Towards an Art of Punishment

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Those who have seen John Patrick Shanley’s play Doubt, a Parable, or its film adaptation, will probably remember the scene in which Father Brendan Flynn tells his congregation the story of a woman who had been gossiping about a man she hardly knew and then had a nightmare in which a great hand pointed down at her, the day after which she guiltily sought out her old parish priest, Father O’Rourke, and asked him whether gossiping is a sin. He confirmed that it is (‘thou shalt not bear false witness’), and so she asked for forgiveness.

‘Not so fast,’ said O’Rourke. ‘I want you to go home, take a pillow up on your roof, cut it open with a knife, and return here to me.’ So, the woman went home, took a pillow off her bed, a knife from the drawer, went up the fire escape to her roof, and stabbed the pillow. Then she went back to the old parish priest as instructed. ‘Did you gut the pillow with a knife?’ he said. ‘Yes, Father.’ ‘And what were the results?’ ‘Feathers,’ she said. ‘Feathers?’ he repeated. ‘Feathers; everywhere, Father.’ ‘Now I want you to go back and gather up every last feather that flew out onto the wind.’ ‘Well,’ she said, ‘it can't be done. I don’t know where they went. The wind took them all over.’ ‘And that,’ said Father O’Rourke, ‘is gossip!’

Now, this has stuck in my head as a perfect example of something that doesn’t really exist, but could, and, I increasingly feel, should – punishment art, I’ll call it.

Of course, I’m using the word ‘punishment’ loosely here. What Father O’Rourke instructs his parishioner to undertake might more typically be called a penance, or perhaps a corrective lesson. The basic topic of my inquiry, however, and what I’ll be referring to with the word ‘punishment’, is any course of action that it is demanded a person take or that a person is subjected to in censorious response to their having offended in some way. In that sense, it is a kind of punishment that Father O’Rourke comes up with. And in calling it ‘punishment art’, I mean that it’s a punishment that is artistic in nature.

Consider this description of how it works. First, the whole thing is basically the enactment of a metaphor. All those feathers as they travel unstoppably and in all directions in the wind are gossip, as it travels from mouth to mouth and mind to mind. The futility of trying to gather all those feathers again is the futility of trying to take back the gossip, trying to undo all the harm to the reputation of the victim that the gossip has done. For the perpetrator to feel that futility is then for her to get a visceral sense of the scale of the harm that she is responsible for. In other words, this metaphor serves to defamiliarise, to show in a new light, the perpetrator’s actions, which she had, when she did them, supposed she understood. There is a vicariousness to this too, we can say – she is made to compellingly imagine the harm to the victim, without herself having any direct experience of such harm. Finally, as Father O’Rourke does not, in advance, tell her the meaning of this unusual task he gives her, her eventual discovery of its meaning has shock value to it, and is experienced by her as a twist and the resolution of a puzzle – all of which will help make this striking and memorable for her.

The basic reason that punishment – or, at least, certain types of punishment – might sometimes benefit from involving the kinds of typically artistic elements just described is that punishment, like art, often has an educational (or ‘re-educational’ or ‘reformative’ or ‘rehabilitative’) objective, a goal of enlightening and thus changing a person.

Punishment, like art, often has an educational objective, a goal of enlightening and thus changing a person.

Of course, this educational objective is not the only one that punishment ever has. I can think of three other objectives it commonly has:

- The pain objective: to cause the perpetrator pain; or, in other words, get revenge on them for their victim’s suffering.

- The re-offense prevention objective: to directly prevent them from offending again (by making it practically harder or impossible for them to do so).

- The compensation objective: to extort from them some compensation for their victim.

These four objectives usually relate closely and overlap. We try to make the perpetrator suffer at least partly with a view to scaring them into not offending again. Similarly, the education is, to a significant extent, intended to serve the purpose of dissuading them from offending again. This enforced education and the extorted compensation and any more direct measures intended to prevent re-offending – such as a prison sentence – can also all add to the perpetrator’s suffering. Furthermore, the suffering might focus the mind of the perpetrator in a way that will help with the education.

Despite all this overlap, it does seem to me that these four objectives are discrete enough to be listed separately. For each one, we could think of cases of punishment where that one is the only clear objective.

The forms of punishment currently favoured by justice systems – and I have in mind particularly, but not only, legal justice systems – tend, in my understanding, to be fairly strong on pain (especially when you factor in the overall damage to lives done by imprisonment and criminal records), average on preventing re-offense (better on short-term prevention than long-term), average on compensation to the victim (better on financial compensation than anything beyond that), and fairly weak on education.

The forms of punishment currently favoured by justice systems tend, in my understanding, to be fairly strong on pain and fairly weak on education.

It is, I think, especially regrettable that there isn’t more prioritisation of and success with the educational objective for several reasons. In stating those reasons, and indeed throughout this essay, I will be assuming an – up to the point of determining punishments – infallible justice system. That real-world justice systems are very fallible might be considered another reason for prioritising educational punishments, insofar as these would be less harmful to all those subjected to them, including those wrongly convicted. Leaving that consideration aside though, my reasons for regretting that effective education isn’t more central to the kinds of punishment meted out by justice systems are the following.

First, while pursuit of each of the four objectives of punishment often feeds into pursuit of one or more of the others in some way, pursuit of the educational objective is, it seems to me, particularly able to help with the achievement of the other three. If the perpetrator really, properly grasps the wrongness of what they have done, they will, at least under anything like ordinary circumstances, not want to do it or anything similar again (the re-offense prevention objective); they will quite likely want to make amends insofar as they can (the compensation objective); and they will feel guilt (the pain objective). Is guilt really a kind of pain, you might ask? Well, if we mean, by ‘pain’, any strong negative feeling, it certainly can be, and, in my impression, the most severe forms of guilt are not much easier to bear than extreme pain of any other kind. We might even wonder whether we sometimes, on some level of consciousness, want to see those who have harmed us suffer other kinds of pain essentially in lieu of the guilt we think they’re not feeling, or not feeling proportionately.

Furthermore, leaving aside the death penalty, there is no more reliable way of achieving the re-offense prevention objective than through the educational objective. A perpetrator could escape from prison. A perpetrator could, after being beaten to a pulp by police, made to hand over all of their financial and material assets to their victim and made to serve a lengthy prison sentence, still blithely offend again, if they were very confident they wouldn’t get caught doing it. Or, even if they thought they were certain to get caught and subjected to the same or worse punishment, they could still judge the offense worth it. If they were persuaded of the wrongness of that offense though, they presumably just wouldn’t – even if they were convinced they easily could without getting caught. Thus, effective education of perpetrators could also mean dramatic reductions in overall enforcement costs.

While pursuit of each of the four objectives of punishment often feeds into pursuit of one or more of the others in some way, pursuit of the educational objective is, it seems to me, particularly able to help with the achievement of the other three.

Second, the other three objectives of punishment are, in the absence of the educational one, all liable to backfire. If we punish someone, and they are not persuaded of the justice of that punishment, we are likely to provoke in them a more antagonistic attitude towards us, and some desire, perhaps a strong one, to retaliate. Imprisoning someone, taking their prized assets for the purpose of compensation, subjecting them to whatever kind of painful treatment – these are great ways of generating in someone an intense resentment towards all the agents and institutions that they, rightly or wrongly, see as implicated. And if they then act on that resentment, in big or even just in innumerable small, undetected, even legal ways, they might easily do far more harm than they did through the initial action that prompted our punishment of them.

Third, upon interrogating the nature of voluntariness, a lot of punishment starts to seem hard to justify, but punishment with an educational objective is an exception. According to common intuitions, if things beyond your control have caused you to do something wrong, it is not really your fault that you did that thing, and you should not be punished for having done it. Now, we do not choose our genes, our upbringing or our culturalisation; we do not particularly choose our personalities, our desires or which desires of ours are strongest, moment-to-moment. Even our circumstances, to a large extent, just befall us. So, yes, in some sense, we choose what we do, but, as Bernard Williams puts it in Shame and Necessity (1993), it is a superficial sense. That being the case, people who have voluntarily offended can be conceived of as victims for having done so, and, in many cases, victims for being the kinds of people who would do so. To subject them to punishment is then, according to this logic, to make them victims again, to further victimise them – unless that punishment actually is good for them, as punishment with an educational objective, most obviously, is capable of being.

Fourth, all objectives of punishment, other than the educational one, can easily be quite horrible – and perhaps morally corrupting – for us to impose or even witness - while teaching someone to see the error of their ways, helping them develop their moral understanding, can be very fulfilling, I’m sure. In contrast, intentionally causing them pain? Imprisoning them? Forcibly taking their prized assets from them? And bear in mind these measures are likely to have serious consequences not only for the perpetrator but also for others who are close to and/or dependent on them, who may themselves be entirely innocent. Unless we are sadists, doing such things is likely to be emotionally difficult for us too. And may even dull our compassion – with significant implications for our everyday interactions with one another and for the kind of society we live in.

When we’ve been wronged, what most of us, deep down, want most of all is normally punishment with an educational objective; I think we want those who did us wrong to learn their lesson.

Finally – and now I really am speculating, but it’s a speculation I feel strongly about – I think that on some level we tend to have a sense of the previous four points, and that, when we’ve been wronged, what most of us, deep down, want most of all is normally punishment with an educational objective; I think we want those who did us wrong to learn their lesson. I think that, generally, insofar as victims see and believe that perpetrators understand what they’ve done, regret and feel guilty for having done it, are desperate not to do anything similar again, and wish to and will make up for the harm they have done insofar as that’s possible, those victims will not desire (further) punishment.

***

In this regard, it's interesting to consider the one-time gold standard of punishment, ‘an eye for an eye’. Perhaps the most obvious way of understanding this principle is as guidance concerning punishment with a pain objective – it is specifying that when the punisher inflicts pain on the perpetrator, the appropriate amount is the amount the perpetrator caused the victim. You also often hear the principle invoked in the context of the compensation objective, where it specifies the appropriate amount of compensation: you broke my phone, you buy me a replacement phone. However, the principle can equally be understood – and understood very satisfyingly – in light of the educational objective. If you take an eye, you must be made to understand what is so terrible about taking an eye. And guess what, the easiest and most reliable and most fine-tuned way to make you understand what is so terrible about taking an eye is to take from you one of your own eyes.

Now, sometimes ‘an eye for an eye’ is a pretty good approach to punishment.

Consider:

- In November 2005, a 26-year-old woman was convicted of domestic animal abandonment for leaving 35 kittens in a forest and sentenced to being driven by a park ranger to a remote forest location and left there for the night without food, drink or means of entertainment.

- In July 2018, an 18-year-old man who had been convicted of criminal mischief for intentionally knocking over a portable toilet in a park was sentenced to work a shift scooping up manure at a local agricultural fair.

No doubt, judges all around the world sometimes come up with punishments along these lines. I have heard of a few other isolated cases, and would be delighted to hear of more. To the best of my current knowledge though, the closest we have had to a real-world professional punishment artist is the man who came up with those above two, the recently retired Judge Michael Cicconetti of Lake County, Ohio.

Granted, these punishments are not particularly artistic. They are creative – the term Judge Cicconetti prefers – in that they are non-standard. They are based on that eye-for-an-eye logic, with an educational objective. The phrase ‘a taste of your own medicine’ also comes to mind. They simply subject the perpetrators to close approximations of what the perpetrators subjected their victims to – so as to stimulate in them greater understanding of their victims’ plights and therefore of the meaning of their offenses.

Judge Cicconetti started coming up with these creative punishments when he had to deal with a spate of speeding offenses in school zones and it occurred to him to order one such offender to spend a day working as a crossing guard, helping young children get safely to and from their schools. He repeated this punishment with others, and it proved extremely effective at preventing re-offense.

This punishment, too, can be understood as a metaphorical eye for a metaphorical eye. The offending drivers did not hit children, after all; they created anxiety and risk for others, and the punishment put them in the position of facing such anxiety and risk themselves. However, it goes a bit beyond ‘an eye for an eye’, it seems to me. It offers the offender a broader lesson in what they should be caring about as they slow down to below the speed limit in school zones. Suppose, while they were on duty that day, a young child tripped on the edge of a pavement, and they helped the child, and the child was crying a little, but then smiled and said something courageous and sweet and a little funny (‘It’s OK; granny had a hip replacement; I just bumped my knee’) – that moment would probably stick in their head, and come back to them whenever after that they saw the school zone speed limit sign. They would have to be a bit of a monster not to slow down then, remembering that kid and the others from the day they spent trying to protect them from speeding cars. It seems to me a very wise punishment – immeasurably wiser than a fine, say, or points on a license.

Some of Judge Cicconetti’s other creative punishments diverge yet further from that eye-for-an-eye logic. He once, for instance, ordered a woman who had failed to pay for a taxi journey of about 30 miles to walk 30 miles. This was a way of making her experience the full value of what she stole. On another occasion, he ordered a man caught unlawfully carrying a loaded gun to go and see corpses in a morgue. This was, of course, a way of making the dangers of what he did more real to him.

On yet another occasion, he ordered teenagers who had deflated the tires of a school bus fleet, to throw a picnic for the primary school children whose outing had, as a consequence of their vandalism, been cancelled. This is a particularly sweet one, as here the educational prompt was nothing dark or unpleasant but a push to witness the happy experience that their actions had previously deprived those children of – and not just witness it, but themselves provide it. The punishment was thus a compensatory one as well as an educational one, and so, for the perpetrators, it was an opportunity to redeem themselves. How, I wonder, did the satisfaction of giving those children that joy compare to the satisfaction of deflating the bus tires? It’s a simple and beautiful punishment, isn’t it? Just hearing of it, you feel its potential to be a little life-changing. Or I do, anyway.

These three punishments all forced the perpetrators to face and contemplate and somehow feel the harm they had done without causing them to directly experience that same harm or something very like it.

These three punishments all forced the perpetrators to face and contemplate and somehow feel the harm they had done without causing them to directly experience that same harm or something very like it. That move away from direct experience, and into other, more imaginative means of education is what I’m interested in.

And it’s a necessary move, right? ‘An eye for an eye makes the whole world blind’ is the idiomatic criticism of that principle. There are cases in which ‘an eye for an eye’ is not going to work for technical reasons – say, when the perpetrator has nothing equivalent to what they have deprived their victim of – but the basic problem with the principle, at least from an educational point of view, is that it prescribes, in the event of very harmful offenses, punishments that are so harmful that they are unlikely to induce an optimal learning mentality, and rather too likely to instead provoke a retaliatory and escalatory agenda, and to have other severe adverse knock-on effects for people aside from the perpetrator.

Though Judge Cicconetti came up with many creative punishments over the course of his career, he did so only occasionally, far from routinely; and, in particular, he never came up with such a punishment for a very serious offense. I, however, am not convinced that a line need be drawn at more serious offenses.

A case of particular note here occurred in Fort Worth, Texas in April 2011, and was reported in the Fort Worth Star-Telegram. A man had been driving while under the influence of alcohol, and had caused a car crash that had killed a woman. In the man’s trial, a plea deal was agreed between the prosecutor and the defence according to which, as conditions for his 10-year probation sentence, the man had to, on top of covering the woman’s funeral costs, wear at all times a bracelet with her name on it, and spend Christmas, Thanksgiving, the Fourth of July and her day of birth and day of death in the county jail.

Now, if Judge Cicconetti’s punishments were not quite artistic in nature, this one clearly was, it seems to me.

Consider first the bracelet. The bracelet is more than a reminder of what he has done. It puts him to some degree in the position of someone who loved his victim, someone who would have worn a bracelet with her name on it. The bracelet thus reminds him of the perspective of the bereaved. Or it even puts him in his victim’s own position, arguably – if he imagines her having worn such a bracelet. It makes him identify with her. It makes him feel, plausibly, that she is now part of him. Or at least that she is always with him in some form. Certainly, it impresses upon him – makes physical and visible – his inability to escape, to excise from himself, what he has done. Notably, it is a benign symbol though. Not at all like a scar or a missing limb – which have perhaps more typically been used for this kind of you-will-never-be-able-to-forget purpose. No, it’s a bracelet, a little piece of personal decoration, a token of affection. It’s therefore also a symbol of mercy, in a way, or even grace. It’s in any case a powerful, powerful symbol.

As for the purgatorial aspect, the jail time puts the perpetrator in a kind of void, which functions, inevitably, as a space for deep reflection, remembrance and soul-searching.

Jail, meanwhile, is a metaphor for death, you could say. It’s purgatorial, you could also say. The death-like aspect is perhaps more experienced by his loved ones than by the perpetrator himself. It gives them a sense of what it’s like for the loved ones of his victim – as he is erased from their lives on those important days, just as she has been erased from the lives of her loved ones on those and all other days. That experience of theirs no doubt feeds back into how they think of him, how they are with him, what they say to him. As for the purgatorial aspect, the jail time puts the perpetrator in a kind of void, which functions, inevitably, as a space for deep reflection, remembrance and soul-searching. He knows why he’s there. Every pang he feels to get back to his life, back to his loved ones, is likely to be answered by his knowledge of why he can’t, and of how he has made it impossible for his victim to ever get back to her life, back to her loved ones.

Of course, a similar kind of heavy rumination is almost certain to dominate especially these particular days for those loved ones too, and so the jail time also, like the bracelet, pushes him to adopt a perspective like theirs. No doubt he thinks about other things – indeed, about everything in his life – on the days when he’s in the jail, but, in that context, those thoughts can never stray far or be wholly disentangled from his thoughts and feelings about this fateful thing he has done, and so, each time he leaves the jail, his thoughts and feelings on what he has done are going to be yet more deeply and thoroughly integrated into every part of him. I would hope that, in time, he would come to value this punishment – as a profoundly meditative activity, enabling him to live better. To me, there is even something breathtakingly beautiful about it. I get emotional thinking of it, of what it means. This is real-world punishment art, and, if you thought before that there was something gimmicky about the concept, I hope you see now that there isn’t, or certainly needn’t be.

***

It’s especially disappointing to me how even works of art are, in my experience, very short on depictions of such artistic forms of punishment. Shanley’s Doubt is a rare exception. As artistic depictions of punishments for gossiping in particular go, far more well-known and, in a sense, typical is that found in Park Chan-wook’s film Oldboy and the Garon Tsuchiya manga series of the same name that it’s adapted from. I don’t want to spoil the plot for anyone, so I’ll just say that what is striking about the punishment here is not really its educational effectiveness, but certainly its creativity and its cruelty.

In fact, these tend to be the features of the most famous punishments in artistic media. Just think of the machine in Kafka’s In the Penal Colony; of the participatory theatre in the ‘White Bear’ episode of Charlie Brooker’s Black Mirror; of the infamous feast scene in Shakespeare’s Titus Andronicus; of the whole Revenge Tragedy genre, and especially its ‘play within a play’ trope. Think also of Ancient Greek drama and mythology, and the capricious, vengeful deities that dominate them: King Erisychthon wanted a big banqueting table, and, to make it, he cut down some trees in the personal grove of the goddess Demeter. She, in response, cursed him with permanently insatiable hunger, so that he wanted to eat anything he could get his hands on and eventually ate himself! Similarly, the Abrahamic religious traditions are rich in this kind of extreme and elaborate punishment. Our whole worldly existence – the result of our banishment from the Garden of Eden – is framed in those traditions as a punishment for the original disobedience of God in eating the fruit of the tree of the knowledge of good and evil. Meanwhile, Hell, particularly as imagined by the likes of Dante and Hieronymus Bosch, is arguably the extreme, imaginative punishment par excellence – a whole textured existence, and an eternal one at that, solely for the infliction of unending suffering on offenders.

Such punishments do, I think, vividly illustrate the inherent difficulty there is for the emotions underlying punishment to be controlled, reined in, balanced. But – and here’s a crucial point – part of that difficulty arises from the difficulty of educating! The difficulty of getting someone to really understand that they have done wrong and should not do any such thing again. Many of these punishments speak, it seems to me, of a frustrated teacher: “Is there no way of drilling this into your head??!”

Think of when your computer, at a point when you really need it for some purpose, is running slow, and you click on something and it doesn’t work, and you click again and it still doesn’t, and then you click on other things and that doesn’t work either, and you get more and more panicky and frustrated, and eventually you end up repeatedly, indiscriminately slamming your fingers down on the keyboard. What you are doing at the end there is curious in that it contains clear vestiges of the reasonable action you were previously taking with a reasonable aim – even if these have now been overwhelmed by sheer frustration and anger. These famous epic punishments I’ve just listed are like that, I feel.

Kafka’s machine inscribes the law that the offender has broken into their skin, again and again, deeper and deeper, until they die. You see what I mean? You see the clear vestiges of the educational activity. And hell is like that too. You will see the error of your ways, even if it takes an eternity. Why, we might ask, is hell eternal? Why do we need hell at all? Why not just have the offenders die and be done with it? One answer to that question is that we cannot so easily be rid of our need for those who’ve seriously harmed us to, one way or another, learn their damn lesson.

Why, we might ask, is hell eternal? Why do we need hell at all? Why not just have the offenders die and be done with it? One answer to that question is that we cannot so easily be rid of our need for those who’ve seriously harmed us to, one way or another, learn their damn lesson.

Remember my speculation that when we’ve been wronged, what most of us, deep down, want most of all is for those who did us wrong to learn their lesson. Of course, that desire can, amidst the complexities of life, be twisted beyond recognition, and there can be many factors in that. One big one is just the natural overlap that the different objectives of punishment have. Pain often really helps us learn, is the fact of the matter. But another, perhaps just as important, is how incredibly difficult or even impossible it can feel and/or truly be to get people to learn their lesson.

Crude forms of punishment and even execution could, it seems to me, make more sense in conditions of the tundra or the savannah and the small, struggling tribe, when there just weren’t really other means to ensure the acute threat posed by serious offenders was effectively defused, but we are far from those conditions now, and our punishments, even for serious offenses, should have progressed in similar measure. Increasingly advanced societies – with their increasing material resources, accumulated learning, technology and sophisticated self-organisation – are, in obvious and important ways, ever better equipped to come up with and implement punishments that are more effective in getting perpetrators to learn their lessons. I’m sure we could, already, do so much more than we do on this front. Conceiving punishment as an art form might help encourage us to fulfil the potential already there.

***

In speaking of ‘punishment art’, I am, in a way, being provocative. In another way though, I’m really not being provocative – or not enough. The question of how to define art is one of those perennial philosophical questions, almost as fixated on in pubs as in universities. Many different definitions have seemed interesting and defensible to me, but I feel the more important point is that all the qualities that are there in great art – perceptiveness, care, responsiveness, creativity, etc. – are also vital in diverse and integral parts of our lives, and even the characteristic means and dynamics of art have far broader application. A metaphor can be a handy thing in a poem or painting, but equally in a practical explanation, or in a devotional ritual, or, in fact, as thinkers like George Lakoff have argued, in our basic sense of what the world is and how it matters. An installation in a gallery might defamiliarise some subject for you – but so might, for instance, moving to another country, or just learning another language, or living long enough for younger generations to come along and start doing things very differently. We have vicarious experiences through novels, but also through our everyday acts of empathising with friends and strangers. And the attention-grabbing and mnemonic value of a good twist or a puzzle and its resolution are as well-known to those working in marketing, teaching, journalism and political strategising as to anyone. Even the less narrative and representational dynamics of art – I mean, dynamics of framing, of balance, of harmony and counterpoint, of rhyme and rhythm – have their forms or analogies, more or less obvious, in all of our endeavours.

All the qualities that are there in great art – perceptiveness, care, responsiveness, creativity, etc. – are also vital in diverse and integral parts of our lives, and even the characteristic means and dynamics of art have far broader application.

I think all this helps explain why art, at its best, is so powerful, so life-affirming or life-changing, as well as why it’s so difficult to settle on a clear definition and draw a line between what is and what is not art, and even why philosophers from Nietzsche to Nussbaum have claimed that a well-lived life is itself a kind of artwork. Finally, I think some unconscious appreciation of all this is carried in the everyday use of the word ‘art’ or the expression ‘work of art’ to describe particularly great achievements, or ways of arriving at them, in any domain of life. In this sense of the word, of course we should aim for an art of punishment, just as we should aim for an art of everything we do. And, if that point’s accepted, then my contention is just that punishments of such quality would tend to prioritise the educational objective, and would pursue that objective with perceptiveness, care, responsiveness, and creativity.

Benjamin George Coles is a member of the artist collective, Antropica. His short stories have appeared in The London Magazine, Hobart, Every Day Fiction, Erotic Review and, in Italian translation, in Turchese. He has also published essays in Film International and Bright Lights Film Journal, and he won the 2022 Crème Fraîche screenwriting competition at the Luxembourg City Film Festival, with his winning entry turned into the 2023 short film, A Place to Be.

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