Buddhism, Punishment, and Reconciliation

As it is commonly interpreted, the first precept of Buddhism involves a commitment to nonviolence (ahimsa). (2) This is understood, first and foremost, as a commitment not to kill any sentient being intentionally. But it is also understood, more broadly, as a commitment not to harm any sentient being intentionally, and it is this broader understanding of nonviolence that is crucial to appreciating the implications of the first precept with regard to the treatment of offenders. Given that punishment involves the intentional infliction of harm, it follows that punishment is incompatible with the first precept. I develop this argument in what follows and try to show that reconciliation, as an alternative to punishment, best captures the Buddhist spirit of nonviolence. Alternatives to Punishment Punishment involves the infliction of harm--typically, some form of suffering. This by itself is morally problematic, but what renders punishment especially problematic is that it involves the intentional infliction of harm. (3) The retributivist, for example, believes that offenders should be punished simply because they deserve to suffer, as an end in itself. Whether punishment is an effective means to crime reduction is, for the retributivist, beside the point. The deterrentist believes that offenders should be punished as a means to an end: either to deter them from repeating their criminal offenses (specific deterrence) or to deter the public from criminal behavior (general deterrence). In either case, the thinking is that offenders should be made to suffer, deliberately, for their crimes. With this in mind, it is clear that punishment should be distinguished from the following practices, which are sometimes employed, if not as alternatives, at least as supplements to punishment: (1) Incapacitation. Offenders are "incapacitated" when they are prevented from repeating their criminal offences. This may involve incarceration, but there are other methods of incapacitation, depending upon the nature of the offense. Drunk drivers can be incapacitated simply by having their automobiles impounded. Sex offenders can be incapacitated through the use of anti-androgen drugs. Electronic surveillance, such as ankle monitoring, is an alternative to incarceration for a wide range of offenses. Regardless of the method employed, incapacitation is not a form of punishment because, even if offenders suffer from the restrictions imposed upon them, the aim in imposing these restrictions is not to make them suffer but rather to protect the public. The harm done, if any, is an unintended side effect. (For comparison, patients with infectious diseases are sometimes quarantined, but to isolate patients from the public is not to punish them, because the aim in quarantining patients is not to make them suffer but rather to protect the public. Institutionalizing the criminally insane does not count as punishment for the same reason.) (2) Restitution. Unlike fines, enforced restitution is not intended to make offenders suffer but rather to repair or "make whole" the victims of crime. (4) For this reason, restitution, like incapacitation, is not a form of punishment. (3) Rehabilitation. Rehabilitation differs from punishment because the aim of rehabilitation is not to harm offenders but rather to correct their criminal tendencies and reduce recidivism. Far from harming them, rehabilitation, if successful, benefits offenders by improving their character. (Later, however, I will distinguish between punitive and nonpunitive rehabilitation because there are those who believe that punishment, or even "eye for an eye" retribution can serve as a rehabilitative method.) (4) Reconciliation. If you and I are friends, and I have wronged you in some way, there are steps I can take to earn your forgiveness and restore trust in our relationship. Even if a society consists largely of strangers, it is nonetheless a cooperative arrangement based on trust, and crime represents a violation of trust. …