Criminal Law and Philosophy just published my paper “Consequences Matter More: In Defense of Instrumentalism on Private versus Public Prisons,” critiquing Alon Harel’s Why Law Matters.

Abstract: Alon Harel wants to show that punishment is a kind of symbolic expression that, as a matter of metaphysical necessity, can only be performed by governmental agents. Contrary to Harel, I argue private agents can in fact realize those features he argues only public agents can realize. I also argue that, even if he were right that only public guards and wardens can punish, it’s unclear why we would have an all-things-considered rather than merely a pro tanto/prima facie duty to punish. An instrumentalist can grant Harel that only state employees can punish, but still decide, on instrumental grounds, to reject public punishment in favor of private “schpunishment.”

Harel argues that certain activities should only be done by government employees. We must not (and it turns out, simply cannot) delegate or contract out these functions to private agents. In particular, Harel argues that a system of private punishment, and thus private prisons, is intrinsically unjust. He concludes that punishment must be public. To satisfy the demands of justice, Harel thinks it will not be sufficient that we use a public court system to determine guilt and issue penalties. Rather, he argues that the prison system itself must be public, and the wardens, guards, and others who execute and administer the punishments must themselves be state employees. Punishment must be done in the name of the state, and to be done in the name of the state, state employees must do it.

Many people oppose private prisons because they believe these prisons tend to be more corrupt and abusive than public prisons. But, as Harel notes, this is not an in-principle worry about private prisons. In principle, a private prison could run better, in a more cost-effective and yet more humane way, than a public prison.

Harel’s response is instead to argue that punishment can only be done by the right kind of agent. Here, he does not mean that it should only be done by the appropriate agent. Rather, he argues that it is literally impossible, as a metaphysical matter, for private prison wardens and guards to punish prisoners. Both private and public executioners can chop off heads. But while these may seem to be similar activities, Harel claims appearances are deceiving. According to Harel, private individuals and private prisons metaphysically cannot punish—whatever they do to prisoners simply does not qualify as punishment. Thus, we can summarize Harel’s main argument as follows:

1. Certain people ought to be punished for their wrongdoing.
2. As a matter of metaphysics, only public agents can punish people; private agents cannot.
3. Thus, to privatize prisons is wrong because under such systems, some people who ought to be punished will not be punished.

Harel recognizes that premise 2 is highly controversial, and so most of his efforts are spent defending premise 2.

What Harel has to do, to make his argument work, is find some Special Feature F which public prison guards and wardens have, but private prison guards and wardens lack, which plausibly explains why it’s metaphysically impossible for private prison guards or wardens to punish prisoners. In the first part of the paper, I systematically go through his argument and show he hasn’t yet found any such Special Feature F.

In the second part, I grant him for the sake of argument that only public prisons can punish. But I then ask, why not schpunish instead of punish? Maybe private prisons can’t punish, but they can schpunish prisoners, and maybe we should favor schpunishment over punishment. In the end, I argue, even if we agree with Harel that punishment matters for its own sake, we can put a price on the value of punishment.