My Problem with Punishment

Article by Kathleen Pequeño

I recently sat watching the nightly news with someone who didn’t know me very well. The top story was about a prisoner who had just finished serving several years for sex offenses he had committed against young children. He was about to be released to a community that was alarmed at his return. Did I mention that I am not one to sit quietly watching TV? I like to talk back. My friend on the couch got an earful about how unhelpful I thought this story was… then I noticed her looking at me sideways, afraid to ask me the questions that she was dying to: did I really think that sex offenders shouldn’t stay in prison? What kind of sick, twisted person was I?

She didn’t know me well enough to know that I have spent years doing paid and volunteer work against many forms of domestic and sexual violence. But that wasn’t evident to her. All she could hear me saying was that molesting children wasn’t such a big deal, and that maybe someone shouldn’t be in prison for it. Which, of course, wasn’t at all what I said. We talked about it a little bit, and it soon became clear to me what the problem was. She figured that if I was someone who cared about child abuse, I would want these “bad men” in prison—the longer, the better. The idea that I cared about the real issue of sexual violence and didn’t think prison was the best solution hadn’t occurred to her. After all, what else was there? It sounded like I was saying that we should do nothing.

In our current system, the choice exists between something (which is prison) or…nothing. Prison and punishment have become the standard responses to crime. Right now, you’re probably thinking “What else is there?” And that’s the base of the problem. What else can we possibly do? At present, we look at whether the “crime” is “serious” enough to justify the punishment. And secondly, we look at who the victim is—are they important enough, or pure enough, to justify the punishment. But we’re not looking at whether or not the punishment is effective in addressing the harm that’s been done. So, if the victim (or broken rule) is not too important, we can choose to do nothing, but when either the victim or rule is important, we need to do something, and that something is prison.

For example, after centuries of ignoring domestic and sexual violence in the U.S., this type of harm is now considered crime worthy of punishment. These crimes are more widely prosecuted than ever (even though a majority still never reach a courtroom). Feminists have pursued many tactics to eliminate domestic and sexual violence, but criminal prosecution is one that has resonated most strongly with people, because it gives us a way to feel like “something” has happened. District Attorneys, once they came around, have been eager to seek ways to prosecute, using high-profile cases and longer sentences to show the community that this kind of behavior won’t be tolerated. And this leads many people to rest easy, believing we are somehow stemming the tide of violence directed towards women and children. So we see the “punishers” as the heroes on this issue instead of the true heroes: groups of women, many of whom are survivors of this type of violence, who are supporting other survivors, educating the community, and challenging notions of male identity, sex-roles, and the widespread use of violence to solve problems.

Instead of listening to feminists and their calls for transformation of our communities, we got a case of “selective hearing” and have mostly listened to their calls for increased prosecution and law enforcement, and the result is a very tough-looking bandaid. The most widely known example of using punishment to solve a problem is our miserably failed War on Drugs. In spite of every bit of rational evidence that we would be better off treating drug addiction as a health problem, we still pursue the route of law enforcement and focus on prison and punishment. And to the ever-decreasing number of people who still support a punishment strategy, punishment still makes sense because there is not a widespread understanding that treatment, besides being cheaper and more humane, is more effective at breaking the cycle of addiction. And when addiction ends, crime goes down. That option, strangely enough, is seen as “soft” and therefore a non-response, even though it does more to address the overall problem.

For criminal justice reform to work and get us a system that protects our safety and reflects our values, we have to transform the perception that we are folks who think that “nothing” should happen. I’ve found that when I tell people that I am a criminal justice reform activist, they assume I think that prison isn’t the answer for crime because whatever has happened is not a big deal. As a crime survivor and someone who has advocated for survivors, I have been distressed to hear people sometimes talk about individual crimes as if the victims were mere objects. I have heard people describe even rape and murder in those terms, and that’s not the change that I’m hoping for. But if we question the punishment mode, we can still respond to a crime without minimizing or glossing over the harm to the victims and survivors.

Part of the shift to prosecute crimes more often, for example, is a response to the fact that some victims (such as women, gay men or immigrants) have not historically been seen as worthy of protection under the law. Unfortunately but understandably, the response of communities and activists has been to push for penalty enhancements (for example, hate crimes legislation). This has been seen as a way to gain recognition for those victims who have too often been ignored—we don’t want there to be different standards of prosecution for different victims of the same crime.

When we think about changing the criminal justice system, we can focus on creating other options besides punishment for all sorts of crimes. With acknowledgement that harm has been done, an array of choices for survivors (or their surviving family members, in the case of murder), can still exist for them to choose from. Punishment --- the deliberate infliction of suffering --- does not need to be an option, and when survivors or DA’s seek imprisonment for that reason, we don’t need to rush to support it. We can show that we value victims in other ways, such as support for restitution (which does not have to be tied to the ability of the person who committed the crime to pay for it). Whatever we choose to do, we don’t have to stick to the limiting choices available at present—“prison” or “nothing”.

People favor imprisonment as a “necessary evil” that will get us what we want—whether that is drug-free neighborhoods, homes free of violence, or communities without fear. In fact, that is just an appealing fiction: a rosy future in which prisons will start giving us what we want instead of what we are currently getting from them. If prisons worked for creating safe communities, they would put themselves out of business, but in fact, just the opposite is happening. We are reluctant to experiment with new approaches because we are worried that they may not be perfect and may cause harm, but the fact is that harm is happening now. As punishment and imprisonment have become the answer to the problems of drug addiction, domestic and sexual violence, terrorism and poverty, they are in fact destabilizing our communities and pulling us farther away from solutions.

The poet and activist Audre Lorde once said “The Master’s tools will never dismantle the Master’s house.” She was talking to activists hoping to dismantle the institutions that we see as binding us. As we address pressing problems, we will grab whatever is available to us, and may at times wind up relying on the very thinking and tools that have created the problems we are struggling with. In our hurry to get a better world, we can’t rush to just grab ideas like punishment and getting “tough” and hope that we will use them for a better purpose than they have been used in the past. If the tools that we want don’t exist, we will need to invent them, making sure they reflect our true values, take into account the world as it is, and allow us room to develop the communities that we want to live in.

This article originally appeared in the Fall 2003 issue of Justice Matters.