Is it ever morally okay to punish people? To punish someone is to hurt them because of a wrong they’ve already committed—whether or not any future benefit will come of that hurt. How could it be okay to deliberately hurt someone?

In his article “Two Theories of Punishment,” John Rawls offers a justification for punishment based on the claim that its overall benefits outweigh its harms. Instead of punishing the guilty, we could try to mete out whatever harms and benefits would have the best consequences. This would sometimes involve harming the innocent (maybe it’s a great deterrent to torture innocent people if they’re widely perceived to be guilty), or letting the guilty go free (since some guilty people are unlikely to reoffend, and obscure enough that punishing them would have little deterrent effect).  

But Rawls argues that we should not abandon the practice of punishing the guilty. Achieving the greatest good for the greatest number is nice in theory, but it makes for terrible social policy. Trying to gauge the effects of a punishment is complicated, and judges are liable to mess up their calculations, or press their prejudiced and self-interested thumbs down on the scales of justice. Overall, it’s better to have clear rules for establishing guilt or innocence, and to enforce those rules consistently.

There are philosophical challenges to this argument, which I won’t discuss. But assuming that the argument works, can it be used to justify the punishments we currently mete out in America? I don’t think it can.

Consider our legal punishments for drug use. Perhaps drug use is wrong. At a societal level, it has bad consequences, including overdose deaths, lost potential due to addiction, and the transmission of diseases like HIV and Hepatitis C. But even if drug use is wrong and has bad consequences, there is little evidence that punitive drug laws are effective at preventing those consequences. (In contrast, some harm reduction policies, such as methadone and needle replacement, have proven effective.) Furthermore, punishing drug users has bad consequences itself; imprisoning someone deprives them of their freedom and subjects them to physical and psychological harm, a felony conviction can destroy a person’s life prospects once they are released from prison, and the racist enforcement of drug laws makes for a less equal society.

Or consider the practice of keeping sex offender registries. Some of the behaviors that land people on these registries are deep moral wrongs, such as child molestation and rape. But we can’t use Rawls’s argument to justify these registries as punishment. The evidence suggests that registries don’t prevent re-offense, and may even encourage it. Furthermore, placing someone on a sex offender registry harms them by restricting their ability to find housing, putting them at risk of violence, and subjecting them to the pain of social ostracism.

Even if Rawls’s argument justifies some policies of punishment, it does not justify all the policies currently enshrined in American law. Some philosophers and policymakers maintain that there is good reason to hurt people even when that hurt benefits no one, but I remain skeptical.