Keating: Why Prisons Are Needed
by Maryann O. Keating, Ph.D.
Philosopher and economist, Adam Smith, in The Theory of Moral Sentiment written in 1759, wrote about the dangers to societies characterized by large-scale anger, resentment and a desire for revenge. He outlines a theory of justice and punishment that surprisingly was not primarily grounded in reducing crime.
Smith describes certain characteristics of human nature, assumed to be fixed across time and all cultures. Whenever individuals believe they have been injured, they experience resentment and a desire for retaliation. He understood that those who passively accept serious insults or injuries appear to be weak and even contemptible.
However, left unchecked, mutual resentment escalates into cycles of retaliation threatening the very foundations of social order. Personal vengeance ultimately dissolves the bonds of civil society. The challenge, therefore, is not to eliminate resentment but to discipline it through institutions capable of delivering justice.
For Smith, the legal system performs this function because it attempts to limit compensation in proportion to the injury suffered. In doing so, a good legal system prevents the natural desire for revenge from becoming an endless sequence of private retaliation. Government monopoly over punishment is not a denial of human emotion but its necessary regulation.
Smith goes on to reveal an important insight. Although we sympathize with victims, we are often reluctant to carry out punishing offenders. Administering justice evokes discomfort, and the public hesitates to get involved in disputes that do not directly affect them. Smith, writing prior to legal settlements paid by third parties, observed that persons have a tendency to recoil from prisons, executions and any visible manifestations of punishment. Once an offender has been apprehended and humbled, the public’s sympathy and identity frequently shift away from the victim and toward the criminal.
Only a strong preference for social order can overcome the reluctance of the public to get involved with civil grievances and punish offenders. Therefore, those seeking justice need to control themselves and be open and direct with proper regard to those who have offended them. To those contemplating personal revenge, Smith writes that hatred and anger are the greatest poisons to sanity and happiness and smaller offences are always better neglected. Smith strongly cautions that public sympathy is not unlimited.
Smith was far from being a rugged individualist but he emphasized that society cannot survive on benevolence, kindness and mercy alone. Justice occupies a more fundamental position. Without reliable protection against injury, even the most benevolent society would eventually collapse under the weight of the “unsocial passions.”
For this reason, Smith writes that a society must summon a firm resolution to maintain order and resist the public’s distaste in punishing offenders. Therefore, those charged with enforcing the law fulfill an unpleasant civic duty. Punishment is justified not because suffering is desirable but because the preservation of society requires it.
Fortunately, there is a degree of public support for following through on punishment. Smith refers to the “wisdom of God” who has implanted in the human heart a longing for justice in this life or ultimately in a final judgement. Also, the public realizes that the removal of offenders from society has benefits and acts to some extent as a deterrent. However, Smith was not satisfied with using justice instrumentally for the sake of reducing crime. He dismissed deterrence and most other arguments used to justify punishment.
If not to deter crime, then what is the purpose of legal punishment? Smith reasoned that for society to be sustainable, some form of justice, however distasteful, is required. However, civil law addresses justice imperfectly, because it cannot erase the intensity of human passions. Smith offered a few examples of public’s dissatisfaction with law and punishment.
Suppose, for example, a presumption of innocence sets the guilty free? Or, what if someone harms another unintentionally? Is society willing to require and accept atonement limited to the actual harm done?
Smith’s contribution concerns the relationship between intentions and consequences. If legal punishment rested solely upon intentions, sentiments or even deterrence, individuals could be punished merely for harboring unpopular beliefs or unexecuted desires. Some assume that justice should focus upon an individual’s motives and circumstances. Smith adopts a more nuanced position. The law must judge observable actions and their consequences rather than private thoughts or beliefs.
Smith did not lack a sense of humor, and, thus, did not recommend punishment for ineffective do-gooders. But he certainly did not believe in compensating them merely for trying to do good. He observed as well that the young and licentious often ridicule law and punishment. Therefore, a country must rely on the public’s overall desire for social order and attempt, however imperfectly, to tame unruly passions with justice.
Smith’s analysis remains relevant. Contemporary criminal justice debates often emphasize deterrence, rehabilitation, or retribution as competing theories to justifypunishment. Smith offers a different perspective. Punishment is justified because civilized society cannot exist without an impartial system capable of restraining to some extend the unsocial passions that naturally arise whenever individuals believe themselves wronged.
Justice, for Smith, is not the enemy of compassion. Rather, it is the institution that makes compassion—and society itself — possible.
Maryann O. Keating, Ph.D., a resident of South Bend and an adjunct scholar of the Indiana Policy Review Foundation, is co-author of “Microeconomics for Public Managers,” Wiley/Blackwell.
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