Do We Need to Punish Dangerous People?

Shelby opens Chapter 2 by distinguishing between types of incarceration facilities: jails for pretrial detention, penitentiaries for rehabilitation, psychiatric hospitals for treatment, and prisons for punishment. However, he collapses them: “Davis and other abolitionists oppose jails, penitentiaries, and prisons. So, for simplicity, I will refer to all three practices as ‘imprisonment’ or simply ‘prison’” (49).

Shelby further defines punishment as “unwelcome and unpleasant treatment,” what he calls “hard treatment” (49). His defense of imprisonment depends on this definition. He rejects retributivism and insists punishment is justified only as a method for preventing crime (52). 


One of the most compelling reasons he gives for imprisonment for the protection of others. As he puts it, “there is on occasion a need to protect the vulnerable from imminent harm. Imprisonment is a way of temporarily incapacitating a dangerous individual” (55). However, Shelby also insists that there is a “conceptual and moral difference between incarcerating persons to prevent them from harming others… and incarcerating persons to penalize them.” (50) The first is incapacitation, the second is punishment. The distinction is important to his argument, since punishment, for Shelby, involves imposing “hard treatment”. He even acknowledges that when incapacitation follows a criminal offense it “becomes practically indistinguishable from punishment” (50-51) 


Still, this raises a question about the role punishment itself is playing in these cases. When we think of offenders who pose serious threats of violence, the intuitive justification for incarceration seems to be protecting others rather than imposing “hard treatment”. We confine them because they are dangerous, not primarily because they “deserve” to suffer (50). If protecting others (incapacitation) is the main reason prison seems justified, then it becomes less clear why punishment (understood as hard treatment) needs to play such a central role. An institution designed to incapacitate dangerous individuals while rehabilitating them begins to resemble the penitentiary Shelby initially distinguishes from prison. 

 


Comments

Post a Comment

Popular posts from this blog

We're all separate but equal

During my tutorial with Dylan yesterday, he brought up the SCOTUS case Brown vs. Board of Education in our discussion of a minimal state. Whilst reading Marx, I realized that both the legal implication (state according rights to individuals) and the societal implication (abolishment of the 'separate but equal' doctrine) of the case are relevant to the claims Marx is making.  Marx delineates between two societies -- political and civil -- and further between the two lives one leads in each -- public and private. In a political society, man is entitled to the liberties given to him by the state, and considers himself a member of a functional community. Marx hints at the mirage of political society, writing that man is “the imaginary member of an imaginary sovereignty, divested of his real, individual life, and infused with an unreal universality” (34). In such a society, he leads a public life, one in which the state can establish political equality by abolishing “the distinctio...
Read more

What Brettschneider Ought to Admit: Democracy Is Substantive

Although Corey Brettschneider presents his value theory of democracy as a third way between pure proceduralism and outcome-based accounts, his framework collapses into substantivism. Despite insisting that democracy cannot be reduced to “procedure-independent evaluations of outcomes,”(2) he explicitly grounds democratic legitimacy in substantive rights that “limit those policy outcomes that would fail to respect citizens as rulers.” (20). Legitimacy therefore hinges not merely on fair participation but on conformity to three independently specified values—equality of interests, political autonomy, and reciprocity. These values operate as external normative standards against which democratic decisions are judged. Brettschneider treats policies such as ex post facto laws or vote buying as democratically illegitimate regardless of procedural authorization, making clear that outcomes remain subject to direct moral assessment. This is not procedural democracy supplemented by rights; it is ...
Read more

'Enough and as Good' for Whom?

 Both Hobbes and Locke describe a state of nature grounded in equality and natural law. Yet, they reach sharply different conclusions about property. Hobbes denies any possibility of owning property in the state of nature. Locke, by contrast, argues that individuals may aquire private property prior to any government by mixing their labor with common resources. By allowing pre-political appropriation, Locke commits himself to moral constraints on ownership.  Locke introduces these limits through two provisos. The Spoiling proviso requires that an individual only claim ownership over land/natural resources to what one can use before it spoils, critizicing waste as a violation of natural law: "Nothing was made by God for man to spoil or destroy" (21). To me, this limit is relatively clear and intuitive.  More demanding, however, is Locke's second proviso, claiming that appropriation is only legitimate if "enough, and as good" is left in common for others. At first...
Read more