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5 J. Contemp. Legal Issues 101 (1994)
What Is Punishment Imposed for?

handle is hein.journals/contli5 and id is 105 raw text is: WHAT IS PUNISHMENT IMPOSED FOR? George P. Fletcher The institution of punishment invites a number of philosophical que- ries. Sometimes the question is: How do we know that inflicting discom- fort and disadvantage is indeed punishment? This is a critical question, for example, in cases of deportation or disbarment proceedings.' Classi- fying the sanction as punishment triggers application of the Sixth Amendment and its procedural guarantees. In other situations the ques- tion might be: Why do we punish? What is the purpose of making people suffer? In this context, we encounter the familiar debates about the con- flicting appeal of retribution, general deterrence, special deterrence, and rehabilitation. In this article I wish to pose a different sort of question: What is pun- ishment imposed for? When those convicted of crime are punished prop- erly, I assume that they are being punished for something. Yet it is not clear what this something is. In tort cases, we ordinarily say that com- pensation is paid for the injury suffered by the plaintiff. Note that this connection between the injury and compensation holds regardless of the purpose one advocates for tort liability. Even those who subscribe to the programs for promoting efficient behavior would not say that compensa- tion is paid for the efficient consequences of imposing liability. Compen- sation can be paid only for something that has already happened. When x (compensation, punishment) is imposed for y, then y must be a state of affairs that has already occurred. Even if one believes, as I do, that punishment is an expression of solidarity for victims,2 the expression of solidarity could not satisfy the requirements of the variable y. The grammar here is interesting. It would be correct to say that compensa- tion is required for the sake of deterrence or that punishment is im- posed for the sake of solidarity, but not correct to say that either form of liability is imposed simply for deterrence or solidarity. In this context the preposition for demands not a goal but an untoward state of affairs. The reason that compensation and punishment are imposed for some- thing that has happened is that both institutions function, at least in part, as remedies. They are responses to something that has happened. Damages remedy the injury, or at least they are supposed to. The scope of tort injuries sets the ambit of the damages. Now what does punish- ment remedy? Unfortunately, the answer is not readily at hand. Perhaps we could reason backwards in the following way: if a certain factor conventionally increases punishment, then that factor should be Cardozo Professor of Jurisprudence, Columbia University School of Law. 1. See George P. Fletcher, Rethinking Criminal Law (Boston: Little, Brown, 1978), pp. 410-14. 2. See George P. Fletcher, Symposium: Blackmail: The Paradigmatic Crime, University of Penn- sylvania Law Review 141 (1993): 1617-1638.

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