The What and Why of Punishment - Part Two

by Joseph Przudzik

II. The Catholic View

In the preceding article considering the philosophy of punishment, we began with the definition of the essence of punishment, as given in the Code, and the purpose for which it is inflicted.¹ We went on to present briefly the views of the leading non-Catholic authorities on the subject; we endeavored to analyze their theories and to show their inadequacy. Through this process of elimination, and by means of the criticism offered of the different theories, we presented what the Church does not teach as an acceptable theory of the what and why of punishment, We saw that human penal law can hardly be sufficiently explained by principles of justice alone (absolute theories), or of utility alone (relativist theories). Both, therefore, must go together. Positively stated, the only theory of punishment that satisfactorily considers the whole question is one which, to return to the words of the Code, recognizes that the purpose of punishment must be "the correction of the delinquent and the penalizing of: the offense."²

The point now to be determined is "What, in Catholic thought, is the essential and ultimate end of punishment?" Is it the punishment of the offense or the correction of the delinquent? Many reasons point to the' punishment of the offense as that end for it is never certain that the amendment of the culprit will be attained. Therefore, it would seem, that the essential reason is the punishment of the crime, if justice is to be satisfied and the stability of the State protected. The universal principle, "Injure no one," must always be observed, even by the State in punishing crime. Thus, the State, in depriving its subjects of goods or rights, must prove its right to punish, must exhibit the justice of its cause. Ultimately, therefore, it would seem that no essential reason for punishment can be assigned other than the common social good.

Let us consider this essential end further. It is true that "the custody of the public safety is not only the highest law,"³ but is even the whole reason why public authority exists. That is why to transgress the public laws is to commit crime. The duty of punishing such transgressions, so that the social order may remain intact, belongs to the State. Yet, the power of the State is only so great as is required for the safety of the public life—no more, no less. ⁴

The Threat Of Punishment

But to say that the essential purpose of punishment is the safety of society is not the same as to say: "Crime exists; therefore, it must be punished" (the absolute theory). Nor is it the same as to say: "A broken, law demands reparation." These principles, as we have said before, are quite true in the divine order. The perfection of God demands that an imperfection be corrected, but in human affairs this necessity is somewhat different. The perfection of humanity is not so great that it necessarily demands such a perfection of relations between the human act and its human reprisal. If, then, a threat of punishment is necessary and sufficient for the safeguarding of society, it alone should be given. If more is required, the threat should be carried into execution.

But how does the mere threat of punishment satisfy the end or purpose of punishment? As said above, in meting out punishment, justice must be observed, and the limits of human justice are determined by the necessities of society. Upon human society, again as observed above, is not incumbent the obligation of requiting every wrong act ad aequalitatem; only in so far as is necessary to safeguard or restore the social order is this retribution' to be urged. If, then, a threat be sufficient for the restoration of order, as a matter of justice it may and should be given, and thus the end of punishment will be attained. In this lies the difference between the mixed and the absolute theories of punishment.

But how can it be said that a threat does, in fact, act towards the preservation of society? It can do so in three ways. First, the threat: may serve as a preservative medicine. If, for instance, the legislator threatens the delinquent thus: "If you commit this crime again, I am going to suspend you from your office." In this way, the threat determines the punishment that will be visited upon the wrongdoer, and may prevent him from repeating the wrong. Secondly, a threat may not only deter a repetition of crime, but may actually help the delinquent to amend his life. For example, the threat enumerates the evil effects, known from experience, which resulted from a previous commission of the same crime; this may cause the erring one to amend in order to escape like results. And, thirdly, the example of a threat against one person may deter others from committing the same fault, lest they also incur the same threatened penalty.

Execution Of The Threat

Of course, not every threat can be expected to exert all the above-mentioned effects to an equal extent. Sometimes, the threat may fail altogether. In such a case, the punishment itself, determined upon in the threat, must be inflicted. That is good psychology, whether dealing with individuals or with nations. The punishment then becomes a vengeance, a vindication, a reparation, a satisfaction; but, above all, a safeguard of society. Such a designation of the punishment is often found in the very founts from which the Canon Law draws its source. And the reason is again apparent. For he who breaks the law, gives a bad example to others. The force of his bad example must, therefore, be destroyed; the citizens must realize that the law cannot be broken with impunity. Moreover, the delinquent himself, by means of punishment, may be efficaciously prevented from perpetrating new crimes. If the punishment be followed by the delinquent's correction, then he may be permitted to live in the company of the rest of mankind. If he refuses to correct his evil ways and continues to be a grave danger, he must in some way be segregated from the rest of society. The manner of segregation, whether it be by death or imprisonment, temporal or perpetual, is to be left to the proper authorities.

Recapitulation

From the preceding discussion, it seems a logical conclusion that the only completely satisfying theory of penalty is one that considers both the welfare of the State and the personal welfare of the delinquent through his rehabilitation. Our opinion, as expressed by the Code, contains whatever truth is to be found in the other theories discussed. That the statement of the Code should be such a synthesis of the good points of the false theories is not surprising. This is not only to be expected from the fact that it is the duty of the Church to pick out truth from untruth; but it is also apparent from the very concept of why any public authority should possess coercive power.

In brief, the coercive power in meting out justice acts for the preservation of society, and, if possible, for the correcting of the delinquent. The just meting out of penalties can be considered in the guise of a threat or in its execution. The justice of the execution or actual infliction of the penalty depends on the justice of the threats; and this, in turn, depends on the fact that the law determines that a certain crime should be sanctioned by a set punishment. In turn, from the justice of this determination arises the necessity of safeguarding the public welfare. Thus, by the execution of the penalty, the crime is expiated, the criminal is corrected (either by repenting or by some other reparation of the wrong done), and the public welfare is safeguarded. These results are obtainable in both cases in a triple manner: by the determining of the penalty, by the correction of the delinquent, by convincing others of the impossibility of breaking the law with impunity.

Canon Law On The Purpose Of Penalties

Such is the sense of Canon 2215 when it says that the penalty is for the delinquent's correction and for the penalizing of the crime. This punishment, this juridical correction, is also treated elsewhere in the Code as ordinated "towards the public reparation of injured justice or of scandal."⁵ Again we notice that the public welfare is proposed as intrinsically the ultimate end of punishment. The Church can and does propose other, extrinsic ends, as we have seen above. The correction of the delinquent is hoped for by the Church. The spirit of the whole of the Church's penal system tends towards this end. The Council of Trent explicitly treats of it, admonishing bishops to be pastors and fathers to the faithful, to exhort and warn before punishing.⁶ And the Code, making its own the words of Trent distinguishes between crimes of human frailty and those of malice. It repeats the apostolic precept of punishing the former with lighter penalties and of visiting the latter with a heavier rod, that order may be observed, that the delinquent be punished, and that others be deterred from crime. Yet, although this correction is so heartily desired, never have any of the above-explained relative theories of an exclusively corrective penalty been accepted.⁷ But neither, on the other hand, has the Church accepted the equally incomplete and frequently socially and morally dangerous version of the absolute theories.

The theory accepted by the Church, therefore, is a mixed one. It believes that punishment is to be administered for the correction of the delinquent and for the safeguarding of society, but especially the latter. Thus, in inflicting a penalty on the criminal, the purpose is not to visit vengeance on him, but to assist in his rehabilitation through the cleansing and revivifying power of suffering. At the same time, whether inflicted for the public welfare on a private person or on a nation, this penalty must not exceed the demands of the public welfare. This is important to remember in these days when private and public feelings run high in the discussion of crime and criminals. We Catholics can aid in the restitution of justice in the world through understanding and preaching the Church's complete system of punishment and its spirit: through accepting and practising the only reasonable and true philosophy of punishment.