by: David Shichor.  Long Grove, IL:  Waveland Press.  2006.  223 pp.  ISBN 1-57766-387-X.

Punishment is a bit like theology:  people believe in it because they want to.  It is taken as a given, for which explanations and justifications have to be found, rather than as a persistent trait of human nature which needs to be explained and challenged.  Professor Shichor treads a middle path:  he presents the arguments without overtly taking sides, but from time to time inserts a relevant fact or quotation showing where he thinks the strength of the argument lies. 

The two main sections of the book consider the ‘Why?’ and the ‘How?’ of punishment.  He recognises that punishment is problematic, since at least some of its aims can be achieved by informal social control and positive sanctions.  H L A Hart argued that punishment is justified if it works; but Shichor does not go into this, nor the actual (as opposed to intended) psychological effects, apart from a brief mention of psychological studies of deterrence (p. 36).  He looks at the contrary argument of Kant, which is really only an assertion, that punishment is simply the right thing to do.  As he says, the blindfold on the statue of Justice symbolizes that justice has to be applied equally, regardless of the identity of the individuals involved; it could also signify that she is blind to the actual effects of her actions.

Taking a broad definition of punishment, he gives a clear analysis of incapacitation and rehabilitation, including the arguments of Cohen and Quinney that these methods do not seriously challenge unjust capitalist social arrangements:  the offender has to be moulded to them, not vice versa.  Rehabilitation should be used because it is a humane way to treat people; the fact that it benefits other people by reducing recidivism should be secondary.  He describes the problems of reintegration:  prisoners are released without marketable skills or access to positive opportunities.

Among recent trends, he considers neo-retributionist ideas and attempts to remove discretion from judges – which simply transfer it to prosecutors by means of plea bargains.  Packer saw a conflict between crime control and due process, which some (including some current British politicians) see not as an essential safeguard but as an obstacle course for hard-line law enforcers.  Shichor does not mention the inclusive ‘family model’ proposed by Griffiths (1970), but he presents some of the criticisms of the notion of selective incapacitation. 

There is a balanced account of restorative justice, as not just a process but a different set of peacemaking values.  He takes a sceptical view that ‘it is not feasible that it will become the major model for dealing with serious crime’ (p. 76) and that it has ‘an unrealistic faith in the ability of “the community” to render justice in large numbers’ (ibid.).  He thinks it would need major changes in society, evidently not considering that if properly implemented it could help to bring them about.

In Part II, Shichor looks at punishments ancient and modern, especially imprisonment, which Charles Dickens called ‘worse than any torture of the body’.  He mentions that chain gangs are being re-introduced; so are fees paid by offenders for the privilege of being punished, which John Howard campaigned to have abolished in the eighteenth century.  Some inmates were driven insane by prison conditions; are we sure the same isn’t still happening?  He raises important issues such as the power of the prison officers’ union, private prisons, lack of after-care, and women’s prisons. 

The capital punishment debate is summarized.  Some of the arguments are based on public opinion; is that a sound basis for decisions on such important ethical issues?  He makes the pertinent point that about 14,000 workers are killed on the job every year in the United States, and no one has been executed for it, and devotes a chapter to the punishment of ‘white-collar’ and corporate crime.  He thinks Braithwaite’s restorative approach is too optimistic, but was writing too soon to see the Macrory Report (2006), which made similar recommendations.  

The book draws on some non-American literature, but with one or two surprising omissions such as Nigel Walker.  It is mercifully footnote-free, and has an index.  It gives a good overview of the subject, and would make a useful textbook, especially in the hands of a lecturer who could make sure that the somewhat understated criticisms of punishment were not overlooked.

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References

Griffiths, J (1970)  ‘Ideology in criminal procedure, or, a third “model” of the criminal process.’  Yale Law Journal 79(3), 359-417.

Macrory, R (2006)  Regulatory justice:  making sanctions effective.  Final report.  London:  Cabinet Office.  Better Regulation Executive.
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Martin Wright
Author of Restoring respect for justice (1999)

September 2007