HLA Hart wrote that any justification of punishment must at least justify the existence of a general system of punishment, the punishment of specific persons, and the specific type (and amount) of punishment to be imposed in a given scenario (Duff). With respect to the first component, which he called the “general justifying aim” of the system of punishment (Duff), there are several purposes for instituting a penal system; the most common of which are general deterrence, specific deterrence, incarceration/incapacitation, rehabilitation, and retribution.
While it is easy to see how each of these can be beneficial and justify the general punishment system in the abstract, upon closer examination the existence of multiple underlying justifications for a single penal system leads to an inconsistency in making Hart’s second and third justifications, which causes a penal system that tends to generally overpunish. To see how this works with a specific issue, consider a state that has a law prohibiting driving under the influence of drugs or alcohol and prescribing punishments for infractions of the law.
John is a citizen of said state who has been justly convicted of driving under the influence. How should he be punished? Before we dive in to the different types of punishment John could receive, it is essential to establish a working definition of punishment and an understanding of some generally accepted principles of punishment in liberal societies. An entry on punishment in the Stanford Encyclopedia of Philosophy by Hugo Adam Bedau defines punishment as “the authorized Bernicker 1!
Bimposition of deprivations of freedom or privacy or other goods to which the person otherwise has a right, or the imposition of special burdens—because the person has been found guilty of some criminal violation, typically (though not invariably) involving harm to the innocent” (Bedau). In the same entry, Bedau identifies four primary “constraints in the use of penal threats and coercion” that must exist “to preserve a just social system”.
These four constraints are that “punishments must not be so severe as to be inhumane;” accused and convicted offenders are entitled to certain rights with respect to the convicting and sentencing processes; “punitive severity must accord with the relative severity of the crime” where “the severity of the crime is a function of the relative importance of the reasons we have to dissuade people from committing it;” and “given any two punishments not ruled out by any of the prior principles and roughly equal in retributive and preventive effects for a given offense and class of offenders, the less severe punishment is to be preferred to the more severe” (Bedau).
Assuming John’s is a liberal state and accepts these fundamental constrains on punishment, lets explore some of the punishments he could receive. If the state’s penal system were justified by the principle of general deterrence, meaning that the purpose of punishment in that state is to prevent people from breaking the law out of fear of negative repercussions, John would need to be punished in such a way that the riskadjusted punishment (the severity of the punishment discounted by the probability of its infliction) would outweigh the benefits of committing the crime.
In John’s case, it is unclear whether such a system could be effective because people under the influence of drugs and alcohol are unlikely to engage in the kind of cost-benefit analysis a general deterrence model assumes; meaning that the number of people committing the crime will remain relatively constant irrespective of the severity of the punishment. Assuming that there is a level of Bernicker 2! punishment severe enough to prevent people from driving under the influence, this amount of punishment would be what the system would prescribe. It is worth noting that the type of punishment is not significant in this model; as different types of punishment that are equally undesirable to somebody considering committing a crime are equally effective.
If the state’s system were justified by specific deterrence, meaning that the purpose of punishment was to prevent offenders from repeating their offense or otherwise continuing to break the law, John would receive a punishment that is either very similar to that he would receive under a general deterrence regime or one predicated on rehabilitation. To further complicate matters, incarceration can also have a specific deterrence function. Since punishment in this kind of system can vary so greatly and incorporates several of the other systems, we will return to specific deterrence in the context of those systems. In a state with a system based on incarceration/incapacitation, meaning that offenders are punished in such a way as to render it unlikely or impossible that the individual will commit another crime, there is again a wide range of punishments John could receive.
These punishments could vary in type and amount, but a liberal society requires that if a given type of punishment can attain a certain degree of prevention with a lesser amount of punishment than other types, it is to be preferred. Let us assume then that, in John’s case, the least amount of punishment that precludes him from driving under the influence would be impounding his car and revoking his driver’s license for a defined period of time. He may also be detained until he is no longer affected by the drugs/alcohol, but a longer detention would be unnecessary to prevent him from committing the crime again if he cannot drive when he is released. In a state with a system that emphasizes rehabilitation, meaning that the offense is treated as the result of some ‘deficiency’ (such as a lack of education, addiction, mental illness,