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Subject Area: Political Theory

Punishment and Behavior Modification - Leonard P. Liggio, Literature of Liberty, January/March 1979, vol. 2, No. 1 [1979]

Edition used:

Literature of Liberty: A Review of Contemporary Liberal Thought was published first by the Cato Institute (1978-1979) and later by the Institute for Humane Studies (1980-1982) under the editorial direction of Leonard P. Liggio.

Part of: Literature of Liberty: A Review of Contemporary Liberal Thought, 20 vols. 19781-982

About Liberty Fund:

Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.


Punishment and Behavior Modification

Robert P. Burns

  • Staff Attorney for the Legal Assistance Foundation of Chicago

“Behavior Modification as a Punishment.” American Journal of Jurisprudence 22 (1977): 19–54.

What are the consequences of using behavior modification as punishment in criminal correction programs? If coercive behavior modification programs are limited to persons who have committed crimes, we can regard such programs as punishment. An imprisoned criminal need not give consent to punishments for society to impose them. How, then, is behavior modification a punishment, and what moral limits do various theories of punishment impose on the use of compulsory behavior modification?

Behavior modification constitutes punishment because:

. . . the individual is deprived of a right to participate, on the same basis as his fellow citizens, in the criminal justice system, conceived with Hart, as a system of social control which maximizes individual freedom.

A system of criminal punishment (as opposed to a preventative system), says Hart, maximizes freedom since it defers action until a harm or a violation of the law has occurred. It functions by announcing standards of behavior, attaching penalties for deviation, and then leaving people free to choose. This can be contrasted with the “manipulative techniques of the Brave New World” which effectively deprive people of the choice to obey the law or not. In particular, this could prevent someone from expressing his moral disapproval of a law through civil disobedience. When employed as a punishment, behavior modification deprives the criminal of a portion of his “responsible self-hood.”

Next, can utility and fairness justify us in imposing behavior modification? Since a prisoner cannot freely give his “consent” to such treatment, “. . . a behavior modification program may be presented to a convicted person as an alternative only if it would be justified on utilitarian and fairness grounds if imposed without such a choice.” Imposing behavior modification would be justified on utilitarian grounds if “the aggregate suffering imposed by the punishment doesn't outweigh the suffering to society of the crime unchecked.” Fairness bids us to ask whether “the society considers the specific offense sufficiently grave as to warrant the imposition of this punishment on this person. . .”

Another argument holds that if the prison term is justified on utilitarian and distributive grounds, then “there could be no objection to allowing the criminal to choose some other punishments (such as behavior modification).” This, however, would allow someone to opt out of the criminal justice paradigm which interprets action as having a moral, responsible dimension. Action now becomes mechanically or therapeutically devoid of personal choice—a development which could augur grave consequences for our political system.