Socratic Form Microscopy

Terminal and Non-terminal Punishments

by Zach Jacobi in Ethics, Model

What happens if you don’t pay your taxes?

I’ve never actually tried this, but I’m pretty sure the sequence of events goes like this:

  • The government sends you a letter saying "hey, you really should pay your taxes".
  • The government sends you a few more letters, just in case you forgot about the first.
  • The government sends police to your house to inform that you have been charged with tax evasion.
  • If you continue to refuse to pay your taxes, a judge finds you guilty of tax evasion.
  • If you still refuse to pay, a judge sends you to jail.

Here jail is the terminal punishment. Demands 1-4 above are backed up by threat of jail1. But there is no threat that gets you to go to jail; if you refuse, armed men and women will drag you there by force (and a judge will add more time onto your sentence).

You don’t go to jail out of fear of something worse. You go to jail because that is the end of the line.

Community service, fines, and house arrest are all enforced with the threat of jail. If a judge gives you community service, you do it even if you hate it, because jail is very much worth avoiding.

In Canada, jail is the only terminal punishment. There is no other final threat that the government has against you. Of the Western democracies, only America has another terminal punishment: execution 2.

But while execution is terminal (in all senses of the word), it’s not really used as a terminal punishment to encourage paying of fines or completion of community service. To my knowledge, no one has been executed in America because of taxes in arrears, and I hope that will always be the case. Execution lacks this coercive character because it is primarily a punishment used for retribution. This means that execution has little practical bearing on the theory of terminal punishments, and can be safely ignored in our discussion.

Identifying terminal punishments is important, because terminal punishments are the best way we have of convincing self-interested or amoral actors to follow the rules of society. For some offences, our current suite of terminal punishments are very effective; they accomplishment punishment and separation (that is to say, keeping the general population safe from an offender) both, while sometimes also providing rehabilitation services3.

But many other offences – especially fines that rise from civil infractions or judgements – are poorly served by these terminal punishments4.

Take, for example, spousal or child support in arrears.

If a wife (husband) fails to pay spousal support that a court has found within her (his) means to her husband (wife), what would we do?

Throwing her in prison seems counterproductive. It will result in a precipitous drop in her income and greatly reduce the future spousal support she can provide. We abolished debtors’ prisons for a reason.

On the other hand, letting our hypothetical “deadbeat” parent get away with everything because prison has disadvantages seems… bad. And like the sort of thing that will encourage more people to skip out on support payments.

There are lots of people who aren’t very interested in paying duly determined spousal or child support, so we’ve developed ways of dealing with this, various non-terminal punishments that are designed to obviate prison while still ensuring compliance. Garnishing wages makes deductions automatic, while suspending someone’s driver’s licenses can greatly annoy and inconvenience someone5.

But none of these options are perfect. One problem is that it is possible to just refuse to work. If you don’t have any wages, they can’t be garnished. If you declare bankruptcy, old judgements cannot be enforced. This state of affairs leaves everyone worse off, but it’s one way that things can escalate.

All of this has led to another terminal punishment: public shaming. Publicly shaming parents who don’t pay child support seems like the sort of terminal punishment that can be effective on people who desire the good opinion of their community. Targeted public shaming (e.g. telling your neighbours of your misdeeds) is not currently a punishment, but it seems like it could be similarly effective6.

There is certainly historical precedent. Prison is a relatively recent invention and many early punishments amounted to some form of public shaming, which could be brief (e.g. pillory) or protracted (e.g. amputation of a prominent body part, like the nose or ear; branding7).

To use my terminology, throughout a lot of history, shaming was a very common (perhaps the most common) terminal punishment. Unlike community service, which you can choose to avoid, shaming is outside of your control. It cannot be stopped once your community has been informed of your deeds.

But for all that prison is a tremendously destructive punishment8, I’m not itching to go back to many historical terminal punishments. Branding, for example, can stay in the past.

In fact, it should be obvious that all punishments that involve maiming are unacceptably brutal. They’re morally wrong – and they’re not the sort of thing that helps people become better adjusted members of society. To make them even worse, these punishments are often difficult or impossible to reverse, a real worry given how imperfect justice often is.

So when I say I’m interested in finding other terminal punishments, I want to make it clear that I don’t consider bringing back branding and mutilation to be an acceptable solution. Just because prison is bad doesn’t mean we need to search history books for something worse.

Neal Stephenson’s book Snow Crash imagined something a bit better, with tattoos on prominent places (like one character’s forehead tattoo: POOR IMPULSE CONTROL) taking the place of prison, in a society that could no longer afford to maintain much in the way of criminal justice infrastructure.

But I think tattoos are also awful as a terminal punishment. While tattoos are less brutal than amputations, they’re still very painful, difficult to reverse, and likely to be stigmatizing.

In general, obvious marks of criminality are the sorts of thing that make it hard for people to be members of the above-ground economy. As this is one of the major problems many people have identified with our current terminal punishments, no alternative punishment with the same drawback can really be considered an improvement.

A less immediately appalling terminal punishment is the severing (permanently or for a set period of time) of otherwise assured rights. I can see permanently losing all parental rights as an appropriate punishment for failing to pay owed child support or strict limits on the right to bring lawsuits as a punishment for repeated frivolous and vexatious litigation, but I’d be deeply skeptical of any attempts to strip people of fundamental rights9. Stripping rights like freedom of speech or presumption of innocence seems entirely fraught with abuse. For all that this is less immediately brutal than branding, I’m not sure that it doesn’t end up being just as bad.

I’m also sure there’s space for many science-fiction writers to come up with terminal punishments involving brain-computer interfaces, although I’m ill equipped to tell what is possible and what will always be sci-fi. I should also mention that I’m deeply unsettled by the thought of tinkering with peoples’ brains – especially when the recipients of the tinkering have no say in the process.

For all that we I wish we had cheaper and less destructive terminal punishments, all of this explains why prison has persisted. Aside from a few cases where public shaming might be useful, all other terminal punishments have serious flaws. And maybe that’s inevitable. Terminal punishments should be those rare big sticks with which we whack people who repeatedly or flagrantly violate the social contract. They aren’t ever going to be pleasant; they can’t be pleasant.

  1. And also like, social conventions and your neighbours’ opinions and a whole bunch of other things. This blog post is dealing with the small minority of cases where coercion is necessary to get people to play by “the rules of the game” – those rules governing behaviour, social interactions, and conduct which are largely enforced though habit and peer pressure, rather than police dragging you to jail. The principle need for terminal punishments is to provide a stronger inducement to follow the “rules of the game” than most people require. 

  2. Unless you consider Japan to be a Western democracy, which I think I don’t. 

  3. Rehabilitation services are quite good in some jurisdictions. In others, their lack breaks my heart and fuels sky-high recidivism. 

  4. Here I’m talking about fines that people can easily pay, but don’t want to, rather than fines that people can’t afford to pay. In my perfect world, fines are scaled so that the marginal pain they bring to everyone is the same. If you have $30 in your bank account, a speeding ticket shouldn’t cost you what it would cost Warren Buffet. But that’s an argument for another day. 

  5. Although honestly, suspending someone’s driver’s license is almost as counterproductive as putting them in jail. In many places, it is hard or impossible to work without a car. If people ignore the law and drive anyway, they end up entangled in the legal system and likely in jail from that. 

  6. The neighbours of registered sex offenders are often warned, but to my knowledge that is not considered punishment, but precaution. 

  7. Rhinoplasty – reconstruction of the nose – is one of the earliest documented surgical procedures, because of the prevalence of nose mutilation in early criminal codes (like the Code of Hammurabi). 

  8. There are many ways that prison is destructive. It can limit prospective employment opportunities, even after a sentence is completed. It can traumatize people or accustom them to violence. It is typified by poor healthcare, which can leave people permanently disabled or dead. For these poor outcomes, we pay incredible sums of money, money that could otherwise be used to address pressing problems. This gap, between what we could spend, and what we are able to spend, is just more value destroyed by prisons.
    I am not arguing that prison is never necessary. But I do believe we spend far too much money incarcerating people, when the incarceration of many of these people serves little social value. 

  9. ]Also of note: it’s hard to find rights that are actually terminal, without turning our society into a massive police state. Many people banned from driving, from alcohol, or from guns find ways to do or possess those things anyway. If people are caught with prohibited items, they’re often jailed, which means also means that we haven’t figured out a way to make these restrictions, in their current form, a terminal punishment. 

Tags: ethics, justice system, prison, punishment