Thinking About Punishment (SSIR)

In How Trust Works: The Science of How Relationships Are Built, Broken, and Repaired, I explore how easily our trust in others can be distorted and what that can mean for our interpersonal and work relationships, for the leaders, groups, and organizations that touch our lives, and for some of our thorniest societal challenges. The book draws on two decades of my research to illuminate how trust is developed, what happens when it’s damaged, and what it means to rebuild it.

In the chapter from which this excerpt is taken, “Your Balance Sheet Is Broken,” I consider the implications of some of my findings, along with the research of other social scientists, for the criminal justice system. It begins with an organization from my own city of Los Angeles, Homeboy Industries, that has been working to address that system’s shortcomings and then delves into some underlying aspects of our psychology that can complicate our attempts at retributive justice more broadly. Further insights into these issues, based on my own and other research, are provided in the full chapter. I hope this excerpt sparks your interest in understanding how we might address this major societal problem, as well as the other societal challenges that are covered in this book.—Dr. Peter H. Kim

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When Gregory Boyle became pastor of Dolores Mission Church, it was the poorest Catholic parish in Los Angeles. The parish included the largest public housing projects west of the Mississippi, Aliso Village and Pico Gardens, as well as the highest concentration of gang activity in Los Angeles, a city then known as the gang capital of the world. At the time, in 1986, the prevailing efforts to address the gang violence focused on law enforcement and mass incarceration. Yet they clearly weren’t working. Gang violence remained a serious problem, and those who had been convicted of crimes and completed prison sentences were quite likely to commit crimes again.

That is why Father Greg founded Homeboy Industries, which has grown to become the largest gang intervention, rehabilitation, and reentry program in the world. In 2014, it launched a global network with four hundred other organizations that are striving for social justice, advocating for marginalized populations, working to break the recidivism cycle, and seeking to address the collateral consequences of serving time in prison. And in 2018 alone, it served almost seven thousand members of the immediate Los Angeles community and offered its flagship eighteen-month employment and reentry program to over four hundred men and women.

Homeboy Industries is a story of remarkable success. It is also a story of society’s abject failure. This is because one of the biggest reasons why Homeboy Industries has thrived is that our stance toward reintegrating offenders into society is so deeply conflicted. That has meant that most of those who have been helped by this organization would have had no other recourse if it hadn’t existed. We would have simply cast them aside.

Public debate on how to treat criminal offenders remains heated to this day, with questions of trust in those who committed the crimes, as well as the justice systems we have in place, lying at the center of these arguments. Should we punish for the sake of retribution or deterrence? Or should the goal be rehabilitation of the offender or some form of reparation to the victim? Society has shifted from one view to another and back over time because, in practical terms, none of them are entirely adequate, and these goals often come into conflict with one another. A harsh sentence designed for retribution, for example, may do little to rehabilitate the offender and even increase the likelihood of recidivism, whereas a sentence designed to rehabilitate may fail to express society’s repudiation of the behavior or provide an effective deterrent to others. And the unfortunate truth is that as we struggle with these dilemmas, the U.S. has become the world’s leader in incarceration (with 2.2 million people in the nation’s prisons, a 500 percent increase over the last forty years, overcrowded prisons, and significant state fiscal burdens) due primarily to changes in law and policy rather than changes in crime rates.

Part of the problem stems from the fact that our notions of justice itself can be so conflicted. Justice, at the broadest level, is simply about people getting what they deserve. Yet the pursuit of this seemingly straightforward principle represents one of the most fundamental and thorny societal challenges we deal with every day. This is because even if we can agree that justice is about people getting what they deserve, we quite often disagree about what that really means.

The traditional view of retributive justice, or the punishments people deserve for their wrongdoing, can be found in the principle expressed in Exodus 21:24 as an “eye for an eye.” The German philosopher Immanuel Kant articulates this stance best by arguing that perpetrators should be punished in proportion to the moral offensiveness of their actions and that the imperative to punish derives not from the future consequences of the punishment but rather from a universal goal of giving people what they deserve. From this perspective, punishment needs no justification beyond the deservingness of the perpetrator based on the harm they committed, and any future consequences of the punishment are irrelevant. Thus, if some consequence is achieved from punishing the offender, we might view it more as a matter of restoring some abstract sense of cosmic fairness and balance rather than a specific societal end.

Utilitarians like the English philosopher Jeremy Bentham, however, contend that justice should ultimately be about maximizing the overall welfare of society. They claim that the primary way this can be achieved is by using credible threats of punishment that are sufficiently severe to lead potential wrongdoers to make different choices (i.e., deterrence) and for past wrongdoers to stop doing bad things (i.e., rehabilitation). Moreover, unlike the traditional retributive perspective, which asserts that only the guilty should be punished and that this should be in proportion to the harm that was committed, proponents of this utilitarian view suggest that it can sometimes make sense to punish the innocent or inflict disproportionately severe punishments on the guilty if this produces a better societal result. For example, this perspective suggests that it would make sense to execute a few people who have exceeded traffic speed limits on national television if this saves enough other lives through the deterrence of speeding to save more lives overall.

Yet despite these often-lengthy debates about what our approach to justice should
be, it remained unclear which of these views is more consistent with how people intuitively make these judgments. Psychologist Kevin Carlsmith, thus, sought to address this question with several experiments. These experiments would inform participants a crime had been committed, tell them they were responsible for recommending a sentence, and then give them the option of learning about different categories of information about the crime, each of which was uniquely relevant to deterrence, incapacitation, or retribution. For example, the deterrence-related information could concern the extent to which the punishment would be made public, whereas the information pertinent to incapacitation could concern the offender’s likelihood of violence, and the retribution-related information could concern the amount of harm the crime had caused.

Carlsmith’s studies revealed that participants overwhelmingly prioritized information pertinent to retribution, with 97 percent of participants requesting that kind of information first, and that they only sought deterrence-related information pertinent to the utilitarian view, such as the extent to which the punishment would be made public, after the other types of information had already been exhausted. The evidence also revealed that retribution-related information increased participants’ confidence in the punishments they assigned more than any other information type. Thus, Carlsmith concluded based on these and related findings that people’s intuitions are more closely aligned with the traditional, rather than utilitarian, view of retributive justice. Rather than punish to maximize the overall welfare of society, they do so primarily for the sake of an eye for an eye.

This doesn’t mean that people will necessarily reject the utilitarian perspective. People can engage in a more deliberate, rather than intuitive, form of reasoning as well, and that kind of deliberate reasoning may lead them to conclude that utilitarian principles like deterrence are sufficiently important to override their intuitive inclinations. However, as the Nobel Prize–winning psychologist Daniel Kahneman aptly detailed in his bestselling book Thinking, Fast and Slow, a wealth of evidence has made clear that our intuitions are much more immediate and automatic, and that deliberate reasoning can only override those intuitions in certain cases, such as when we have the time, mental resources, motivation, and opportunity to engage in that more effortful type of thinking.

These considerations suggest that at least one reason why our approach to criminal justice is so often conflicted can be found in ourselves. On the whole, we don’t necessarily subscribe to one theory of retributive justice or another, whether this be the more traditional view of an “eye for an eye” or a utilitarian approach that seeks to maximize the greater good. Instead, our preferences can switch back and forth between these views depending on the situation (e.g., due to the time, motivation, mental resources, and opportunity we have available), as if we suffer from a type of multiple-personality disorder.

Our dissatisfaction with society’s approach to retributive justice seems to stem from another problem as well. If justice is ultimately about how we deal with matters of guilt and redemption, the dominant approaches to retributive justice we have considered don’t seem to have given the latter concern much attention at all. Thus, it should not be a surprise that there has been a growing recognition by the public of the need to rectify this problem. The April 2016 National Survey of Victims’ Views, which polled the opinions of eight hundred victims of violent or property crimes pooled from a nationally representative sample of over three thousand respondents, found that even crime victims want to see shorter prison sentences, less spending on prisons, and a greater focus on the rehabilitation of criminals. Fifty-two percent of victims said that prison makes people likelier to commit crimes again, whereas only 19 percent said that prison helps rehabilitate people into better citizens. Thus, by well over a two-to-one margin, the people surveyed believed the criminal justice system should focus on rehabilitating people who commit crimes rather than on punishing them. They also preferred shorter prison sentences over keeping criminals incarcerated “as long as possible” by similar margins. Moreover, they preferred holding people accountable through options beyond prison (such as rehabilitation, mental health treatment, drug treatment, community supervision, or community service) by a margin of three to one.

Another notable feature of the findings is that these opinions cut across demographic and political groups, with most Democrats, Republicans, and Independents supporting these reforms regardless of how the questions were asked. This pattern is consistent with the results of a 2012 survey by the Pew Charitable Trusts, in which 84 percent of the public, including strong majorities of Democrats, Republicans, and Independents, agreed that money should be shifted from locking up nonviolent inmates to alternative programs like probation and parole. But the results of the 2016 National Survey of Victims’ Views, which included actual crime victims, including victims of violent crimes, provided the strongest call for change yet. As Judy Martin, an Ohio woman whose son was shot and killed in a parking lot when he was only twenty-four, was quoted stating in that survey, “The way our criminal justice system is set up currently doesn’t allow for redemption . . . We must treat each other, even those among us who have made serious mistakes, with more humanity. It’s the only way forward.”

That view is consistent with a growing interest in “restorative justice” approaches that have focused on repairing the harm caused by the criminal behavior. Midwestern psychologist Albert Eglash pioneered this approach in the 1950s through his extensive work with prisoners, by viewing crime not as a simple violation of the law but rather as a violation of human relationships that injures victims, communities, and even offenders. This approach asks, “Who has been hurt? And how can we bring together offenders and victims to acknowledge and repair the damage?” Thus, it holds the offender accountable to victims, their families, and the community by getting the wrongdoer to make amends rather than by simply having the wrongdoer suffer.

Yet even though studies of restorative justice programs suggest that they can improve victim satisfaction, increase offender accountability, and decrease recidivism compared to more traditional criminal justice responses, the data remains far from conclusive. For example, it remains unclear how much of this effect is due to a self-selection bias, in which the results may have arisen from inherent differences between those who agree to participate in such programs and those who do not. Moreover, even if we take these benefits at face value, efforts to pursue restorative justice must ultimately confront the fact that our intuitions can still lead us to prefer more traditional “retributive” approaches to justice in many cases.

It is no wonder then that Father Greg’s efforts, from the start of this chapter, to reintegrate former gang members into society are so important.

The U.S. has only 5 percent of the world’s population, but one-quarter of its prisoners. Our prisons house ten times as many mentally ill individuals as state hospitals. They hold a far greater percentage of the country’s Black population than the prisons of South Africa did under apartheid. And nearly two-thirds of those released every year return to prison, in part due to crippling employment discrimination that makes it extraordinarily difficult for them to find legitimate jobs. To be sure, there are certainly plenty of societal differences that may keep us from adopting justice systems like the one in Sweden, which have focused not on punishment but on rehabilitation and experienced far lower incarceration and crime rates than the U.S. However, it is imperative that we start exploring what’s possible, because these are enormous problems, and we must find a way to turn the tide.

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