- Lewis Waring
Institutions of Punishment and Criminal “Debt” – Lewis Waring
Courts often sentence criminals in reference to his or her “debt to society”. Indeed, legal systems of all kind work to repay debts, to require one party to pay to another an amount determined to be owed. In civil law, money underlies all legal debts. While civil judgments sometimes determine debt based upon collections of receipts or contractual clauses, some civil damages derive from amorphous notions of mental suffering. In either case, a civil wrongdoer or tortfeasor accrues a debt which judgments assign a monetary value to be paid. In rarer cases, equitable remedies respond to civil wrongs by requiring defendants to perform contracts or other actions which nonetheless often transfer value to the plaintiff. The currency of civil dispute, regardless of its format, almost always involves an exchange of monetary value.
The variety of civil debts collected by courts, on a deeper level, represent more fundamental debts. A tortfeasor’s debt consists of money in an amount representing the amount of harm he or she wrongfully caused. In other words, a tortfeasor’s debt is a response to causing harm to another. One who breaches a contract is sometimes assigned a debt which represents a return of the wronged contractor’s investment or a compensation of loss incurred as a result of the contract. In some administrative disputes, violators of human rights accrue debts which represent the value of rights held by all persons equally. In this cornucopia of debt, courts do not merely mandate the changing-hands of money but, at a deeper level, attempt to restore balance between two parties. Different causes of actions respond to different imbalances. While contract law aims to repay agreed amounts owed, tort law aims to assuage harm.
In few cases, a plaintiff to civil proceedings, whether contract, tort, or administrative law, receives an award of damages which aims only to punish a defendant. Unlike most civil remedy, which often aims to restore money to its rightful owner or compensate harm, punitive damages mete out an amount of money only to punish a defendant’s egregious conduct. Civil proceedings punish defendants only in the rarest of cases. For the most part, civil awards merely attempt to return invested money or compensate costs associated with physical, mental, or financial harm. Yet, in awarding punitive damages, the realm of civil law reveals a different type of debt sometimes owed by a defendant in a court of law, a debt payable only by punishment.
Crime and Punishment
While civil judges rarely mandate punitive debts, punishment is the one and only currency of the criminal justice system. Punishment, in some sense, is the fundamental response to the commission of a crime. While laypeople as well as legal scholars may disagree about the best response to crime and the need to invest in reform, most agree that crimes merit punishment. Indeed, the Supreme Court of Canada in Cloutier v Langloid stated that “[o]ur system of criminal justice is based on the punishment of conduct that is contrary to the fundamental values of society”. The criminal justice system’s immediate purpose is thus to administer punishment. By punishment, as opposed to reform, we refer to an intentional infliction of suffering upon one who has been convicted of a crime.
Some believe that punishment in the form of imprisonment offers more that mere suffering, such as “an opportunity to make men morally better and thus law- abiding by means of solitude, solitary confinement, time to think, counselling, therapy, medication, occupational training, learning to read, other education, religious services, exhortatory chats, some work, no drink, no drugs, regimens designed to build character, or pressure to confess their crimes”. While the idea that modern prison systems succeed in reforming criminals is debatable, it is indisputable that the criminal justice system never fails to punish an individual convicted of a crime.
A just, peaceful and safe society
The Government of Canada describes the criminal justice system’s administration of punishment as a tool to achieve a deeper purpose, namely, of maintaining a just, peaceful and safe society. To maintain a just, peaceful and safe society, the Government in Canada has created an institution which will discourage individuals from committing acts which we can infer may be unfair, violent, or chaotic. Thus, the Government of Canada aims to punish individuals only because it believes such punishment will deter others from committing similar acts. Punishment, according to the Government of Canada, is merely a tool to deter the general population from committing criminal acts.
The notion that the Government of Canada maintains a just, peaceful and safe society by punishing certain act makes sense. Most Canadians would presumably agree that we are less likely to commit a certain act under threat of punishment. Punishment, in this sense, serves to showcase the possibility of suffering as a consequence of committed prohibited acts to the general population. As such, punishment serves to maintain order in greater society.
Needless to say, the Government of Canada did not invent the notion that inflicting suffering upon criminals might maintain societal order. In fact, the practice of administering punishment to discourage crime has historical roots that run at least as deep as English common law.
Roots of common law criminal justice
In the 16th and 17th centuries in Britain, of course, punishment looked very different. While contemporary common law systems extract debts of punishment by stealing time, Britons of prior centuries were punished by violence. In early modern Britain, the state meted out according to class and gender. For example, common women convicted of murder were burned at the stake whereas common men were hanged and, if still alive, disemboweled and decapitated. Mercy for women involved strangulation by the executioner prior to being burned on a stake.
Aristocrats convicted of murder were punished by beheading and disembowelment. If granted mercy, an executioner might await a convicted aristocrat’s death before commencing his or her disembowelment. This merciful punishment differed from the “usual practice” of an “efficient hangman”, who would “cut down the body while it was alive, open the victim’s belly, pull out his entrails and show them to him before his eyes closed in death”. If an executioner decided to show mercy to a criminal, he or she did so secretly, out of the public eye. Granting mercy was difficult to do because executions tended to attract large public gatherings and were advertised in a particular London newspaper along with theatrical events about crime and famous criminals.
Mercy and public desire for punishment
The need to hide mercy from the public shows that punishment in early modern England was more than a state tool for maintaining order. Additionally to state interests, punishment satisfied a public desire for the punishment of criminals. The English public who attended executions were upset by the notion of mercy, angered by the idea that a criminal would be saved from the suffering deserved for his or her crime. Suffering, in this sense, was seen to be the proper response to crime and showing mercy to a criminal somehow improper in the eyes of the public.
The public’s distaste for mercy belies an important feature of criminal law in early modern England as well as in contemporary Canada. While historic English practices of common law punishment differ from modern Canadian punishment, this core public desire for the punishment of criminals remains. While segments of the public support investing in reform for convicted criminals, the criminal justice system clearly responds in Canada as it did in 16th-century England to a public desire to invest in the suffering of individuals who commit prohibited acts. When the public feels that a crime has been committed, it demands that the criminal justice system administer punishment and, under recently, has sometimes lined up or even bought tickets to watch.
Historically, this public interest in administering punishment has sometimes resulted in public campaigns to punish criminals by their own accord. Of course, a mob of angry citizens has all too often historically punished individuals who have committed no crime or has punished an individual who has committed a crime with disproportionate brutality. In response to disproportionate and capricious public efforts to effect punishment against alleged criminals, the state created institutions to measure and implement punishment in a controlled and regulated fashion. Even in Winnipeg, the public execution of certain criminals was very recently considered a more objective alternative to the impromptu formation of lynch mobs, a victory for the prevailing of “cooler heads” against the reactive desires of some segments of society.
Evolution of institutions of punishment
The criminal justice system is thus, all notions of criminal reform and social order aside, the state’s response to a public desire for punishment. Through the creation of regulated institutions, the state controls against whom and how to administer punishment. Just as in early modern Britain, the modern Canadian state’s institutions of punishment respond to a public demand for the punishment of criminals. The criminal justice system channels public outrage, preventing lynch mobs by creating institutions which administer justice in accordance with reason, fairness, and other core state interests.
As time has progressed, the administration of punishment has objectively improved in response to changes in public demands. Most contemporary Canadians, unlike early modern Britons, would recoil at the notion that anybody would be disemboweled or otherwise brutalized no matter their crime. Unlike in prior centuries, the contemporary Canadian public largely detests the idea of state violence against its citizens, even those guilty of the most heinous acts. This stark difference in attitudes towards the administration of punishment has been the result of a long history of human rights campaigns in general and prisoners’ rights in specific. The public’s rejection of state violence has most recently resulted in the abolishment of capital punishment, a movement spurred by the principle that the state does not have the right to take the life of its citizens.
The lasting desire for the punishment of criminals
Regardless, a wide swathe of the Canadian public still desires the punishment of those who commit crimes. Even those more compassionate members of contemporary Canada may begrudgingly accept that punishment, while tragic in its own right, is still somehow necessary. Those who might wish the prison system in Canada was more humane, giving opportunities for education and quality living conditions, nonetheless might agree that criminals should be punished and not merely required to attend counselling.
In response, Canadian governments continue to fund and administer institutions of justice “based on the punishment of conduct that is contrary to the fundamental values of society”. In the criminal justice system, courts measure punishment in appropriate amounts, estimating debts owed by criminals to the public itself. As in civil proceedings, adjudicators of criminal proceedings attempt to restore balance to society by requiring that those who have caused harm to others assuage that harm by the payment of debt. While harm deemed to be remediable by monetary penalty tends to flow into civil proceedings, harm deemed to be remediable only by the intentional infliction of suffering against the wrongdoer flows into the criminal justice system. In such institutions, the state addresses the public’s demand for punishment while aiming to also respect the rights of the accused as well as other societal and state interests.
By creating institutions of punishment, the state serves various purposes beyond satisfying the demand for punishment, including the protection of the public, maintain public order, and providing opportunities for reform to some extent. However, the administration of criminal justice still, as in early modern England, responds to a core desire of the public that criminals be punished for crimes committed. While contemporary Canadian punishment looks very different than its English origins, the public’s demand for the punishment of crimes remains alive in contemporary Canada, a demand which the state has always responded to by designing institutions of punishment which take the place of lynch mobs of a bygone era.
 Cloutier v Langlois, 53 CCC (3d) 257 at 275,  SCJ No 10 (QL).  Ted Honderich, Punishment: The Supposed Justifications (London: Pluto Press, 2009) at 217.  Ted Honderich, Punishment: The Supposed Justifications (London: Pluto Press, 2009) at 113.  “Part I UNDERSTANDING CRIMINAL LAW IN CANADA Chapter 1” (last modified 24 December 2008), online: Public Prosecution Service of Canada <www.ppsc-sppc.gc.ca> [perma.cc/R432-L3Q3].  Cara Swinden, “Crime and the common law in England, 1580-1640” (unpublished honors thesis, University of Richmond 1992) at 23–24.  Cara Swinden, “Crime and the common law in England, 1580-1640” (unpublished honors thesis, University of Richmond 1992) at 23–24.  Cara Swinden, “Crime and the common law in England, 1580-1640” (unpublished honors thesis, University of Richmond 1992) at 24.  Bruce Cherney, “Manitoba’s first execution – “deed … committed by a demon in human shape” (9 March 2007), online: Real Estate News <www.winnipegregionalrealestatenews.com> [perma.cc/SD57-YMTZ].  Cloutier v Langlois, 53 CCC (3d) 257 at 275,  SCJ No 10 (QL).