When it comes to punishment, I imagine that even the most progressive of us, and even the most consequentially minded of us, continue to hold some pretty strong retributive intuitions. Even if you are thoroughly convinced that the primary justifications for the practice of punishment are forward-looking considerations like deterrence or rehabilitation, you probably still feel the pull of more retributive concerns – the idea that some people ought to be punished because they somehow deserve to be punished; that because they have inflicted suffering on others, it is appropriate that they suffer in return.
Unsurprisingly, I tend to have this retributivist response most strongly with respect to particularly violent crimes or crimes that involve the deliberate infliction of especially painful and long-lasting suffering, and where the perpetrator shows little remorse. For example, the real-life case that most strongly elicited this response in me was that of the two men convicted of throwing acid into the face of model and television presenter Katie Piper. This attack inflicted a huge amount of physical pain and psychological suffering, as well as permanent disfigurement. Indeed, this was the objective; the attack served no other purpose, and can only have been motivated by a desire to inflict suffering and cause permanent damage. Furthermore, the perpetrators of this crime have never expressed any remorse or regret for their actions. When I read the details of this crime, and others like it, the feeling of injustice makes me understandably angry. The fact that these people have knowingly and intentionally inflicted such a huge amount of pain and suffering on an innocent person, and yet do not appear to be suffering in any real sense themselves, feels to me to be a real injustice. It seems to me that it would be a better state of affairs if they could experience the kind of suffering they have inflicted; if they could feel and understand the pain and damage they caused. Not only because this would hopefully deter them from committing future attacks, but also because I can’t help feeling that they deserve to feel pain equivalent to the pain they have inflicted.
Now of course, you may dismiss this response of mine as simply an emotional desire for vengeance which, no matter how understandable, has no place in a civilized society and certainly ought not to be incorporated into our practices of punishment. There are legal systems in some parts of the world where lex talionis is enshrined in law, and inflicting physical suffering on a perpetrator equivalent to that caused by the original crime is a possible form of punishment. In a literal case of an eye for an eye, Iranian courts ruled that as punishment for disfiguring and blinding Ameneh Bahrami by throwing acid in her face, her attacker Majid Movahedi should be punished by having acid dropped into his eyes (although this punishment was never carried out, as Ms Bahrami pardoned Movahedi at the last minute). I share the abhorrence that was most people’s reaction to the initial ruling, and believe that no judicial system ought to punish people by inflicting this kind of physical harm on offenders, no matter what their crime. What I’m interested in though, is the reasons why we believe this kind of judicial punishment is wrong. Is it wrong because it is always wrong for the state to inflict the subjective experience of physical pain on to offenders? Or is it wrong because of the objective harm that would be caused by dropping acid into the offender’s eyes, and the likelihood this would cause lasting, permanent damage? To try to work this out, I’d like to make use of a thought experiment.
Suppose we really had access to experience machines, like the one that Robert Nozick devises in Anarchy, State and Utopia. That is, imagine that there are machines that we can be plugged into, like the people in The Matrix, that are programmed to stimulate our brains in such a way as to replicate any experience. While you are plugged into the machine, you aren’t aware that the experiences are a simulation – you think these events and experiences are actually happening. After a certain amount of time, you can be unplugged, and go back to your normal life. Now let’s imagine that these machines are routinely used as a form of judicial punishment, as a way of enacting a type of lex talionis punishment that, while inflicting the experience of physical pain and suffering, does not cause any long lasting harms. So for example, as punishment for committing an acid attack, the perpetrator would be plugged into the machine, and in the machine, have the simulated experience of having acid thrown into his face. He would feel the same physical sensations that such an attack tends to cause in the real world. Furthermore, he would, in the machine, have the appearance of being physically disfigured, and experience the psychological anguish and distress that usually accompanies this. During his time plugged into the machine, he would not realise this is a simulation; he would believe he was actually having this experience. After a given amount of time – however long we deemed was an appropriate length of time for him to suffer – he would be unplugged from the machine, physically unharmed.
Could such a form of punishment be justified? If we think it could, then that suggests that what is wrong with judicial corporal punishment is not the infliction of physical pain itself, but rather causing objective, long-lasting, possibly irreversible harms. But if we think that lex talionis in the experience machine is wrong, then that suggests that what we think is wrong about judicial corporal punishment is simply that it causes the subjective experience of physical pain, irrespective of any objective or long-lasting harms it inflicts. This may be right – it might be the case that the state ought never to inflict physical pain upon its citizens, no matter what offence they have committed. But this position leads to familiar worries about why the infliction of physical pain is considered unacceptable when the infliction of psychological distress is considered legitimate – clearly for many people, having their liberty restricted by being sent to prison is likely to cause a great deal of psychological suffering, and yet we tend to think this is ok. So the person who thinks lex talionis in the experience machine is an impermissible form of judicial punishment will need to explain why causing subjective psychological pain is acceptable, while causing subjective physical pain is not.
As a tentative conclusion, I’m inclined to think that the reason to object to judicial corporal punishment is that it inflicts forms of physical damage that are objective, that is, that are harmful independently of how the subject experiences the harm. This is why it would be wrong for the Iranian judicial system to have carried out their punishment of dropping acid into the offender’s eyes – this would have blinded him, which is an objective and irreversible harm. But perhaps if we could simulate the pain and suffering caused by having acid thrown in one’s eyes without actually inflicting this objective harm, then this would be an acceptable form of retributive justice. Lex talionis within the experience machine might be a permissible form of punishment.