Mikhail Lyubansky Ph.D.

Between the Lines

A Brief History of Punitive Justice

In many societies, punishment serves multiple functions.

Posted Aug 02, 2019

“The arc of the moral universe is long, but it bends toward justice.” Martin Luther King’s words evoke a powerful image, but also leave much to the imagination. What should justice look like? What form should it take? How should it be administered—and by whom?

Wikipedia Commons
Punishment was commonplace in most European mythology. Here, the mischievous Loki is being punished by the other Norse Gods.
Source: Wikipedia Commons

The answers to these questions depend in no small part on:

  • how much you trust authority to act in the public interest and without bias
  • where you stand in regard to the possibility of redemption
  • whether you would rather err on protecting the innocent (at the cost of not punishing some of the guilty) or convicting the guilty (at the cost of punishing some who are innocent)
  • your core beliefs about the role of punishment in shaping individual behavior and social norms

If this sounds political, it is. In countries influenced by European approaches to justice, distinct political perspectives have traditionally either doubted or trusted hierarchical authority, focused on protecting the rights of the accused or of those harmed, and supported or campaigned against stronger forms of punishment. However, despite these distinctions across the spectrum from a “tough on crime” ideology focused on individual responsibility to one focused on changing the social conditions associated with criminal choices, policy has similarly relied on state-imposed punishment as the primary response to crime.

Indeed, “getting justice” in these countries is so synonymous with punishing the person who broke the law/rule that many are hard pressed to even imagine justice having any other form. Within this sphere of European colonial influence, punishment was traditionally intended to cause physical suffering and tended to take a corporal form (e.g., flogging, caning, whipping). Even capital punishment was typically intended to elicit suffering before death[i].

While the punitive system’s claims to legitimacy have rested largely on its supposed unbiased, universal application, its actual distribution has consistently followed the distribution of power within these societies and in relation to their colonial domination. Thus, in these societies, punishment has simultaneously served the secondary function of socially controlling marginalized populations and prohibiting acts perceived to be subversive of this control.

As social sensibilities and the colonial logic started to shift, more explicit imposition of physical suffering began to be replaced by means primarily exclusionary in nature. In this way, the practice of temporarily or permanently excluding a person from society, primarily through incarceration, has increased in many societies.

Wikipedia Commons
Under European influence, punishment was traditionally intended to cause physical suffering and tended to take a corporal form
Source: Wikipedia Commons

Such punitive practices are pervasive. Professional sports leagues typically enforce their rules with fines and suspensions. Many workplaces rely on a system of written warnings, probationary periods, and ultimately work terminations. Colleges and universities, faith communities, and political/activist groups all have their own codes and exclusionary sanctions. Even family life equates justice with punishment.

Indeed, the home is the most punitive place many of us know or remember, with various forms of corporal discipline still normative in many regions and communities. Though no longer endorsed by developmental psychologists and pediatricians, more than 80% of Americans continue to believe that “spanking is sometimes appropriate” (Corso, 2013). The highest rates are found among born-again Christians, African-Americans, Southerners, and Republicans, but spanking is endorsed by the majority of every major U.S. demographic category (Enten, 2014).

Moreover, even in so-called progressive and evidence-based circles that tend to reject corporal discipline, punishment itself is so widely accepted and practiced with children that parents who reject punishment (and “consequences”) altogether are often ridiculed for their "permissiveness" and "neglect" (Kohn, 2006).

Conventional School Justice Systems

With the exception of a handful of alternative schools, both public and private schools in these societies have similarly defaulted to punishment as the primary response to conflicts and rule violations, typically constructing discipline systems and policies that closely resemble those of the punitive criminal justice system.

Historically, schools relied on corporal punishment as the primary discipline strategy well into the second half of the 20th century. Its use has declined over the past 50 years (e.g., U.S. rates were 400% lower in 2014 compared to 1978, Gershoff, Purtell, & Holas, 2015), but corporal punishment continues to be practiced in 69 countries (Gershoff, 2017), including in the United States, where it remains legal in public schools in 19 states (and in private schools in every state except New Jersey and Iowa) and commonly used in many of those states, especially in the South (Farrell, 2015)[ii].

Wikipedia Commons
According to the U.S. Department of Education, nearly 167,000 students received physical punishment in the 2011-12 school year
Source: Wikipedia Commons

Schools maintain these practices in direct contradiction to empirical evidence that links school corporal punishment to a variety of negative outcomes, including increased aggression, disruptive behavior, lower academic achievement, increased drop-out rate, and a variety of internalizing symptoms such as school phobia, low self-esteem, anxiety, somatic complaints, depression, and suicide (Poole et al., 1991).

As public support for corporal punishment waned, school systems, like their criminal justice counterparts, began to turn toward exclusionary discipline. Accordingly, detentions and suspensions (and when deemed necessary, expulsions) began to replace corporal punishment, and new structural systems sprung up to implement the new policies. As part of this discipline infrastructure, certain spaces in the school became designated as in-school suspension rooms and schools worked to develop an efficient process via which teachers and other school staff could remove a student from class or other school space. Following such removal, a new full-time professional role (usually occupied by deans or vice-principals) was developed to process the discipline violation by determining responsibility for wrongdoing and meting out the appropriate punishment.

Mikhail Lyubansky
Schools maintain punitive practices in direct contradiction to empirical evidence that links such practices to negative outcomes
Source: Mikhail Lyubansky

Looked at from the perspective of control, in many ways this system worked well. Its use was so widespread that students and teachers could count on a familiar system even when they switched schools. It aligned with the logic present in many homes, and exemplified in the functioning of the criminal justice system, and was thus mutually reinforcing of consistent standards across young people’s interactions with adults and of the relationship between education and society as a whole. It swiftly (albeit temporarily) removed from class behavior deemed to be disruptive to instruction, which generally resulted in teachers depending on this methodology to feel supported by the administration.

Having discipline professionals focus on accountability and behavior also allowed teachers and discipline specialists to both do the kind of work they wanted to do and removed teacher bias from the discipline process. Over time, this system of exclusionary discipline not only became familiar to students, teachers, and parents alike but generally got endorsed by all three as the correct response.

Paralleling the increase in adult incarceration rates, school suspension rates also saw sharp increases in the mid-1990s, when “tough on crime” laws led to the Gun-Free Schools Act of 1994. This act required each state receiving federal funds to have a state law requiring students bringing a firearm to school or being in possession of a firearm in school to be suspended for at least one year (Legal Information Institute, N.D.). This and other “zero tolerance” school policies sought to increase safety and create learning environments conducive to learning. To those ends, exclusionary discipline was widely endorsed by U.S. educators as an effective and more progressive alternative to corporal punishment. It did not turn out that way.

SchoolSpeciality
Discipline referrals are the typical entry point into the school punitive system.
Source: SchoolSpeciality

Despite widespread support by experts in both criminal justice and education, exclusionary discipline did not actually produce the desired outcomes in either context. A review of the criminal justice outcomes is outside the scope of this essay, but the school data are unambiguous.

While it was posited that suspensions would increase safety and academic achievement, a major study concluded that, compared to demographically-matched low-suspending schools, “higher suspending schools reap no gains in achievement, but ... have higher dropout rates and increase the risk that ... students will become embroiled in the juvenile justice system” (Losen & Martinez, 2013, p. 20).

[This is an excerpt from Lyubansky, M., & Barter, D. (2019). Restorative Justice in Schools: Theory, Implementation, and Realistic Expectations. In The Psychology of Peace Promotion (pp. 309-328). Springer, Cham.  Read the full chapter.]

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[i] Interested readers can find a description of such punishments at https://en.wikipedia.org/wiki/List_of_methods_of_capital_punishment#Ancient_methods

[ii] According to the U.S. Department of Education, nearly 167,000 students received physical punishment in the 2011-12 school year, with Mississippi and Texas accounting for 35 percent of the reported cases. According to the report, Alabama, Arkansas, and Georgia accounted for an additional 35 percent (Anderson, 2015). Students can be physically punished from kindergarten to the end of high school, meaning that even legal adults (over age 18) are sometimes spanked or paddled by school officials (Farrell, 2015)