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What if in a magical world, people would be punished with curses rather than prison for violent offenses. This would be for crimes the state found most despicable (murder, rape, torture, necromancy, etc) and would be applied by a priest of the religion. The curse would be placed on your soul and force you to feel the pain of the victim you harmed, but in a "spiritual" rather than physical sense.

The spiritual agony would be felt by you for as long as the curse is active, but not be detrimental to you in daily life. You could still walk around, work, and do normal things, but feel "pain" as you go through it. A curse would be visible to others, like the mythical mark of Cain from the bible. Suicide is not an option, as the curse makes you semi-immortal while it is active. It can only be removed by a a priest.

Would these kinds of curses be more effective at curbing crime than prison or execution?

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    $\begingroup$ Probably but it depends on the level of pain, duration of the curse and the reaction of society to its marks. $\endgroup$ – Mormacil May 13 '17 at 13:05
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    $\begingroup$ Might it be simpler for the priest to "cure" the poor soul before they commit the heinous act? Since priests and state are already intermixed in this scenario, it seems unlikely that the peasants have much privacy and it's only one more magical step to mind-reading. $\endgroup$ – user535733 May 13 '17 at 14:14
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    $\begingroup$ so many flaws in the question. Invincible/immortal just for price of pain, give two. Crime will bloom in those conditions. $\endgroup$ – MolbOrg May 13 '17 at 18:40
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    $\begingroup$ I agree with MolbOrg, a determined psychopath will happily take near immortality for a bit of pain/guilty conscience so they can commit crimes at will. $\endgroup$ – adaliabooks May 13 '17 at 19:03
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    $\begingroup$ I think, instead of asking whether it woudl be more effective, you should just sit down and write a few books about it. I think this is the kind of topic which delves deep into "what does it mean to be human," and thus is open to an enormous amount of interpretation. Pleasure and pain are recognized as deep rooted qualia that have never been fully explained by science. $\endgroup$ – Cort Ammon May 14 '17 at 16:05
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  • Many criminals in the real world are not deterred by the threat of punishment. They think the will not get caught, or they do not take the time to think at all. To make an impression on these people, the magic should be used for investigation and determination of guilt. Details of punishment are less important than swift and certain punishment.
  • That being said, prison time prevents the immate from perpetrating crimes against victims on the outside (and facilitates other crimes against victims who cannot get away, but that's another story). A cursed criminal who "feels the pain" every day might well lash out at any available target, or get drunk and then lash out.
  • The best reason for this scheme, at least in a typical fantasy world, is that it saves prison costs. Locking people up is a terrible drain on the economy, and a medieval-style world doesn't have enough surplus.
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  • $\begingroup$ Locked up people in medieval times didn't get more than scraps for food. Even in 1800's, it was common for the prisoners to be undernourished. At least, that's what I remember from The Count of Monte Cristo. $\endgroup$ – user9981 May 14 '17 at 14:05
  • $\begingroup$ @Magicsowon, even scraps have to come from somewhere. Compare the percentage of the population in agriculture then and now -- for every guy who was not in the fields for whatever reason, it takes ten who toil. $\endgroup$ – o.m. May 14 '17 at 14:45
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Would these kinds of curses be more effective at curbing crime than prison or execution?

There are four goals of punishment:

  1. Incapacitation. Prevent the criminals from committing other crimes.
  2. Retribution. Punish so that the victims don't have to do so.
  3. Deterrence. Scare potential offenders from committing crimes.
  4. Rehabilitation. Give the criminal skills to gain employment, etc.

Curses may be more effective on retribution and deterrence, but they are utterly ineffective on incapacitation and rehabilitation.

Punishment type doesn't deter

The truth is that even mild punishments deter if coupled with removing any gains if they are always applied when deserved. There is very little reason to believe that stronger punishments deter more. More consistent convictions are more important.

The issue is that most people don't expect to get caught. They don't do a careful balancing of the punishment versus the gains of the crime. They simply expect to get away with it.

Even if the curse is a scarier punishment than imprisonment or execution, it won't have a much greater effect. Criminals are criminals because they don't believe they'll get caught, not because they don't care if they'll be punished.

Retribution doesn't prevent criminals

The retribution aspect of punishment doesn't prevent the original crime. It prevents reprisal. And it's relatively effective when it comes to law abiding people. This punishment might feel fairer than imprisonment or even execution, but it won't do anything to prevent the original crime.

Rehabilitation

Curses won't have any effect on making the criminal better able to participate in society. They don't encourage the development of employable skills.

On the bright side, imprisonment, while better, is pretty weak on this as well. Job training programs meet the reality that most employers don't want to hire criminals. Probation programs may have the most impact, because the parole officer can demand that prisoners be self-supporting. But overall, most prisoners do not come out more employable.

Execution is of course also an utter failure at rehabilitation.

Curses don't incapacitate

As described, your curses won't keep criminals from committing more crimes. Yes, they're wearing the physical mark of the curse. But if their victims aren't able to see that because they are looking the other way or if their victims don't have anywhere to run, they can keep on committing crimes while cursed.

Imprisoned, they'd only be able to commit crimes on other prisoners or guards for the length of their incarceration.

Executed, their crime days would be over.

Incapacitation has the greatest effect on reducing crime of current punishments, and it's the aspect that loses the most. Any mild benefits from deterrence would be lost to the decline in incapacitation.

Summary

Overall, I'd expect crime to increase under this program relative to imprisonment and execution.

You could offset this by increasing the likelihood of punishment through magical means. But the fact is that this is not the optimal punishment for most of the crimes that you mention.

Optimal punishment

Murder: execution of the guilty makes sense if you can be absolutely sure who is guilty, e.g. via truth spell or divination. The two greatest arguments against are the possibility of punishing the wrong person and the idea that we're better than them. But medieval societies are unlikely to put that much weight in being better. If you absolutely insist, you can think about adding some kind of incapacitating curse on violence. But that extreme loss of self-defense capability may not be considered more just than execution.

Rape: a punishing curse for deterrence and retribution combined with an incapacitating curse like inability to get an erection.

Torture: may actually work.

Necromancy: it's unclear to me why this is on the list of the worst crimes. Maybe it would work.

I actually think that this makes more sense for lesser crimes where we use short terms of imprisonment: robbery, non-fatal violence, manslaughter, reckless endangerment, etc. The loss of the incapacitation effect has less impact and the deterrence effect on repeat offenders is more important.

In general though, the way to reduce crime is to increase the likelihood of getting caught. Someone who tries one crime and is immediately caught is much less likely to commit a second crime than someone who gets away with the first crime without consequence. And that only gets worse with the second, third, etc. crimes without consequence.

Also consider what to do with people under curses who commit new crimes. Execution? Banishment? A prison island? An incapacitating curse?

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It could, but it depends on the society as a whole and no system is perfect

Is it more effective?

One thing to consider is that "more effective" is fairly subjective. We, looking at it from our current world, might view pain as an effective negative to stop us from doing something. However, in a world of magic, and depending on how wide-spread that magic is (if everyone has it or just a select few "enforcers"), it could be that just as there are criminals who are willing to kill despite the threat of prison today, there would be criminals who would still do the crime and ignore the consequences (and figuring out why someone might ignore those consequences can lead to some very interesting explorations of the society that's being built and its problems, but that's another topic).

The Culture's Values

When you get right down to it, you have to question what the culture's core values are and what their reasoning for putting the curse system in place is in order to help determine its effectiveness.

Arguably, one of the functions of the prison system we have today is supposed to be to punish and then deter and rehabilitate the criminals that can be rehabilitated and execute the ones who are deemed beyond help with the end goal of ending up with functioning members of society (I'm simplifying a bit here, of course).

However, the end goal for a system that inflicts pain on criminals seems a bit blurrier because, strictly speaking, forcing criminals to feel pain (emotional or physical) could be considered torture. And torture has lasting effects of anything from depression to a potential final "push" over the edge to begin liking the pain and committing more crimes, with the end result of the criminals not being able to function in normal society. (as a side note, consider how a criminal might deal with their spiritual pain and what they might do while undergoing their punishment - it may be different in the world you're creating, but there are many mind-altering drugs in this world that could help alleviate the pain, perhaps lessening any the impact the punishment may have)

https://worldwithouttorture.org/2015/03/18/six-ways-that-torture-affects-a-person-psychologically/

Religion

But maybe not having the criminals rehabbed works for your system, maybe part of their punishment, considering the curse mark you mentioned, is a life of exile from polite society.

You also mentioned the priests of the religion would be the ones to lay the curse on the criminals, which would indicate that the religion has a heavy hand in the running of the government and possibly strong guidelines for how people should behave. So perhaps the religion dictates a certain amount of revenge against someone who has wronged you (eye for an eye, tooth for a tooth style - only translating that to what a person feels).

Immortality and Non-physical Pain

You mentioned that those feeling the pain would be unable to take their own life, giving them a sort of state of immortality. My concern here is that one of the first things I think of when considering non-physical pain is depression.

Yes, depression can result in thoughts of suicide, but those with depression can also have a bunch of other symptoms. For example, a criminal with this curse becomes so depressed by the pain they're feeling that they stop eating before their sentence is up. By not eating, they may not intentionally be trying to kill themselves, they might just feel like they can't eat because of how much it hurts.

Eventually they could get to the point that they're not a functioning member of society and it would become someone's (the governments?) responsibility to make sure that they didn't just waste away and die from lack of nutrition. That could also be part of the religious views of the culture though - if you come through your suffering then you are redeemed and forgiven by the rest of society, but if you don't survive then the deeds committed were too heinous and the deity (or deities or spirits) determined that death was the just punishment.

Sadism/Masochism

I also wanted to take a moment to explore the sadism and masochism portion of this system. As mentioned in a few other comments and answers, it is very likely that if the beings in the world you are building are humanoid and at least somewhat similar to us, then there will be those who get pleasure from the pain simply because otherwise they cannot feel anything at all (as one example reason). Those that do this could become repeat offenders, never actually becoming "better" and not caring what society thinks because they simply are out for the joy of the kill.

Some current justice systems allow criminals that are insane to plead not guilty, instead sending them to a care facility to become rehabilitated in that way. The main logic around this is that those who are not thinking clearly will not gain anything from their punishment, but they still need to be separated from the rest of society.

http://criminal.findlaw.com/criminal-procedure/insanity-defense.html

The way I see it, there are a few different ways to handle these types of people/things that should be considered when dealing with them (and I'm sure there are others I haven't thought of):

  • Perhaps your magic system supports a sort of mind-healer to reform these people.
  • Maybe execution still exists and repeat offenders are dealt with that way.
  • Perhaps the world is big enough that the offenders can be completely ostracized and exiled. Instead of being pushed to the side and snubbed by the rest of society, they would simply be removed as a threat and left to fend completely for themselves.
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Perhaps a little but it might increase the number of murders

So let's say you've committed a crime - let us take rape as an example - now if you have been observed committing this crime and know that, if you get caught, you will be subjected to incredible pain what would you do?

Surely killing the observer (in this case the victim of the rape) is going to be the course of action which best helps you avoid excruciating spiritual pain.

It may put some people off committing the crime but only (some of) those who plan ahead, not those who, in the spur of the moment, lash out or (I guess) prey on some vulnerable person to rape.

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  • $\begingroup$ Perhaps the pain could be extended to their friends and family so even if you kill the victim the pain of his family will still be inflicted on you? $\endgroup$ – Mormacil May 13 '17 at 13:08
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    $\begingroup$ @Mormacil How would you know who to punish, I the attacker killed all observers? $\endgroup$ – Polygnome May 13 '17 at 13:10
  • $\begingroup$ There will still be evidence to gather and consider, plus trials. Intent matters as much as the act itself, and together they will determine severity and whether a curse should be applied. $\endgroup$ – user32862 May 13 '17 at 13:13
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    $\begingroup$ This is probably happening now anyway. $\endgroup$ – Mołot May 13 '17 at 13:52
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    $\begingroup$ @Shardmartin There will be other evidence but you need to know who your suspects are to start investigating them. I still think killing witnesses will see an increase. $\endgroup$ – FreeElk May 13 '17 at 14:05
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Some of society's worst offenders are sociopaths and/or sadomasochistic. This means that they are more or less incapable of feeling "spiritual" pain, or empathy of any kind. Worse still sadomasochistic offenders may actually enjoy the pain as it's the only feeling they respond to.

Unless your magic accounts for this it may end up being ineffective or counterproductive.

Take the infamous Albert Fish as an example​, after his arrest an x-ray revealed two dozen self embedded​ pins in his pelvic region. Pain was his only interest in life, so inflicting pain on him would be counterproductive at best...

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  • $\begingroup$ Latest research on sociopaths indicate they can experience pain, empathy and regret. But unlike normal people they can override/shut off these feelings. $\endgroup$ – Mormacil May 31 '17 at 15:46
  • $\begingroup$ @Mormacil I hadn't heard about that, do you have a source? $\endgroup$ – apaul May 31 '17 at 15:52
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I believe that the magical curse simply needs to mark the convicted criminal and identify their offence, in such a way as cannot be concealed. Society then shuns them-it is strictly taboo to interact with a person with 'The Mark'. When their sentence/penance is complete, the mark may then be removed. For the non-capital crimes, the price goes up with each conviction. The convict may also lose all or many of their rights under law. They carry their own prison around with them. Fear of shunning would be a very powerful deterrent.

To address the comment regarding the shunned banding together, I would have a component of the spell detect the presence of other marking spells. More than one in a given area causes pain. If they do not disperse promptly, heads start to explode.

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    $\begingroup$ Fear of being shunned only works to a certain extent. Once you're entirely cut off you will just band together with those who have also been cut off and end up surrounding themselves with other dangerous criminals - all you will do is drive them together by necessity. $\endgroup$ – FreeElk May 14 '17 at 8:11
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No immortality is needed here. Its a curse, make it where it will force the cursed individual to abide by its set rules. Basically all the curse needs to do, to keep them from killing themselves is make their self preservation something which is incapable of being ignored. They cant kill themselves because they simply are incapable of it mentally, and are otherwise incapable of asking for it. It may never actual occur to them without outside influence even.

Now for the actual curse itself. The thing that makes it hell to live with. Constant unprovoked pain isn't needed here. If they only feel the pain when they have their urge than it will enforce a kind of conditioning. Further more the pain should be something mental and psychical as well. Perhaps the curse makes them feel extremely guilty and remorseful when they get their urge or have violent thoughts, perverted thoughts etc. As well as feel a sickening pain, something that is extremely painful and unpleasant in other ways like having a stomach ache for example.

I'd also make it a rule that any asshole killing someone with the mark should than be automatically cursed by said mark. Revenge killings seem like it would be frowned upon here but still.

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