Day 17 – On Punishment

The words covered in this article are transgress and transgression, deter, deterrence and deterrent, commensurate, flout, tacit, condone and condonation. Previously done words that will reoccur today are denunciation, culpable, obloquy, indifferent, explicit, irony and analogy.

In Day 16, I told the story of Jesus and the adulterous woman. The people who had caught her in the act wanted to stone her to death. Why? Punishment is the way in which society expresses its denunciation of wrongdoing. They also probably wanted to make an example out of her so that other women – like their wives perhaps – would not dare to commit adultery.

Alexander Hamilton (1755 – 1804), a Founding Father of the United States, once wrote,

“It is essential to the idea of a law, that it be attended with . . .  a penalty or punishment for disobedience. If there be no penalty annexed to disobedience . . . the laws will, in fact, amount to nothing more than advice or recommendation.”

Punishment is a message given to both the offender and the society whose norms the offender has transgressed. To the offender, the message is that what he did was unacceptable and cannot be tolerated. To the innocent members of the society, the punishment given to a wrongdoer is a reassuring message that the norm is important and will be upheld, while to those members of the society who are or may be interested in committing similar crimes, the punishment of the caught criminal is a warning, given with the hope that they will be deterred from going ahead with their plan.

Transgress

The noun transgression means an action that breaks a:

  • Law, or
  • A moral rule (an action that breaks a moral rule is also known as a ‘sin’)

Correspondingly, the verb transgress means:

  • To break a law, or
  • To sin

The word comes from the Latin trans-, across + gradi, to go. So, etymologically, the image that it conveys is of going across (a legal or moral boundary to the other side).   

To transgress means to step outside the boundary of good conduct.

Deter

To deter is to prevent or discourage something from happening. The noun form of the word is deterrence. A deterrent is a thing that prevents or discourages something from happening. For example, face masks act as a deterrent against the coronavirus infection.

The word comes from the Latin word terrere, fear, prefixed with de-, derived from. ‘Terror’ also comes from the same root. Fear (of getting caught or of punishment) is indeed a powerful deterrent.

The Deterrence theory of criminology is that “those who have not transgressed will be warned against crime when they see punishment imposed on others, and the offender who is convicted and punished will be dissuaded from repetition” (McKay, 1976: 225).

However, these benefits are achieved only if the risks and burdens that a person faces in committing a crime are more than his gains from doing so. If a criminal has high likelihood of getting caught and his punishment will be commensurate with or harsher than the severity of his crime, the rational decision for him would be to refrain from the crime. 

Commensurate

The adjective commensurate means proportionate, corresponding in size.

The word comes from the Latin com-, together + mensura, a measuring, a measurement. So, if two things go together in measurement – meaning that they have the same weight or size – they are commensurate. Imagine putting ‘the amount of hard work that you have done at your job’ in one pan of a weighing balance and ‘your salary’ on the other pan. If the two pans balance, then your salary is commensurate with your effort.

Deciding what punishment would be commensurate with a particular crime is no easy task.  Consider the following examples:

  • Person H is a hedge fund manager has fraudulently pocketed a million dollars of his client’s money. Would a fine of five hundred thousand dollars be sufficient punishment? What about a fine of a million dollars? Some judges argue that the only real deterrent that would work for upper-class financial crime is jail time, because it carries a social obloquy that is hard to shake off.
  • Person X is an old woman who, acting on her husband’s request to relieve him from the suffering of his terminal illness, killed him with an overdose of sleeping pills. Person Y is a torturer who seriously injured his victim and then walked away, utterly indifferent to whether she lived or died. She died. Both X and Y were responsible for another person’s death but is their culpability equivalent? Should they get the same punishment?
  • Person M is a drunken driver who kept over-speeding and jumping traffic lights even though the friend sitting next to her repeatedly asked her to slow down or to let him drive. She eventually hit a pedestrian who was seriously injured. Person N was driving his car carefully when a tree suddenly dropped down on the road in front of him and, while swerving to avoid collision with the fallen tree, he hit a pedestrian who was seriously injured. Are M and N equally culpable? Should they get the same punishment?

Even if the crime of two persons is the same, whether they did it knowingly and with bad intention matters. We tend to feel sympathetic with people such as the old lady X or the car driver N, while we judge more harshly those who those who flout the law and show an arrogant or careless indifference to the well-being of other people, such as the torturer Y and the drunker driver M.

Flout

To flout (a rule or a social convention) is to mockingly disregard it. So, when you flout a law, not only are you transgressing but you are not feeling even the least bit of moral guilt in doing so. You show a shameless disregard for rules. This may be because you think that the rules are stupid, or that you will never be caught or punished, or that the punishments given are laughably lightweight.

But merely specifying a harsh punishment in the law book for a grave crime is not a sufficient deterrent either. Deterrence works only when common people see that harsh punishment actually being imposed on most offenders of the crime.

For example, the punishment for rape in Pakistan is severe – either death penalty or a prison term of ten to twenty-five years. However, out of every 10,000 rape reports that are filed in police stations, less than 2000 move to court and in only 35 cases do the rape-accused actually get convicted and punished. In contrast, when a rape victim chooses to report the crime, she thereby makes the fact of her rape public and faces immediate and lasting obloquy in that conservative society; she is judged to be a person of low character who first attracted the blameless rapist towards herself and is now accusing him; she is denounced as having brought shame to her family and community and may even be killed to restore the family honor. If she is brave enough to survive this storm of vilification, she must fight the court case for many long years and even then, her chance of getting justice is very low. This is a system in which the balance is tilted against the victim and in favor of the rapist. It hardly says anything to the rapist but makes life hell for the raped. It deters not rape but the reporting of rape. This is a system that seems to condone rape.

Condone

To condone (an offense) is to remain silent about it and thereby imply one’s tacit approval of the act. The noun form is condonation.

Tacit

The adjective tacit means unspoken. The opposites of tacit are explicit (done in Day 10) and express ( = expressed).

Black’s Law Dictionary defines condonation as a victim’s express or implied  forgiveness of offence, specially by treating the offender as if there had been no offence.

A crime is a wrong done not just to the victim but to the whole society. This is why, when a person X murders a person Y, the case is labelled ‘The State vs. Person X’ and not merely ‘Person Y’s family versus Person X.’ The society is also an injured party, a victim of the crime.

As stated earlier, punishment is the way in which society expresses its denunciation of wrongdoing. Recall our discussion in Day 16 that the opposite of denunciation can be:

  • disagreement expressed in private,
  • mild disagreement, 
  • approval, or
  • praise

It is not always possible to tell which of the four is the attitude of a person who does not openly denounce a crime. He may have expressed his disapproval to the criminal in private, but a third person who does not know this may still think that he approves of the wrongdoing.

For example, in the biblical story of Pericope Adulterae. Jesus saved the adulterous woman from being stoned to death, but does this mean that he condoned her sin? No, because he did tell her to sin no more. However, because he communicated this to her when they were alone, the common people may have got the impression that he did not really mind adultery.

The individual members of a society may not actually approve of rape, but if they do not denounce most rapists and if the judicial system does not denounce them, an onlooker may get the impression that the society as a whole is okay with rape.

Silence is often interpreted as tacit approval. As Sue Monk Kidd said,

“To remain silent in the face of evil is itself a form of evil.”

That’s it for today. We’ll continue our discussion on punishment tomorrow, but before you go, here are more usage examples of the words you learnt today.

  • The theory of nuclear deterrence is that a country armed with nuclear weapons can deliver such a deadly blow to any potential enemy that its enemies are deterred from ever attacking it. It’s like the idea that guns are a deterrent to theft.
  • The fear of social obloquy is a deterrent to many potential wrongdoers, but it does not deter the very bad ones, because they enjoy the publicity and deem themselves to have become famous like heroes.
  • It was ironical that slavery was condoned in the United States of America, a country founded on the principles of liberty and equality for all.
  • Rebecca frequently spent her nights not at Manderley but either at her flat in London or at her boathouse cottage, a situation her husband appeared to condone.
  • Justice must be done even in the murder of the evilest criminals. The villainy of the victim is no condonement in the eyes of the law.
  • “Only charity admits no excess.  For so we see, aspiring to be like God in power, the angels transgressed and fell; by aspiring to be like God in knowledge, man transgressed and fell; but by aspiring to a similitude of God in goodness or love, neither man nor angel ever transgressed, or shall transgress.”  Francis Bacon
  • “The happiness at getting what you want is not usually commensurate with the worry leading up to it.” Ann Brashares
  • The book Flow suggests that the conditions to enjoy a mental activity are as follows: “there have to be rules, a goal, and a way of obtaining feedback. One must be able to concentrate and interact with the opportunities at a level commensurate with one’s skills.”
  • “Every time we turn our heads the other way when we see the law flouted, when we tolerate what we know to be wrong, when we close our eyes and ears to the corrupt because we are too busy or too frightened, when we fail to speak up and speak out, we strike a blow against freedom and decency and justice.” Robert F. Kennedy
  • The government’s surveillance programs flouted the constitutional right of the people for their persons, houses, papers and effects to not be searched unreasonably and without a warrant.
  • Pro-life advocates in America argue that just as one has tacitly decided that the slave is not a “person” in the constitutional sense when one permits slavery, analogously, one tacitly decides that the foetus is not a morally-consequential entity when one permits abortion.
  • “When an employer becomes aware of misconduct on the part of his servant, sufficient to justify dismissal, he may adopt either of two courses. He may dismiss, or he may overlook the fault. But he cannot retain the servant in his  employment and  afterwards  at  any  distance  of time  turn  him  away…if  he  retains  the  servants  in  his employment for any considerable time after discovering his fault, that is condonation, and he cannot afterwards dismiss for that fault without anything new.”  Excerpt from the judgment made in the Canadian court case of McIntyre  v  Hockin(1889)

References

“Punishment is the way in which society expresses its denunciation of wrong-doing.”