The Problem of Punishment

By David Boonin
New York: Cambridge University Press, 2008

As I turned the first few pages of this book, memories of the one undergraduate philosophy course I was forced to take (degree requirement) suddenly emerged after years of intentional repression. I must commend accomplished philosopher and author David Boonin for illustrating to me that philosophy can be accessible and enjoyable. He tackles a relevant and timely issue: the viability and more importantly the moral (im)permissibility of punishment as we know it, and presents a convincing argument as to why we shouldn’t punish as we currently do. He begins by establishing what he considers the “problem of punishment”, which arises for two reasons: 1) punishment involves the state’s intentional harm of some citizens; 2) punishment renders it morally permissible for the state to treat lawbreakers in ways that would otherwise be impermissible.  Boonin’s objectives are first, to offer a comprehensive and up-to-date introduction to the contemporary punishment literature and second, to offer a critical evaluation of the existent solutions to the problem of punishment. Finally, he defends a position he claims is in stark contrast to most perspectives on the topic: compulsory victim restitution.

Boonin proceeds by methodically analyzing and then dismissing in turn the established defenses to punishment by subjecting these defenses to two primary tests. The foundational test is based in an evaluation of an argument’s substantive implications according to our considered moral intuitions (p. 34): if the implications of a particular argument are sufficiently counterintuitive, most people should reject the foundation of the argument. The entailment test asks “whether or not any given foundational principle or set of principles would, if it were true, establish that punishment was morally permissible” (p. 35).

Invariably the justifications for punishment fail the foundational or entailment test or both. For example, the author shows how the “Consequentialist Solution” to the problem of punishment, which maintains that punishment is morally permissible because of its presumed good consequences, fails in its various versions because it is entirely forward-looking and arguably justifies, in the name of future good, the following:  punishing some innocent people and not punishing some guilty people, punishing some guilty people too much and others too little, harming people merely to produce a great overall amount of good (p. 84).

He also rejects the “Retributivist Solution”, concluding this backward-looking line of reasoning which emphasizes the importance of making offenders pay for past wrongs has similar flaws. After considering the ins and outs of a number of other ‘solutions’ in detail Boonin concludes that while “virtually everyone believes that the state has the right to punish people for breaking the law, it turns out that we have no good reason for accepting this belief” (p. 156).

Boonin’s cautious answer to the problem of punishment has two parts. First, the state must stop punishing people for breaking the law. Second, it should rely more heavily on compulsory victim restitution, an approach that avoids the two reasons for the problem of punishment described above. Victim restitution does not involve intentional harm to an offender and does not involve treating offenders in ways we would not permit the state to treat people who do not break the law (since for example, civil lawsuits result in the ‘wronged’ individual receiving damages/compensation from the wrongdoer). It does, however, maintain that “the state should compel offenders to restore their victims to that level of well-being they previously and rightfully enjoyed” (p. 271). Boonin is careful to make clear that he is not insisting that the theory of victim restitution should be accepted without question. Rather, he argues that “there is no reason to reject the theory that is not also a reason to reject punishment” (p. 274). He also makes clear that restitution while possibly ameliorating the harm which results from a criminal offence can never erase the wrong the victim suffered. But, he argues, neither can punishment.

I enjoyed this book and learned a good deal about the philosophical debates surrounding a topic that I present to students from a sociological perspective. Boonin brings to life what are convoluted and often times thickly layered arguments, debates, and rebuttals. Larry, Mo, and Curly (characters he uses in his illustrations) make them real and relevant for the reader. While I likely would not use the text in my Sociology of Punishment course, its use in a graduate level course would not be out of the question. In my estimation Boonin succeeds in attaining his objectives: he offers a detailed account of the problem of punishment and provides a philosophical and morally defensible rationale for changing punishment as we currently know it, one we might be hard pressed to reject on philosophical and, in my view, on sociological grounds as well.