Antony Duff on Whether Imprisonment Can Qualify As Civic Punishment
In Offenders as Citizens, Antony Duff not only espouses the concept of ‘civic punishment’ but also answers whether imprisonment as a practice can fit into this concept. He provides normative grounds under which imprisonment can be deemed acceptable in a criminal justice system dedicated to civic punishment.
Duff develops the concept of ‘civic punishment’ in response to penal practices in America and Britain where the exclusionary approach sees criminals as the “enemies” against whom the “war of crime have to be waged”. This exclusionary approach believes that criminal should be excluded from the community of law-abiding citizens and be denied normal rights and benefits of civil life:
“This conception of “criminals” as enemies is displayed most dramatically in such penal provisions as “life without the prospect of parole”, and “three strikes and you’re out”: the commission of the relevant type of crime brings permanent exclusion from the polity behind the walls of a prison. But it is also shown in our readiness to use imprisonment, forcible exclusion from “normal” life, as the sanction for a wide range of crimes; in the denial of the vote to those in prison; and in the exclusions from the normal rights and benefits of civic life to which “ex-offenders” may be subjected”
Therefore, the concept of “civic punishment” flows from a criminal justice system dedicated democratic polity of self-governing citizens. A system where the criminal law is not interpreted as “owned” by officials, and where citizens are active agents and not passive subjects:
“It should be our law as citizens: a law that we make for ourselves, a law through which we address each other in terms of the values that define our shared civic life. It should therefore be a law in relation to which we are active rather than merely passive, agents rather than mere subjects: if we are to engage in the enterprise of democratic self-governance, we must be actively involved in the law that partly structures that enterprise.”
Such a criminal justice system espouses a “civic punishment” which requires the offender to be active: where the punishment is undertaken as a matter of civic duty and not undergone merely as prudence. In such an inclusionary criminal justice system, offenders are treated as citizens who play an active role in the functioning of criminal law. As Duff puts its, a system where the convicted offender is not treated as an enemy on whom “we” are entitled to impose penal burdens:
“We can make better sense of the idea that criminal punishment should seek the offender’s active participation, and thus of a fully inclusionary conception of criminal law, by portraying punishment as a communicative enterprise not just as a one-way process in which the polity communicates to offenders the censure that their crimes deserve, but as a two-way process in which offenders are also supposed to communicate to the polity, by undertaking their punishment.”
Therefore, a system committed to civic punishment also has to ensure that the punishment doesn’t degrade the offender who undertakes it as his civic duty. It should be ensured that punishment can be undertaken by the offenders without humiliating themselves while retaining the respect for the fellow citizens.
Subsequently, Duff makes an argument for how imprisonment can qualify as civic punishment while criticising the current philosophies and practices that underpin the prisons in Britain and America. Duff argues that if imprisonment cannot be posited as a sentence that an offender can be properly required to undertake, or to be consistent with the rights of the offender as a fellow citizen, then it must be argued that imprisonment has no place in a democratic republic, or that some crimes or criminals are such that can no longer be seen as citizens:
“ Could we argue that imprisonment can still be understood as a kind of moral reparation that offenders ought to undertake for themselves, as a species of — we might say — seclusion within the community rather than outright exclusion from it? It would be absurd to think that we could in this way justify imprisonment as it is currently practised in too many American and British prisons: that is not a punishment that treats those subjected to it as citizens, or that an offender could undertake as a mode of punitive reparation in which he retains his dignity as a citizen. But prisons need not be like that, and we can ask how far they could become sites of genuine civic punishment.”
Duff argues that imprisonment in a closed prison can be seen as “undertaken” and not “undergone” if the offender approaches it with the right spirit. Offenders can be active rather than passive, and if the environment is decent, can make the prison regime their own instead of perceiving it as an “alien order” that they must obey:
“However, if prisoners should have towards the prison regime the kind of respect that citizens should have for the law (for the prison regime is an aspect of the law), prisoners must be enabled and ready to take a respectfully critical stance towards it: they must be ready to object to what they see as oppressive or unjust; the prison must make such dissent possible, not merely as an ineffective letting off of steam, but as a way in which change can be sought, and achieved.”
Therefore, Duff submits that we can try to rethink prison regimes so as to make prisons possible sites of civic punishment.
Complement this with Antony Duff’s earlier work on Punishment, Communication and Community, and Nicola Lacey on State Punishment.
