Brooke Schwind, Lucas Miotto, and Guilherme de Almeida
State-sanctioned punishment is typically seen as a prime example of the coercive side of the law. But punishment comes in various forms and shapes: it can be directly or indirectly administered; severe or lenient; publicly or privately doled out; humiliating or not humiliating. And, at least in theory, sometimes punishment may also be coercive or non-coercive. Coercion is commonly associated with major restrictions on an agent’s freedom, autonomy, or choice. Broadly, the coerciveness of punishment may be linked to the degree to which a given form of punishment restricts individual freedom, autonomy, or choice: the more coercive the punishment, the more substantial the restrictions. And the more coercive the punishment, the greater its justificatory burden. But there is a lack of clarity on when punishment is coercive and what makes it so.
This past year, we set out to investigate some of the relationships between coercion and punishment. More specifically, we have investigated how and when people regard punishment as coercive and if judgements about the coerciveness of punishment mirror judgements about how just it is. The goal was not only to better understand punishment and its moral status, but also to shed light on the coerciveness of law more generally.
We began our investigation by selecting four types of punishment that could serve as contrasting cases: flogging, admonishment (giving a talking to), fines, and incarceration. Together, these types of punishment seem to approximately represent the typical ways in which modern states across the globe punish individuals. But we also picked these forms of punishment because they vary in interesting ways. For example, admonishment and flogging typically involve physical proximity between the punisher and the subject, while fines and incarceration do not. We can, therefore, say that the former types of punishment are more “personal” than the latter and investigate whether judgements about coerciveness track judgements about personalness. These punishments also differ in the ways in which they are typically administered: fines and incarceration are, in a sense, less public than admonishment and flogging. Finally, we can easily group these types of punishment according to their perceived severity (intuitively, admonishment and fines seem less severe than incarceration and flogging) and analyse the extent to which severity correlates with coerciveness. Our research did just that. We examined whether judgements about coerciveness of the abovementioned four types of punishment can be explained by three features: personalness, severity, and publicity. We also measured participants’ responses to questions about societal justness to explore possible relationships between types of punishment, coercion, and the perceived justness of a society.
Our investigation was divided into four studies. In our first study each participant was randomly presented with a vignette about a society that employed one of the possible four types of punishment for stealing. For this study, we used a total of four different vignettes, one for each type of punishment. For instance, here is the vignette where the subject was sentenced to corporal punishment (flogging):
Imagine a society called Bellshore. In this society, when someone steals things, they are flogged a certain number of times. After they are flogged a certain number of times, they are subjected to no further punishment for their crimes and can go about their lives.
Jordan was caught stealing a watch from a store. At the end of Jordan’s trial, a judge ordered that Jordan should be flogged 12 times. After being flogged 12 times, Jordan was told that they had fully paid their dues to society.
After presenting participants with one of the vignettes, we asked them to rate the extent to which they agreed that Jordan was coerced. Our assumption was that the greater the agreement, the more coercive a given form of punishment would be. Contrary to our preliminary hypothesis, participants did not rate these types of punishment as any more or less coercive than the others—as seen in the first chart (top left) of the figure below, there appeared to be no difference in people’s judgments of coerciveness regardless of punishment.
Figure 1: Folk judgments about the coercion of different types of punishment as a reaction against theft. Boxplots are drawn with the middle bar at the median. Diamonds represent the mean. Dots represent individual data points with jitter added along the X axis for ease of visualization.
This struck us as puzzling: why do people think that an offender being flogged is as coercive as an offender being fined for the same crime? We had hoped that the dimensions of punishment that we had designed in our vignettes would neatly explain their coerciveness. But our findings failed to support this hypothesis.
One way to explain this result is to argue that, conceptually, it does not make much sense to say that someone was coerced by punishment in the context of our vignettes. “Coerced into what?”— participants could have asked. So, it may not be surprising, after all, if participants were confused by the question and the results that we obtained were simply a reflection of such confusion. But the plausibility of this explanation depends on further analysis and testing.
Another explanation for the null result is that people do not have an explicit understanding of “coercion” per sebut nonetheless have intuitions about the specific components of coercive behaviour—actions and situations where there is some kind of application of external force or pressure—that they find hard to confine to one word.
Owing to the results of the first study, we decided to break down “coercion” into distinct, and less technical, parts in the second study, and then assess people’s judgments about each of them. It turned out that this approach had been tried and tested in psychiatry, where “coercion scales” were created to measure the extent to which interactions between doctors and patients are coercive. We adapted the existing psychiatric coercion scales to our study about punishment. Now, instead of asking participants whether someone was “coerced” by a given type of punishment , we asked them to, for example, identify the degree to which the subject in our vignette was “forced” into punishment, the degree to which the subject had “control”, “freedom”, or “choice” over the punishment, the degree to which the punishment was “against the subject’s will”, amongst other prompts (the scales and prompts used in our studies can be accessed here). If our initial results were driven by the absence of an explicitly elaborated meaning associated with the word “coercion”, this finer grained measure would help us get at the folk concept of coercion without relying on participants’ explicit beliefs about it.
In the same study we also asked subjects whether they thought the society that practiced a certain form of punishment was just and whether the punishment in question was morally wrong. Interestingly, “personal” punishments (admonishment and flogging) were viewed as more coercive and less just than “impersonal” punishments (incarceration and fines), thus lending support for the new scale’s validity. Additionally, we also found that “personal” punishments were seen as more morally wrong than “impersonal” punishments. These data suggested a novel explanatory hypothesis: that—at least at face value—personalness drives people’s moral intuitions about punishment, including intuitions about the degree of coerciveness. And the findings also provided a neat, and arguably intuitive, correlation between coercion, wrongfulness, and injustice: the more coercive a punishment, the more its perception as morally wrong and unjust.
But as is with most preliminary results, there was a catch. As shown in the top right corner of our chart, the ratings of coerciveness were mainly explained by the statistically significant difference between the fines and flogging conditions, which were the only pairwise comparison to reach statistical significance (using the Tukey method). The same pattern occurred with the justness measure.
So, while we were correct in assuming that lay people have an implicit concept of coercion, we questioned whether our results were solely derived from the difference observed between judgments about flogging and judgements about other types of punishment. Which raised the question: what makes judgements about flogging so exceptional? Neither study suggested that severity played a central role. Hence, as a starting point, we had to find a better way to elucidate the notion of personalness. We reasoned that perhaps judgements about flogging are exceptional because of the kind of personal relationship that emerges from the application of this type of punishment: a relation where the entirety of punishment can be identified with the direct action of another individual. The punishment, after all, comes from one social agent directly applying force on to another. If we could somehow isolate and test this direct social aspect of this punishment, perhaps we could determine whether the “impersonal” vs. “personal” qualities of punishment have a substantial bearing on people’s perceptions of coerciveness and justness. To study this, the challenge was to design a contrasting scenario where this personal dimension of flogging was absent.
We thought that a scenario where the lashes were applied by a robotic arm, rather than by a government agent, would at least mitigate the kind of personal relation that typically exists in flogging and thus serve as a good contrasting case. After all, even though the entirety of punishment in this alternative scenario can be reduced to the momentary application of force by the robotic arm, the punishment in this alternative scenario can no longer be identified with a social agent. The punishment is now faceless, as it were. To further ensure that this scenario worked as a good contrasting case to the original (personal) flogging scenario, we described both the government official in the original scenario and the robotic arm in the new scenario as administering the same number of lashes with the same degree of force.
Once again, contrary to our preliminary hypothesis, the results showed no difference between people’s judgments of coerciveness and societal justness for the “impersonal” and “personal” scenarios. This suggests that subjects did not perceive any difference in coercion between a social agent and a robotic arm—which we assumed to be a non-social agent—applying physical force to an offender’s body for punishment. While this result did not give us much positive evidence for our explanatory hypotheses, it gave us reasons to suspend our empirical investigation on the influence of personalness on coercion and to further analyse personalness at the conceptual level. Perhaps once properly analysed, the notion could both help us unveil some important normative differences between flogging and other types of punishment as well as explain our existing data. But before developing this theoretical arm of the project, we decided to pursue another dimension of punishment that might impact perceptions of coerciveness and justness: punishment’s degree of publicity.
For this new study we used the same general punishment scenarios as our initial investigation, but now we developed an explicitly public and private version of each punishment. For example, for the flogging punishment, the offender convicted of theft would either be flogged in a public square or a private room. Moreover, in the public condition, participants were told there would be an official and public record of the offender’s punishment, while in the private condition, all records were to be destroyed immediately after the punishment was administered. As an example, here is the vignette that corresponds to the private version of flogging:
Imagine a society called Bellshore, which values privacy very deeply. In Bellshore, everyone knows that people who steal things from others are flogged a certain number of times in a private room. After they are flogged a certain number of times in a private room, people who steal are subjected to no further punishment for their crimes and can go about their lives. Because Bellshore values privacy very deeply, the court records are always privately destroyed after this process is completed.
Jordan was charged with stealing a watch from a store. At the end of Jordan’s trial, a judge ordered that Jordan should be flogged 12 times in a private room. After being flogged 12 times in a private room, Jordan was told that they had fully paid their dues to society. No one ever found out that Jordan had been flogged 12 times in a private room for their actions.
And here is the public version of flogging:
Imagine a society called Bellshore which values transparency very deeply. In Bellshore, everyone knows that people who steal things from others are flogged a certain number of times in a public square. After they are flogged a certain number of times in a public square, people who steal are subjected to no further punishment for their crimes and can go about their lives. Because Bellshore values transparency very deeply, the court records are always publicly maintained after this process is completed.
Jordan was charged with stealing a watch from a store. At the end of Jordan’s trial, a judge ordered that Jordan should be flogged 12 times in a public square. After being flogged 12 times in a public square, Jordan was told that they had fully paid their dues to society. Everyone knew that Jordan had been flogged 12 times in a public square for their actions.
We asked subjects how coercive they perceived the punishment to be and how just they perceived the society to be. Once again, subjects did not seem to discriminate between the two dimensions: there were no significant differences between judgments of coerciveness and justness for the public and private punishment scenarios. This was also unpredicted. We had conjectured that the public condition would be regarded as more coercive and unjust than the private variations. After all, the public variation seems like the sort of humiliating and shameful spectacle where one’s punishment is used to cause fear and send a message to potential offenders.
With yet another null result, we are at a crossroads. We have investigated several dimensions of four kinds of punishment, but their ability to explain people’s judgments about coercion is, at best, limited. There are, however, some lessons that can be drawn from the negative results—and from our project more generally. Criminal law theorists typically analyse the plausibility of competing theories of punishment and a theory that coheres with intuitions has a head start; it does not carry the burden to explain away contrary intuitions. Our negative results have shown that those who are tempted to appeal to considerations like severity, publicity, or personalness to justify the use of certain forms of punishment over others may have a heavier explanatory burden than expected. People’s intuitions about which types of punishment are coercive and unjust are messy, and it would be reckless to disregard these intuitions if we think that our societies ought to impose punishments which are not only just and less coercive, but also seen as just and less coercive by the ordinary citizen. Therefore, our search for explanations is far from over. For example, we have mentioned earlier that one of the potential explanations for the puzzling results is that participants get confused when asked to assess whether the subject of punishment was coerced by the punishment, because this clashes with how they understand and use the concept of coercion. Anticipating these worries, we conducted some preliminary tests and also asked participants a question about the punishment’s dissuasion ability; more specifically, if punishing Jordan would lead others to follow the rules. This question intended to capture a more common way that people speak about the coerciveness of punishment: punishment is coercive when it deters others (or the punished individual) from engaging in criminal activity. Our preliminary tests did suggest that compliance is affected by the personal or impersonal nature of the punishment. However, since that was not the focus of our investigation, several details should be worked out in a confirmatory study before we draw any substantive conclusion on the matter.
Another potential explanation that we have not explicitly researched is the impact of culture on conceptions of coercion and justice. Most of our participants come from Western countries where incarceration and fines are typical punishments, but flogging is not. Perhaps flogging is an exceptional case in the Western context, and if we studied populations where flogging is considered unexceptional, we could gain some more insights into the universal lay conceptions of coercion and punishment. We would now like to turn to the readers—what do you think about our results? And what do you think makes flogging exceptional as a punishment in terms of coerciveness and justness? We look forward to hearing your thoughts as we continue our search for explanations.
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