Punishment, reintegration, and atypical victims

I Introduction An account of punishment must recognize punishment's role in maintaining something like a community. Because punishment affirms that we refrain from acts of kind x, punishing a criminal--rather than attacking, warring with, or disabling an enemy--implies that he or she is part of us in some sense. The logic of the argument seems to run: "He should not have done as he did, in part, because we are opposed to that kind of thing and he is one of us." If prisons are to be penal institutions, rather than warehouses for dangerous individuals or hospitals for persons with behavior disorders, we should remember that the criminal should be one of us. Antony Duff argues along these lines when he proposes his communicative theory of punishment in Punishment, Communication, and Community. Many of the arguments I will address in this article were initially developed by both Duff and Sandra Marshall in "Criminalization and Sharing Wrongs." (1) Duff and Marshall argue that punishable wrongs are shared by the community and the victim. Our concern for the victim requires that we seek to punish those who treat the victim as community values forbid. Likewise, the victim is obligated to recognize that the crime violated us and our values and is not merely a private wrong against her or him. Actual communities, however, are not as Duff and Marshall describe them. Communities are not marked simply by agreement and shared views. Members of actual communities disagree; they argue; they interpret their shared life differently and act differently on that basis. We cannot assume, as Duff and Marshall's conceptualization of shared wrongs must, that there will be widespread agreement on what it means to be one of us. In addition, I argue here that Duff and Marshall's conceptualization of the nature of crime, and therefore the nature of punishment and reintegration, allows significant subordination to go unnoticed and therefore unjustified. Since any punishment implies some subordination of the criminal to the punishing authority, it can be difficult to appreciate one troubling kind of subordination I will discuss in a moment; however, the criminal punished is not the only one subordinated. If criminals are punished according to the community's understanding of the wrong done, the victim's understanding of the wrong done, his or her place in the community, and the relationship between his or her community and other communities may be altered in ways that the victim rejects. This subordination is reducible, if not avoidable, I argue, if we conceive of crimes as occurring against individuals-in-relation rather than as crimes against the community. We are not the victim. An individual usually is, though we are linked to her or him. I begin my discussion by describing the role of interpretation of the wrong done when fitting a punishment to a crime, especially for punishment that aims at reintegrating the criminal through penance. Next, I explore how Duff and Marshall's theory requires that atypical members' interpretations of crimes become subordinate even when they are victims of crime. Some community members, call them "atypical members," may interpret the community values in atypical ways and their interpretations are subordinated when we punish as the dominant interpretation requires. (2) Finally, I argue that reconceptualizing crime as a violation of an individual in relation, rather than of a community with a shared set of defining values, will recommend some straightforward revisions to the penal process that Duff describes in Punishment, Communication, and Community. II Reintegrative Punishments and the Need for Interpretation According to Duff and Marshall's theory, punishment's function is to reintegrate the criminal into the community, and therefore we need an account of community. Adapting arguments from Michael Sandel and Charles Taylor, Duff and Marshall begin with the idea that communities form individuals and their goods. …