coercion.  There is a threat.  It is believed.  And the unwanted behavior does not occur.

Of course, since it addresses human will, the threat can fail.  A person might refuse to comply.  Perhaps the rewards of wrongdoing outweigh the threat of punishment.  Or a person simply refuses to bend his will to threats.  It happens all the time.  Even with severe threats coercion can fail.

It is different with force.  Coercion (threatening) is always addressed to the understanding in order to alter the will. But force ignores understanding.  For it tries to bypass a person’s will.

Force comes in mild and harsh forms.  Harsh force totally incapacitates its victim.  Bind a person so he cannot move. Or drug him into unconsciousness.

Mild force arranges things so that an act is impossible.  This can be done by controlling the environment.  A locked safe prevents thefts, at least by amateurs.  And the views of a political radical are not heard if he is denied access to the media.  

The philosopher Immanuel Kant argued that humans deserve to be treated as ends themselves.  They are not means, things to be used or manipulated.  They are thinking, willing beings who deserve to be treated as such.[v]The ideal is to reason with people.  But threats are also human in the sense that they address reason as a way to alter willing.

To control by force is to treat people as objects.  It bypasses the will by making actions impossible.  Control through coercion is different.  It tries to affect understanding and the will with threats.

Force is sure-fire.  Coercion is not.  A man cannot act if we nullify his will by knocking him unconscious, or if we kill him.  But we can only hope that a man will obey because of coercive threats.  Coercion is never sure-fire.

Force nullifies freedom by eliminating the will.  Coercion leaves the will intact.  In this sense, coercion does not eliminate freedom.  Actually it presumes it.  Threats presume free will.  Only force destroys freedom.

We have been taught to think otherwise.  The conventional wisdom is the coercion restricts freedom.  But if freedom is the ability to exercise our will, then coercion does not destroy freedom.  We find people exercising their will even in extreme cases of coercion.  For even the most fearsome threats sometimes fail to deer.  The power of any sanction is relative to an individual’s conception of what it is worthwhile to do.  This can vary from man to man, or with the same man over time.  The martyr is not paralyzed by the threat of death.  Nor is the soldier who puts his life on the line to save a buddy.  You can make a man so mad he will fight, or even die.

Coercion works most of the time because for ordinary men in ordinary circumstances certain threats are usually effective.  But force works all of the time.

Coercion preserves freedom.  It accords people dignity.  This is because it treats them as human beings with understanding and will.  Force disdains freedom and dignity and treats people as objects.

If we want to treat people with dignity, even people who do bad things, we must avoid using force whenever possible.  Punishment for crimes should not use force.  

What are some examples of force as punishment?  In the Middle East, thieves are punished by hacking off a hand.  One hand for one offense, the other hand for two offenses.[vi]  However much a thief may want to steal, it is difficult without hands.  The amputations nullify his will.  Until recently, California used castration as a punishment for sex crimes.[vii]  This too is an application of force.  Castration eliminates the sex drive, making it impossible to desire sex.  The will is permanently impaired.

The will is impaired in toto by execution.

It also impaired by imprisonment.  In the extreme case of solitary confinement, incarceration completely incapacitates.  A person’s will is nullified, at least for most things beyond standing or sitting, or eating.  Outside of solitary confinement, the degree of incapacitation in prison varies from lockdown to minimum security.  Even with minimum security, the person is in a cage.  Real life is on the outside, and prisoner’s body cannot go there.[viii]

If we respect freedom and dignity, there must very special circumstances before we punish with force.  I can imagine only one valid justification.  To protect the public.  There are people so dangerous that they cannot be allowed in society.  It makes sense to keep them in a cage like a dangerous wild animal.  But apart from isolating dangerous individuals from the rest of society, the state has little justification for incapacitating citizens.

Certainly it is wrong to keep people in prison until they reform.  This is the object of indeterminate sentencing. A prisoner is not released until the prison authority judges him fit to return to society.  In what does this fitness consist?  Simply that the person will respond normally to coercive threats.  Like the average person, the threat of punishment will curb his criminal ways.  Had the person responded normally in the past he would not be in prison now.

Oddly, this is like the police state’s treatment of political dissidents.  Political prisoners are people who do not fear the state.  They protest and speak out even in the face of harsh penalties.  The state is unable to bend their will.  So it locks them up to make their will irrelevant.  If they recant, they are released – just as the prisoner under an indeterminate sentence is released once the authorities believe he has reformed.

In a truly free society, it is possible for people to violate rules.  Of course they must pay for violations by being punished.  A free society also allows repeat offenders.  It is discouraging that the repeat offender is somehow deaf to our threatening shouts.  But so long as he is not dangerous to society, we must accept the simple fact that we have failed to coerce him.  That is the price of freedom.

Imagine we did not use force to punish.  That would eliminate execution, castration, amputation, and imprisonment.  How then would we punish?  In the old fashioned way, through whipping or some other painful punishment.  However brutal, corporal punishment is swift.  One minute the person is punished, the next minute he returns to his ordinary life to pick up the pieces and hopefully behave.  Most people would do nearly anything to avoid such punishment.  Which makes it a good deterrent.  And when it fails, the cost is pain, not loss of freedom.

There is another virtue of corporal punishment.  It can be made public.  This has a sobering effect on potential offenders.  It is not sure-fire.  Only force qualifies.  But it can be a powerful coercive threat.  And it leaves freedom intact.