Theories of Punishment

Scales-of-justice1

 

This post is primarily concerned with my participation in the Society for Creative Anachronism, although many of the things discussed can be seen as broadly educational or appropriate for adaptation to other groups and other situations.  If you have no interest in some of the underlying theories of criminal punishment, or issues facing organizations presented by participant expulsion, then this might not be for you.

In criminal law we concern ourselves not just with the application of punishment but with the underlying theories.  On what ethical or moral basis do we punish someone, and what should be the yard stick by which we measure whether a punishment is just?  Short of turning to biblical authority and the lex talionis on what grounds do we say we stand upon when we sentence another citizen to punishment?  Although even the law of the talio has a place.

When in the sphere of the law it is easy to simply say ‘If you break the law, you should be punished’ (and indeed this is the retributive theory of punishment listed below), because as a people we are founded on the rule of law that binds every citizen, and a government by the people has supreme legitimacy to deliver punishment.  It gets stickier when considering punishments as a voluntary society for voluntarily agreed upon guidelines, where there can be a sense that the rules are arbitrary.  In voluntary organizations like the Society for Creative Anachronism it is thus even more important that our punishments, most often a sanction against participation, be understandable through one or more of these lenses.  It is therefore highly important that those in a position to be imposing sanctions understand the theories of punishment and how they apply to our context.

Retributive

The retributive theory of punishment is the most basic understanding of punishment: That a violation of the social contract deserves punishment.  It is the understanding we first instill in our children: that rule breaking draws punishment.  And it is the lex talionis, the old “An eye for an eye.”

This is the simplest reason why an organization should punish a person.  Whether in the SCA or anything else (collecting society, music society, etc.) there are rules that are in place for some purpose.  To maintain a tax classification, to comply with local law, or even because they are the only way to do your activity in peace and safety, the rules exist for a reason.  But this is also the level that most demands the punishment should fit the crime.  The rule is not “a life for a hangnail,” after all, and similarly unbalanced sanctions offend the sense of proportion that this view instills in us.

Punishments that are done for retributive purposes must thus be carefully tailored to match the scope of the offense.  This can be seen in what we might consider “area specific” sanctions where appropriate, i.e. being denied the right to fight if a rules violation occurred in combat or not being allowed to serve as exchequer if financial rules are broken.  While there certainly are rules violations in combat or (even more so) finance that would rise to the level of full out removal from the game, our sense of retributive justice demands that the punishment be within a range of the crime.

Deterrence

Deterrence is the theory of punishment that most often occurs within the context of the death penalty, and the idea that it will deter others from engaging in those activities they could be executed for.  The question of whether it works or not is not the subject of this paper, but there is no denying that the thought of sending a message enters into many punishments in and out of the Society.  It is the desire to send a message to stop others from breaking the law that often leads to lengthy sentences and can, along with the retributive theory, lead to the death penalty.  These sentences can often be disproportionate to the crime, as in three strikes laws, in order to send a stronger message against rule-breaking.

In the Society this kind of punishment can be difficult to accomplish to satisfaction.  Many of our sanctions are based on individual circumstances that cannot frequently be replicated, are based on momentary lapses of judgment or bad decisions that are difficult to warn against, or are as a matter of course permanent anyway because of the nature of the infraction.  There is not often enough room to make a point, or equally often not a point to be made to others by making a sanction harsher.

Rehabilitative

The goal of a rehabilitation punishment is to allow a person to re-enter society after the punishment a cured or changed person, to as it is said go and sin no more.  The punishment should be one that allows them to undergo this healing and leave them in a position to re-enter society.  We see this through sentences in mental hospitals for mentally ill defendants, as well as prison programs offering distance education or job training to allow offenders to have a maximum chance of rejoining society and not falling into recidivism.  This is also the interpretation of punishment that leads to sentences involving therapy or twelve step programs, and any other opportunities for healing as either opposed to or in addition to standard terms of incarceration.

This is perhaps the second most common way in which we should view SCA sanctions.  Any sanction that is short of a full on revocation of membership should have a rehabilitative aspect to it.  Even if the person cannot be a signer on a checkbook again if they have broken the financial rules they may be allowed to serve in non-financial offices, or a fighter who takes step to address his issues on the field may be allowed to re-authorize after a certain amount of time.  No punishment in the SCA should be unintentionally permanent; it should either be intentionally permanent, or offer a method for the person to re-enter the Society or a section of it (although it may be permanent if they never choose to take these steps).  But part in parcel with rehabilitative punishment is that the rehabilitation offered should be reasonably achievable and reasonably related to what was done.

Incarceration/Protective

The final theory of punishment is as obvious, perhaps, as the first.  The incarceration theory—what I call the protective theory—is simply that someone who has shown they will not follow the rules needs to be kept away from the general populace, to protect society from their continued rule-breaking.  This is one of the rationales behind three strike laws, where if a person cannot stop from committing felony after felony they should be separated from the society they prey upon.  The fact that in some states it is possible to hit all three strikes in one event is a separate matter for a separate time.  The theory that recidivists and the criminally dangerous should be kept from ravaging society is a common underlying thought behind incarceration.

It is also, and should be, the main rationale behind SCA sanctions.  If someone is unsafe to his fellow fighters, he should not be allowed to put them in that position.  If someone cannot be trusted to not lose money, they should be kept away from the Society’s funds.  Through sanctions we protect both the participants of the Society and the Society itself, stopping those who would break our rules and mitigating potential future damages.  Without some mechanism not to inflict punishment on people but to protect the society from continuing violation of rules, significant damage can be done to the society as a whole; and as the recent lawsuit showed us, an issue in one Kingdom can pose an issue to the whole of the SCA.

So what’s the point of all of this, besides saving us the cost of law school?

The point is this: Whenever someone is in a position to be proscribing punishments in the SCA, they should consider the punishment in light of these lenses.  What is the goal of the sanction, and do the proposed terms best accomplish that goal or is there a better way to do it?

On its most basic levels whenever someone is sanctioned in the SCA it should be done to protect the SCA from some form of mis, mal, or nonfeasance.  The terms of the sanction should be the minimum required to protect the SCA, both so that it does not fail in its goal (and allows more damage to be done) and so that it does not go too far and restrict or remove someone more then they need to be.  The baseline should not be set to permanent revocation and denial of membership, as there is a reason why we have lesser sanctions (but nor should those not be pursued if needed).

And if a sanction can be given that is less than permanent removal from the Society, then it should accomplish one of the other goals of punishment by teaching the person sanctioned or the rest of the SCA in addition to protecting the SCA.  Of all the things we do the considerations around sanctions should be among the most carefully considered, to ensure their effect and appropriateness.  The lenses of punishment from criminal law are one way to be educated about the underlying goals of sanctions, and to keep them in mind.

One thought on “Theories of Punishment”

  1. Dear Matthew,

    Nicely written. A suggestion (although I have no idea how hard this would be to accomplish) and is largely based on my: a) laziness; b) lack of legal education; c) innate curiosity – how about a hyperlink for terms like lex talionis. I had to copy and paste it into google in a separate window.

    Love, Dad

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