Theories of Punishment

Punishment in General

  • Theories of punishment: Utilitarianism and Retributivism.
  • Justifying punishment, referencing The Queen v. Dudley and Stephens case.

Terminology

  • Utilitarianism = consequentialism.
  • Negative retribution = side-constrained consequentialism.
  • Just deserts (pronounced like just desserts).

Criminal Punishment

  • Three requirements:
    • Intentional infliction of hardship on the defendant.
    • The hardship is because of the defendant’s conviction.
    • The hardship is imposed by a government actor with valid authority.

Theories of Punishment

  • Two main schools of thought: Utilitarianism and Retributivism.
  • Is criminal punishment necessary to:
    • Promote societal wellbeing?
    • Achieve just outcomes?
    • Both?

Utilitarianism

  • Central tenet: Action X is desirable if it increases human happiness on net.
  • Punishment necessarily entails pain, (i.e., a decrease in happiness). So, why punish?
  • Bentham disavows punishment that is groundless, inefficacious, unprofitable, needless.
    • “[A]ll punishment is mischief; all punishment in itself is evil.” - Bentham

Utilitarian Purposes of Punishment

  • Deterrence
    • General
    • Individual
  • Incapacitation
  • Rehabilitation

Deterrence

  • By punishing individuals who commit crimes:
    • We instill a fear of punishment in the public (general deterrence).
    • We instill a fear in the individual of being punished again (individual deterrence).

General Deterrence

  • Gary Becker’s Crime and Punishment: An Economic Approach
  • Individual decision-making and factors that impact avoidance of punishment:
    • Intensity
    • Duration
    • Certainty/uncertainty
    • Propinquity/remoteness
  • “A person commits a crime only if the pleasure he anticipates from the crime exceeds the anticipated pain, or in other words only if the expected benefit exceeds the expected cost.” (Posner)

Incapacitation

  • Straightforward: Individual is unable to commit more crimes if taken out of society.

Rehabilitation

  • Forms:
    • Education
    • Vocational training
    • Substance abuse treatment
    • Psychiatric care
  • Arguments for rehabilitation?
  • Arguments against?

Utilitarianism in Practice

  • Does punishment achieve any of these theoretical goals?
  • This is an important empirical question.
  • Pp. 41-42, nn. 1-3 provides helpful commentary about these theories in practice.

Retributivism

  • Goal achieving just outcomes.
  • Society has a duty to punish wrongdoers.

Various Descriptions

  • Any utility that comes from punishment is a “happy surplus” (Moore).
  • Morality requires individuals to be punished in accordance with the wrong they committed, such that “every one may realize the desert of his deeds” (Kant).
  • “[I]t is morally right to hate criminals[.]” (Stephen).
  • Every person has a right to be punished out of respect for her free will and personhood (Morris).
  • Punishment serves to signify the “correct relative value of wrongdoer and victim” (Hampton).

Utilitarianism Disguised?

  • Stephen’s excerpt is in the retributivism section.
  • Argument that his stance is actually somewhat utilitarian?

Justifying Punishment

  • Why does criminal punishment require justification?
    • Intentional infliction of pain on citizens.
    • Condemnation of citizens.
    • Money spent on the system (in the hundreds of billions).

General Justification & Distribution

  • Why is the state justified in punishing anyone? (general).
  • Who is the state justified in punishing, and how much? (distributive).

Variations of Retributivism

  • Per positive retributivists (pure retributivists), just deserts are a necessary and sufficient basis for punishment.
  • Per negative retributivists (utilitarians with an asterisks), just deserts are a necessary but not sufficient basis for punishment.

Comparing the Theories

  • Utilitarianism – punishment is a means to an end (teleological).
  • Retributivism – punishment is the end itself (deontological).

The Queen v. Dudley and Stephens

  • Case involving Dudley, Stephens, Parker, and Brooks.

Exercise

  • Page 51-52, note 3.
  • Work in pairs or groups of 3 to determine:
    • What outcome utilitarianism would dictate.
    • What outcome pure retribution would dictate.
    • What outcome negative retribution would dictate.
    • What you think the outcome should be.
  • Does this align with the theory of punishment you identify most with?