Punishment as moral communication: The experiences of long-term prisoners
| Author | Marguerite Schinkel |
| Published date | 01 December 2014 |
| Date | 01 December 2014 |
| DOI | http://doi.org/10.1177/1462474514548789 |
| Subject Matter | Articles |
Article
Punishment & Society
2014, Vol. 16(5) 578–597
! The Author(s) 2014
Punishment as moral
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communication: The
DOI: 10.1177/1462474514548789
pun.sagepub.com
experiences of long-term
prisoners
Marguerite Schinkel
University of Glasgow, UK
Abstract
This article examines for the first time to what extent the lived experience of long-term
prisoners matches the normative theory of criminal punishment as moral communica-
tion. The findings are based on 27 narrative interviews with men at different stages of a
long-term prison sentence. The analysis suggests that Antony Duff’s normative vision of
punishment as moral communication may be difficult to realise in practice because of
the inevitable pressures on defendants in the courtroom and on prisoners during their
incarceration. In the court, the men’s attention was focused on the length of the sen-
tence imposed; they were often overwhelmed by emotion and did not interact with the
court as a moral arena. Within prison the men tended to accept their sentence in order
to make bearing their incarceration easier. Comparing these men’s lived experiences of
punishment with Duff’s normative theory highlights problems with the theory’s poten-
tial implementation but also reveals normative problems with current practices of
sentencing and sanctioning.
Keywords
lived experience, moral communication, prisoners, punishment, sentencing
Introduction
This article reports the findings of a research project examining long-term pris-
oners’ accounts of their sentence. Many authors have pointed out the importance
of examining offenders’ views of the criminal justice process. It has been argued
Corresponding author:
Marguerite Schinkel, ESRC Future Leader Research Fellow, School of Social and Political Sciences, University
of Glasgow, Ivy Lodge, 63 Gibson Street, Glasgow, G12 8LR, UK.
Email: marguerite.schinkel@glasgow.ac.uk
Schinkel
579
that soliciting offenders’ accounts is necessary in order to describe the criminal
justice system accurately, examine and possibly change it (Casper, 1972), to pro-
mote respect for the system (McGinnis and Carlson, 1981) because disrespect for
the system may lead to further crime (Alpert and Hicks, 1977; Sherman, 1993) and
to make rehabilitation more likely (Larson and Berg, 1989). Several authors have
also highlighted the need to investigate the lived (subjective) experience of punish-
ment in relation to normative theories, in order to understand what it is that the
theory is aiming to justify (Kolber, 2009; Rex, 2005). This article examines for the
first time to what extent one influential theory, namely Antony Duff’s theory of
punishment as moral communication, matches up with conditions in the ‘real
world’ of sentencing and sanctioning. Based on 27 narrative interviews with
long-term prisoners, it discusses whether punishment can serve as a form of
moral communication in the context of court and prison experiences. By compar-
ing a normative theory of what punishment should be with an empirical analysis of
what sense the punished make of punishment, this article aims to shed light on both
questions and ultimately to contribute to debates about the relationships between
purposes and practices of punishment.
The philosophy of punishment and moral communication
There are two main schools of thought in the justification of punishment: conse-
quentialism and retributivism. Consequentialist theories state that punishment is
justified if, and to the extent that, it has a positive effect on the world by reducing
crime
(e.g. through deterrence,
reform,
rehabilitation
or incapacitation).
Retributive theories justify punishment with reference to the crime committed.
They hold that there is an intrinsic link between wrongdoing and punishment,
with the sentence seen as the offender’s ‘just deserts’, and argue that consequen-
tialist justifications fail because they do not explain the necessary link between the
original crime and the punishment. However, others have argued that many
retributive theories, in turn, fail to make sense of the idea that punishment
should bring about at least some future good (Duff, 1996; Rex, 2005), the for-
ward-looking element of punishment.
One influential theory that attempts to explain both the connection to the crime
committed and the need for possible positive impact is Antony Duff’s (1996, 1999,
2001, 2003a) carefully elaborated theory of communicative punishment. Duff
(2001: 95) argues that when serious wrongs are committed, more is needed than
just verbal censure and an apology: ‘To think that [the offender] could just apolo-
gise, and then return to her normal life, would be to portray the wrong as a rela-
tively trivial matter that did not seriously damage the victim or their relationship.’
He thereby explains the link between crime and punishment: the wrong com-
mitted requires some kind of redress. This redress is delivered through ‘hard treat-
ment’ or punishment, which is intended as a two-way communication. It
demonstrates to offenders the extent to which they have done wrong and focuses
their attention on their crime and its consequences. At the same time, the hard
580
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treatment constitutes a message from the offender. Duff (2003a: 300) writes that it
is ‘a material and forceful expression of the apology that [the offender] owes to
those whom she wronged – to the direct victim of her crime, if there was one, and to
the wider community whose values she flouted’.
The wording here is important: hard treatment is an expression of the apology
that is owed, but this does not make it necessary that the offender is actually
repentant. When this is not the case, the sentence is still seen as having given
adequate weight to what happened. The forward looking element of Duff’s
theory, however, depends on the hard treatment being capable of bringing about
repentance and behavioural change. Besides having a communicative function hard
treatment is also an enforced secular penance (Duff, 2003a), which ideally leads to
the offender accepting responsibility and changing their ways (Duff, 1999).
However, while this is an aim of the punishment, it is not the justification (this is
not a consequentialist theory) and the enforced penance cannot be continued
simply on the basis that the offender has not repented.
Duff’s (2003b: 192) account of criminal punishment focuses on community
penalties, which he argues are by far the best suited to fulfilling the role of ‘com-
municative penance’ and should be used much more extensively. Imprisonment
should only play a very small role in the kind of criminal justice system he envis-
ages, as punishment for the most serious of crimes. He writes:
The message of imprisonment is that the offender has not just damaged or threatened,
but has broken, the normative bonds of community. He has made it impossible for us
to live with him in the ordinary community of fellow citizenship unless and until he
has undergone this penitential punishment. (Duff, 2001: 150, emphasis in original)
Imprisonment, on Duff’s account, communicates a need for exclusion to the offen-
der, although he stresses this exclusion should always be temporary.
The relevance of lived experience
As Rex (2005: 3) has written, the views of those affected by criminal justice deci-
sions cannot disprove normative theories: ‘you cannot prove an ‘‘ought’’’. Even a
finding that no prisoner has ever felt rehabilitated does not show that criminal
punishment should not be justified by its rehabilitative function. Besides, Duff
(2003a) has unequivocally stated that his account does not justify punishment as
it is practised in our current society. Does the lived experience of punishment
matter, then, to normative theories in general and Duff’s theory in particular?
Various writers have pointed out that, even if theories only justify an ideal
system of punishment, they do need to be applicable to the world we live in. For
example, Murphy (1994: 58) writes ‘a theory may be formally correct (i.e. coherent
or true for some possible world) but materially incorrect (i.e. inapplicable to the
actual world in which we live)’. Moreover normative theories have been used to
change penal practices. For example, Duff’s emphasis on the moral education of
Schinkel
581
the offender has found an expression in the cognitive behavioural programmes that
are now being run for offenders on probation as part of the ‘What Works’ agenda
(Robinson, 2008). This type of influence, where aspects of a theory are taken on
board or borrowed by policy makers, necessitates examination of whether the
practice is actually true to the theory (see also McNeill, 2012) and whether all
aspects of the theory that the justification of punishment depends upon are in
place. If either of these conditions is not fulfilled, then the practice cannot be
justified with reference to the theory. It is clear that Duff (2001: 201) wants current
practice to be examined against his theory, when he writes: ‘the task of justifying
criminal punishment . . . is the task of so transforming the content and context of
criminal punishment that it can become what it ought to be’.
In examining the lived experiences of punishment against this normative theory,
then, this article is intended both to highlight problems with the theory and provide
insight into how our system might need to change in order to deliver punishments
that can be justified as moral...
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