Husak — Focused Summary
Douglas Husak’s piece, Why Punish the Deserving?, is clearly relevant to the guiding question for this module: “When must we punish the deserving?” It is often assumed that just because someone deserves punishment, he/she ought to be punished. Yet, Husak believes that this is too large of a leap and that some other premise needs to be provided in order to go from desert of punishment to imposition of punishment (447). This is precisely what Husak explores in this piece.
According to Husak, “consequentialist considerations play a surprising role in the justification of punishment, and indirectly affect the content of the substantive criminal law itself” (447). From this statement, we can gather that Husak finds at least some fault with retributivist theories of justice, something that we read about and discussed last week. It is also worth nothing that while Husak assumes that desert of punishment exists for the hypothetical criminal, he does think that the assumption is problematic. However, he chooses to instead emphasize the assumption that is made when one leaps from desert to imposition of punishment (447).
One problem that Husak identifies is that very few philosophers even attempt to answer the question “What justifies punishment?” Some have argued that those who (voluntarily) commit crimes will or choose their punishment or that punishment is a natural consequence of the crime (448). In contrast, Husak argues that punishment is something done to offenders by another entity, namely, the state.
Following his introduction, Husak seeks to provide three possible explanations for why many philosophers have neglected the crucial question about what justifies punishment. His goal in this is to “show how the tendency to misconstrue the significance of consequentialist considerations has led theorists to overlook the importance” of the question (448). The first is this: simply that desert is sufficient cause to actually punish. Husak compares this to many other cases, such as the decision of President Ford to pardon President Nixon after Watergate, which illustrate that desert is often insufficient and that additional grounds are needed in order to justify punishment (448–449). Another important feature about desert is that it “seldom, if ever, impose[s] correlative obligations or duties on anyone to treat any deserving party in any particular way” (449). Furthermore, it is not generally considered a violation of a moral requirement to show mercy to someone who is actually deserving of punishment, although some philosophers, such as Herbert Morris, have suggested that mercy is incompatible with justice (450).
The second explanation is that although desert may not entail punishment, it does suggest something to the effect of “all other things equal, it would be good if punishment were given to the criminal” (450). This, too, is a non-consequentialist argument, since many philosophers are “reluctant” to allow consequentialist/utilitarian concerns to outweigh desert. Husak finds this problematic because all other things are not truly equal. Because punishment is a function of the state and not of God (who is presumably perfectly just and omniscient), punishment is susceptible to the following deficiencies: tremendous expense, grave error, and enormous abuse (450). Although other philosophers have not considered the drawbacks of punishment as relevant to its justification, Husak thinks that these deficiencies are both serious and relevant to the discussion. Despite the fact that Husak hopes to avoid arguing about utility, he believes that punishment cannot be justified regardless of its costs/drawbacks (451). Once again, further premises or “extra-desert” components may need to be met in order to justify punishment. Additionally, the value of punishment ought to be weighed against the drawbacks in order to determine if it should be administered (451). It is important to note that while the drawbacks may outweigh the justification of punishment, it is not sufficient to outweigh the desert judgment itself (452).
The third explanation is related to the fact that the majority of philosophers understand the need to combine both retributive and consequentialist elements into a “hybrid” model. Generally, Husak notes, consequences are viewed as important in justifying the institution of punishment but are ignored when it comes to the “distributive” questions of who should be punished and to what extent (452). Husak believes that consequences should be included in the concerns about distribution because they are relevant to more than simply justifying the institution of punishment (453).
Next, Husak tackles questions about what exactly counts for a comprehensive justification of punishment, the first of which is: “What is meant by a justification of punishment?” and the second is: “What about the use of punishment requires justification?” (453). To answer the first briefly, Husak thinks that the justification of punishment does not require it to be obligatory or permissible. Alternatively, Husak’s proposed answer is “the punishment of a deserving offender is justified if the state more closely approximates the ideal of justice, and thus adds value to the world, by actually punishing [the offender]” (454). Admittedly, this is very tentative, vague, and imprecise, but Husak thinks this justification is the most fitting. An answer to the second question is two-fold. Punishments require justification because they are “intentional infliction[s] of a hardship, a deliberate deprivation of one or more rights” and because they “express disapproval or censure, and impose blame or stigma” (455). Even if it is established (or assumed) that a person deserves punishment and stigma, it does not imply that the person should actually have the punishment and stigma imposed upon him/her.
Following this, Husak begins a discussion about the different schools of thought that aim to explain why criminals deserve blame. One such school of thought defends stigmatization without reference to its consequences or its possible production of a further good — stigma is simply what is “fitting” (456). Although this may be a psychological assumption or feeling that is valid in some sense, it does not mean that that it is acceptable or justifiable to express it through an institution (456). When it comes to the justification of the “hard treatment” element of punishment, many retributivists (non-instrumentalists) defend the practice of depriving offenders of rights and others insist that “more value is added to the world if the guilty are made to suffer than if they are not” (458). However, there are many problems within these views, one of which is that all fail to answer the question: “Why is it thought to be important to restore an equilibrium that is said to have been upset by a criminal act?” (458).
For all these reasons, Husak concludes that consequentialist considerations play a crucial role in determining whether deserved punishment should be inflicted. Although “inconclusive,” Husak believes that the “extra-desert” component previously referenced is simply the reasonable expectation that punishment will help reduce crime, which he believes carries with it some radical implications (459). So, for Husak, the answer to the module question “When must we punish the deserving?” is “when we have a reasonable expectation that it will help reduce crime.”
Husak, D. N. (1992). Why Punish the Deserving? Nous, 26.4:447–464. Retrieved November 17, 2020, from http://www.jstor.com/stable/2216023.