J O U R N A L O F SOCIAI.

ISSUES
V O L U M E 33, N U M B E R I . 1977

Crime and Punishment in Sports and Society

Philip Brickman
Northwestern University

A distinction is drawn between equity-based penalties, whose primary

purpose is to restore fairness, and deterrent-based penalties, whose
primary purpose is to prevent deviance. Sports are offered as an
example in which deviance is successfully encapsulated by the use
of equity-based penalties. Current criminal law is seen as deterrent-
based rather than equity-based. Advantages of an equity-based system
of justice for criminals, for victims, and for society are outlined. An
equity-based system could reconcile the generally incompatible goals
of deterrence and rehabilitation. While it might require an imaginative
reformation of our criminal justice system, the viability of equity-based
justice has already been demonstrated through its use in familial,
primitive, and civil proceedings.

My object all sublime

1 shall achieve in time-
To let the punishment fit the crime,
T h e punishment fit the crime.
W. S. Gilbert, “The Mikado”
Should justice seek to deter, to punish, or to rehabilitate
people who commit crimes? The debate has generally been between
those who argue for punishment and deterrence as the first
principle of criminal justice and those who argue for rehabilitation,
with recent sentiment swinging back from an emphasis on rehabil-
itation to an emphasis on deterrence (Buckley, 1976; Wilson,
1975; Zochert, 1976). The debate has always been intensified
by the fact that these various principles appear to mix poorly,
ruling out possible compromises. A system that seems effective
as punishment and deterrence promises little hope for rehabili-
tation, while a system aimed at rehabilitation typically appears
ineffective as punishment or deterrence.
This paper will argue that neither deterrence nor rehabili-

Correspondence regarding this article may be addressed to P. Brickman,

Psychology Department, Northwestern University, Evanston, IL 6020 1.
,
140
 CRIME AND PUNISHMENT 141

tation can, in themselves, serve as the basis for a system of justice,

because neither of them is in the first instance concerned with
justice. If we chose our penalties solely on the basis of their
effectiveness as deterrents, we would be required to choose
penalties much too harsh to be called just, since a harsher penalty
(credibly enforced) is a stronger deterrent. If we chose our
penalties solely on the basis of their effectiveness in rehabilitating
offenders, we would again have penalties that might be charac-
terized as effective or ineffective in achieving their stated aim,
but not just or unjust. We have, however, an alternative principle
of justice available for calculating appropriate sanctions: maintain-
ing and restoring fairness. I will argue that, except perhaps in
certain extreme cases, the principle of restoring fairness should
be the first principle of judicial systems, that this principle yields
results different from either deterrence or rehabilitation but
compatible with both, and that while this principle might be
difficult to apply to our system of criminal justice, it is by no
means impossible, for it has already proven its practical utility
as the basis of justice in familial, primitive, and civil proceedings.
Ordinarily we think of rules and laws as ways of governing
social conflict, but rules and laws can also be the source of conflict.
Among other things, they inevitably introduce conflict over how
they are to be interpreted and what penalties are to be applied
to people who break them. We cannot hope to use rules as the
basis for solving or managing social conflicts in the general case
until we have developed a thorough understanding of how to
manage the special forms of social conflict-deviance and its
control-produced by rules themselves. This is the focus of the
present paper.
The starting point for my analysis is a distinction between
partially structured relationships and fully structured relation-
ships. Partially structured relationships are essentially established
conflict relationships, or relationships in which conflict is recog-
nized as a central element, although tempered and regulated
by rules and common interests. The relationship between a
salesman and a client or between two tennis players are examples
of partially structured relationships. Fully structured relationships
are relationships in which behavior is supposed to be governed
entirely by conceptions of what is right and wrong, normative
or deviant. Conflict may exist but is not acknowledged in the
ordinary rules of the relationship. The relationship between a
private and a sergeant or between a husband and wife are examples
of fully structured relationships. (For a fuller discussion of various
142 PHILIP BRICKMAN

types of rules structures and conflict relationships, see Brickman,

1974.) Conflict in partially structured relationships is typically
regulated by equity-based penalties, whose aim is restoring fairness,
while conflict in fully structured relationships is typically regulated
by deterrent-based penalties, whose aim is preventing deviance.
This paper explores the rethinking that might be required to
apply equity-based penalties to fully structured relationships, and
suggests that there is much to be gained by this rethinking. First,
however, we must fix and develop our pivotal distinction between
deterrence and equity, or between rules that deter crime and
rules that restore fairness. To illuminate the difference, we turn
to a realm in which the distinction between equity-based and
deterrent-based penalties is highly developed: sports.

DETERRENCE
A N D EQUITYI N SPORTS
If fouls occurred in everyday life as often as fouls are detected
in basketball or pass undetected in football, it would be hard
to believe that everyday life would not break down. Yet in spite
of the fact that in sports participants are explicitly in conflict
and interfere continually with one another in both legal and illegal
ways as they each pursue their goals, sports do not break down.
The worst violations generally cause only a temporary interruption
in the flow of activity in a game. I suggest that this is so because
deviance in sports is encapsulated by the use of equity-based
rather than deterrent-based penalties. The next paragraphs will
outline the ways in which equity-based penalties differ from
deterrent-based penalties. At the start, however, it may be useful
to give examples from sports of each (though used more rarely,
sports do have deterrent-based as well as equity-based penalties).
Examples of equity-based penalties are the loss of a stroke in
golf, the loss of yardage in football, and the free shot opportunity
in basketball. Examples of deterrent-based penalties are disquali-
fication or forfeit for moving one’s ball or signing an incorrect
scorecard in golf, for hitting below the belt in boxing, or for
playing an ineligible player in football. These two kinds of penalties
differ in a number of ways, summarized in Table 1.
Purpose
Equity-based penalties are aimed at restoring fairness after
infractions occur. Deterrent-based penalties are aimed at prevent-
ing the occurrence of infractions in the first place.
Equity-based penalties are generally attached to inappropriate
 CRIME AND PUNISHMENT 143

TABLE 1
DISTINCTIONS
BETWEEN EQLITY-
AND DETERRENT-BASED
PENALTIES
Equity-Based Deterrent-Based
Purpose Restoring fairness Preventing deviance
Regulating behavior Maintaining assumptions
Determination Based on consequences Based on intentions
Proportionate to gain of Disproportionate to gain of
offense offense
Administration Immediate Delayed
Sometimes at discretion of Enforcement rests on authority
victim
Consequences Preservation of interaction Disruption of interaction
N o labeling of offenders Labeling of offenders

strategies or tactics. T h e behavior may be inappropriate because

it is too vigorous, ill timed, or incompetently executed, but it
can generally be recognized as a variant of a behavior that would
under other circumstances be appropriate in the game. Deterrent-
based penalties are generally attached to violations of the assump-
tions of the game, or to behavior that would never be appropriate
under any circumstances if the game in its present form were
to continue. Being unable to find one’s ball in golf (either because
of incompetent observation or as an inappropriate tactic) is
penalized by a stroke penalty. Surreptitiously moving one’s ball
in golf violates a fundamental assumption of the game and is
penalized by temporary or even permanent disqualification.
Determination
Equity-based penalties provide an example of a mature form
of moral judgment, endorsed by adults, that is assessed on the
basis of the consequences of the act, not the intentions of the
actor (Piaget, 1932/1948). If a player bumps into someone
shooting the ball in basketball and interferes with the shot, it
is no defense to claim that it was an accident. Since the result,
interference, is the same regardless of whether or not the act
was intentional, the penalty, a free shot, is also the same. Basketball
referees may award an extra penalty if they feel the interference
has been especially blatant, but in general intention is irrelevant
to equity-based penalties. If a player uses his feet on the ball
in basketball or his hands in soccer or jumps offside or runs
into the kicker in football, the difference between “by mistake”
and “on purpose” is academic. For deterrent-based penalties, on
the other hand, the question of intention is crucial. Playing an
ineligible player by mistake in college football or replacing one’s
144 PHILIP BRICKMAN

ball incorrectly by mistake in golf are treated quite differently

than either of these acts done knowingly. In the first case, the
penalty though severe will be limited to the particular game or
match. In the second case, the team or the player may be suspended
from further competition for an indefinite period.
Consonant with their purpose, equity-based penalties are
approximately proportionate to the gain yielded by the infraction
(Berscheid & Walster, 1967). Deterrent-based penalties are as
extreme as possible, disproportionate to the gain yielded by the
specific infraction (Schelling, 1960; Tittle, 1975). In basketball,
for example, if a violation deprives a player of a chance to score,
the penalty gives him an alternative opportunity to score as well
as registering a foul against the offender. It is not necessary
and not possible that an equity-based penalty cancel out precisely
the advantage gained by the foul each time, only that players
feel that on the average it cancels them out. In golf, a single
act of moving one’s ball illegally will almost certainly not be decisive
in determining who wins or loses the contest. Yet the penalty
for being caught in such an act is completely decisive and settles
the players’s fate: He loses by forfeit.
Administration
Equity-based penalties are immediate. They are decided
immediately and implemented immediately. T h e necessity for this
follows from the fact that there is a desire not to disrupt the
game any more than is necessary. A delay for a judicial hearing
to decide whether or not a foul had been committed would
obviously disrupt the game. A delay in implementing the penalty
would make it impossible to know what its exact effect would
ultimately be and would disrupt the game in a different way.
Deterrent-based penalties often call for judicial hearings. Since
they will disrupt the interaction anyhow if they are invoked, it
makes less difference that they may disrupt interaction while they
are being deliberated. Furthermore, they are so severe that there
is real fear of error and a reluctance to invoke them without
giving the accused at least a version of due process. Thus a golfer
accused of cheating or a university accused of recruiting violations
will usually not be penalized until an investigation and a hearing
are carried out.
Equity-based penalties may involve the discretion of the victim.
This is most clearly illustrated in football. If the injured team
does not feel the penalty would advance their cause, they may
decline it. They may choose whether or not to count a previous
 CRIME AND PUNISHMENT 145

play on which the infraction occurred depending on whether

or not they liked the outcome of that play. A similar rule might
be interesting to see in basketball. In this case play would not
be stopped by a defensive foul unless the offensive team chose
to do so within some fixed time period after the foul was whistled.
Deterrent-based penalties are generally automatic. The victim’s
opinion as to whether or not they should be invoked is irrelevant.
Equity-based penalties can be self-administered. If the stakes
are not too high, basketball players can call fouls on themselves
and each other and tennis players can call in or out on shots.
Deterrent-based penalties, which involve forfeit, disqualification,
and stigma, are too serious to be self-policing. If players are
policing themselves, the effort to invoke or to protest a deterrent-
based penalty is likely to escalate into violence, the classic outcome
of an accusation of cheating at cards in the Old West, and perhaps
the New.
Consequences
Equity-based penalties are designed not to disrupt the balance
of the contest. This is another reason why their level must be
carefully gauged. If they are too mild, the balance of the cantest
may be tipped in favor of the offender; if they are too severe,
the balance may be tipped in favor of the victim. Either result
is unsatisfactory. Sports fans are invariably unhappy if a game
is decided by penalties (or their lack) rather than by the competitive
merits of the contestants. Umpires and referees know that they
have done a good job if they and the penalties they call are
unobtrusive and uncommented upon by players and fans; even
praise for making good calls is less desirable than the lack of
comment that follows unobtrusive calls. Basketball is unsatisfactory
to some observers because too much of the game depends upon
free throws and the inhibition or exclusion of star players as
they accumulate fouls. Deterrent-based penalties, on the other
hand, settle the issue on the spot by deciding a winner and loser
through forfeit or at least risk tipping the balance of play by
permanently excluding a player and all his contributions from
further interaction.
Finally, equity-based penalties do not label offenders, while
deterrent-based penalties do. A player who commits a foul in
basketball or even fouls out of the game is not singled out from
other players, stigmatized, and treated differently in his future
interactions. His play is most likely to be characterized as overzeal-
ous, perhaps foolish. At worst he may acquire a reputation as
146 PHILIP BRICKMAN

a dirty player, but this still falls far short of what it means to
have a criminal record in civilian life. T h e whole structure of
sports accommodates this form of deviance so thoroughly, it does
not even seem right to use the word “crime” in connection with
it, though the events penalized are violations just like any other
violations. Thus where equity-based penalties are applied, sports
avoid perhaps the greatest problem with efforts to control deviance
in society, namely, that offenders, once caught, are labeled,
stigmatized, and socialized in a way that may make it impossible
for them to return to a straight life even if they so desire. The
fact that our criminal penalties lock offenders into a life of crime
is the great cost that must be pitted against the fact that the
penalties also deter people from committing crimes in the first
place (Tittle, 1975). With deterrent-based penalties, being accused
may be just about as bad as being convicted. A golfer accused
of intentionally moving his or her ball may never live down the
accusation, even if subsequent hearings are inconclusive.
Underlying Principles
Our analysis of equity-based penalties in sports derives from
and extends into a new domain a decade of research in social
psychology on the problem of equity in social exchange (Adams,
1965; Adams & Freedman, 1976; Leventhal, 1976; Walster,
Berscheid, & Walster, 1973; Macauley & Walster, 1971). In the
main this body of research has established the principle that people
will prefer to see others rewarded in proportion to their relative
merits, with those who have worked harder and accomplished
more receiving proportionately greater rewards than those who
have worked less and accomplished less. There are mathematical
difficulties in attempting to apply the same equation of deser-
vingness simultaneously to people who have made positive con-
tributions and people who have made negative contributions, i.e.,
done damage or committed crimes (Harris, 1976; Samuel, 1976;
Walster et al., 1973), but it seems clear that people wish penalties
to be proportionate to offenses in the same manner that they
want rewards to be proportionate to contributions, and that the
algebraic difficulties can be circumvented by performing the
calculations separately for people making positive contributions
and those making negative contributions. On the other hand,
the further question can be raised (Anderson, 1976) as to whether
the equity we desire for retributive justice has the same psycho-
logical meaning as the equity we desire for distributive justice,
even if the formulas are the same. If we limit ourselves to the
case in which crimes are followed by actions that punish the
 CRIME AND PUNISHMENT 147

perpetrator without helping the victim, then it seems clear that

we are not creating equity or fairness in the same way that we
are, psychologically, when we distribute rewards proportionately
among contributors. If we insist, however, that penalties to the
perpetrator be tied to restitution for the victim, then I believe
we are dealing with creating equity or fairness in the same sense
in the negative case as we are in the positive case (Brickman
& Bryan, 1975; Walster & Walster, 1975). We need research
focused on exploring the precise psychological differences between
punishment with and without restitution.
If I have succeeded in establishing that penalties designed
to deter and penalties designed to restore equity follow different
principles, I will note as a passing footnote (and a problem for
another paper) that penalties designed to rehabilitate or socialize
their subjects follow still a different principle. We may call this
third type of penalty a socialization-based penalty. Like deterrent-
based penalties, socialization-based penalties are concerned with
preventing the occurrence of misdeeds and are unconcerned that
the magnitude of the punishment match the magnitude of the
particular misdeed. However, while deterrent-based penalties rely
upon strong external pressure and the general possibility of
surveillance, socialization-based penalties aim at producing inter-
nal inhibitions against deviance that will work to keep people
in line over a long period of time, when their behavior cannot
be monitored. Socialization is in the end designed to get people
to follow rules because they feel the rules are right and they
want to do what is right. This is best done by convincing them
that they are following the rules for their own sake and not
for the sake of receiving reward or avoiding punishment (Aronson
& Carlsmith, 1963; Deci, 1974; Freedman, 1965; Kruglanski, 1975;
Lepper & Green, 1975; Underwood, 1975). This requires keeping
the penalty for deviance at the smallest possible level that will
work, precisely the opposite of the principle for selecting a
deterrent-based penalty (the larger, the better). It is suggested
that socialization is enhanced by a penalty less than the offense
might justify, deterrence is enhanced by a penalty greater than
the offense might justify, and equity or fairness by a penalty
exactly proportionate to the offense. Thus penalties of each type
might be appropriate at different times, and our understanding
of their different effects may aid in our applying them correctly.
ARESPORTSSPECIAL?
Would it be profitable to apply the distinction between
equity-based and deterrent-based penalties to our legal system
148 PHILIP BRICKMAN

and society as a whole? Certainly we have different attitudes

towards violations in sports and crimes in society. Yet I will argue
that the distinction can be profitably extended to wider areas
of application, that sports are not as different or as much of
a special case as might be thought, that there have existed and
exist now legal systems with equity-based penalties, and that in
areas of law where there are few precedents or guidelines these
would quickly emerge from the application of the new penalties.
Four related arguments may be made for distinguishing sports
from the rest of society in a way that might make equity-based
penalties appropriate in sports but not elsewhere. The first is
that the stakes are lower in sports than elsewhere and that the
consequences of violations for victims are less serious. However,
the stakes are clearly not lower in professional sports than in
other areas of life, since livelihoods are at stake in sports and
fortunes are made and lost in them in the same way as they
are in other businesses. This does not even take into account
the additional financial stakes that are involved in gambling on
sports, nor the additional symbolic stakes that are involved in
the making and breaking of heroes for millions of young people.
Moreover, the stakes are not necessarily low even in amateur
sports played by children. In some ways, the children have more
at stake than the professionals, who are after all trained to be
cool, to see their sport as just another job, to remember that
tomorrow is another day. None of these consolations are likely
to be available to a youngster who has just lost the big game,
with all those elements of identity and esteem riding on it.
While it is true that violations in sports rarely lead to death
or dismemberment, they do sometimes-in football, hockey,
boxing, horse or automobile racing-and it is also true that the
majority of crimes do not lead to death or dismemberment either.
Even if equity-based penalties were applied only to less serious
crimes, this would still represent a considerable change from
current practice.
Secondly, it may be argued that sports involve different values
than the rest of society, sporting values that emphasize fairness
and the simple virtues of honor and effort, and that it is these
values that make possible the application of equity-based penalties.
Yet it is from sports that we get the credo, “Winning isn’t
everything; it’s the only thing.” Even if the man who first spoke
these words, football coach Vince Lombardi, did not in fact
condone all means to victory, it is clear that many of those who
admired him have been less discriminating-including, perhaps,
 CRIME AND PUNISHMENT 149

Richard Nixon. If a college athlete observes his coaches cheating

in recruiting and keeping people eligible, and corrupting doctors
to ignore injuries and provide illegal stimulants, it is hard to
expect that the player will not draw the appropriate conclusions
from his observations (Bell, 1975; Meggyesy, 197 1; Shaw, 1973).
The original Greek Olympics disappeared because of corruption
and exploitation, and it is possible that ours will too. Moreover,
there are even areas in sports where it is generally understood
that the winners and the most effective players are those who
are the most skillful at illegal activities-“holding” in football
(“Hang on Sloopy,” 1975; Axthelm, 1975) or fighting in hockey
(Kennedy, 1975; Cullen & Cullen, Note 1). The soap box derby
was fixed by the winner’s parents in 1973 (“Ninety-nine and
441 100% pure,” 1973), while adult auto racing often depends
on squeezing extra power or mileage out of the car by mechanical
tricks either inside or outside the rules (Moses, 1976).
W. C. Fields’s line, “Anything worth having is worth cheating
for,” would seem to hold as well for sports as for other realms.
A recent hit play, That Championship Season, documents that the
only thing special about a high school championship won by a
group of men whose lives since then have been disillusioning
was the illusion they held that the championship had been obtained
with greater purity than their other victories. If participation
in sports is indeed a good preparation for later life, as its spokesmen
tell us, it may be not because sports embody character virtues
but because they capture so vividly the conflict between professed
values of character and relentless pursuit of the bottom line,
victory. (Similarly, student government may also be a better
preparation for later political life than its proponents realize-not
because it teaches the rhetoric of democracy, but because it captures
the conflict between professed values of democracy and the hard
facts of power that are held by teachers, administrators, and
parents-everywhere but in the hands of the electorate allegedly
choosing their leaders.)
An opposite reason for sports to be thought special is not
that they embody our concern for fairness, but that in sports
we relax our ordinary standards and are unconcerned with
violations and behavior that would ordinarily be judged harshly.
In sports, participants are allowed to be violent and spectators
to admire violence, and it is this in turn that leads to less drive
to control deviance and thus to equity-based penalties. However,
it is not true to say that sports are unconcerned with fairness.
In fact, sports is one of the few areas in which we may prefer
150 PHILIP BRICKMAN

an equal contest between ourselves and our adversaries to the

one-sided odds in our favor that we typically seek in other areas
of life (i.e., as the first principle of military strategy). If we admire
violence in sports, we nonetheless still wish to see it punished
when it is done unfairly, and the “sports” that most strongly
feature a display of violence-the Roller Derby and professional
wrestling-are also the strongest morality plays, with audiences
deeply concerned to have the good guys triumph over the unfair
tactics of the bad guys. Even the fact that sports are settings
in which people can engage in violent or impulsive behavior that
is forbidden in other settings does not distinguish sports from
other important parts of life. For example, people are allowed
a similarly greater freedom of impulse expression in marriage
(includingviolence; see Barden, 1974) than in many other settings.
Yet we would not use this to discount the importance of marriage
behavior or the value of studying the rules that control and
manage conflicts in marriage.
Finally,it may be argued that sports are special simply because
we think of them as “sports,” a peculiar form of interaction
deliberately marked off from the rest of life, with its own special
rules and indeed its own special reality. Yet our activities in other
spheres, on the job or at home, are also special worlds marked
off by private understandings, bits of make-believe, and special
roles for participants. The entire thrust of Goffman’s (1961)
sociology of everyday life is that our involvement in these other
spheres depends on the same things that involvement in sport
does: an ability to accept a particular set of assumptions as “real”
or representing reality, to act as if we took it seriously, and to
find emotional satisfaction in the opportunity which that reality
gives us to express our needs and character.
We see sports not as separate from the rest of life, nor even
simply as socialization for other things in life, but as miniature
social systems in themselves, systems that must solve all the
problems that any social system must solve-in particular, how
to recognize conflict as a central and inevitable element of the
system while still keeping competitive pressures and deviance from
tearing the system apart (Brickman, 1974). If the solution in
sports is different from the solution in society, it may be due
in part simply to the fact that only in sports have we faced up
to conflict as a central and inevitable element of the social system,
and accepted deviance in the pursuit of selfish aims as likewise
inevitable. Given that the aim of justice is, as Plato defines it,
to maintain the health of the social order, justice can be served
 CRIME AND PUNISHMENT 151

in the case of most violations by equity-based penalties directly

designed to restore the order as it existed before the infraction.
Only in those cases where restoration is deemed impossible are
deterrent-based penalties invoked. It is at least conceivable that
a comparable distinction would be worth making in the law. It
should be noted, incidentally, that the argument for the distinction
between equity-based and deterrent-based penalties rests in part
on a conservative assumption: that people are not perfectible,
that certain forms of deviance in the human situation are inevitable,
and that therefore we must build a system of justice whose
operating ideal is a case in which deviance occurs rather than
a case in which all deviance has been deterred. Yet these conserva-
tive assumptions are most often linked with a demand for stronger
deterrent penalties (Buckley, 1976).
Sports do have one advantage over society as a whole in
dealing with deviance. This advantage is not due to the special
character of sports but adheres to any subsystem of society (schools,
corporations, or whatever). Participation is not required of every
member, and an especially recalcitrant party can be dealt with
by banishment from further participation. A person can be banned
from participation in society as a whole only by imprisonment,
execution, or exile. One or another of these penalties, or some
variation of them, will remain a part of the social system as a
way of dealing with certain forms of deviance. T h e question is,
what forms of deviance can be dealt with without recourse to
these costly and often unsatisfactory measures?

OF A N EQUITY-BASED
ADVANTAGES SYSTEMOF JUSTICE
Can this analysis be usefully applied to our system of criminal
justice? It is clear that our criminal sanctions almost uniformly
correspond to deterrent-based penalties. Considerations of equity
enter into the law in that penalties are designed to be in some
sense proportionate in severity to their crimes. Nonetheless, the
law is designed to deter and punish criminals, not to restore
equity to victims. T h e point is simple but important, and to the
extent that making explicit the difference between equity-based
and deterrent-based penalties enhances our understanding of the
law, our analysis has already found a useful application. Beyond
this, the more demanding question is whether our understanding
of equity-based penalties may be usefully applied to differentiating
and improving our laws and our criminal procedures.
In an equity-based system of justice, criminals would be given
152 PHILIP BRICKMAN

sentences whose purpose, in the end, would be to restore both

the loss that the victims had suffered and the loss that society
suffered through its investment in preventing, detecting, and
punishing such crimes. Where possible this might involve labor
directly concerned to recover property, repair damage, or make
streets safer. More generally, it might involve contributing earnings
from specified tasks to a general fund whose purpose was to
compensate victims. Proposals for such systems have been elab-
orated in some detail by a variety of philosophers, legal scholars,
and sociologists, including Jeremy Bentham and Herbert Spencer,
and, more recently, Fry (1959), Schafer (1970), and Smith (1965).
Many of these papers are reprinted in a fascinating book by
Hudson and Galaway (1975).
At the outset let us distinguish between a moderate and an
extreme application of equity-based sentences, and consider a
system in which equity-based penalties are applied even to the
most extreme crimes, like rape and murder. However, it would
certainly be appropriate to see equity-based penalties as reasonable
for lesser crimes or first offenders but not for extreme crimes
or repeat offenders. Those who find the idea unpalatable or
impractical for major crimes will perhaps see its virtues at least
for certain categories of offenses. An equity-based system would
have advantages for criminals, for victims, and for society.
What do criminals want, once they have been caught? A
reading of the Fortune Society newsletter (run by ex-convicts
largely for the benefit of those still behind bars) indicates that
at least a great many of them want something very simple. They
want the chance to serve their time, pay their debt to society,
get square, and start fresh, preferably with somewhat more
favorable odds than those they had going for them before. What
they resent most of all is that while society says they have to
serve their time (usually pretty harsh time) to pay their debt,
society never gives them credit for having paid. Equity is not
restored. T h e slate is not wiped clean. T h e status of ex-offender
is permanent. Punishment of this sort is likely to make the offender
feel finally that society owes him a debt, rather than that he
owes a debt to society.
What do victims of crime want? Well, of course they want
justice, one part of which is catching the criminal and making
him pay. But they also want their property back, their medical
expenses paid, their inconvenience compensated, their trauma
attended to, their streets made safer, and their lives restored
if not improved. What they resent most of all about their encoun-
 CRIME AND PUNISHMENT 153

ters with the criminal justice system is that, despite recent publicity
on this point, it pays little or no attention to these things. In
a recent Chicago case, a man had his motorcycle stolen and knew
the identity of the thief. T h e victim was never interested in whether
or not the thief was convicted, only in getting his motorcycle
back. Eventually the thief was convicted, although given a sus-
pended sentence. By this time, however, he had sold the motorcy-
cle. T h e victim was told he would have to file a civil suit if he
wanted to collect for the theft (Royko, 1975). Suing someone
is of course costly and of no value if the person has no property
that can be attached. It is also impossible if the person doing
the damage is unknown. T h e general uselessness of civil suits
in securing redress for victims of crime has helped stimulate
the movement in recent years for victim compensation from public
funds (Childres, 1964). T h e most powerful argument for these
plans is that since the state discourages people both from arming
themselves for self protection and from using force to secure
redress if they are victimized, the state is obligated to compensate
those who have not received the protection they were promised
(Wolfgang, 1965). A weaker argument is simply that people should
share the risks of criminal loss just as they share (via insurance)
the risks of other forms of unpredictable loss (Schultz, 1965).
Finally, what does society want? This last of course is critical,
since crime by definition is an offense against society and not
just an offense against a victim. Indeed, there are important
traditional categories of crime, such as prostitution or gambling,
in which a victim cannot easily be specified, at least not an unwilling
victim. If society wishes to discount the concerns of victims and
offenders in deciding what is a crime or what is an appropriate
penalty, it can and will do so. In fact society has discounted
the concerns of both victims and offenders in our current criminal
justice system, and this is the major source of the dehumanization
of the system. Society’s two major concerns are deterrence and
rehabilitation-preventing crime from happening in the first
place, and preventing it from happening again. In this sense,
as follows from the analyses of both Freud (1930/1958) and
Durkheim (1893 / 1964), crime and punishment are to a great
extent symbolic dramas whose major purpose is to support and
justify law-abiding behavior. Deterrence and rehabilitation are
not the immediate concerns of either the already criminal or
the already victimized, and not the major concerns of equity-based
penalties. Yet it may be argued that equity-based penalties can
serve the purposes of both deterrence and rehabilitation.
154 PHILIP BRICKMAN

T o be a deterrent, a penalty must cost the perpetrator more

than the perpetrator can expect to gain from criminal activity,
preferably much more. Obviously, we cannot recommend the
most extreme and effective deterrents without violating the princi-
ple of equity-based justice. Nonetheless, there is no reason that
equity-based penalties cannot cost more than the expected value
of the crime, and indeed I believe research could show that they
would have to cost more in order to be seen as fair. For one
thing, it might be specified that the penalties offset not only
the suffering of the immediate victim but also a proportional
share of the suffering of victims of related crimes by perpetrators
who have not been discovered, and also a share of society’s costs
for preventing, detecting, and correcting such crimes. This is
analogous to what behavior therapist Azrin and his coworkers
have called “overcorrection” and successfully employed as a
procedure for eliminating a variety of disruptive behaviors by
retarded persons (Azrin & Wesolowski, 1974; Foxx 8c Azrin, 1972).
Overcorrection differs from simple restitution in that the
perpetrator not only repairs the damage done to the victim, but
goes beyond that in giving the victim something extra and thus
leaving victims not merely as well off as they were before the
crime but better off than they were before. Overcorrection could
be justified as a feature of equity-based penalties in that victims
must be compensated not only for their material loss in the crime,
but for the indirect costs inflicted upon them by their pain and
suffering and the diversion of their energy from their normal
pursuits into coping with and recovering from the experience
of being victimized. T h e important point is that equity-based
penalties differ from simple punishment in that there is always
a meaning to the penalty, with the offenders (and all other parties)
knowing precisely why certain things are being required of them
and when they will have done enough.
To have value in rehabilitation, a penalty must restore not
only the offender’s sense of himself as a worthwhile member
of society but society’s sense of the offender as well. T h e key
is that the penalty be seen as having meaning with regard to
restoring fairness; the idea of meaningfulness cannot be overem-
phasized. Punishment may satisfy society’s desire to be “even”
with the offender, but it will not in general restore society’s sense
of the offender as a worthwhile person nor the offender’s sense
of himself. (This can, of course, be empirically tested, but there
is both common knowledge of our feelings about ex-convicts and
research in social psychology on reactions to suffering-Lerner,
 CRIME AND PUNISHMENT 155

Miller, & Holmes, 1976-to suggest that punishment will not

restore our valuing of the person who suffers.) Rehabilitation
may restore the offender’s sense of his own value, for example
as a person with worthwhile job skills, but it will not in general
restore society’s sense of the person’s value-because, I would
argue, the rehabilitation is seen primarily as benefiting the person
rehabilitated and not restoring fairness to the victim or to society.
Only if the penalty for the offender is directly and simply linked
to restitution to the victim and society will society be able to
see the offender as re-establishing his own worth in serving the
penalty. In turn, only if society is able to see this as possible
will penalties have any chance at all of truly rehabilitating those
upon whom they are imposed.
It should be noted in addition that equity-based penalties
will also prevent the worst abuses of rehabilitation as a judicial
principle, many of which abuses are connected to mental institu-
tions and the role of psychologists, psychiatrists, and social workers
as the people responsible for judging when a person is sufficiently
“well” to be released or sufficiently “sick” to need extreme
treatment (see One Flew O v e r the Cuckoo’s Nest or A Clockwork
Orange). T h e idea of rehabilitation has often led simply to longer
sentences for offenders, greater uncertainty about ultimate time
of release, and less regard for offenders’ rights. As Opton (Note
2) puts it, “Punishment, plainly so named, is a dangerous but
necessary evil, one which our society metes out with some care.
Punishment disguised as psychiatric treatment has no clear limits.
We should see through that disguise and reject it.” In the worst
instances, perpetrators of minor crimes have been subject to drastic
treatments “for their own good.” In a recent Chicago case, a
man arrested for panhandling was found to have $21,000 in
the briefcase he was- carrying and was sent to a mental institution
as a paranoid-schizophrenic (Washington, 1976). In the end he
consumed both his health and a good portion of his money in
fighting this confinement, which was clearly far out of proportion
to any damage he had caused. Penalties of this sort would be
impossible under an equity-based system.

FOR EQUITY-BASED
PROBLEMS JUSTICE
As a means of elaborating on the idea of an equity-based
system of justice, I will consider six major objections and problems
that may be raised to such a notion.
156 PHILIP BRICKMAN

1 . Equity-based penalties are immoral; they encourage or at least

tolerate deviance.
Equity-based penalties do presume that crimes will occur and
that it is the business of justice to redress their impact. Deterrence-
based penalties only aim to prevent crimes from occurring in
the first place. T h e total elimination of crime is an impossible
goal, reflecting an unrealistic view both of human nature and
of the lengths to which people will go in pursuit of goals society
has proclaimed are desirable. Once a particular crime has occurred,
a deterrence-based penalty has no further value for the victim,
the perpetrator, or‘society, while an equity-based penalty does.
However, like deterrence-based penalties, equity-based penal-
ties should discourage crime, not encourage it. Their cost to the
perpetrator could and should outweigh the expected gain from
criminal activity, though not always by as much as a pure principle
of deterrence would warrant. T h e key to an equity-based system
is not the harshness or the leniency of the penalties, but the
idea that the penalties are meaningfully connected to the act
of restitution in a way that punishment per se or current prison
practices are not.
True, if our entire orientation to illegitimate acts is one of
moral and emotional repugnance, revenge and deterrence are
the only appropriate principles. I believe, with Lerner (1975),
that people have an emotional need to see justice done, and
that our criminal sanctions must first and foremost satisfy this
need. T h e reason rehabilitation itself will not serve as a primary
basis for treatment of criminals is that it does not satisfy this
emotional need for justice. This is why we are seeing movement
toward the idea that rehabilitation opportunities are something
that should be earned by offenders, not given to them. But I
think an equity-based system would also satisfy our need for justice,
at least in those instances where the crime is not regarded as
so horrible as to make almost anything “too good” for the criminal.
Furthermore, let us not forget that “dehorrifying” rape, by making
it something that is at least possible to speak about and not a
dishonor worse than death, has worked to make the act less
unbearable for victims (who can now find support for their
suffering) and more dangerous for perpetrators (who are now
more likely to be reported and perhaps even apprehended). In
general, our ability to focus police and judicial energies on the
prevention, detection, and punishment of serious crimes would
greatly profit from our taking a less emotional look at many
current crimes that do not in fact cause serious damage (Morris
& Hawkins, 1970).
 CRIME AND PUNISHMENT 157

2. We cannot calculate the exact costs of a crime or the dollar

value needed to make precise compensation.
True, but because we cannot perform a calculation exactly,
does this mean that we should ignore it entirely? Such calculations
are routinely performed in civil cases and are now also performed,
in a limited manner, in determining compensation from state
funds for victims of crime in England, New Zealand, Canada,
New York, California, and Massachusetts, among other places
(Wright, 1972). T h e calculations are at best approximations, but
they are believed to serve the interests of justice. Similarly, penalties
in sports are only approximations to the damage caused by the
offenses, but again sufficient to satisfy us that justice is being
served. Research by economists would be required to establish
the average costs to society of particular offenses, while research
by the equivalent of insurance investigators might be required
to establish the costs to particular persons in individual cases.
In principle, however, there is no reason this could not be done,
and no reason to believe that we would not get better and more
efficient at doing it as we had more practice.
For some crimes, and in particular murder, it may appear
that there is no one to be compensated. Now it is certainly true
that a dead person cannot receive compensation and that no
compensation to survivors is adequate to the loss of a loved one,
and we might decide that in such cases revenge rather than
restoring equity should be the aim of our penalties. But it is
incorrect to argue that there are no needs created by a murder,
among the family of the victim and others in the victim’s life,
for whom rather substantial compensation in one form or another
might be quite appropriate. In primitive societies a person’s
primary importance is as a member of a family unit and thus
it is of primary importance that this unit be compensated for
his or her loss. It may seem strange to us to read that a man’s
life is calculated as worth so many head of cattle or so many
bushels of wheat in one or another society, but in having lost
the willingness to make this calculation we may have lost the
ability to ease in a significant manner the burdens left by a murder.
We may want the murderer to pay additional penalties, but we
should not thereby ignore those that might help redress even
slightly the suffering caused by the act. Sweden enacted a law
in 1929 requiring a murderer to pay reparations to his victim’s
dependents (Eglash, 1958).
In still other instances we might have a hard time finding
a victim to be compensated because the crimes in question involve
only willing parties, the so-called victimless crimes, such as pros-
158 PHILIP BRICKMAN

titution or gambling. This would be prima facie evidence that

we should reconsider whether the act in question should be called
a crime. Reclassification of such acts could vastly improve our
ability to deal with crimes that do have victims (Morris 8c Hawkins,
1970).
3. R i c h people would be able to buy their way out of sentences
that poor people would have to serve.
Not at all. Sentences would require offenders to make re,stitu-
tion by performing specified tasks at specified rates of pay, and
only the pay or credit earned on these tasks would apply to
the sentence. Rich and poor would work exactly the same for
similar sentences. Any bias favoring the rich would occur at the
same points such bias affects our present system, in the initial
likelihood of being convicted and sentenced. For crimes which
caused a great deal of suffering, some limitation or scaling down
of payback provisions (analogous to what is done in cases of
financial bankruptcy) would be necessary if offenders were to
have any chance of eventually recovering their freedom. On the
other hand, some account would need to be taken of the simple
fact that most offenders are poor while many victims are rich,
which could itself make restitution a program that served existing
class interests. One possibility is to exclude corporations as victims,
and to find appropriate substitutes instead. It will also be necessary
to devise a way to allow prisoners to work without threatening
jobs for anyone outside prison.
4 . Some people would have no useful skills that could be p u t i n
the service of compensation.
Perhaps so, and a sad commentary it is on both the person
and the society in question. In such cases, it would first be necessary
to bring the person to the point where he could begin to make
at least a minimal contribution in some area of human endeavor.
This initial training time would presumably not be counted toward
the compensation eventually required. Beyond this minimum and
subject to certain limits, a person could be allowed to repay the
victim and society at higher rates as he acquired more skill at
his assigned tasks. This would serve as an additional incentive
for the acquisition of useful skills by prisoners. In unlikely cases,
we should remember the lesson of Skinner’s research, that what
appear to be limits on an individual’s capacities to learn are often
later discovered to be limits on other individuals’ capacities to
teach. In the event that a person was judged as having no potential
for making a useful contribution to anyone either now or ever-
 CRIME AND PUNISHMENT 159

what a final verdict!-there would seem to be no alternative to

permanent incarceration.
5. Sentencing would be a lot more complicated than it is now,
since people would have to be assigned not only an appropriate amount
of time to be served but also appropriate tasks to be completed.
There is no way of making the punishment fit the crime
(let alone the criminal) without varying the quality as well as
the quantity of punishment, and it is hard to believe we could
ever have thought otherwise. This is the heart of an equity-based
system, and there is no point in pretending that we know now
all that we would need to know to do it correctly. Even such
a basic question as the extent to which the existing needs and
skills of offenders should be taken into account in determining
what shall be required of them to fulfill the demands of equity
remains to be decided. Such questions should be decided in part
by empirical research on what people think is fair (Brickman,
1975) and on what procedures are effective, as well as by philo-
sophical debate among philosophers or lawyers. For starters, the
decision as to the guilt of a defendant may need to be.separated
from the question of appropriate sentencing of a defendant once
found guilty. T h e question of guilt or innocence should probably
be determined as it is now, by juries or judges who do not know
the defendant and are therefore presumably more likely to be
unbiased in their verdict. T h e question of sentencing, on the
other hand, should probably be handled by a panel of persons
including some who know the defendant well, along with legal
experts and behavioral science consultants. T h e combined knowl-
edge of such a panel should make it much more likely that the
penalties chosen will have their intended effects, and the combined
involvement of such a panel should make it much more likely
that the penalties will be successfully monitored and enforced.
T h e spirit of sentencing in an equity-based system would
seem to have little in common with the spirit that lies behind
current demands (Wilson, 1975; Zochert, 1976) for standard
sentences and mandatory minimum sentences. Nonetheless, it
should be noted that there is no logical incompatibility between
these two elements of reform. A standard set of equity-based
penalties could be derived for each offense and required of each
offender. In any case, even if the equity-based penalties are set
individually according to the damages and the circumstances of
each offense, the offender would still know at the time of
sentencing precisely what was required of him and therefore under
160 PHILIP BRICKMAN

precisely what conditions and in what time he would be released.

6. Victims would typically want nothing to do with perfietrators.
Victims need have no further contact with those who have
done them injury unless they chose to d o so in a particular case.
Restitution could be made directly to the victim by the state,
while the criminal in turn would be required to make restitution
to the state and deal directly only with state agents or with people
from his or her own environment. Some separation of provisions
for victim compensation from provisions for offender restitution
is also necessary to allow help for the many victims of crimes
whose perpetrators are unknown. Indeed, even if an offender
is caught and convicted, it will at best take time to make restitution,
while the victim’s needs are often immediate.

PRECEDENTS
FOR AN EQUITY-BASED
SYSTEM
T h e most powerful evidence that something is possible is
that it already exists. Equity-based systems exist. They are charac-
teristic of most tribal systems or primitive jurisdictions (Hoebel,
1954), including modern primitive jurisdictions in high schools,
fraternities, and families, as well as the administrative settlement
of disputes prior to a formal court hearing (Laster, 1970). There
are also experimental programs for offender restitution in opera-
tion in Iowa, Georgia, Minnesota, and England, whose preliminary
results, as recently reported at the First International Symposium
on Restitution, seem encouraging. If we were to study sanctioning
in fraternities or families, I think we would discover that the
first principle of justice is restitution. T h e child who has done
damage is asked to make sacrifices in the name of repairing
the damage and remembering to d o better next time. Deterrence
and rehabilitation operate as subsidiary principles, but not as
primary ones. We may further predict that in those cases where
restoring fairness is not the primary principle of justice in a
family, that family will be experiencing more serious problems
of disorder and social control (though experimental research
would be required to establish cause and effect here).
In calling for an equity-based system of justice, I am not
calling for something new but rather for a return and revitalization
of something old, for a reuniting, at least in part, of civil and
criminal law. Ultimately the more puzzling question may not be
whether such a reunion is possible, but how it came to be that
the principle of civil compensation came to be so sharply separated
from the principle of criminal guilt. One distinctive feature of
 CRIME AND PUNISHMENT 161

equity-based jurisdictions is that they are typically small, based

on groups of people all of whom know each other. This smallness
no doubt also affects the quality of the crimes that are committed.
T h e movement away from equity-based penalties in the law may
in part have been due to the increasing number of people covered
in legal jurisdictions, with a greater demand for impersonal
decisions and uniform penalties and a lesser capacity to supervise
the subsequent community involvement of offenders. Some recent
suggestions for criminal reform call for still more impersonal
decisions and uniform penalties. In advocating an equity-based
judicial system, I am advocating a return to penalties whose
selection and enforcement will depend upon the involvement of
people who actually know, see, and perhaps even care about
the defendant.
T h e fact that many other writers, working from different
premises, have argued for a similar reformation of the judicial
system (Hudson & Galaway, 1975) is grounds for both optimism
and pessimism about the present proposal. It is grounds for
optimism in that it suggests that these ideas have some enduring
or recurrent validity. It is grounds for pessimism in that it suggests
that these ideas have been ineffective in producing their desired
effect in the past and are hence not likely to be effective in
the future. Similarly, the fact that plans to compensate victims
of violent crimes from state funds have been adopted in a number
of states and countries (Wright, 1972) is also grounds for both
optimism and pessimism. Optimistically, it suggests that awareness
of restitution for victims as a problem of criminal justice is
increasing. Pessimistically, it suggests that the net result of this
increasing awareness will be an insurance scheme that protects
citizens against loss through violent crime much as automobile
insurance protects people against loss through automobile acci-
dents-and that victim compensation plans will have no more
bearing on our understanding of justice than any other insurance
schemes. In a sense these compensation plans further obscure
the role of the victim and the offender, as the state now takes
over what should be the offender’s role in providing restitution,
just as it has taken over the victim’s role in seeking vengeance.
T h e link that establishes fairness, the vital link between the
punishment of the offender and the welfare of the victim and
society, is ignored, and the compensation plans have had only
a minor impact on public consciousness.
In discussing precedents, we should also mention a number
of pseudoprecedents, or things that may appear to be equity-based
162 PHILIP BRICKMAN

penalties but are lacking one or another critical element. Auto-

mobile and malpractice insurance have the feature of providing
compensation to victims, but do not link victim restitution with
perpetrator penalty. Sentencing drunk drivers to attend Alcoholics
Anonymous meetings or allowing selected convicts to work in
the community under work-release programs are actions intended
to rehabilitate, not to restore equity. On the other hand, the
Seattle judge who in 1975 sentenced a pimp to set up a scholarship
fund for prostitutes was pioneering a true equity-based penalty.
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1974.
2. Opton, E., Jr. When psychiatry goes to prison, law is the loser. Berkeley,
CA: Wright Institute Report, 1975.
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