Punishment and Violence: Is the Criminal Law Based on One Huge Mistake?

Social Research, Fall, 2000 by James Gilligan

FOR the past three millennia, since the time of the first law-givers--Hammurabi and Moses, Drakon and Solon, Plato and Aristotle, Cicero and Justinian--humanity has been engaged in a massive exercise in social research. We have been conducting a great social experiment to test the hypothesis that we could prevent violence by defining it as a crime (or war crime), and then punishing those who commit it with more violence of our own (which we define as justice). Three thousand years is long enough to test any hypothesis, and the results of this experiment have been in for a long time now. This approach to violence, which I will call the moral and legal approach, far from solving the problem of violence, or even diminishing the threat that it poses to our continued survival, has, instead, been followed by a continuing and ever-accelerating escalation of the scale of human violence--to the point that the century we have just survived has been the bloodiest in all of human history. Worse yet, we have now achieved, by deliberate effort, the technological ability to kill everyone on earth, thus becoming the first species in evolutionary history to be in danger of bringing about its own extinction--unless we increase our ability to prevent violence far more effectively than we have by means of the ways of thinking, and the strategies based on them, that we have employed for the past three millennia.

Nietzsche said that the history of the world is the ultimate refutation of the notion that there is moral order in the universe. I am simply paraphrasing him by observing that history is the ultimate refutation of the theory that punishment will prevent or deter violence. On the contrary, punishment is the most powerful stimulus of violence that we have yet discovered. In order to understand why this is true, we will need to understand the psychology of punishment. Because the etymology of words is one of the royal roads to understanding the collective or cultural unconscious, it is relevant here to note that the etymology of "punishment" tells us what its underlying meaning is. The word derives from the Greek poine, and its Latin derivative, poena, which mean revenge. Indeed, in its capitalized form, Poine was the Greek goddess of revenge. Poine and poena are also the roots of our word "pain," as well as of penalty, penal (system), penitentiary, and penance. Hence, punishment is the deliberate infliction of pain on a person for the sake of attaining revenge. And penitentiaries, or prisons, are institutions whose purpose is to inflict pain on people for the sake of revenge (a task at which they are all too successful). But as one of the children whom Piaget interviewed for his studies of moral development recognized, the trouble with revenge is that it is endless; the moment one person gets revenge, the person on whom revenge was taken is motivated to return the favor, resulting in an endless vicious cycle (1932).

That may help us to understand why the moral and legal approach to preventing violence has been so unsuccessful--in fact, not merely unsuccessful, but counter-productive, leading to more violence than there was before the moral and legal approach was invented. On the other hand, if that approach has not worked, what reason do we have to think that any other approach would be more successful? One point of this article will be to suggest some answers to that question.

The main cognitive handicap that we impose on ourselves by defining violence as a moral and legal problem is that that point of view is incapable of informing us as to what causes violence and how we could prevent it. The only questions the moral and legal way of thinking can ask are: "How evil (or heroic) was this particular act of violence, and how much punishment (or reward) does the perpetrator of it deserve?" But even if it were possible to gain the knowledge that would be necessary to answer those questions (which it is not), the answers would not help us in the least to understand either what causes violence or how we could prevent it. Those are empirical questions, not moral or legal ones. It is only by approaching violence from the point of view of empirical disciplines, as a problem in public health and preventive medicine, including social and preventive psychiatry and psychology, that we can acquire answers to those questions--by engaging in clinical, experimental and epidemiological research on violence.

The main assumption on which the moral and legal approach has been based up to now is that punishment will deter, inhibit, or prevent violence. But that is an empirical hypothesis, not a moral or legal one. There are several different types of social and psychological research that have provided data regarding this question. The first type I will review is research that I have been conducting over the past thirty years with violent people (both criminals and psychiatric patients) in prisons, jails, youth detention facilities, and prison mental hospitals for the "criminally insane," in the course of directing or evaluating mental health services focused on preventing violence (both homicide and suicide) in those institutions and in the community following the patients' release.