A definition of punishment must be: (1) accurate (correctly demarcate between cases of punishment and cases of non-punishment over a sufficiently wide range of cases), (2) illuminating (help to account for the difference between punishment and other, related practices in a manner that is not ad hoc), (3) neutral (not beg the question in favor of or against either the moral permissibility of punishment in general or particular theories that attempt to justify punishment).

The attempt to produce a satisfactory definition of legal punishment that would satisfy these criteria did not produce unanimous agreement.  For purposes of the remainder of the course, however, the following should serve as a guide.  Although it is not presented in exactly the same words that were used in class, it is meant to capture the core of the discussion and its result.

In order for an act, a, to be an act of legal punishment of P, the following conditions must be met:

1. the authorization requirement: a is done to P by a legitimate legal authority acting in  his/her official capacity.

Defense: this requirement is needed to accurately distinguish cases of legal punishment from mere cases of private vengeance.  It illuminates part of what makes the problem of punishment distinctive: that legal punishment involves state-sanctioned actions.

Objection: this requirement makes punishment justified by definition.  It thus begs the question in favor of those who believe that punishment is justified and violates neutrality.

Response: the objection confuses “legally authorized” with “morally permissible”.  An act can be legally authorized but still morally impermissible.  So the requirement is neutral with respect to the question of whether or not punishment is morally permissible.

2. the harm requirement:
        strong version: a harms P
        weak version: a is the kind of act that typically harms people

Defense of strong version: this requirement is needed to accurately distinguish between cases of punishment and cases of reward.

Objection to strong version/defense of weak version: the strong version is undermined by counterexamples (eg, masochist who is whipped, homeless person who is sheltered in prison) in which a person is punished but is not harmed.  A definition that incorporates this requirement therefore fails to be accurate.

Response: (a) insist that such people still are harmed in some objective sense (e.g., because being publicly shamed is harmful) or (b) agree that such people are not harmed but then maintain that they also are not in fact punished (this is not ad hoc since this is what we say of, e.g., white-collar criminals who are “sentenced” to an all-expenses paid vacation at a pleasant resort).

3. the intentional harm requirement: a is done with the intent of harming P

Defense: (a) this requirement is needed to accurately distinguish between cases of punishment and cases that cause harm but are not punitive (e.g., fines versus fees, punitive incarceration versus preventative detention); (b) this requirement permits us to remain neutral with respect to the debate between the weak and strong version of the harm requirement (the point is that in order for an act to be an act of punishment, it must be done with the intent of harming the offender, even if in fact the offender is not harmed by the treatment).

Objection: this begs the question against the deterrence theorist.  On this account, the intention involved in punishment is simply the intent to reduce crime.  A definition that includes the requirement therefore violates neutrality.

Response: the objection neglects the distinction between immediate intention and ultimate justification.  A deterrence theorist maintains that the ultimate justification for punishment is its beneficial consequences in the future.  But what is being justified, on this account, is still the claim that it is morally permissible to inflict various kinds of treatment on offenders with the intention of harming them (eg, fines and not just fees).

4. the “because of” requirement: a is done to P because of P’s illegal act
 
Defense: this requirement is needed to accurately distinguish between cases of punishment and other cases of intentionally inflicting harm (eg., you are jailed or fined simply because a judge does not like you).

Objection: this begs the question against the deterrence theorist.  The deterrent theorist claims that we punish P because we want to reduce crime.  A definition that includes the “because of” requirement therefore violates neutrality.

Response: the objection neglects the distinction between “the nature of X” and “the justification of X”.  The deterrence theorist and the retributivist offer very different answers to the question “what justifies punishment?”  But they agree that the nature of the practice they are trying to justify is one in which people are subjected to certain forms of treatment because of their past illegal acts.

Objection: there are counterexamples: sometimes an innocent person is punished for a crime he did not commit.  So the requirement is insufficiently accurate.

Response: (a) if P did not really commit the crime, then P is not being punished (in the same way that, if you did not really return my puppy, the money you receive from me is not, strictly speaking, a reward, though I intend it to be); (b) we can rework the requirement as follows: a is done to P because of the belief that P committed the crime.  This weaker version is still sufficient to generate the problem of punishment.

5. the reprobative requirement: doing a to P expresses official disapproval of a for doing O

Defense: (a) the requirement is needed to satisfactorily illuminate the difference between, e.g, paying an entrance fee when you voluntarily enter the national park and paying a fine when you voluntarily litter inside the park.  Clearly the latter is a case of punishment while the former is not.  And part of this difference is that when the state charges you money to enter the park, it is in no way expressing disapproval of your voluntary act.  But when it charges you money for littering, part of what it is doing is expressing its disapproval.  (b) the requirement is needed in order to make the definition sufficiently accurate over a certain range of cases.  There seem to be contexts in which the deliberate infliction of pain is meant to convey an attitude of approval rather than disapproval (e.g., hazing, initiation rites, etc.).  The requirement is needed to correctly distinguish between cases where the infliction of harm is meant to punish and cases where it is meant to affirm someone’s behavior.

6. The result of our discussion is the following defintion of punishment, which will serve as our working definition throughout the term.  It is the result of combining each of the requirements agreed to, taking the weaker version when there was a dispute, and treating the set as constituting a set of necessary and sufficient conditions.

        Q’s act a is an act of legally punishing P for P’s legally prohibited offense O IFF
                    (1) Q is a legally authorized official acting in his or her official capacity
        AND   (2) Q does a because Q believes that P committed O
        AND   (3) Q does a with the intent of harming P
        AND   (4) Q’s doing of a expresses official disapproval of P for having done O
 
The claim is that this definition accurately distinguishes between cases of punishment and cases of non-punitive behavior, that it does so in manner that is illuminating and neutral with respect to various positions that can be taken on the problem of punishment.