David Boonin defines legal punishment as “authorized reprobative retributive intentional harm” (Boonin, 23). He argues that this is permissibly cashed out as follows:
- Authorized: Punisher is a legally authorized official acting in his or her official capacity;
- Reprobative: Punishment expresses official disapproval of punished;
- Retributive: Punisher punishes because punisher (correctly or reasonably) believes that punished has committed an offense; and
- Intentional: Punisher punishes with the intent of harming punished.
Boonin believes his definition helps to distinguish what we pretheoretically think of as punishment from similar practices. Quarantine, restitution, private executions and detention of prisoners of war all (correctly) fail to qualify as legal punishment whereas imprisonment, criminal fines, and impoundment in the stocks all (correctly) qualify.
I wonder whether his definition needs the “intentional harm” part. Consider a judge who sentences an offender to a term of imprisonment even though he knows that the offender is wholly indifferent to going to prison (or even slightly prefers going to prison to the alternative*). It is unlikely, maybe incoherent, that this judge intends to harm the offender. But I’m still inclined to classify the sentence as punishment. (If you are not, consider whether the means by which the state imposed this sentence would make a difference. What if, at sentencing, the judge explains that the reason for the imposed sentence is that offender is a remorseless criminal who deserves to serve hard time? What if the offender is roughly led away in shackles? Etc.)
This is a version of what Boonin calls the “masochist objection.” Boonin thinks the masochist objection only applies to the harm requirement, not to the intentional harm requirement, but in fact it applies equally to both. Boonin replies that “even if [a] treatment is, in general, a form of punishment . . . [i]f subjecting a particular offender to a particular treatment does not harm her . . . she has not been punished” (Boonin, 12). He gives two arguments for this reply.
The Symmetry Argument. First, he argues that “there is a conceptual symmetry between punishment and reward” and “in the case of reward, it should be clear that a person has not been rewarded for doing a good deed if the treatment that she receives in response does not in fact end up benefiting her.” He gives as an illustrative example somebody who is rewarded with a piece of candy, which causes a “severe allergic reaction” (Boonin, 9). While we might say that there was an attempt to reward her, we would not say that she was actually rewarded.
The Cushy Sentence Argument. His second argument, which rests on an intuition that apparently conflicts with the intuition my objection relies on, is that whether we are inclined to regard a sentence as punishment depends precisely on whether the sentence inflicts harm. As Boonin puts it, “[w]hen a stay in a minimum-security prison for white-collar criminals seems to resemble nothing more than an all-expenses-paid vacation at a comfortable resort . . . people do not consider the offender to have been punished and they complain about his being treated so leniently precisely for this reason” (Boonin, 9)
With one important disanalogy, the Symmetry Argument and the Cushy Sentence Argument are structurally similar. In the first, Boonin hypothesizes a putative reward that causes serious harm; in the second, Boonin hypothesizes a putative punishment that causes apparent pleasure. The important disanalogy is that the putative reward actually causes harm whereas (as far as Boonin’s hypothetical is concerned) the putative punishment only appears to confer a benefit.
My intuition in the first case is that the putative reward actually qualifies as a reward whereas in the second case the putative punishment fails to be a punishment. What explains this difference in intuitions, I think, is that in the first case the reward is successfully approbative (the candy expressed approval) whereas in the second case the punishment is not successfully reprobative (it did not express disapproval; in fact, it signaled that the state is prepared to wink-and-nod at well-heeled lawbreakers). Thus, what does the work here is reprobative element, not the intentional harm element.
Maybe you don’t share my intuition about the Symmetry Argument. A possible explanation why is that we tend to treat serious mismatches between the express purpose of conduct and its obvious effect as prima facie evidence that the express purpose is a pretext. For example, when Congress said that its purpose in passing the Violence Against Women Act was to protect interstate commerce, we rejected that because the effect was not the protection of interstate commerce but the protection of women. When a teacher fails a student for missing a deadline by ten minutes and then says he did it to teach him an important life lesson, a plausible hypothesis is that the teacher bears a grudge. Or (why the Cushy Sentence Argument works) when the state send a white collar criminal to a cushy prison, a plausible hypothesis is that the state doesn’t really disapprove.
To eliminate the possibility that your intuition about the Symmetry Argument is the result of thinking that the putative reward was pretextual, consider a modified case where the person who receives candy as a putative reward just happens not to like candy very much. (Or imagine somebody who receives the medal of honor but is wholly indifferent to it.) What intuition then?
* Our intuitions about the case where the offender is happy to go to prison are not reliable. Assume we have the intuition that an offender who is happy to go to prison has not been punished. Boonin would argue that this is evidence that legal punishment requires offenders to be harmed. But, equally, we might think that the punishment does not express official disapproval. A reason we think this is that there can be a connection between harming somebody and expressing disapproval — a harmful act more typically expresses disapproval than does the conferral of a benefit — but this connection is not enough to sustain the intentional harm requirement.