When Bad Things Happen to Other People (23 page)

SIX:
Punishment and Its Pleasure

A CENTRAL ASSUMPTION IN MY analysis of
Schadenfreude
is that social and criminal justice inform and shape one another. Our emotional responses to the suffering to which criminals are sentenced can tell us something about our emotional responses to the suffering that befalls our neighbors.

Wrongdoers anger us. We feel a need to punish wrongdoers because we love justice and abhor injustice. We resolve not to tolerate further injustice from wrongdoers. Our anger is not immoral, contrary to what utilitarians may tell us. We should not be ashamed of our convictions, nor of our emotional pleasure in learning that a wrongdoer has been punished. We do well, however, to remember that we, like wrongdoers, are liable to make errors of judgment. We should make sure that our judges and law-givers exercise great caution in punishing, and we should make sure that we examine our consciences carefully before celebrating the punishment of others.

The Point of Punishment

The unpleasantness of punishment (for example, incarceration) is intrinsic to it, not an accidental accompaniment. Utilitarians such as Bentham and non-utilitarians such as Kant agree. Plato (
Protagoras
 324–325, 
Laws
 IX, 
Gorgias
 479–480) and Aristotle (
NE
 II.1104b 15–19) hold that punishment cures the soul by virtue of its being painful. In
Discipline and Punish
, where we find the most complete expression of his account of punishment, Foucault says there is no such thing as a non-corporal punishment, for depriving the body of its rights is the same as inflicting pain.1 Because this is not obviously the case, I filled in the contours of a general philosophical distinction between pain and suffering. I disagree that even if we treat our prisoners well (which is hardly the case in the United States), we necessarily cause them pain.

When we do inflict pain through punishment, do we hope to benefit someone else or ourselves? This question is very difficult to answer. Because punishment is a cultural vehicle for the expression of resentment of injury received, it raises the possibility of a juridical kind of
Schadenfreude
—the pleasure of just people in the legally imposed injury of a punished person. If it is true that our modern penal policy is a disguise for primitive torture devices, then we would expect the emotional responses to modern-day punishments more or less to mimic the emotional responses of our ancestors to public displays of remonstrance. If our high-minded theories of justice conceal a basic desire for revenge, then punishment benefits us more than it does the wrongdoer who endures it. I do not claim that an examination of
Schadenfreude
provides an analytical advantage to thinking about punishment. I mean only to suggest that how we think about punishment bears importantly on the ways we understand the suffering of other people.

W.D. Ross argues that the state has, prima facie, the right and the duty to punish the guilty, because of its implied promise to do so.2 Curiously, Ross does not explain the origin of this right. The moral problem posed by a legal institution of punishment involves the deliberate and intentional infliction of suffering. Mercy, remorse of the wrongdoer, or recognition and acceptance of the uncharacteristic nature of the wrong perpetrated might lead us not to inflict harm proportional to the offense of the wrongdoer. On occasion, however, persons who have been wronged seek legal redress. Under what circumstances is the infliction of suffering through punishment justified and why?

Throughout the Hebrew Bible we find instances of God punishing the Israelites for their various transgressions. After someone suffered, the slate was wiped clean, and the Israelites made themselves worthy again of divine favors. The medieval system of penance served a similar end. Our system of criminal justice, though secular, does not differ dramatically in aim. Or so we are to believe.

The philosophical justification of punishment turns on three standard normative theories: the reformatory, the retributivist, and the utilitarian-deterrent.3 The reformatory theory seeks to reform or improve offenders, help them or “socialize” them, and thereby reduce offenses. Reform theories tend to portray criminality as a disorder or disability. The deterrence theory requires that punishment be directed primarily at something other than granting satisfaction to the victim(s) of a crime; it depends upon consequences of punishment other than the
Schadenfreude
of victims of offenses. It need not ignore these satisfactions, but it rightly finds them of relatively small importance. Of supreme importance is the stipulation that punishment
prevents
offenses. The retributivist theory calls for inflicting on a wrongdoer the same amount of suffering he or she has caused others.

Theories of reform and deterrence involve well-known difficulties. The central problem is that both theories could justify the punishment of an innocent person—the deterrent theory if someone were mistakenly believed to have been guilty or likely to commit the crime in the future, and the reformatory theory if he or she were a bad person though not a criminal. The deterrent theory has an additional weakness: it is the threat of punishment and not punishment itself that deters. Deterrence seems to depend on actual punishment but, in fact, depends on a belief that guilty parties receive punishment. So reform can come about if people merely believe that punishment has occurred. In a truly just society, it might be thought, we would deceive the populace into thinking that any given criminal had been punished. Horror for torturing people would justify deception. As Bentham saw, apparent justice is everything for a utilitarian; real justice is irrelevant.

Utilitarians believe that each person’s happiness or welfare carries the same weight as that of any another person, and that the most effective way to enhance general welfare is to make happy the greatest number of people possible. In deliberating a course of action, one must therefore take into account its effects on everyone, and consider the interests of all impartially. The suffering of the wrongdoer, taken on its own, makes no less a claim on us than the similar suffering of the virtuous. Why, then, should punishment be confined to wrongdoers? Critics have argued that utilitarians are committed to punishing innocent people if such punishment maximizes happiness.

Another problem involves the pivotal distinction between the fact of my suffering and my actual suffering. This distinction might suggest that simply making people believe that a wrongdoer suffers would suffice for purposes of criminal deterrence. However, it may turn out that actually punishing people may be the best way to produce such a belief, and so deterrence. It is hard to think of a society that only pretends to punish wrongdoers in order to deter others from crime. That societies really have to punish wrongdoers reinforces the distinction between enjoying
that
 another suffers and enjoying his or her suffering.

The utilitarian theory applies to all cases of punishment. It lays down both necessary and sufficient conditions for the justification of punishment. From the utilitarian point of view, moral desert cannot be a necessary condition for justifying punishment because if the best consequences are produced by punishing the innocent, or others who do not deserve punishment, then punishment is still justified: utilitarian considerations are sufficient. Moral desert also cannot be a sufficient reason because it would not justify punishment unless punishment also produces the best consequences: utilitarian considerations are necessary. For the utilitarian, the only good reasons for punishment have to do with the consequences of such punishment. Insofar as moral desert embodies reasons for punishment which are independent of the desirable consequences, moral desert by itself cannot justify punishment.

Retributivists depart from the utilitarian attitude toward the suffering of wrongdoers. Retributivists hold that the offender’s wrongdoing requires punishment and that punishment should be proportionate to the extent of the wrongdoing. It is the offender’s desert, and not the beneficial consequences of punishment, that justifies punishment. Some retributivists seek to explain how punishment is supposed to give the moral wrongdoer what he or she deserves, while others believe such punishment derives from a fundamental axiom of justice, that wrongdoers deserve to suffer. Still other retributivists try to connect punishment with broader issues of distributive justice, or justice in the distribution of the benefits and burdens of social life: the offender is viewed as someone who has taken an unfair advantage of others in society, and punishment restores fairness by what it takes away from the offender.

Some people believe that we inflict pain through punishment in order to 
help
 a wrongdoer, by reforming him or her. They reason that we base our moral and legal decision to inflict pain on beliefs about social justice.

Nietzsche holds contempt for the ideas of social justice which underlie and justify corporal punishment. In 
Zarathustra
 he exhorts us:

Mistrust all in whom the impulse to punish is powerful...Mistrust all who talk much of their justice! Verily, their souls lack more than honey. And when they call themselves the good and the just, do not forget that they would be Pharisees, if only they had—[worldly] power. (Part 2, Section 7)

Nietzsche believes that punishment has evolved in such a way that we pretend what we do to criminals in courts has nothing to do with what we used to do to criminals on torture racks. He blames human pettiness for the legal institution of punishment:

Throughout the greater part of human history punishment was not imposed because one held the wrongdoer responsible for his deed, thus not on the presupposition that only the guilty one should be punished: rather, as parents still punish their children, from anger at some harm or injury, vented on the one who caused it—but this anger is held in check and modified by the idea that every injury has its equivalent and can actually be paid back, even if only though the pain of the culprit. And whence did this primeval, deeply rooted, perhaps by now ineradicable idea draw its power—this idea of an equivalence between injury and pain?...in the contractual relationship between creditor and debtor, which is as old as the idea of “legal subjects” and in turn points back to the fundamental forms of buying, selling, barter, trade and traffic. [
GM
, II, Section 4]

We have become weak, Nietzsche would have us believe, and we abuse the institution of punishment. The intentions of those who administer punishment have changed, and not for the better. In Section Six of the same essay Nietzsche refers to punishment as “a warrant for and title to cruelty.” In 
The Gay Science
 Nietzsche urges us to move beyond the practice of punishment:

Let us stop thinking so much about punishment, reproaching, and improving others...Let us not contend in a direct fight—and that is what all reproaching, punishing, and attempts to improve others amount to. Let us rather raise ourselves that much higher...No, let us not become darker ourselves on their account, like all those who punish others and feel dissatisfied. Let us sooner step aside. Let us look away. (Section 321)

A century after Nietzsche we have not looked away from punishment. Nor does it seem we will anytime soon, as punishment still lies at the heart of various systems of justice in Western nations.

Retaliation for wrong by inflicting pain without any object for the future is revenge (
die Rache
), Schopenhauer holds, and has no other purpose than seeking consolation for the suffering one has endured through witnessing the suffering one has caused in another. Calling revenge “wickedness and cruelty” (
Bosheit und Grausamkeit
), he deplores it, while upholding punishment as worthwhile (
WWR
 I, p. 348). The difference between revenge and punishment turns on the 
emotions
 of those who have been wronged—and those who enjoy seeing punishment administered generally.

When we hear of a villain being sentenced in court, we may derive pleasure from the belief that justice has been served, that the villain will suffer, or both. According to Nietzsche, we are predisposed to enjoy the actual suffering of a criminal, even if we know very little about his or her crime. Crowds thronging athletic events and crying for the defeat of a particular team resemble crowds thronging executions. They can take pleasure in the loss of a particular sports team even if they know little about either team. Of course, competition takes other forms, most commonly economic. Economic competition must stand as one of the primary sources of cruelty and suffering in society.

The sports analogy threatens Schopenhauer’s separation of justice from revenge. Schopenhauer specifies that our pleasure in courtrooms may center exclusively on justice, on the smooth functioning of the state. He declares that justice permits enjoying 
that
 another has been made to suffer. He justifies state punishment only if it is based on a single-minded and genuine effort to reform a wrongdoer, not on a response to public outcry against the criminal. Presumably, Schopenhauer would take a similar view of athletic competitions: the joy of winners should derive exclusively from the fact of victory and not from the thought that rivals suffer because of defeat.

About the law Schopenhauer says: “Thus the law and its fulfillment, namely punishment, are directed essentially to the 
future
, not to the 
past
” (
WWR
 I, p. 348). Schopenhauer is quick to condemn Kant, believing that Kant’s account of punishment regards only the past, not the future, and so is a disguised form of revenge. He says: “Therefore, Kant’s theory of punishment as mere requital for requital’s sake is a thoroughly groundless and perverse view” (
WWR
 I, p. 348). Kant, for his part, had cautioned against the desire for revenge: “[T]o insist on one’s own right beyond what is necessary for its defence is to become revengeful...such desire for vengeance is vicious” (
MM,
 p. 214). If it is true that Kant is a retributivist, it must also be true that he favors the putative justice of punishment and does not revel in any pleasure that might come from seeing a wrongdoer suffer. Schopenhauer does not give Kant enough credit on this score; perhaps Schopenhauer focused too closely on a few passages from the section on punishment in Kant’s 
The Metaphysical Elements of Justice
, in which Kant does espouse the typically retributivist view that wrongdoing stands as a necessary and sufficient condition for the just imposition of punishment. Kant cares about punished people more than Schopenhauer seems to allow. Further, Schopenhauer’s insistence that those who take pleasure in the suffering of another should be “forever shunned” raises the question of his own retributivistic leanings. Schopenhauer endorses punishment for its deterrent value, yet the goal of deterrence is to receive a wrongdoer back into society after repentance and forgiveness.