Punitiveness: A Philosophical Perspective

• Published date: 01 August 2020
• DOI: 10.1177/0887403418755463
• Date: 01 August 2020
• Subject Matter: Articles

https://doi.org/10.1177/0887403418755463

Criminal Justice Policy Review

2020, Vol. 31(7) 991 –1014

© The Author(s) 2018

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DOI: 10.1177/0887403418755463

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Article

Punitiveness: A Philosophical

Perspective

Jonathan Jacobs1

Abstract

In what respects can philosophical consideration of punitiveness as a sentiment, an

attitude, and a motive illuminate whether there is a proper role for it, especially in

regard to the context of criminal justice? Clearly, there are ways in which punitiveness

can be excessive and needlessly harming. Are there also ways in which it can be felt

and expressed in proper measure, or respects in which it is merited? Some of the

distinctive harms of punitiveness are explicated, but it is shown that it is not always,

or necessarily, morally problematic or objectionable. In fact, it can have an important

role in preserving the civility of society.

Keywords

attitudes, desert, punitiveness, resentment, civility

Introduction

This discussion focuses on punitiveness in the context of criminal justice. Of course,

punitiveness can be explored across a much broader range of contexts. There are many

contexts in which persons punish others and many in which difficult questions about

the appropriateness and form of punitiveness can be raised meaningfully. Parents pun-

ish children, organizations punish members, employers punish employees, a faith

community might punish members, schools punish students, and so forth. In many

departments of life, there are ways in which punitiveness can be felt and can be

expressed. However, here, the primary concern is with the way punitiveness figures in

criminal justice and, in particular, with regard to criminal sanction. That context has

distinctive features, especially when the state is a broadly liberal–democratic order.

Considerations such as legitimacy, fairness, rights, liberties, avoidance of harm, and

1John Jay College of Criminal Justice, New York, USA

Corresponding Author:

Jonathan Jacobs, John Jay College of Criminal Justice, 524 W 59th St., New York, NY 10019, USA.

Email: jojacobs@jjay.cuny.edu

755463CJPXXX10.1177/0887403418755463Criminal Justice Policy ReviewJacobs

research-article2018

992 Criminal Justice Policy Review 31(7)

other political/moral categories have real importance in such an order, and some of

them will be discussed as we proceed.

Punitiveness is a morally significant issue. It is plausible to be concerned about

whether a sanction is merely punitive or excessively punitive. Or, one might argue that

punitiveness should have as minimal a role as possible in criminal sanction, that it is

morally problematic and we should discourage it. One of the aims of the present dis-

cussion is to show that there is a morally appropriate role for punitiveness, though it

needs to reflect its proper object and proper measure. However, the fact that there can

be a proper object of punitiveness and a proper measure of it is, in its own right, an

important—and disputed—fact.

Although this is not primarily a discussion of the aims and justification of punish-

ment, a discussion of punitiveness has important connections with those issues. The

ways in which a society punishes—its institutions of punishment, its policies, prac-

tices, the forms of attention paid to it, and to the persons punished—all reflect prevail-

ing attitudes of punitiveness, whatever they happen to be, for better or worse. (They

reflect many other things, too.) That does not mean that there is a single, uniform way

in which punitiveness is felt and expressed in a society. It is quite possible that the

institutions, policies, and practices of punishment should be confused and confusing,

and at least in part, that might be on account of confused and confusing attitudes con-

cerning punitiveness. It is plausible to think that is the case in the United States at

present, and perhaps in other liberal democracies, as well.

There is a very large literature on the aims and justification of punishment, on sen-

tencing, and on possible alternatives to incarceration and to punishment, among other

topics concerning criminal sanction. In addition, criminalization, sentencing, the cir-

cumstances and prospects of ex-prisoners, and other issues concerning punishment

and its social impact are studied by several different methodological approaches.

Moreover, these issues have complex, important ethical, social, and political aspects.

The constellation of mutually relevant issues, the diversity of views on them, and the

numerous methodological approaches to them make for a vast and complex area of

study. The chief aim of the present discussion is to explicate some of the main features

of punitiveness as a sentiment and attitude, its moral valence, so to speak, and some of

the most basic respects in which it is relevant to criminal sanction.

The following are among the issues that will be raised here: (i) Are there respects in

which resentment, anger, and punitiveness can be morally appropriate sentiments; can

they have proper objects and be experienced in proper degree? (ii) Are there respects

in which such sentiments not only are morally appropriate but also have an epistemic

role, a role in discerning moral features of an action, person, or situation? (iii) Are

there respects in which such sentiments can have a proper role in moral motivation?

(iv) Are there respects in which such sentiments can be connected with significant

normative matters such as the justification of punishment?

From a philosophical perspective, punitiveness exhibits a complex texture concern-

ing several significant, disputed issues. It gives rise to important normative concerns

and it also gives rise to important concerns of moral psychology, that is, concerns

regarding attitudes, sensibility, types of regard for others, and motivation. The