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Fall 2006
Volume 06, Number 1

Newsletter on Philosophy and Law

Articles

Expressing Condemnation that Fits the Crime

Robert F. Schopp
University of Nebraska-Lincoln College of Law

I. Introduction

In one of his widely recognized works, Joel Feinberg provides a conceptual analysis of punishment that emphasizes the expression of condemnation as a central element that distinguishes punishment from other penalties and serves several important social functions of punishment.1 In this analysis, Feinberg explicitly rejects the familiar notion that punishment should fit the crime in the sense that the punishment should inflict pain that matches the moral gravity of the offense. He contends that punishment should fit the crime only in the relatively noncontroversial sense that the condemnatory aspect of the punishment should conform to the requirement of ordinal proportionality. That is, more serious crimes should receive more severe condemnation than less serious crimes.2

In this paper, I examine this minimal interpretation of the requirement that the punishment fits the crime, and I argue that this minimal interpretation is incomplete. Further, Feinberg’s later work provides the basis for a more satisfactory understanding of the manner in which punishment should fit the crime. Part II briefly articulates Feinberg’s analysis and expands it slightly. Part III examines an initial hypothetical criminal sentencing structure that raises questions regarding the adequacy of ordinal proportionality. Part IV develops an alternative analysis that draws upon Feinberg’s later work to articulate an alternative formulation of this property of fit that reflects the expressive function of punishment. Part V concludes the analysis.

II. The Expressive Function

Feinberg develops a conception of criminal punishment as hard treatment of an offender for an offense by an authority that expresses condemnation. His analysis emphasizes the conceptual clarification of, and social functions served by, the expression of condemnation. Punishment expresses condemnation as reprobation and resentment directed toward the offender for his offense.3 That expression facilitates the ability of punishment to serve several important social functions. Feinberg explicitly recognizes four of these social functions. These include authoritative disavowal of the crime, symbolic nonacquiescence as public denunciation of particular crimes or categories of crimes, vindication of the law as emphatic reaffirmation of the prohibition contained in the offense definition, and absolution of parties other than the offender who might be subject to blame or suspicion in the absence of the explicit condemnation of the convicted offender.4

Arguably, the expressive function fulfills two additional functions that Feinberg does not explicitly discuss. First, criminal punishment vindicates the standing of victims of crimes. By condemning criminal offenses against these victims, criminal punishment of offenders repudiates these offenses and reaffirms the status of the victims as individuals who qualify for protection under law and who can make legitimate claims on legal institutions for protection and for vindication of their standing. If public officials fail to charge, convict, and punish those who commit crimes against certain victims or classes of victims, such as transients or prostitutes, they acquiesce in these wrongful harms to these victims, and they effectively concede the derogation of the victims’ standing implicit in the crimes.

Consider the significance of some empirical evidence suggesting that capital punishment in some jurisdictions is distributed in a manner that discriminates by race of victim.5 One might raise the practical concern that differential punishment dilutes the deterrent effect of capital punishment. This claim is empirically questionable, however, and it fails to address a more fundamental concern. The more fundamental objection to such differential punishment appeals to the expressive function of punishment. This type of discrimination in sentencing apparently expresses differential condemnation, indicating that murders of members of specified classes of persons are less severely wrongful than similar murders of members of other classes, reflecting the lesser standing of persons who are members of the former classes. Thus, this differential punishment expresses differential condemnation, violating the equal standing of the members of those classes and the principle of comparative justice. By convicting and punishing offenders who commit crimes against all categories of victims and subjecting those offenders to punishment in proportion to the crimes they commit and their culpability for those crimes, we conform to the requirement of comparative justice and vindicate the standing of the victims. By providing comparative justice for the victims, we also recognize the equal standing of the members of the various classes of persons to which the victims belong.

Punishment also reaffirms the standing of persons as responsible agents. Historical prototypes of contemporary institutions of criminal punishment reportedly applied punishment to animals or trees that killed human beings. In contrast, contemporary institutions of criminal punishment that contain requirements of culpability, such as the voluntary act requirement, culpability elements, and the insanity defense, apply punishment only to culpable wrong-doers. By limiting punishment to culpable wrongdoers, with the expression of reprobation and resentment inherent in that punishment, we explicitly recognize the special standing of persons as those who possess the capacities of responsible agency. We recognize them as individuals who possess the capacities necessary to comprehend the requirements of law and to direct their conduct through a minimally adequate process of practical reasoning. When a bear attacks a child in a campground, we will probably kill the bear to prevent further attacks, but we do so with a sense of sadness for the child, the child’s family, and for the bear because the bear cannot reasonably be held responsible for the harm done. When a competent adult murders a child, in contrast, we severely punish the murderer with a sense of sadness for the child and the family but with anger toward the murderer.6 The expression of reprobation and resentment inherent in the severe punishment reflects our recognition that this killer possessed the capacities that qualified him as a highly culpable responsible agent.

Herbert Morris has written of the right to be punished, rather than be the subject of involuntary treatment, as an individual’s right to be subjected to the form of coercive behavior control that reflects respect for that offender’s standing as a responsible agent.7 One might reasonably question whether we should be concerned about vindicating the standing of offenders who culpably commit serious wrongs. This vindication is not limited, however, to these specific offenders. Rather, we recognize and express respect for the standing of the general category of responsible agents by maintaining the criminal justice system as our primary institution of coercive behavior control for those who possess the requisite capacities to qualify for that standing. The reprobation and resentment expressed by criminal punishment represents our recognition that culpable offenders engage in criminal conduct with the capacities of responsible agency. These capacities enable them to direct their conduct through a minimally adequate process of practical reasoning by taking into consideration the applicable prohibitions, the relevant circumstances, the likely effects of their conduct, and the legally and morally relevant reasons that justify the legal and moral prohibitions. Thus, by maintaining and applying the criminal law as the primary institution of coercive behavior control applicable to offenders who possess the capacities of responsible agency, we express respect for all who possess these uniquely human capacities and condemnation for the culpable misuse of these capacities. In contrast to the early prototypes that applied punishment to animals and trees, contemporary institutions that reserve the expression of condemnation inherent in punishment for those who engage in culpable wrongdoing recognize the unique standing of responsible agents.

III. Condemnation that Fits the Crime

Consider a sequence of offenses selected from one widely accepted source of offense definitions in increasing order of severity and punishment. An offender commits assault if he purposely, knowingly, or recklessly causes bodily injury to another human being. He commits aggravated assault if he purposely or knowingly causes bodily injury to another with a deadly weapon. The offender commits manslaughter if he recklessly causes the death of another human being. He commits murder if he purposely or knowingly causes the death of another human being. These four offenses qualify respectively for maximum periods of incarceration of: one year, five years, ten years, and life.8

Then, consider an alternative criminal sentencing statute that prescribes punishment for these offenses by fines of $1, $2, $3, and $4 respectively. No plausible sentencing statute would prescribe such punishments. Perhaps because these sentences are so obviously inadequate, it might seem natural to reject them without explicitly articulating the properties that render them unsatisfactory. This system fulfills the requirement of ordinal proportionality, but it is unacceptable for several reasons. First, it provides only a trivial difference ($3) between murder and simple assault. This minimal difference in punishment markedly understates the difference in severity of harm caused by these offenses and the difference in culpability for causing such harm. Thus, these sentences fail to accurately represent the differences in severity of condemnation that are appropriate to these offenses and to offenders who commit these offenses. Murder is a much more serious offense than simple assault, for example, but the sentencing scheme suggests that murder merits only marginally more condemnation. Thus, it fails to accurately express the differential severity of condemnation appropriate to the relative severity of wrongful harms and to the relative culpability of the wrongdoers. Call this requirement the principle of differential proportionality.

Consider the sentencing statute revised to provide the following maximum sentences: assault $1; aggravated assault $10; manslaughter $50; murder $100. Under this statute, the sentence for murder is 100 times as severe as the sentence for simple assault. Arguably this ratio is at least plausibly related to the relative severity of the offenses. Thus, it meets the requirements of ordinal and differential proportionality. It remains unacceptable, however, because the severity of each sentence is so mild as to trivialize the offense and the expression of condemnation. The sentences apparently express mild disapproval, rather than condemnation. Thus, they seem to express the societal view that killing and injuring others are minor infractions by societal standards. Call this requirement the principle of severity proportionality.
This requirement does not require that the punishment inflicts harm that matches the offense in type or degree. It does not require, for example, that we torture the torturer or that we rape the rapist. Rather, it requires that sentences accurately express the intensity of condemnation merited by the offenses and the offenders. The specific modality and severity of punishment might vary across societies with different traditions of punishment and conventions of expression. In the United States, for example, some states apply capital punishment for highly aggravated murder, but other states do not. The latter states might apply a life sentence in prison for a murderer who would receive capital punishment in the former states. Some countries might apply maximum sentences that are significantly less severe than either capital punishment or incarceration for life.

Similarly, societies might differ regarding the degree of seriousness they attribute to various offenses. A society that vests great value in public esteem and relatively less value in freedom of expression, for example, might apply very serious punishment to offenses, such as slander, that undermine the victim’s public reputation. Liberal societies that place great value in freedom of expression and relatively little value in public esteem do not apply any criminal punishment to slander, although they do allow civil damages. Liberal societies in the Anglo-American tradition that view one’s dwelling as a place of safety and personal control prescribe punishment of substantial severity for burglary. A society of nomadic hunters who vested relatively little value in a dwelling, in contrast, might provide relatively mild punishment for such an offense. The requirement of severity proportionality requires only that punishment be of such severity as to express the appropriate intensity of condemnation according to the institutional conventions that represent the principles of public morality embodied by the criminal justice system of that society.

Revise the statute once more. This version of the statute sets maximum sentences at the following levels: assault $1,000; aggravated assault $10,000; manslaughter $50,000; murder $100,000. These sentences are no longer trivial, and they are arguably within the range of proportion to relative severity. $100,000 is a very large fine and substantially more than the other fines, reflecting the judgment that murder is a very serious offense and substantially more serious than the other offenses listed. Thus, this sequence of punishments arguably meets the requirements of ordinal, differential, and severity proportionality.

The sentencing structure remains unacceptable, however, partially because it effectively prohibits crimes differentially by economic class. Assault is a serious crime for a low-income person, and the other offenses are proportionally more serious. A wealthy person can afford to commit these offenses, however, and a very wealthy CEO can afford several murders each year.

Revising the sentencing scheme in proportion to income could address part of this concern. Consider, for example, the following maximum sentences: assault - 1 month’s income; aggravated assault - 6 months income; manslaughter - 2 years income; murder - 5 years income.

Such a system might provide substantial deterrence and fulfill the requirements of ordinal, differential, and severity proportionality. It remains inadequate, however, at least partially for one reason previously suggested by Feinberg. Although there is a technical distinction between fines as a form of criminal punishment and fees or taxes, that distinction is not sufficiently clear or emphatic to provide an unambiguous expression of condemnation.9 Some wealthy individuals or corporations might view such punishment merely as a cost of doing business. Some might begin to view criminal offenses as optional, providing that they are willing and able to pay the price. This concern becomes increasingly troubling as the offense becomes more severely harmful and more clearly wrongful. Criminal punishment that is limited to fines arguably redefines criminal offenses as privileges to be purchased, rather than as wrongs to be condemned.

Incarceration arguably differs from fines at least partially because it provides an unambiguous expression of condemnation. Penitentiaries were originally designed and named as institutions intended to promote penitence and reform by wrongdoers who would reflect, repent, and refrain from further wrongdoing. Prisons may not be highly successful in achieving this goal, but incarceration is widely recognized as a paradigmatic form of punishment in contemporary society. Fines or mandatory compensation become more clearly punitive if they are combined with incarceration or required as a condition of parole from incarceration at least partially because they are associated with incarceration as an unambiguous form of punishment with an inherent expression of condemnation. Thus, incarceration currently fulfills a requirement of semantic fit in that it conveys an unambiguous expression of condemnation of the offense and of the culpable offender’s having committed that offense.

This analysis suggests that the mandate that punishment expresses condemnation that fits the crime requires more than ordinal proportionality. It requires convergence between the crime and the punishment along several dimensions. It requires ordinal proportionality in that more serious offenses, defined in terms of the degree of harm done or intended and the degree of culpability, must receive more severe sentences than those imposed for less severe offenses. It also requires differential proportionality understood as differences in severity of punishment roughly proportional to the differences in severity of offense defined, once again, by the harm done or intended and the culpability of the offender. Further, punishment that expresses condemnation that fits the crime must meet the requirement of severity proportionality, understood as requiring punishment that expresses condemnation that accurately represents the seriousness of the offense as defined by the harm and culpability factors.

Finally, punishment that fits the crime must meet the requirement of semantic fit by applying a modality of punishment that unambiguously expresses the appropriate condemnation of this category of offense, of this instance of that category, and of this culpable offender. The fines discussed previously provide an inappropriate form of punishment for serious wrongs because fines are not sufficiently distinct from fees or taxes to provide a clear and emphatic expression of condemnation. Incarceration, in contrast, currently provides a form of punishment that is widely and unambiguously understood as punishment that expresses condemnation in this sense.

Incarceration might also serve a distinct preventive purpose of incapacitation in that it markedly reduces the offender’s opportunity and ability to commit further crimes during the period of incarceration. That preventive function is not sufficient to render incarceration an unambiguous form of punishment, however, because commitment to a secure mental health facility following acquittal pursuant to an insanity defense can provide a comparable preventive function. Although post-acquittal commitment and criminal incarceration can involve similar limitations of liberty in facilities that appear similar, they carry distinctly different expressive significance. Criminal incarceration provides an emphatic expression of condemnation partially because it deprives the offender of liberty as a result of an explicit finding that the offender is responsible for criminal wrongdoing. Commitment to a mental health facility under the authority of the police power might reasonably be understood as repudiation of the type of behavior that triggered the commitment, but it explicitly withholds condemnation of the individual as a culpable wrongdoer. Some confined individuals might not recognize or care about the expressive significance of this difference between imprisonment and post-acquittal commitment. The distinction remains important to the integrity of the criminal process and of the mental health institutions, however, because these institutions differ regarding the expression of condemnation.

Sexual predator commitment statutes, for example, raise important concerns in part because they distort the boundaries between criminal punishment and civil commitment by subjecting individuals to criminal punishment for specific offenses and then subjecting them to ostensibly civil commitment based partially on the premise that they are unable to control the conduct that constituted those offenses.10 Although it might be difficult to become concerned about the fate of individuals subject to confinement for committing sexually violent or exploitative crimes, this failure to maintain a clear boundary between criminal punishment and civil commitment raises important concerns regarding the integrity of both institutions.11 These concerns include the risk that by blurring the expressive significance of each form of confinement, these statutes might dilute the semantic fit of incarceration as a form of punishment that clearly expresses condemnation of criminal conduct by responsible agents.

IV. Semantic Fit and Principles of Political Morality

Feinberg implicitly recognized the requirement of semantic fit when he articulated an important aspect of the justification of punishment as the justification of "our particular symbols of infamy."12 Recognizing that punishment expresses condemnation of culpable wrongdoing requires that we express that condemnation in a manner that is consistent with the underlying principles of political morality that justify the applicable criminal law. These principles must justify the prohibition of specified categories of conduct as wrongful and the requirements of culpability that render the wrongdoer eligible for the expression of condemnation inherent in criminal punishment.

In later work, Feinberg provides extensive analysis to support the contention that a liberal society should apply criminal prohibition and punishment only to conduct that violates the harm principle or a limited interpretation of the offense principle. He rejects legal moralism as that position traditionally has been understood and defended. He does not deny, however, that the criminal law enforces morality by prohibiting moral wrongs and punishing culpable wrongdoers through the application of a legal institution that expresses moral condemnation. Rather, he characterizes the criminal process as "a great moral machine, stamping stigmata on its products, painfully ‘rubbing in’ moral judgments on the people who entered at one end as ‘suspects’ and emerging from the other end as condemned prisoners."13

In Feinberg’s view, the criminal law articulates moral prohibitions and enforces those prohibitions through the application of criminal punishment with its inherent expression of moral reprobation and resentment. He limits the legitimate application of criminal punishment to the domain of public morality, however, defined as grievance morality. The criminal law protects individuals by prohibiting wrongful violations of their rights. Thus, an institution of criminal law that conforms to Feinberg’s interpretation of liberal principles of political morality enforces morality, but it does not enforce all of morality. The criminal law in a liberal society prohibits and punishes only wrongful conduct that causes harm or a limited range of offense to others.14

A complex conception of autonomy carries substantial weight in this analysis. Feinberg articulates and examines four senses of the concept of autonomy, including autonomy as capacity, as a condition, as an ideal, and as a right.15 His analysis emphasizes autonomy as a right to self-governance within a domain of personal sovereignty. I focus here on the relationship between autonomy as sovereignty and autonomy as capacity. Autonomy as capacity includes a set of uniquely human capacities, including the abilities to comprehend, reason, and reflect. These capacities enable individuals to understand legal and moral prohibitions and the circumstances to which they apply. Those who possess these capacities have the ability to make decisions and direct action in light of the legally or morally relevant reasons to engage in various actions or to refrain from doing so. Thus, these capacities enable competent adults to direct their conduct through a uniquely human process of practical reasoning.16

The ability to define and pursue a uniquely human life through the exercise of capacities such as comprehension, reasoning, and reflection provides the basis for autonomy as a right to self-governance or personal sovereignty within a nonpublic domain of primarily and directly self-regarding decisions. These capacities also provide the competent individual with the ability to function effectively as a responsible agent under the rule of law in the public jurisdiction. These capacities enable individuals to direct their own lives in the public domain by exercising the liberties protected by law within the boundaries defined by law, including those defined by criminal prohibitions.

Liberal societies are based on principles of political morality that reflect respect for these uniquely human capacities of responsible agency. The capacities required to direct one’s life through a minimally competent process of practical reasoning provide the basis for equal standing as a participant in the public domain and for sovereignty in the nonpublic domain. Legal institutions that prohibit and punish crimes against persons provide institutional structures designed to protect individuals from wrongful violations of their protected interests. Thus, the criminal justice system is the "great moral machine" that defines and enforces the domain of public morality. It partially defines the boundaries of individual sovereignty by prohibiting crimes involving wrongful violations against individuals, and it forcefully expresses condemnation of culpable violations of those boundaries. By condemning criminal conduct, the criminal justice system vindicates the victim’s standing in the public domain and enforces the applicable boundaries of individual sovereignty. By protecting these interests through the application of punishment that condemns culpable wrongdoing, the criminal justice system recognizes the standing of responsible agents.

Incarceration provides a mode of punishment with particularly cogent semantic fit in a liberal society. It expresses condemnation of culpable criminal conduct by depriving the offender of some of the liberties accorded to those who qualify for equal standing in the public domain, and it limits that offender’s ability to pursue projects or relationships that would ordinarily fall within the protected nonpublic domain of individual sovereignty. Thus, incarceration expresses condemnation of the manner in which the offender has exercised his autonomous capacities by depriving him of part of the ordinary range of liberty within which individuals with full standing have discretion to direct their lives through the exercise of those capacities. Criminal incarceration in a liberal society forcefully directs the attention of the offender and of the public toward the offender’s failure to exercise those capacities within the bounds of individual discretion defined by law. Such punishment denies full standing to the culpable offender, and in doing so, it vindicates the standing of victims by condemning as wrongful the culpable criminal conduct that violated the standing of those victims.

Punishment through incarceration in a liberal society fits crimes against innocent victims, but it does not purport to match the injury or suffering of the victim with comparable injury or suffering for the offender. Rather, it fulfills the requirement of semantic fit because it expresses condemnation of the offender’s culpable misuse of his autonomous capacities in a manner that limits his opportunity to exercise the ordinary range of autonomy as a right. Incarceration vindicates the standing of the victim by emphatically repudiating the crime that violated the victim’s domain of sovereignty and the victim’s standing in the public domain. It expresses this condemnation by subjecting the criminal to a mode of punishment that explicitly limits the equal standing and individual sovereignty of the offender. That is, it fits the crime in that it subjects the offender to punishment that explicitly represents the principles violated by the offense. In doing so, it vindicates the standing of the victim and the underlying principles protected by the criminal offense definition.
The degree of semantic fit might vary with the underlying principles of political morality and with the relevant social conditions and conventions. Confinement to one’s residence in an urban area in which few people own property and most commute to their employment and other activities might constitute a substantial deprivation of liberty that expresses significant condemnation. Similar confinement to one’s farm in an agricultural area of the same society in which most people own and cultivate land might not be understood as a significant expression of condemnation. Limitations of property rights that precluded the cultivation of the land might express severe condemnation in the latter area, however, while such limitations might not carry comparable expressive significance in the urban area.

Some secondary forms of punishment fulfill the functions of punishment primarily because they reflect semantic fit. Deprivation of the right to vote for convicted felons, for example, might not be experienced as a particularly costly deprivation by many convicted felons. Thus, it would not fit the crime in the sense of inflicting suffering similar to that suffered by the victim, and it might not have substantial deterrent effect. It might, however, fulfill a substantive expressive function insofar as it constitutes an explicit denial of full standing in the public domain. Thus, it would reflect semantic fit in that it would diminish the standing of the offender in repudiation of the offense that violated the standing of the victim. Such forms of punishment might or might not be advisable for other reasons. A permanent deprivation of the right to vote might be quantitatively disproportionate to some offenses, for example, or it might be counterproductive to the process of reintegration into society for some offenders. I claim only that modes of punishment can promote the expressive function of punishment insofar as they manifest semantic fit in the sense that they explicitly appeal to and reinforce the principles of political morality violated by criminal offenses.

Some nontraditional forms of punishment, such as requiring that convicted sex offenders register with law enforcement registries or wear brightly colored bracelets identifying them as convicted offenders might serve some preventive functions. Those functions might include notice to others or deterrence through shaming. These forms of punishment might have more natural semantic fit in societies that place great value on the individual’s rank in the social hierarchy than they have in a liberal society that emphasizes self-governance more heavily than societal approval. They might acquire substantial fit in a liberal society, however, if their use as a form of punishment becomes associated with criminal conviction and condemnation. Similarly, association with criminal conviction and punishment can vest a criminal fine with condemnatory meaning that would not attach to civil compensatory damages of similar magnitude. Alternately, however, ostensibly criminal fines that are lacking in severity or that are applied in a routine, repetitive manner, fail to convey reprobation or resentment, and, hence, they can come to be seen as merely the cost of doing business. Thus, one might reasonably expect a reciprocal relationship between semantic fit and societal practices. Modes of punishment that invoke the central principles of political morality, such as incarceration in a liberal society, express condemnation partially because they provide strong semantic fit. Other forms of punishment, such as fines or proposed shaming techniques, might acquire greater or lesser expressive significance insofar as they are applied or interpreted in a manner that strengthens or weakens the association between those modes of punishment and societal condemnation.

Some modes of punishment, such as torture, are objectionable in part because they lack semantic fit with the underlying principles of political morality. Although there are a variety of arguments rejecting torture as unjustifiable, one argument is particularly cogent in a liberal society that vests fundamental value in autonomy as a right to self-governance grounded in the possession of autonomous capacities. Torture inflicts severe or prolonged pain that overcomes the individual’s ability to direct conduct through the exercise of the autonomous capacities, such as reflection and reasoning, that provide the foundation for the standing of persons in a liberal society. By enforcing compliance through torture, the state enforces the criminal law through a method that impairs, rather than appeals to, the individual’s ability to direct conduct through the exercise of reason. Thus, torturous punishment seeks to motivate compliance with the criminal law by undermining the individual’s ability to apply the capacities of responsible agency that justify reliance on the criminal justice system as the primary institution of coercive behavior control for those who possess those capacities. By applying torturous forms of criminal punishment, the state violates the principle of respect for individual autonomy that purportedly justifies the state in holding this offender criminally responsible and provides the foundation for the standing of responsible agents in a liberal society.

Consider the forms of punishment that might provide semantic fit in a society with different underlying principles of political morality. Suppose a crime occurred in a society organized around principles that emphasized communal or collectivist interests, rather than individual autonomy or rights. In this society, individual liberty and self-determination are not highly valued. Political principles and legal institutions emphasize individual duties to the collective rather than duties to other individuals or protection of individual rights or interests. This society defines a complex set of social relationships among individuals, families, and institutions. These relationships are duty-based in that the roles of individuals are defined in terms of the responsibilities individuals are expected to fulfill in these relationships. The societal ideal consists of a state of social harmony in which all participants fulfill their duties in all relationships. This state of social harmony constitutes the good of the people in the collective sense, and the good for any individual consists of his fulfilling his roles in the social harmony.17 Individuals strongly identify with the collective entity. They derive satisfaction, self-esteem, and the respect of others by fulfilling their responsibilities in the communal structure and from the recognition of their standing as valuable participants in communal projects.

In such a society, incarceration might carry relatively little expressive force, particularly if incarcerated individuals are required to engage in labor for the benefit of the collective. Because liberty and self-determination are not highly valued, incarceration merely changes the role in which the individual discharges his duties. Idle incarceration in which the individual engages in no activity that contributes to the collective might carry more expressive significance than incarceration at hard labor. Similarly, shunning might provide a form of punishment that expresses condemnation with clear semantic fit. Banishment might serve as the most severe sentence because categorical exclusion emphatically expresses condemnation by denying the offender’s standing as a member of the collective that provides the foundation for the members’ significance.

In short, semantic fit requires that punishment take a form that expresses condemnation consistent with the underlying principles of political morality that provide the moral structure of the society. The degree of semantic fit for specific modes of punishment might vary with the underlying principles, the relevant circumstances, or the local practices of punishment and conventions of expression. Incarceration and other limitations on ordinary liberties and standing provide paradigmatic forms of punishment in a liberal society because the principles of political morality that provide the foundation of the liberal society emphasize equal standing and equal liberties in the public domain and individual sovereignty in the nonpublic domain. Thus, incarceration or alternative limitations on ordinary liberties appeal to the underlying principles violated by culpable criminal conduct. Such punishment constitutes emphatic condemnation through the application of the "great moral machine."

V. Conclusion

Feinberg’s early analysis reveals the significance of condemnation as a factor that is central to the conceptual analysis of punishment and to several expressive functions of punishment. Although his early analysis rejects the requirement that punishment fit the crime beyond the minimal requirement of ordinal proportionality, his later work provides guidance toward a more comprehensive interpretation. Criminal punishment that fully coheres with underlying principles of political morality would fulfill the requirements of ordinal, differential, and severity proportionality as well as providing semantic fit. Recognizing the expressive function of punishment directs our attention toward semantic fit. Incarceration might serve practical preventive functions such as incapacitation or deterrence in any society, but it carries particular expressive significance in a liberal society that emphasizes protection of the nonpublic domain of individual sovereignty and of equal standing in the public domain.
I do not claim that modes of punishment must inherently appeal to the core principles of political morality to qualify as punishment. I claim only that: (1) various forms of punishment will have greater or lesser degrees of inherent or acquired semantic fit in particular societies; (2) those with greater semantic fit more clearly express the reprobation and resentment inherent in criminal punishment; and (3) those that lack adequate semantic fit undermine the expressive function.

Feinberg’s work reminds us that we cannot achieve a fully satisfactory conceptual and justificatory account of punishment in isolation. Criminal punishment constitutes one important component of a complex set of legal institutions. Ideally, this comprehensive set of institutions should provide a coherent embodiment of defensible principles of political morality that reflect the uniquely human capacities and potential of persons, their projects, and their relationships. It remains unrealistic to expect any actual set of human institutions to achieve this ideal. As is often the case with Joel Feinberg’s work, he leads us along a path that integrates conceptual analysis, justificatory argument, and appreciation of the human condition in search of an ideal toward which we continue to strive. Perhaps we could approximate the ideal a bit more closely if it were not for the obstructionist interventions of Josiah S. Carberry.

Endnotes

1. Joel Feinberg. Doing & Deserving (Princeton, New Jersey: Princeton University Press, 1970), 95-118.

2. Ibid., 116-18.

3. Ibid., 99-101.

4. Ibid., 101-05.

5. David C. Baldus, George Woodworth, Catherine M. Grisso, & Aaron M. Christ. "Arbitrariness and Discrimination in the Administration of the Death Penalty: A Legal and Empirical Analysis of the Nebraska Experience (1973-1999)," Nebraska Law Review 81 (2002): 499-502.

6. State v. Joubert, 399 N.W.2d 237 (Neb. 1986); Robert F. Schopp, "Sexual Aggression: Mad, Bad, and Mad." In Sexually Coercive Behavior, edited by Robert A. Prentky, Eric S. Janus, & Michael C. Seto (New York: The New York Academy of Sciences, 2003), 324-36.

7. Herbert Morris. On Guilt and Innocence (Berkeley, CA: University of California Press, 1976), 31-58.

8. American Law Institute, Model Penal Code §§ 210.0-210.3; 211.1; 6.06; 6.08 (Official Draft, 1962). For the purpose of this paper, I set aside capital punishment.

9. Feinberg, Doing & Deserving, 96-97.

10. Kansas v. Crane, 534 U.S. 407 (2002); Kansas v. Hendricks, 521 U.S. 346 (1997).

11. Robert F. Schopp. Competence, Condemnation, and Commitment (Washington, D.C.: American Psychological Association, 2001), 137-87.

12. Feinberg, Doing & Deserving, 116.

13. Joel Feinberg. Harmless Wrong-Doing (New York: Oxford University Press, 1988), 155.

14. Ibid., 151-55.

15. Joel Feinberg. Harm to Self (New York: Oxford University Press, 1986), 27-51.

16. Ibid., 28-31.

17. Edward C. O’Dowd & Robert F. Schopp. "International Human Rights, Morality in War, and the Structure of Rights," Pacific Rim Law and Policy Journal, 2 (Winter 1993): 52-54, 56-60. Although this source addresses one account of traditional Chinese social structure, I make no claim that the brief account in the current paper provides an accurate account of Chinese society.

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Fall 2006 Volume 06, Number 1

Fall 2006
Volume 06, Number 1