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?