Reconsidering the Ethics of Enhanced Punishment

Last summer, on this blog, Rebecca Roache suggested several ways in which technology could enhance retributive punishment—that is, could make punishment more severe—without “resorting to inhumane methods or substantially overhauling the current UK legal system.” Her approbation of this type of technological development has recently been reported in the Daily Mail, and reaffirmed in an interview for Aeon Magazine.

Roache’s original post was, at least, a response to the sentencing of the mother and stepfather of Daniel Pelka, who was four when he died as a result of a mixture of violence and neglect perpetrated by his parents. They each received the maximum sentence possible in the UK, a minimum of thirty years in prison before the possibility of parole is discussed (and even then they might not get it). This sentence, Roache wrote, was “laughably inadequate.”

In a response to this inadequacy, she presented the following four technologies as possibilities for increasing the severity of punishment in such cases: 1) Lifespan enhancement: The use of lifespan enhancing technologies to extend lifetime sentences to several times the current average length of a human life; 2) Mind Uploading: The use of brain scanning software to upload prisoners’ minds into a computer, where we would be able so simulate—among other things—hundreds of years of hard labour in a relatively short period of time; 3) Altering perception of duration: The use of our knowledge of human psychology, or drugs currently being developed, to make the prisoners experience of the passing of time slow down considerably; 4) Robot prison officers: The use of robots rather than human prison guards to increase possible range of permissible ways to treat the prisoners (i.e., to put aside worries about the welfare of the prison officers when discussing treatment of prisoners).  

As David Wallace’s comment on the original post clarified, it is not the use of technology to make prison sentences worse that is at issue here. He rightly pointed to many well-developed technologies that make a prisoner’s sentence significantly worse (“Whips and racks and branding irons, oubliettes and shackles and starvation diets…”) but that we choose not to employ. The question we are faced with, instead, is whether or not the particular technologies mentioned in the previous paragraph are permissible. It seems to me that they are not, for the following reasons [1]:

First, as already mentioned, Roache’s approbation of the technologies is, at least in part, motivated by concerns about the current length of prison sentences for heinous crimes. More specifically, she believes they are insufficiently long to serve their retributive task. Given that the standard of care in prisons is—or, at least, aspires to be—quite good, prisoners who have committed heinous crimes will have a better quality of life than those they wronged. As a result of this fact, it may be the case that a sentence lasting the length of an average life (or considerable portion an average life) is insufficiently severe. That is, the more-or-less decent treatment of prisoners will ensure that they have not suffered enough compared to the severity of their crimes by the end of their sentence.

Now, if we take a purely retributive view of punishment, this may be an appropriate criticism. However, I doubt whether this is the right approach to take. That is, I am skeptical about the claim that there are crimes so severe that we should only consider punishment retributively—without, for example, also considering ways of lowering recidivism in cases where parole has been granted. It may be the case that there are people whose psychological makeup makes the prospect of rehabilitation very slim indeed. However, this is a different matter. In those cases we are concerned not with the crime itself, but the mental state of the criminal who committed it.

Even if we did take a purely retributivist stance on punishment, the restriction of liberty for 30 or more years will be quite a severe punishment indeed; one that is unimaginable to those of us who haven’t experienced it. The prospect of serving a sentence more than ten times the average length of a human life (in those countries with a high life-expectancy) is even more difficult to comprehend. Worries about personal identity aside, I can’t help but believe this is a grossly inhumane proposal. It is true that the life taken away by serving a prison sentence will never be the same as the life taken away violently. A prisoner still has the possibility of a decent quality of life despite incarceration. But we shouldn’t lose sight of the fact that the reduction of liberty for (potentially) the rest of one’s natural life is a severe loss. I have no concerns in maintaining that life-extending technologies combined with lifetime sentences would constitute a reduction of a prisoner’s quality of life sufficiently to claim that it was one no longer worth living. To put the point another way: Owen Schaefer mentioned in a comment to Roache’s original post that prisoners are not constantly trying to kill themselves; that even in the course of a life sentence many of them do not take (or attempt to take) their own lives. I believe this would change with the implementation of the aforementioned technologies.

Second, I believe there are serious reasons for concern with the types of time dilution technologies under discussion. Especially the pill—absent from the original post, but present in the Daily Mail article—that makes us experience the passing of time differently. The central concern is this: If it is our mental process that is speeding up, any possible external stimulus will not be able to keep up with our processing of it. (I imagine here that the speeding up of brain processes isn’t matched with an identical enhanced ability to act on that processing. If it was, then I believe we would be talking about enhancing prisoners rather than making their punishment more severe). But, if that is in anyway an accurate picture of the effects of such a pill, then we are not simply committing the person to a slowed prison sentence, we are confining them to their thoughts for however long the effects last. I have a hard time understanding how this isn’t a form of psychological torture. Similarly, Roache’s suggestion that with sufficient computing power we could sentence a criminal to 1000 years hard labour in a computerized world strikes me as equally dubious from a psychological perspective. Even though we needn’t worry about the physical harm such labour would cause (there would be none), that doesn’t mean we should discount the psychological damage. Such damage, I believe, would be real and severe. Indeed, I believe it would be sufficiently severe to warrant the prohibition of this form of punishment.

I don’t have principle that can tell us the difference between fair but severe punishment and torture. But I do believe that the technologies discussed above would constitute a form of torture, and, as such, ought to be prohibited.

[1] I will, however, leave aside: 1) The use of robotic prison guards, and 2) The use of lifespan-enhancing technologies in a projected future time at which such technologies are commonly used (to an extent that people feel entitled to them). The reason for the former exclusion is the lack of specificity concerning what would actually change. The reason for the latter exclusion—as was pointed out by Anders Sandberg in reaction to the original post— is that the question changes when the technology becomes widely available. (Roache also addresses this in the interview with Aeon.)

I’m grateful for discussion with Jacob Williamson on this topic.

By Luke J Davies. Follow Luke on Twitter.

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9 Responses to Reconsidering the Ethics of Enhanced Punishment

  • B Akoury says:

    Where is the mercy in all of this? why not work on making the criminals less criminals instead of torturing these criminals. torture is a crime also!
    very weird and unethical proposals.

  • Calum says:

    It’s all very well debating what the line between acceptable and unacceptable punishment is, but it rather misses the point that there’s bugger-all evidence that punishment is of any value whatsoever. Most criminals are addicts or mentally ill or simply have complex backgrounds. We know that sustained, effective intervention does far more for recidivism than anything else.

  • Anders Sandberg says:

    I would like to point out an important fact: the views of Rebecca (and the rest of us working on the paper) are actually quite different from how they are presented here, not to mention in the media interpreting the Aeon article. There is a biasing information cascade going on where people copy each others reports, making poor Rebecca look like a ruthless retributionist.

    • Luke Davies says:

      Thank you for pointing that out, Anders. Though, the vast majority of the information here was taken from the interview and the original post (which seem consistent with each other, at least to my mind).

  • Anders Sandberg says:

    Something that has stumped me a bit when reading up on the ethics of punishment is how to ground arguments that something is “grossly inhumane”. Is this just a value judgement based on current cultural standards, or could one actually make a more ethically principled argument?

    In my part of our paper, I look at implant technology. It is fairly clear that removing objects from inside a body (or adding them) without consent would be regarded as unacceptable by most western legal systems and our ethical views: bodily integrity is seen as paramount. From a rights ethics perspective one can make a claim that the right to one’s body is more primary than the right to freedom, so although prison can justly be imposed for sufficiently bad crimes the limitation of freedom does not imply any limit to bodily integrity. But it is not obvious to me why this view would rule out corporeal punishments for sufficiently bad crimes, at least if one is a retributionist. The inhumane argument seems to be based on some deeper principle, perhaps (as the name suggests) a human dignity principle: to degrade somebody like that is to degrade human dignity. But human dignity is notoriously hard to apply strictly in practice; it seems hard to argue that surgical removal of a evidence-containing bullet under local anesthesia is an infringement on human dignity. And if it is, wouldn’t a decades long prison sentence, bound to change personality and body, also be an unacceptable infringement?

    Luke argues that a sufficiently long expected prison sentence might make life not worth living. This is largely an empirical question, and it might actually have different answers for different people. If a judge could accurately know it, should they hence impose sentences accordingly? Should sentence lengths actually be measured in loss of expected future utility (or why not QALYS?) However, I think the answer to the empirical question in general is that people adapt and their hedonic levels are more resilient than we like to think. Hopelessness is a killer, but people are good at finding hope even in minor things.

    I am skeptical about fairness (at least I have never managed to really understand the concept), so there might not be a difference between a “fair but severe punishment” and torture. Rehabilitation and incapacitation seems to me to be far more plausible (and empirically testable) reasons for punishment. And neither of those benefits from adding extra suffering.

    • Luke Davies says:

      I wonder: Are the possibility of an ethically principled argument and a culturally sensitive argument mutually inconsistent? When we are talking about what constitutes “grossly inhumane” treatment, it seems to me that we could give an argument that is both ethically principled and culturally sensitive. I didn’t try to give such an argument here, to be sure, but I think one is possible. We can imagine a general ethical principle prohibiting treatment that is grossly inhumane, while acknowledging that a study of cultural (and perhaps equally importantly technological) practices are necessary for a fully determinate specification of that requirement. So, while we may think that, given the current state of culture and technology, keeping someone alive for many times the current average human life just to keep them in prison is inhumane; but, at a time in which the average human life is many times what it is now, that same prison sentence would be perfectly permissible.

      I think you’re right, Anders, to say that if one is a retributivist, then it might be the case that certain crimes would warrant the violation of even the most basic rights. But, only if you also assume, as you must have implicitly on the part of the retributivist, that these basic rights are inalienable. But, it seems that a central argument against the types of punishment under discussion is precisely that they threaten to violate inalienable basic rights. And again, it seems to me consistent to say that these content and scope of these rights need to be filled in with facts about the society in which they are being asserted.

      The relation between claims of inhumane treatment and violations of human dignity is an interesting one. I’m also skeptical about dignity arguments–unless you think, along with Ruth Macklin, that the requirement that we ‘respect human dignity’ is just a place-holder for something like ‘respect for autonomy’. I admit that there is still a difficulty in determining to what extent the violation of autonomy is permissible. (I.e., your question of why prison but not the body?). My intuition is that control over one’s own body is more basic that control over one’s environment–the body is, after all, the basic instrument in the exercise of autonomy.

      And a last point: I agree that the response to extended prison sentences is a matter for empirical study. If it turned out that I was wrong about how people would take such a sentence, then I’d happily revise my view.

      • Anders Sandberg says:

        I completely agree with “keeping someone alive for many times the current average human life just to keep them in prison is inhumane; but, at a time in which the average human life is many times what it is now, that same prison sentence would be perfectly permissible.” – as society changes, the badness of different punishments change. Back in the 80s and 90s banning people from using the Internet as part of parole rules might have made sense, but today it limits life to such an extent that it is no longer acceptable.

  • Gulzaar Barn says:

    Well put, Luke. I share your skepticism towards increasing the severity of punishments for prisoners who have committed crimes of the severity akin to the Daniel Pelka case.

    The argument for increased severity is entirely reliant on retribution being a justifiable a means of punishment, but there is much evidence to suggest it is not suitable or effective in its aims, and there are many organisations lobbying for penal reform – retribution should not be taken as an axiomatic premise. Further, incarceration is often thought to increase recidivism, and with the deinstitutionalisation of long-stay psychiatric hospitals in the 1960s, we have seen a direct increase in prison populations, with over 70% of current prisoners suffering from mental health problems (http://www.prisonreformtrust.org.uk/ProjectsResearch/Mentalhealth), indicating the direct movement of the mentally ill from one institution to another. Whether prison is actually the right place at all, for people who commit such terrible crimes, would be a more pertinent question. It is therefore unsound to build an argument for increased severity, which itself is highly questionable due to its parallels with psychological torture, from already unstable, and debated grounds.

    Our society regards itself as civilised and this can be seen in the way we treat our prisoners – it is because of the universality of human rights, which are located in a conception of human dignity, that we do not subject even the most reviled prisoners to inhumane/degrading treatment, whatever (public) opinion may be on the deserved severity of their punishment. Purposefully inflicting increased psychological harm with the aim of heightening mental anguish as ‘deserved punishment’ would seem to be a considerable step backwards.

    • Anders Sandberg says:

      The paper we are working on toys a bit with the idea that one could deliberately make prison worse, but it seems hard to justify. It doesn’t take any hightech to do it either. Maybe there is an omission-commission intuition here: making things worse is deliberately malicious, while not making them nicer is just sternness.

      However, one of the interesting things with Rebecca’s argument is that life extension might be something done across society with generally desirable effects, yet might change how bad prison sentences are. If extended lives mean long-term prisoners live through their entire sentences rather than dying of old age, then retributivists need to either update existing sentences to be truly proportional to the crime. Rehabilitationists on the other hand are not much affected (although a few really hard cases might now be curable using centuries of good influence) while the finite sentence problem for incapacitation (if the goal is to keep dangerous people away from society, why give them a X year sentence rather than always life?) grows even harder.

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