A Critical Study of the Humanitarian Theory of Punishment

The Humanitarian Theory of punishment, as defined by philosopher Karl Menninger in The Crime of Punishment, states that "to punish a man because he deserves it, and as much as he deserves, is mere revenge and, therefore, barbarous and immoral. [...] the only legitimate motives for punishing are the desire to deter others by example or to mend the criminal." The Humanitarian theory (HT) removes the Retributive theory (punishment because of desert) from the concept of punishment, and with it, a vital link between justice and society's role in deciding it. Lewis is rational in fearing that control of the justice system, under these circumstances, would be relegated to "experts," and criminals would lose their rights as humans. Lewis's alternative system, which includes punishment because of desert along with the HT, is the most desired. Additionally, punishment because of desert is not driven by revenge, but by humanity's drive to maintain controls on their society, and is therefore completely legitimate and not immoral as Menninger suggests.

The HT in its ideal form has many strengths, and, at first glance, may appear to benefit society. It states that we may only punish criminals in order to rehabilitate them, to prevent them from harming society in the future, and to deter others from committing crime. The HT claims that punishment because of desert is the same as revenge and is therefore immoral. Menninger argues that crime and acts of committing crime can be likened to a pathological sickness that criminals have. There is something wrong with them, for they are sick, and we must cure them of their illness, he claims, citing mental illness as an example; once thought to be a terrible thing by fault of the person, mental illness was discovered to be a sickness, and is now treated instead of punished with positive results. It is easy to view this theory as benevolent, for it appears to aid those who need help. The HT is purely consequentialist; its precepts are concerned with how the punishment of a criminal will affect society. Menninger believes that the HT will make society safer by reforming the criminal and will make it better by preventing more people from becoming criminals.

Despite Menninger's best intentions in his support for the HT, C. S. Lewis points out in God in the Dock (The Humanitarian Theory of Punishment) that no good can come of the HT. Note that Lewis disputes the viability of the HT in the context of England in the 1970s, but his concerns are applicable to modern day society in the United States as well. The HT ultimately deprives us of our rights as human beings and "carries on its front a semblance of mercy which is wholly false," Lewis points out.

The main problem with the HT lies in the fact that it treats crime as an illness, supposedly able to be cured through punishment. We do not know if this is true, and all evidence from our justice and prison system suggests that criminals are not healed by their punishments (i.e. jail sentences, community service, fines, etc.). A common sentiment that is prevalent in the media is that after leaving prison, criminals may feel that they have "paid their debt to society"; they rarely praise prison as the cure to their ailments. Due to the high percentage of repeat offenders, we can also conclude that our current punishments do not necessarily deter criminals from future crime. Thus our current methods of punishment serve to neither cure criminals nor to necessarily deter them from future crime. The institution of the HT would require a complete overhaul of our current system, suggesting that there are large flaws present in it.

Lewis specifically takes issue with the part of the HT that states that punishment must be used to cure the criminal. Menninger makes a weak argument and offers nothing other than his own belief to suggest that crime must be treated as a sickness. Under the HT, criminals would be treated as patients more than offenders, and punishment would only be given to rehabilitate them. Lewis says that this may be seen as "mild and merciful" but is indeed not. He warns:

The 'Humanity' which it claims is a dangerous illusion and disguises the possibility of cruelty and injustice without end. I urge a return to the traditional or Retributive theory not solely, not even primarily, in the interests of society, but in the interests of the criminal.

The idea of using punishment as a cure brings up a serious problem with the HT. Who will decide what punishment is an appropriate cure for a criminal. Certainly not all are qualified to do so, meaning that there would be a select group of specialists trained to serve such a purpose. Lewis, disgusted with the idea, calls them "penologists," an ugly name fitting their ugly purpose. In the court system of England that Lewis is using as a basis, the citizen juries not only help determine guilt or innocence of the accused, but also help determine the severity of the punishment. In the US, juries serve less of a role in determination of the punishment, but can do things such as recommend the death penalty to the judge as a punishment option. The reason that juries made up of citizens are present is to serve as a sample of society and to get society's input on the punishment of the criminal. Because our justice system takes into account the retributive theory of punishment, society gets a say in what the criminal "deserves." This right of society comes from the fact that the concept of "fair punishment" is derived from Judeo-Christian ethics, which we assume most of society is raised under. However, if we needed specialists to determine punishment, society would lose all say in what is fair in terms of punishing a criminal, and this puts the criminal's rights in danger.

The HT removes the idea of punishment from desert, but desert is what determines justice. When we only consider what will cure the criminal or deter others, we have removed the criminal from justice (we do not consider what he deserves). The criminal becomes a "case" and is no longer a person with rights. This raises great concern for the criminal; under the HT, the court system may punish without regard for how fair the punishment is. Depending on what the penologists say will cure a particular criminal, the criminal may be subjected to horrific punishments that put him/her through endless amounts of pain and suffering for the sake of "curing" him/her. We as a society may not feel that a particular criminal deserves such torture, but penologists could say that such a horrible punishment is the only way to rehabilitate the criminal, and society would have no authority to say otherwise.

A related issue is punishing for the sake of deterring others from committing crimes. Under the HT, there is no concern for whether a criminal deserves a punishment so that someone in power (judge, authority figure, government, etc.) may go to any lengths to deter members of society from committing a crime. A true consequentialist would go to any lengths to save society from crime, and thus may punish a criminal with a punishment so horrible as to attempt to deter all other crime. This could mean putting the perpetrator of a small felony to death in order to set an example; this is a horrific fate for a relatively mild infraction, but it would not matter because desert is not taken into account. I agree with Lewis when he states that because of these circumstances, a benevolent leader (of the justice system) may give punishments ten times more horrible and unfair than a complete tyrant. In an effort to "save" society, a benevolent leader would go to any lengths to harm one person if it would mean preventing any more crime. Additionally, if determent becomes the ultimate goal of punishment, we could punish an innocent and the effect, acting as a deterrent, would be no different than if we had punished a criminal. Under the HT, the justice system would function for an extreme and perverted version of "the greater good," and criminals would have no rights at all.

Lewis points out all the weaknesses inherent in the HT as well as all the abuses of the justice system that may occur because of the three reasons for punishment it supports. I agree that the HT appears to be "mild and merciful" on the outside, but could give rise to more horrible punishments than we have ever known. Once ordinary people will have no say in the justice system, we no longer count what is fair in punishment, and we risk abuse of the system because of a lack of checks upon it. The resulting conclusion is that for a viable justice system, we need a combination of the HT and the retributive theory of punishment. Much like the current justice system of the United States, I agree that we must use punishment for several different reasons, including the three supported by the HT but we must also use desert as a reason for punishment. While Lewis asserts that this combination is the best, he fails to reconcile the issue of punishment because of desert, which Menninger labels as immoral. It is on the issue of whether desert should be included as a motive for punishment that the two philosophers differ most.

The main difference in the opinions of the two philosophers is derived from the context in which they take a purely retributive theory of punishment. Menninger takes it completely out of any other context, seeing the retributive theory as solely punishment because of desert, while Lewis takes it in the context of a modern justice system, seeing the retributive theory as an inherent and crucial part of society. Menninger is flawed in his view of the retributive theory because it cannot be completely removed from the context of our society, and therefore it is not fair to judge it out of context. If we are to accept some system of punishment that involves both the humanitarian and retributive theories, we may punish to deter society, reform criminals, and give criminals what they deserve. The idea of desert is essential, Lewis argues, but he does not contend with Menninger's claim that punishment because of desert constitutes revenge, and is therefore immoral. I disagree with Menninger; the retributive theory of punishment is not related to revenge, and it is not immoral for us to punish a criminal because of desert. To prove this, I will first identify that we inherently feel that if someone commits a crime, he/she must be punished (the concept of desert).

Lewis states that citizen juries are effective in determining fair punishments because we, having been raised in society, presumably with Judeo-Christian ideals such as the Ten Commandments, have a good idea of what society considers to be fair. Juries, acting as a sample of society, make sure that punishments are fair; their severity is often determined by what the criminal deserves. People have an innate sense of which punishments are fair and which are not based on an internal feeling which I will identify as something other than revenge.

Consider an example in which person A throws a rock and intentionally hits person B. In one version of the example, person A walks away, having hit person B with the rock. In the other version, person A, upon walking away, is hit in the head with a rock that falls from the sky. Note that because the rock falls from the sky, it is in no way connected to the crime of the rock-throwing in person A's mind, nor does it deter other from throwing rocks, nor does it attempt to reform person A. Thus the only variable left in this divine punishment of person A is in the fact that he deserved it. Which version of the example most satisfies you, without finding a rationale? I will assume that according to your gut feeling, you are more satisfied with the second version of the example in which person A gets hit by a falling rock after he throws the rock himself.

Why are we satisfied when someone who is deserving of punishment is punished? The desire to punish those who have wronged is not revenge, for revenge implies a personal vendetta against someone, and as seen in the example, we do not have a personal connection to the offender or victim. Additionally, for us to desire revenge, the object of the vengeance does not need to have committed a crime in everyone's eyes, but only those of the one who desires revenge. Thus we may feel that someone deserves punishment without desiring revenge.

Then if not revenge, what it is it that drives us to desire punishment for those who deserve it? The best way to explain this feeling that crime deserves punishment is perhaps to link it to a moral code that society shares; the Judeo-Christian proverb "Do unto others as you would have them do unto you" comes to mind. When someone commits a crime, it is possible that we imagine ourselves in his/her shoes, having committed the crime, and feeling that guilt that we would place on ourselves. How bad is the guilt that we, as the criminal, feel? How much do we regret the crime? What do we deserve as punishment? I believe that we determine the severity and manner of punishment that a criminal should receive based on how we would punish ourselves if we had committed the crime. Therefore the deserved punishment is not borne from a desire for revenge, but from the remorse that we would feel if we ourselves committed the crime. The punishment is nothing against the criminal, in fact, but is how we uphold our own moral standards. Thus punishing a criminal because he/she deserves it serves the purpose of maintaining the morals of society as a whole. It does not so much serve as an example to deter, but to reassure that our morals still remain and still govern society. When I see someone commit a crime and that person is not punished, I think, "That is not fair." If I committed the same crime, I would hope that all who committed the crime would receive the same punishment.

Despite the few strengths the HT has in its intent, the myriad of bad situations, abuses of power, and extreme punishments that may result from its principles prove that it cannot be the main benchmark for punishment in our or any justice system. I have also determined that the retributive theory must play a role in punishment alongside the HT to create a good justice system. Desert determining punishment is not the same as revenge, but is a manifestation of society's attempt to uphold itself, and is therefore beneficial to a stable society. A justice system with a combination of the HT and retributive theory both protects society and upholds it while allowing rights for criminals at the same time.