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The future of punishment: a clarification

By Rebecca Roache

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I’m working on a paper entitled ‘Cyborg justice: punishment in the age of transformative technology’ with my colleagues Anders Sandberg and Hannah Maslen. In it, we consider how punishment practices might change as technology advances, and what ethical issues might arise. The paper grew out of a blog post I wrote last year at Practical Ethics, a version of which was published as an article in Slate. A few months ago, Ross Andersen from the brilliant online magazine Aeon interviewed Anders, Hannah, and me, and the interview was published earlier this month. Versions of the story quickly appeared in various sources, beginning with a predictably inept effort in the Daily Mail, and followed by articles in The TelegraphHuffington PostGawkerBoing Boing, and elsewhere. The interview also sparked debate in the blogosphere, including posts by Daily NousPolaris KoiThe Good Men ProjectFilip SpagnoliBrian LeiterRogue PriestLuke Davies, and Ari Kohen, and comments and questions on Twitter and on my website. I’ve also received, by email, many comments, questions, and requests for further interviews and media appearances. These arrived at a time when I was travelling and lacked regular email access, and I’m yet to get around to replying to most of them. Apologies if you’re one of the people waiting for a reply.
I’m very happy to have started a debate on this topic, although less happy to have received a lot of negative attention based on a misunderstanding of my views on punishment and my reasons for being interested in this topic. I respond to the most common questions and concerns below. Feel free to leave a comment if there’s something important that I haven’t covered.

Do you want to torture prisoners?
No. I don’t endorse any of the punishment methods mentioned in the Aeon interview or in the other media coverage. Considering futuristic punishment methods is an exercise in philosophy, not a proposal for the reform of the criminal justice system. The dystopic punishment methods discussed in the interview interest me because of the philosophical questions they raise about punishment practices. These questions include: Is it important for punishment to be unpleasant? What makes a punishment inhumane? If we could use technology to ‘calibrate’ punishments to ensure that the subjective experience of a particular punishment is similar for anyone who receives this punishment, is this something we should do? Should prison sentences be increased as average lifespan increases, just as fines have increased as average wealth has increased? What are the legitimate aims of punishment? When is it acceptable to deny someone access to a particular technology as part of their punishment, and when is doing so an impermissible infringement of their rights? In what way is remorse important, and would pharmacologically-induced remorse be as good as spontaneous remorse?
The recent media coverage creates the impression that I’m interested solely in thinking up new methods of punishment, but the focus of the paper I’m writing with Anders and Hannah is much more general than this. We’re interested in how technology and punishment practices might come to interact in the future, and some of the ways this might happen could be unintentional. Imagine, for example, that mobile phone technology evolves so that instead of having a handset to carry around, many people have a chip implanted under their skin that performs roughly the same function that mobile phones perform today. Would it be ethically acceptable to remove such an implant from prisoners? On the one hand, future governments—like current ones—might have good reasons for believing it important to restrict prisoners’ ability to communicate with the outside world, and they might use these reasons to justify removing the implant. On the other hand, removing such an implant would involve surgery, probably without consent in most cases. This would be difficult to justify, and we might reasonably worry about where it might lead: if we accept that the state can perform surgery on a non-consenting criminal for the purpose of removing an implant, might this open the door to other uses of compulsory surgery or invasive treatments?
Another interesting issue is that, even if technology is harnessed to devise new punishment methods, it might not be clear how the new methods compare to old methods. Radical lifespan enhancement might enable us to send people to prison for hundreds of years, but would this be a more severe punishment than current life sentences, or a less severe one? On the one hand, longer prison sentences are more severe punishments than shorter prison sentences, so a 300-year sentence would be a more severe punishment than a 30-year one. On the other hand, consider that many prisoners sentenced to death in the US appeal to have their death sentences converted to life sentences. This suggests that a longer sentence is viewed by prisoners who are sentenced to death as less severe than a shorter sentence (followed by execution). I made this point in the Aeon interview, and some people took me to be rejecting the idea of technologically-extended life sentences on the ground that this would be too lenient, and therefore bad. In fact, my point was that it might not always be obvious how technologically-induced changes in a punishment affect its severity.

You’re only pretending to care about ethically assessing futuristic punishments. You don’t really care about this.
No, I really do think that it is extremely important ethically to assess future technologies before they are developed. Six years ago, I published an academic paper arguing for exactly this claim (‘Ethics, speculation, and values’, which you can read here if you’re interested).
Possibly this accusation arises from inaccurate reports in the media that I am a scientist, and/or that I’m in charge of a team of scientists. That might have given people the impression that I’m involved in actually developing technologies for the purpose of modifying punishments. In fact I’m a philosopher, not a scientist, and I’m not in charge of anyone.

Only an evil person could think up the punishments you describe.
I find the claim, implied here, that it is morally wrong to entertain certain thoughts disturbing and implausible. But if thinking up dystopic punishment methods makes me evil, I am in good company. As several people have pointed out, various science fiction authors have described punishments very similar to the ones mentioned in the Aeon interview and in my original blog post. An episode of Star Trek deals with a method of punishment resembling the mind uploading scenario I described in the blog, in which prisoners’ minds could be ‘sped up’ to enable them to serve a subjectively long virtual sentence in just a few minutes or hours of real time. And Vernor Vinge’s novel, Marooned in Real Time, describes a method of ‘freezing’ criminals in time so that punishment can be delayed. I doubt that anyone seriously believes that the authors of such punishment scenarios are evil.

Why do you focus on retributive punishments? Are you a retributivist?
We don’t focus solely on retributive methods—even the Aeon interview discusses rehabilitation—but I think the most interesting philosophical questions are raised by retributive issues, so we devote more attention to considering those.
A bit of background: retribution is a reactive form of punishment. It aims to punish criminals by imposing on them a deprivation proportional to the seriousness of the crime they’ve committed. Traditionally conceived, pure retribution does not aim at bringing about a particular consequence, such as rehabilitation or deterrence. Because of this, we might call retributive punishments non-consequentialist. (To complicate matters, however, more recent theories of retribution hold that the purpose of punishment is to convey censure to criminals. This is not a purely non-consequentialist conception of retribution.)
In reality, punishments tend not to be purely retributive. They are usually partly consequentialist, in that they aim at producing a particular effect. The practice of imprisoning people for crimes is partly consequentialist in that it aims at deterring others from committing similar crimes. The practice of issuing community service orders (as, for example, when people caught spraying graffiti on public property are made to remove the graffiti as a punishment) is partly consequentialist in that it aims at having criminals make amends for their wrongs. Despite being consequentialist, these methods also have a retributive element: they involve imposing a deprivation on criminals that is proportional to the serious of the crime committed, and that is deserved by the criminal.  The ideas of proportionality and desert are characteristic of retributive punishment.
Whilst it is the primary motivation of justice systems like that of the UK, retribution is controversial. There is a sense in which it captures the essence of punishment—particularly the ideas of proportionality and desert, which are central to our intuitions of what punishment is about—but since pure retribution, traditionally conceived, does not aim at producing any positive effect (or, indeed, any particular effect at all), its ‘eye for an eye’ approach can seem primitive and unjustifiable.
Now, if we are consequentialists about punishment in that we wish to use punishment primarily as a means for achieving certain ends (such as deterrence, rehabilitation, making amends), then the use of futuristic technology in punishment does not raise any particularly interesting ethical issues about punishment. If we’re just interested in consequences, then all we need to do in order to settle the ethical issues is to gather empirical data about which technologies help us to achieve the best consequences, and use methods that incorporate those technologies.
By contrast, non-consequentialist concerns raise a number of interesting questions, such as those mentioned at the beginning of my answer to the first question, above. These issues are not novel, but they are raised in an interesting new way by viewing punishment through the lens of the future. Considering non-consquentialist concerns is relevant not only for retributivists, but also for consequentialists, since even consequentialists about punishment are interested in some non-consequentialist issues such as proportionality and desert. For example, few consequentialists would think it acceptable to frame an innocent person for murder and punish them with life imprisonment, even if there was reason to believe that doing so would be a good way of effecting desirable consequences, such as deterring would-be murderers. That consequentialists would view this as unacceptable indicates that they think that desert is an important aspect of punishment, and desert is a retributive notion.
As to the extent to which I’m a retributivist, I’m still trying to decide. I’m certainly not a pure retributivist: I don’t believe that retribution is the only legitimate purpose of punishment, but I’m open to the idea that retribution is important. That’s not to say that I’m unsympathetic to the view that it seems more constructive to aim at positive ends than to punish reactively. But there is a sense in which the retributive aspect of punishment is more respectful of people and more affirming of their capacities as rational agents than consequentialist approaches: by not aiming primarily at bringing about a certain consequence, retribution (unlike consequentialist approaches) does not treat criminals as means to an end. On a more practical level, it could be that retributive punishment is important for social stability: we might see more vigilante activity if the state did not satisfy people’s desire for retribution by ensuring that criminals suffered appropriately for their crimes. The importance of such considerations, and the extent to which they justify retributive punishments, is something that I’m still considering.

Have you been misrepresented?
Media coverage has played a significant role in distorting my views: various re-hashings of the Aeon interview on other websites have created an impression that I’m in favour of implementing shockingly severe punishments—and, in some cases, that I’m a scientist actually involved in developing such punishments. What has been lost in this coverage is the distinction between philosophically evaluating an idea, and endorsing it. As I have said above, I don’t endorse any of the punishment methods I’m considering with Anders and Hannah. Indeed, the disturbing thought that futuristic technologies might be unthinkingly incorporated into our criminal justice practices without prior ethical assessment is one of my motivations for wanting to work on this topic.

Are you annoyed at the response you’ve received?
I’m delighted to have started a debate about this issue, and I welcome intelligent responses from people who either agree or disagree with me. Most of the responses I’ve received have fallen into this category. I’ve engaged with people who have written responses on Twitter and on their blogs, and I’m happy that so many people have found the issue stimulating.
I’m less happy to be misunderstood as endorsing the futuristic punishment methods mentioned in the Aeon interview. This post is an attempt to correct that misunderstanding.

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5 Comment on this post

  1. To be fair, the context in which you introduced these future technology punishment methods was the Daniel Pelka case, where you called life imprisonment for his guardians “laughably inadequate” and “like a walk in the park.” Even if you weren’t endorsing these punishments, you were certainly propagating the view that punishment could purposefully be made more severe, to fit severe crimes, and seemed, tacitly to be advocating this view, through your use of emotive language and the desire to ensure that “that those who commit crimes of this magnitude are sufficiently punished.” Even if this is not your view now, your initial blog post certainly seemed written from an angle, rather than objectively, and took as a premise that certain prisoners (what you call, “the worst”), deserve more severe forms of punishment, and technology might provide this.

    1. I accept that, James. That was a much more emotional post than anything I usually write. Had I foreseen that so many people would read it, I’d have taken more trouble to spell out the difference between floating an idea and endorsing it.

      I do still think that there is a problem for retributivists here, though. I hinted at this problem in my original blog post, but did not carefully spell it out as I ought to have done. If punishment is supposed to be proportional, then regulation designed to prevent inhumane punishments make it difficult to inflict proportional punishments on people convicted of criminally inhumane treatment of others (such as child torturers). So, retributivists who want to ensure that punishment is proportional might have an interest in exploring the options offered by technology for increasing the severity of punishments without making them inhumane. (What constitutes humane in the context of such punishments is not clear, however.)

      Personally, I am not interested in increasing punishment severity in this way – I don’t think that cultivating and indulging one’s ‘eye for an eye’ intuitions is a mark of virtue! – but I suspect that as technology advances, somebody might make a case for it.

  2. Anthony Drinkwater

    I wonder, Rebecca, whether the emotionality of your post isn’t due to an element of punishment that is so often overlooked.
    As Durkheim pointed out, one of the primary functions of punishment is to maintain social cohesion by defining the boundaries of what is acceptable and, particularly, what is totally unacceptable.
    Hence feelings of disgust at what seem to be unduly (“laughably” as you put it) lenient sentences for a crime that is considered by all to be beyond the pale. Hence a public outpouring of emotion that doesn’t actually ever resolve questions of how we should treat the offenders , but is useful because it fulfills this function of solidarity which defines collectively our moral behaviour.

    The analysis of punishment as serving either retribution, deterence or rehabilitation is perhaps a little over-simple.

    1. I agree, Anthony. This is why I find the most interesting questions about punishment to be those that relate to retribution!

  3. Md. Bazlur Rahman

    I agree with you that you accept the retributist” s view on punishment but how you placed utilitarian offers here. Principle must be one.

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