Raphaelle Thery

Punishment and Liberalism

This paper has three main aims. First, I attempt to display some conceptual tensions between punishment and liberalism, by showing that the core tenets of liberalism do not sit easily with traditional, offender-centered justifications of punishment. Second, relying on recent sociological work, I relate these conceptual tensions to recent changes in the practice and discourse of ‘criminal justice’ in liberal states (and the U.S. in particular). These changes include increased punitiveness, abandonment of rehabilitative ideals, and an intensification of focus on the victim. I will argue that the problems liberalism faces in conceptualizing the moral relationships between the State, the public and the offender largely arise from the liberal requirement of state neutrality. Given the difficulty of reaching a positive moral consensus on punishment that does not run afoul of this requirement, I suggest that liberals should try instead to reach a negative consensus based on the suffering of the victim. By ‘suffering’, I mean the negative equivalent of welfare (which need not reduce welfare to physical well-being). Welfare is at the very core of liberal thought; it is one of the only moral values endorsed by liberalism, and the only one well-suited to serve as a basis for a liberal justification of punishment. Finally, I acknowledge some remaining problems with this shift, such as (1) the subjective character of suffering, and the difficulty of indexing the severity of the penalty to the depth of the victim’s suffering ; (2) the ambiguity of taking suffering in general into account, given that considering suffering as the ultimate liberal evil doesn’t tell us whose suffering we should take into account : that of the victim, or that of the offender; (3) the risk that this approach will turn punishment into a zero-sum game, since consideration for suffering requires empathy, and empathy with the offender and the victim exclude one another.