Garbanzo paints a disturbing picture that mixes fears of totalitarianism with macabre, almost vampyric, imagery. Some points are certainly overstated: he assumes, for example, that corporal punishment is without potential justification, even dubbing it “cruel and unusual” (as a legal matter, the U.S. Supreme Court held the Eighth Amendment to not apply to public school students in Ingraham v. Wright). I do agree with Garbanzo’s broader position, however, but not for the reasons he cites. At least on a general level, malefactors, whether adults or children, should not be able to select their punishments from a set of options.
First, there is the issue of retributive proportionality. If an offense merits a certain punishment, then that is the punishment it should receive. Presumably, unless he is unnaturally contrite, an offender will choose what he perceives as the lesser punishment. As a result, the penalty smorgasbord will systematically underpunish wrongdoers.
Moreover, providing punitive options establishes an unhealthy identification of the process with commercial bargaining. In effect, offenders choose their punishments from a menu of options. But this is not the type of association we should favor; wrongdoers should view punishment as inevitable and expressive of deep-seated societal disapproval. Punishment should not become a fee one pays in order to indulge one’s illicit preferences. Otherwise, just as an NBA team owner may choose to pay the luxury tax to secure a more talented team, a would-be offender may rationally calculate that the risk of prison is a price he is willing to pay in order to commit a rape.
To some extent, criminals (and misguided students) probably already engage in these sorts of cost calculi. But at its best, there is a moral element attached to punishment as well. And sometimes this moral element is as essential to deterring wrongful behavior as the penalties themselves. It is something similar to this, I believe, that people found so abhorrent in the Church’s sale of indulgences.
Surely, blood for detention does not mark an imminent apocalypse, but it is symptomatic of some troubling schemes that risk taking the “wrong” out of wrongdoing.
One wonders how far Felix would carry his objection to any “election of punishments.” After all, a convict has many choices about how to spend his time in prison (reading, exercising, sleeping, taking classes, etc.). Each choice that he makes in some way alters the character of his punishment. How is making choices within the parameters of a particular punishment different, in principle, from choosing between types of punishments?
Garbanzo, your comment deals with punishment specificity, not choice of punishment. As a practical matter, it may be impossible to utterly dictate every element of every punishment, but that is substantively different from saying that an offender may choose from several truly unique options.
Felix, your response is wholly semantic: Punishment itself could be viewed as a general category of which various options – like giving blood or serving detention – are specific variations. The original question still lingers, but I’ll restate it in your terms: at what level of specificity does choice of punishments become unacceptable?
No, just partly semantic. We can say that an individual merits a prison sentence of five years – in other words, the offender is separated from (non-prison) society for that period of time, except for occasional visitors and consultations with his lawyer within prescribed limits.
In such a situation, there is no element of choice involved concerning the punishment itself – only with how one conducts one’s life in the sphere unaffected by the punishment. That’s where your mistake lies.
Question: “How is making choices within the parameters of a particular punishment different, in principle, from choosing between types of punishments?”
(Eventual) Response: “In such a situation, there is no element of choice involved concerning the punishment itself – only with how one conducts one’s life in the sphere unaffected by the punishment.”
Ladies and Gentlemen, you be the judge: was the question answered?