(2012) 24 SAcLJ Book Review: Crime and Punishment

Citation(2012) 24 SAcLJ 579
Date01 December 2012
Published date01 December 2012

1 It seems odd to say that we execute murderers to emphasise that killing is wrong. It is also obviously inappropriate to say that punishment is intended to teach the offender not to commit the offence. In that regard, capital punishment as a method of educating the offender is no more than dark humour. On the other hand, many offences are poorly policed and the punishment of the guilty is often so light that there seems to be little purpose in the punishment. In Crime and Punishment, Hyman Gross studies a most perplexing question – what is the justification for punishment? It is a question that lies deep in the heart of philosophy, spun out of another question, “What does a wrongdoer deserve?” Gross points out the inconsistency when we say to the criminal that we are sure beyond a reasonable doubt that he should be punished, and yet be uncertain as to what punishment he deserves. Punishment theorists invariably stand on a high moral stool but do not always see the inherent contradictions even when their theories are held against the moral light. In furtherance of his Paternalistic Theory of Punishment, Herbert Morris writes that it is apparent that the comprehension of the evil done is a moral good to be promoted and “as with other moral justifications for punishment, that the rules defining wrongdoing, themselves meet certain minimal moral conditions”.2 It will take a bit of explanation for such theorists to justify punishment when it involves the infliction of pain without admitting that the infliction of pain is morally unjustifiable. It is vital to appreciate that when we speak about punishment, we are referring to the lawful infliction of harm, for otherwise it would be plain violence simpliciter, and unlawful. Gross thus takes the view that unless justified, punishment itself is a wrong, and thus takes us “past the line flung by Mill, beyond which we must not

trespass. The law was not to interfere with a man unless what he did caused harm to others.”3

2 The justification of punishment in this context is not just about what basis we choose when we punish, be it retributive justice or some consequentialist grounds. It also goes further than a consideration of the ideas of restorative justice as an alternative form of punishment in which we tend to the needs of the victim and the perpetrator of the crime when we seek fairer outcomes from the consequences of crime. It is impossible to understand punishment outside the purview of “justice” and the failure to understand the concepts of justice is often the main obstacle to useful discussions about punishment. The reader will, however, have to look elsewhere for a proper study of justice, but Gross examines some aspects of injustice so that we can understand what is required in administering punishment. He is of the view that “[k]illing as punishment is always gratuitous killing, which is inhumane” and so his first target is the forms of punishment that are carried out in the name of justice. He examines the implications of human rights on punishment. Secondly, he considers the injustice that arises from a failure to respect innocence, and from this he traces the justification of punishment to the retributive notion of desert. Here, he laments the lack of enthusiasm for assuring innocents that their punishment is undeserved, whereas the passion for ensuring that the guilty richly deserve their...

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