Increasingly, it seems, there are crimes so appalling that they challenge our resolve not to sink to the level of their perpetrators as we punish them. In cases where several victims have not only been murdered, but also raped, tortured, mutilated, dismembered, or eaten, it is understandable why some members of the public are prepared to have the state inflict a little of the same treatment on the perpetrators. This is especially true when the victims are children.
Like most others who ponder the limits to legal punishment, I think that we should resist the impulse to inflict inhumane or degrading punishments on the worst offenders. Unlike many of them, however, I am not always persuaded by claims to the effect that the inherent dignity of offenders is the ground of an absolute moral prohibition on such forms of treatment.(1) At times I am attracted to such a firm prohibition. But at other times I understand the impulse to question it, to ask whether some crimes are so despicable that their perpetrators forfeit or otherwise lose any claim they have to minimally decent treatment by their fellow human beings. Alternatively, and I suspect more interestingly, I wonder whether the claim to be treated in minimally decent fashion, though very stringent, can be outweighed by more stringent moral claims. If we could gain something very important by brutal treatment of the worst criminal offenders, should we not at least consider seriously the arguments for doing so? We should see what follows if we are prepared to relax the rigid prohibition on inhumane or degrading punishments just a bit. If, as I shall attempt to show, doing so would gain us very little of moral significance, then it would be useful to be able to explain to ourselves and others how and why this is so.
The suggestion that we should weigh a prohibition on inhumane and degrading punishment against the attainment of other moral goods or the avoidance of other moral evils will immediately raise the hackles of some moral theorists. Such theorists believe that any defensible theory of punishment must include certain inflexible moral constraints. If we are willing to weigh such constraints--in this case, one that strictly limits the kinds of legal sanctions we impose on offenders--against the achievement of other aims, then perhaps the best we will be able to do is make a contingent case for them. For many theorists this will be an unsatisfactory outcome, especially when it comes to prohibitions on punishment of the innocent or on disproportional punishment.(2) Lurking in the background, here, is a formidable and long-standing dispute in moral theory, one that I do not pretend to address adequately in the discussion that follows. Brief consideration is given to the question of whether the approach I develop can account for the prohibition on punishment of the innocent. Also, the question is raised whether the proportionality requirement, by itself, rules out inhumane and degrading punishments. I suggest that it does not and, thus, that other arguments must be employed against the use of inhumane and degrading punishments. Though these arguments have a contingent character, they are contingent in an unusual way. They treat some interests that individuals have as morally more important than others of their interests. Specifically, the interests individuals have in being treated neither inhumanely nor degradingly are taken to be crucial ones that cannot be outweighed by considerations of mere utility.
Some of the arguments discussed will be familiar because, in slightly different forms, they are central to scholarly debate over the death penalty. But the moral prohibition on inhumane and degrading punishments is more general. Short of killing offenders, there is a range of deprivations or kinds of suffering that we might, and sometimes do, impose on those found guilty of serious crimes. These include denials of decent food and medical care, adequate space, sufficient heat, fresh air, exercise, religious or political expression, conjugal or parental visitations, and access to entertainment or culture. …