Should Punishment Fit the Crime?

“Let the punishment fit the crime.” First articulated by Cicero in De Legibus (On the Laws) in 106 BCE, this concept remains a core principle of criminal justice to this day. Some even see traces of it in the Eighth Amendment of the U.S. Constitution, according to which “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” For instance, in Gregg v. Georgia, 428 U.S. 153, 173 (1976), the US Supreme Court interpreted the Eighth Amendment as stating that the punishment must not be grossly out of proportion to the crime. But why should the punishment fit the crime? As ideas of punishment were transforming prisons between the 19th and 20th centuries, and prison administrators were looking for tools to punish or rehabilitate prisoners, there were those who questioned this core tenet of criminal justice. One such prominent critic of the criminal justice system in the United States was Dr. Karl A. Menninger. Instead of asking how the punishment should fit the crime, Menninger asked how the punishment should fit the criminal.

In Bidin’ Times, the Chaplain of the Women’s Correctional Center in Oregon, Father Mike, aptly describes Dr. Karl Menninger as “the godfather of American psychiatry.” Karl Augustus Menninger was born July 22, 1893, in Topeka, Kansas, to a family of physicians. He received a medical degree from Harvard Medical School in 1917, and he was one of the first physicians in the United States to be trained in psychoanalysis. In Topeka, the Menningers established the Menninger Diagnostic Clinic for the group practice of general medicine and the Menninger Sanitarium and Psychopathic Hospital. They advocated for and practiced holistic medical care, where the patient’s environment plays an important role in treating their body and mind. In particular, Menninger thought that creating a humane environment for patients to live in is an integral part of medical and mental health care.

Accordingly, the Menninger Clinic created a “total environment” for its patients where they could engage in social activities and physical exercises, as well as receive comprehensive care from doctors of various medical subspecialties. For example, the Menningers used “bibliotherapy” (or therapeutic reading) with their patients. Menninger also advocated for the therapeutic benefits of play, i.e., “pleasurable activity in which the means is more important than the ostensible end,” as opposed to work, due to “the opportunities that it affords for the relief of repressed aggressions.”

In his first book, The Human Mind (1930), Menninger defends psychiatry as a legitimate science. By its very nature, Menninger argues, psychiatry is concerned with criminal behavior. According to Menninger, “As a science dealing with the queer and untoward behaviour of human beings, psychiatry is naturally much concerned with crime” (p. 423). Being a psychiatrist, then, Menninger was concerned with crime and the criminal justice system. But he was critical of the ways in which psychiatrics, i.e., “the study of mental disease and its manifestations and its treatment,” was applied to issues of criminal justice. More specifically, he lamented the fact that, “instead of functioning to aid the legal profession,” psychiatrists are forced to classify people “as belonging on one side or the other of a hypothetical line of so-called ‘sanity’.” (After serving on a committee appointed by the American Psychiatric Association, Menninger and his colleagues made several recommendations about how psychiatry can better serve the criminal justice system, chief among them is the following: “The elimination of the […] terms ‘insane’ and ‘insanity’, and ‘lunacy’, and the exemption of the psychiatrist from the necessity of pronouncing upon concepts of religious and legal tradition in which he has no authority or experience, such as ‘responsibility’, ‘punishment’, and ‘justice’”. Menninger and his colleagues made these recommendations in 1928. After that, Menninger’s opposition to labeling people who suffer from behavioral disorders, including criminal behavior, as “insane” and punishing them only grew stronger.

In The Crime of Punishment (1968), Menninger argues that all forms of punishment are cruel, and that criminal behavior should be treated, rather than punished, in much the same way that behavioral disorders and mental illness are treated. According to Menninger’s obituary in The New York Times, the book “contributed to penal reforms in a number of states.”

A natural extension of Menninger’s view that all forms of punishment are cruel is his opposition to capital punishment. The death penalty is a frequent topic covered by prison newspapers, such as The Angolite. Menninger contributed a piece on the subject, which was reprinted in The Pointer News from Harper’s, titled “Verdict Guilty–Now What?” Menninger writes:

Capital punishment is […] morally wrong. It has a bad effect on everyone, especially those involved in it. It gives a false sense of security to the public. It is vastly expensive. Worst of all it beclouds the entire issue of motivation in crime, which is so importantly relevant to the question of what to do for and with the criminal that will be most constructive to society as a whole. Punishing–and even killing–criminals may yield a kind of grim gratification […]. But playing God in this way has no conceivable moral or scientific justification.

In other words, Menninger argues that both consequentialist and retributivist justifications of capital punishment fail. Consequentialist theories of legal punishment seek to justify legal punishment by invoking the consequences of punishing criminals, which is why they are referred to as “consequentialism.” According to consequentialism, the reason for punishing people who commit crimes is that doing so would bring about a net positive of good over bad consequences for society as a whole. Retributivist theories of legal punishment seek to justify legal punishment as retribution for wrongdoing, which is why they are referred to as “retributivism.” According to retributivism, the reason for punishing people who commit crimes is that they deserve to be punished.

Now, Menninger argues that from a consequentialist point of view, the death penalty cannot be justified because it does not bring about a balance of good over bad consequences for those involved in it. In fact, the death penalty has bad effects on everyone involved in it because it is difficult to administer, it is expensive, and it fails to make society safer overall. Menninger even goes so far as to argue that not only capital punishment but also imprisonment is largely detrimental, not beneficial, to society. “I suspect that all the crimes committed by all the jailed criminals do not equal in total social damage that of the crimes committed against them,” Menninger once said.

From a retributivist point of view, Menninger argues, the death penalty cannot be justified, either, since no crime can render the criminal who committed it deserving of the death penalty. Why? Because the death penalty is cruel and unusual punishment, according to Menninger, and thus a violation of a civil right that is enshrined in the Eighth Amendment of the U.S. Constitution. As Menninger puts it in The Crime of Punishment, “The Constitutional prohibition against ‘cruel and unusual’ punishment implies that in some way or other the hurting done by the state must be a familiar garden variety and not something unexpected.” (pp. 71-72). But the hurt inflicted by the state through capital punishment is not “a familiar, garden variety” kind of harm. In fact, numerous accounts of botched executions detailed in the pages of prison newspapers are an enduring testament to the cruelty, brutality, and inhumanity of the death penalty.

Once more, Menninger goes so far as to argue that not only capital punishment but also imprisonment is cruel and unusual punishment. According to Menninger, writing in The Angolite, “To deprive a man of decent social relationships, palatable food, normal sexual relations, friendships and constructive communication” is cruel and unusual punishment. After all, a prisoner is a human being, “one who needs all the things the rest of us do–something to do, something to eat, someone to talk to, and a little bit more!” For Menninger, then, “our official, prison-threat theory of crime control is an utter failure.”

Menninger’s opposition to the death penalty and to incarceration as cruel and unusual punishments stems from his holistic approach to medical care. For him, there can be no rehabilitation without physical and mental health. That is why denying mental health care to prisoners is as cruel as denying them treatment for cancer and other physical ailments. As Menninger writes:

If a prisoner is suffering from pneumonia or cancer which could be cured by adequate treatment he would surely be entitled to treatment; if a prisoner is suffering from psychiatric conditions which could be treated and presumably cured is he not similarly entitled to treatment; and in either case is the denial of treatment other than cruel and unusual punishment which we have long since eschewed?

Menninger’s idea of replacing cruel and unusual punishments, such as incarceration and capital punishment, with medical treatments for both physical and mental illnesses resonated with incarcerated people, if not with Americans at large. He received many letters from prisoners who read his book, The Crime of Punishment. “I don’t know how you found it all out, but you are telling it like it is,” wrote one incarcerated reader. “People don’t believe us; maybe they’ll believe you.”

Prisoners who read his work saw Menninger as someone who understood their plight and treated them as fellow human beings. Such compassionate understanding was a central pillar of Menninger’s approach to medical treatment. As he wrote in The Human Mind, “It is hard for a free fish to understand what is happening to a hooked one. Sooner or later, however, most of us get hooked” (p. 3).

As we continue to grapple with the problems of the American criminal justice system, and there are repeated calls for reform, it may be useful to revisit Dr. Karl Menninger’s ideas on criminal justice, legal punishment, medical treatment, and rehabilitation. Rather than ask how the punishment should fit the crime, as our current criminal justice system requires us to do, perhaps we should follow Menninger in asking how the punishment (or, more precisely, the treatment) should fit the person who committed the crime.

Resources

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How to Make the Punishment Fit the Crime

By: Michael Davis

Ethics, Vol. 93, No. 4 (Jul., 1983), pp. 726-752

The University of Chicago Press

The Supreme Court's Backwards Proportionality Jurisprudence: Comparing Judicial Review of Excessive Criminal Punishments and Excessive Punitive Damages Awards

By: Adam M. Gershowitz

Virginia Law Review, Vol. 86, No. 6 (Sep., 2000), pp. 1249-1302

Virginia Law Review

Bidin' Times

July 15, 1994

Oregon Women's Correctional Center

Reading as therapy