The Emotional Significance of Punishment

To appreciate the emotional significance of punishment one must see its special place in the law. To see this requires distinguishing punishment from other sanctions that modern states use to enforce the law.

The modern state makes use of a variety of such sanctions. All consist in losses and hardships that the state imposes on lawbreakers and thereby makes the laws to which it attaches them binding on everyone who is subject to its authority. Punishment is one type of sanction the state imposes, but it is hardly the only one. It has, that is, a distinctive character. It is not simply a tool of law enforcement. Unlike mere penalties, for instance, it has a larger purpose than deterring past and potential lawbreakers from breaking the law. Thus mere penalties, like the fees exacted from taxpayers who file late returns and the civil fines companies incur for discharging pollutants into the environment, are not punishments. Nor is forfeiture of assets for failure to pay one’s taxes or disqualification from voting for having been convicted of a felony punishment. And while these latter sanctions too serve purposes beyond that of inducing those subject to the state’s authority to comply with the law, their purposes are not punitive. In the one case, the state acts with the purpose of recovering what it is owed from someone delinquent in paying his or her taxes. In the other, it treats voting as a privilege and acts to remove the privilege from someone it deems unfit for the civic responsibility whose performance the privilege facilitates (Deigh, 1988). For a sanction to have a punitive purpose the state must impose it on someone in retaliation for his or her having broken the law. Only such sanctions are punishments.

The point is well illustrated in legal cases in which the courts must determine whether an action the government has taken against some individual or individuals is punishment. Consider, for example, the case of Fleming v. Nestor. ¹ Ephram Nestor immigrated to the United States from Bulgaria in 1919 and was deported in 1956. The grounds for his deportation was his having been a member of the Communist Party. His membership lasted for 6 years, from 1933, when he joined, to 1939, when he quit. His deportation on these grounds triggered the denial of his old age insurance benefits under the Social Security Act as amended in 1954. He filed suit in federal court for reinstatement of these benefits, and after the district court ruled in his favor, the case came before the U.S. Supreme Court on appeal. One of the issues with which the Court dealt was whether the Constitution’s protections from punishment without trial and for acts that were legal at the time they were done applied to Nestor’s loss of his old age benefits. In short, the Court had to decide whether Nestor’s loss of these benefits was punishment that the government inflicted on him for having been a member of the Communist Party. If it were, then the law under which the government deprived him of them would violate his Constitutional rights.

A deeply divided Court ruled in favor of the government. It held, in a five to four decision, that it must defer to Congress when the question of whether Congress had enacted a law repugnant to the Constitution is open and that it was open in the present case because one could read the amendments Congress made to the Social Security Act whose constitutionality Nestor was challenging as consistent with a valid exercise by Congress of its plenary powers. Specifically, the majority wrote, one could read them as falling within Congress’s power to regulate the administration of the old age and disability insurance programs it had established under the Social Security Act. The dissent disagreed. Justice William Brennan, who wrote for two other justices, put the disagreement most cogently. Only one thing, Brennan wrote, can plausibly explain Congress’s mandating that people who were deported on grounds of their past membership in the Communist Party be deprived of their social security benefits, and that is to “strike at” those who fall into this class of persons. Congress’s intent was “to inflict hurt upon those who by their conduct have incurred the displeasure of Congress.” ² In short, Brennan argued, Congress’s purpose was unquestionably punitive, and hence its enacting, for such a purpose, a law that inflicts losses on people who belong to a specified class is to impose punishment on them. Such an imposition, when carried out without a trial and for acts that were legal at the time they were done, is a clear violation of the Constitution’s bans on bills of attainder and ex post facto legislation.

A second case, Gompers v. Bucks Stove & Range Co, ³ concerns the difference between the sanctions for civil and criminal contempt. Samuel Gompers and two associates had been found in contempt for violating a court order not to publish statements either alleging that Bucks Stove & Range Company had engaged in unfair labor practices or blacklisting the company. Each defendant was sentenced to a fixed period of imprisonment for violating the order. Their sentences varied from 6 months to a year. They appealed, and the Supreme Court took the appeal. The Court, in a decision that overturned these sentences, explained that a sanction, if imposed for criminal contempt, is necessarily punitive but one that is imposed for civil contempt must be remedial. The sanction’s purpose in the latter case is to benefit the complainant. When the sanction is imprisonment and imposed for civil contempt, the imprisonment is a means of coercing the prisoner to comply with the order in disobedience to which his contempt consists. Accordingly, his imprisonment lasts only for as long as he refuses to comply. As the Court put it, “‘[H]e carries the keys to his prison in his own pocket’. He can end the sentence and discharge himself at any moment by doing what he has previously refused to do.” ⁴ It follows that a court cannot properly imprison someone for a fixed period as a sanction for civil contempt. Such imprisonment would not work to coerce the person to comply since he would remain imprisoned regardless of any change in his readiness to comply. It would not benefit the complainant. Rather, it would be punitive.

The Court, observing that the complaint against Gompers and his associates had originated with Bucks Stove & Range Company, a private party, that it was the company who had instituted the contempt proceedings leading to the imprisonment of Gompers and his associates, and that the proceedings themselves were conducted as a civil trial, concluded that Gompers and his associates could not be made liable to punishment as a result of these proceedings. To be liable to punishment, they would have had to have been found guilty in a criminal trial, and such a trial would have afforded them certain Constitutional protections that were not available to them in the proceedings that led to their imprisonment. One would have been the protection against their having to testify against themselves—the plaintiff had called each of them as witnesses in the proceedings. Another would have been the higher standard of proof—guilt beyond reasonable doubt—that would have been necessary for conviction on the evidence presented. Consequently, the imposition on them of fixed periods of imprisonment, being punitive rather than coercive, violated their Constitutional rights. The Court, recognizing these violations, reversed the lower court’s ruling.

Punishment, as these cases show, is a sanction the state imposes with punitive intent or for a punitive purpose. What then is it to act with punitive intent or a punitive purpose? Plainly, to answer that it is to act with the intent to punish or in order to punish would be circular and so unilluminating. To answer in a way that avoids circularity requires, therefore, a notion that is distinct from that of punishment. Let us, as I suggested earlier, use the notion of retaliation. This notion identifies the direct point or aim of punishment. Accordingly, the state acts with punitive intent if it imposes pain or loss on an offender, real or supposed, in retaliation for his or her having actually or supposedly committed some offense. Similarly, a legal sanction has a punitive purpose if the state imposes it in retaliation for some actual or supposed offense that the person on whom it is imposed did or is presumed to have done.

The answer matches the understanding of punishment we express in ordinary talk about punishment in a wide variety of areas. For example, when people in romantic relationships retaliate against their lovers by withdrawing affection from or ceasing to communicate with them, we commonly describe them as punishing their lovers for having angered or displeased them. Or to draw on a very different context, international relations, when one country sponsors unprovoked attacks on the citizens or property of another and the latter retaliates by wreaking destruction on the former, we describe the destruction the latter wreaks as punishment inflicted on the former for its belligerence. Thus when the United States, having determined that Libyan operatives carried out the 1986 bombing of a Berlin night club in which two American soldiers died and many others were injured, launched air strikes on several military targets in Libya in retaliation, it was natural to describe the United States as inflicting punishment on Libya for its lethal attack on American soldiers. For a third example consider an election in a representative democracy in which angry voters turn an incumbent out of office. In such an election, especially when the incumbent’s defeat is decisive, it is common to describe the voters as having punished him or her for conduct in office that displeased them or raised their ire. Similar examples can be found in such disparate areas of life as business, competitive sports, and relations among neighbors.

Once we identify acts of punishment as belonging to the class of retaliatory acts and observe that punishment is as much at home in personal and social relations as it is in the law, its emotional significance becomes evident. Retaliation in personal relations is naturally an act of hostility. Its target is someone who has injured one or caused one pain and as a result provoked in one displeasure, anger, resentment, enmity, or the like. In retaliating one then expresses this hostility toward him. Punishment inflicted in such institutional contexts as the law, being a retaliatory action, retains this significance. ⁵ At the same time, its emotional significance transcends the emotions that any of the public officials responsible for inflicting it may feel toward the offenders upon whom they inflict it. In this respect, punishment is like other institutional actions that signify emotion. A country expresses gratitude to its heroic soldiers, for instance, by awarding them medals of valor. The emotional significance of such acts transcends any emotion that a public official or military officer involved in awarding these medals may have. Indeed, such officials and officers may take a detached view of their actions in keeping with their being merely the administrators of the practice of honoring soldiers who performed heroic actions in the service of their country.

Elsewhere I have proposed, in view of examples of punishment that occurs outside of any institutional context a general definition of the phenomenon according to which its genus is pain or loss inflicted on someone in retaliation for something he or she actually or supposedly did and its differentiae are its being inflicted openly and by someone or some agency who is at least as powerful as its target (Deigh, 2014). These differentiae are necessary, I argued, to distinguish punishment from pain or loss that is secretly inflicted on someone in retaliation for something he did and also to distinguish it from pain or loss that is inflicted as an act of resistance to or rebellion against another who exercises power over one. Specifically, infliction of pain or loss on someone in retaliation for something he did is not punishment, I argued, if the person on whom it is inflicted has no knowledge of its source or reason, and it is not punishment if it is inflicted in an attempt to oppose or overthrow someone or some organization who exercises power over one. To these differentiae I would now add that the pain or loss must be deliberately inflicted. ⁶ A punch-in-the-nose or drink-in-the-face thrown spontaneously from sudden anger provoked by an insult, say, or rude treatment, while retaliatory, is not punishment.

That this general definition fits legal punishment is evident in light of the distinctions we observed earlier between it and other legal sanctions. In addition, I believe the definition provides a deeper understanding of punishment than the consensus definition that has emerged in the philosophical literature, especially as it concerns the question of legal punishment’s justification. The consensus definition reflects an assumption the theorists who have contributed to this literature implicitly make about legal punishment’s being the touchstone of the phenomenon. As a result, they treat punishment in other contexts like romantic relationships as only weakly analogous to it. The upshot is that the aims of social policy or morality to which these theorists look for the justification of legal punishment tend to obscure the more primitive function punishment has in stable social groups of all kinds. A stable social group may be a couple in a long term relationship, a family, a clan, a tribe, or a people who make up a nation or polity. In such groups punishment, taken in the broad sense that I proposed, serves to maintain the group’s stability by working to preserve order within the group.

That it does so is obvious in groups in which preserving order means nothing more than preserving the relations of power among the group’s members. It is obvious because to say that punishment works to preserve order in such groups is just to say that one thing more powerful members of the group do to maintain their dominance over less powerful members is to retaliate openly against the latter when the latter harm or displease them. In so retaliating, they demonstrate their power over the recipient of their inflictions, a demonstration that may be necessary to keep the latter or other would-be challengers to their position from seeking to displace them.

Order in many social groups, however, consists in more than the relations of power among the group’s members. It consists in relations among them that are defined and regulated by rules the members generally accept and follow. In social groups whose order is so determined, whose order is civil rather than natural, punishment works to preserve that order when either more powerful members retaliate openly against less powerful ones who break the rules or an agency that is invested with power greater than that of any of the group’s members and that acts in their name retaliates against members who break the rules. Such retaliation works to preserve civil order both by demonstrating the greater power that the members or the agency who inflicts punishment has over those on whom it inflicts it and by communicating to them, to others who may be disposed to engage in similar action, and even to members who are not so disposed that the rules are to be respected and that violations of them are not tolerated. This message, conveyed as it is through the pain or loss those on whom it is inflicted suffer, deters them and others who are disposed to act as they did from breaking the rules and at the same time strengthens the disposition to comply with the rules of those who are not so disposed.

Punishment thus works to preserve civil order both by deterring those who are disposed to act in ways that would disrupt it and by assuring those who are not that they have not been gulled into complying with the rules. ⁷ Let us call these ways in which it works to preserve civil order the deterrent and assurance functions of punishment. To say that they are functions of punishment is to say no more than that punishment has a causal role in preserving a group’s civil order. Specifically, it is not to say that the members of the group who inflict punishment or the agency empowered to do so inflicts it with the aim or purpose of deterring potential rule breakers or reassuring those members who have complied with the rules. Punishment, after all, can deter the former and reassure the latter even when its infliction is undertaken with the sole aim of retaliating against those who disrupt the civil order. It can also, of course, be inflicted with the further aim of producing either effect, though whether or not it is so inflicted is incidental to its emotional significance, however important it may be to justifying its infliction. ⁸

How, then, does punishment’s deterring those who are disposed to disrupt the civil order and assuring those who are not work to preserve that order? The deterrence function’s contribution to preserving it needs little explanation. Open retaliation by someone or some agency at least as powerful as oneself inspires caution and calculation if not outright fear should one again contemplate crossing that person or breaking the rules the person or agency enforces, and it similarly influences others who may too be contemplating crossing the person or breaking those rules. If the pain or loss that is inflicted is great enough, calculation will lead to forbearance by the less powerful, and fear will likewise move them to forbear. Thus punishment’s deterrent effect helps to preserve the civil order by reducing the incidence of disruptions to it.

The contribution of the assurance function, by contrast, needs a more developed explanation. The reason is that its contribution is due at least as much to a second mechanism by which a social group’s order is preserved. This second mechanism is the members’ allegiance to the group, and in the case of a group whose order is civil the mechanism includes the members’ commitment to upholding the rules that determine that order. The members’ allegiance and commitment are the basis of trust they place in each other and in the institutions that govern their conduct. This trust cements the social relations among them and consequently strengthens social stability. It follows, then, that the more widespread and stronger allegiance is among the group’s members, the less important the deterrent function of punishment is to the work of preserving civil order. For the broader the allegiance is across the membership and the stronger it is among the members, the smaller will be the class of members who are positively disposed to break the rules and the weaker, on average, will be their disposition to do so. Thus punishment assures those members who comply with the rules out of allegiance to the group and correlative commitment to uphold those rules that their trust in others and the institutions that govern their conduct is not misplaced. In sum, it both reinforces calculations they might make to the effect that breaking the rules does not pay and vindicates their regarding the rules that determine the group’s civil order as authoritative strictures on their conduct.

Allegiance to the group and commitment to upholding the rules that determine its civil order come about through internalization. That is, a person, as a result of this process, comes to have a conscience about supporting the group’s good and respecting its rules. The first thinker to identify this process and treat it as formative of the moral personality men and women develop that marks them as respecters of law and duty was Friedrich Nietzsche. His account of the origin of bad conscience in Europeans traces the phenomenon to the beginnings of communities rooted in one place and the self-stifling of aggressive drives that was necessary for such communal life to go forward. The process, Nietzsche wrote, consisted in turning these drives against oneself and thereby transforming the disposition to act aggressively towards others, which threatened the stability of the community, into susceptibility to compunctions of conscience and feelings of guilt when one contemplated engaging in such aggressive conduct (Nietzsche, 1969). Sigmund Freud, in writings on moral development in civilization, gave a similar account of how through internalization humans acquired a conscience and a sense of guilt (Freud, 1969; see also Deigh, 1984). He too explained the process as one of hostility turned inward, for like Nietzsche he regarded the harshness of conscience, its bite and reproaches, as its most telling characteristic. Freud, however, saw the process as taking place in the inner life of small children in their relations to their parents who, as both providers of protection and nourishment, inspired love, but who, as supreme authorities demanding and exacting obedience, excited fear and anger. Conscience, Freud argued, was the product of the child’s resolution of these powerful ambivalent feelings toward its parents, a resolution it achieved through internalization of parental authority, which it invested with the anger toward its parents that had previously developed.

Later thinkers have followed Freud in locating the process in the inner life of small children. At the same time, they have departed from him and Nietzsche in explaining it not as taking place through the turning around of aggression or hostility that was originally directed outward, but rather as the work of other emotions and capacities natural to human beings. Thus John Rawls, in his account of how people acquire a sense of justice, posits a primitive desire to reciprocate, when one sees that one is the recipient of another’s benevolence or enmity, to explain how a child of loving parents comes, in response to their protection and care, to respect their authority and accept their rules, and how the same process replays itself as the child ventures into different social surroundings and enjoys the benefits of participation with others in the organized activities distinctive of these environments (Rawls, 1971, pp. 453–496). Martin Hoffman, by contrast, explains internalization as a process that combines a child’s being subject to parental discipline with its capacity for empathic understanding of the distress that those whom it harms experience (Hoffman, 2001, pp. 113–171).

However the process is explained, its result is a development in emotional capacities that implies significant change in the child’s attitudes and feelings towards its parents, which is later extended to other powerful figures and institutions in whose charge it is placed and who then exercise authority over it. Among other changes, the child looks to parents and other authorities for approval of its conduct, is concerned not to disappoint them, feels guilt if it either transgresses a limit that they have placed on its conduct or omits doing something they have mandated be done, and in that case seeks restoration of good relations with them. The guilt the child feels and the consequent orientation toward restoring good relations with the authorities it has disobeyed corresponds to anger or stern displeasure that its disobedience provoked in them. And while parents and other authorities may not inflict punishment in anger or as an expression of their displeasure but rather do so strictly for the child’s own good—to teach it about limits to individual liberty in a world one shares with many others and to prepare it to take on the responsibilities of adult life—, the child will nonetheless experience punishment as an expression of anger or displeasure at its misbehavior and take it as a sign of a rupture to relations it values dearly. Consequently, the punishment the authorities inflict typically facilitates the restoration of these relations to good order as it relieves the child of the guilt it feels and at the same time, in the child’s imagination if not in fact, assuages the anger or displeasure that it provoked.

One can see, in this familiar dynamic in relations between children and parents, a third way in which punishment works to preserve civil order. Let us call it the reparative function of punishment. When one disrupts the civil order by breaking the rules that determine it, others by virtue of their allegiance to the group and commitment to upholding those rules will regard one’s action as an instance of wrongdoing and, indeed, a crime if the rules in question make up the society’s criminal law. When so regarded, the act represents a rupture to the social relations that those rules define and regulate. Being the agent responsible for this rupture, one is seen as fittingly made to repair it, and the reparations, which are exacted through punishment, consist in one’s undergoing pain or loss consonant with the seriousness of the type of wrong one did. One’s suffering this pain or loss makes the relations once again whole as it both expiates one’s guilt and meets the demand for satisfaction that more powerful members or the agency responsible for enforcing the rules makes as requital for wrongdoing. Or rather it makes the relations once again whole provided that, on the one hand, one accepts the pain or loss as fairly inflicted in virtue of one’s guilt and, on the other, the members of society generally (or the public officials who represent them) are satisfied with the sufficiency of its infliction as requital for wrongdoing and are prepared to cease inflicting further pain or loss on one.

These conditions mirror those that obtain in personal relations, such as relations between friends, a rupture to which is healed when the friend responsible for the rupture makes amends and these dissolve whatever resentment his friend, whom he injured, feels toward him. In making amends, the former acknowledges being at fault for injuring the latter, and if he then succeeds in gaining the latter’s forgiveness, his guilt should dissipate as well. For forgiveness entails cessation of resentment and signals that further amends are unnecessary. Of course, as the social distance between wrongdoer and the person he injures increases, it becomes at once easier for the wrongdoer to avoid acknowledging his guilt and harder for him to find ways to dissolve the injured person’s resentment. And his avoiding acknowledging guilt is easier still when his wrongdoing consists in breaking a rule and there is no distinct individual whom he has injured or none at least with whom he can connect. For this reason, in large groups or whole societies whose social relations are ruptured when a member breaks the rules that determine its civil order, allegiance to the group and the correlative commitment to uphold its rules become increasingly important factors in the repair of these relations when they are ruptured. They replace the love and respect between friends that work to repair their relations when they are ruptured.

Thus, when someone breaks the laws of her society and thereby ruptures the social relations between her and the other members that those laws define and regulate, punishment performs the reparative function amends serve in personal relations. Its infliction, being a form of retaliation for lawbreaking, signifies anger toward the offender, and the offender’s acceptance of the pain or loss inflicted on her as punishment signifies acknowledgment of guilt. Relations between her and the members of society generally are then made whole if the punishment is seen as cleansing her of guilt. The burden of reparation she has is lifted as the cessation of retaliation signifies the dissolution of society’s anger.

Is it realistic to think that the punishment legal systems in modern societies inflict can perform this reparative function? Doesn’t the history of penal practices in such systems show the folly of thinking it can? Certainly, if one fixes on the most violent and incorrigible criminals and takes them as the prime object of such punishment, skepticism about the possibility will seem irrefutable. Nietzsche, for one, expressed such skepticism when he wrote (Nietzsche, 1969, p. 81),

It is precisely among criminals and convicts that the sting of conscience is rare. Prisons and penitentiaries are not the kind of hotbed in which this species of gnawing worm is likely to flourish: all conscientious observers are agreed on that . . . Generally, punishment makes men hard and cold; it concentrates; it sharpens the feeling of alienation; it strengthens the power of resistance. If it happens that punishment destroys the vital energy and brings about a miserable prostration and self-abasement, such a result is certainly even less pleasant than the usual effects of punishment.

And Nietzsche surely speaks for many.

Yet this view distracts from a larger picture. To be sure, the population of a modern society includes some who have no conscience about their dealings with people beyond a small circle of friends and family, if that, and whose estrangement from the larger community in which they live make them a danger to others. And for such people punishment the law imposes can have no more significance than that of being harm that society forces them to suffer when they ignore its rules. Further, they are doubtlessly overrepresented in the class of criminal offenders as compared to their numbers in the general population. Nonetheless, they do not exhaust that class and, notwithstanding the stereotypes fostered in popular culture, may not even be typical of its members. Other offenders, who have some allegiance to the larger community and a conscience about how they deal with people, could see punishment differently. For them acceptance of punishment could signify acknowledgment of guilt and also a means to its expiation and to their reintegration in society. This possibility, however, depends on penal practices that create favorable conditions for its realization. The irony of skepticism like Nietzsche’s is that the more it is taken as the prevailing wisdom, the more self-fulfilling it is. As long as societies embrace policies like those characteristic of the penal practices in United States of the last 30 years, policies that have led to severe penalties and inhumane prison conditions, any hope of punishment’s serving more than its deterrent and assurance functions is idle.