Tuesday, 10 January 2012

Crime and Punishment 2: Punishment

Punishment is a tricky biscuit when we look at corporations. As Coffee made famous, Dostoevsky Ltd have no body to kick, and no soul to damn. You can’t throw ‘it’ in prison or hang ‘it’. But before we think about how to punish companies, it is worth thinking about punishment generally.
Some scholars spend ages thinking about what punishment is. I don’t find that question too interesting. It is definitely possible to think of circumstances where punishment isn’t deliberate ‘hard treatment’ – like the homeless thief preferring prison, or Daily Mail-infuriating non-custodial penalties – but it is a decent starter for ten.
More interesting is why we punish. Here, the debate divides (roughly) into consequentialist theories and retributive theories. We punish because the consequences of punishment are desirable – we’ve reformed the criminal, kept him off the streets for a while, and deterred him and others from doing similar. Or, we punish because we think that the criminal deserves to be punished. He did wrong, and should suffer the consequences. This (very roughly) can be divided into Bentham v Kant, which makes it alluring for study – you get to argue against a heavyweight philosopher, on a subject with an easy handle, knowing you have heavyweight support on your side.
Difficulties arise when we choose just one theory. If we punish simply to deter, for example, we would hang David Beckham if he stole a loaf of bread – he’s famous enough that everyone would get the (or at least a) message. Difficulties arise in English criminal law because we’ve not chosen anything at all. Judges can pick their sentencing rationale as if from a cafeteria menu (Ashworth), see the smorgasbord of reasons for punishment given at s142 CJA 2003. Pick and mix sentencing might be one reason why the Facebook-non-rioters can get heavy sentences, when judges avowed to send signals about acceptable behaviour. To decry a pick-and-mix approach is not to say synthesis is easy; so many have tried to seek third ways that the theoretical dual carriageway now has as many lanes as cars, or scholars.
People write books on this. Again though, this is just an introduction, and a background. In literature on corporate misbehaviour, deterrence often receives the most attention. It is instructive to keep an open mind. Maybe deterrence is not the whole story. Or, if it is, we must ask why.

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