supposed or actual offender for an offense such as a moral or legal
transgression. Since punishment involves inflicting a pain or
deprivation similar to that which the perpetrator of a crime inflicts
on his victim, it has generally been agreed that punishment requires
moral as well as legal and political justification. While philosophers
almost all agree that punishment is at least sometimes justifiable,
they offer various accounts of how it is to be justified as well as
what the infliction of punishment is designed to protect – rights,
personal autonomy and private property, a political constitution, or
the democratic process, for instance. Utilitarians attempt to justify
punishment in terms of the balance of good over evil produced and thus
focus our attention on extrinsic or consequentialist considerations.
Retributivists attempt a justification that links punishment to moral
wrongdoing, generally justifying the practice on the grounds that it
gives to wrongdoers what they deserve; their focus is thus on the
intrinsic wrongness of crime that thereby merits punishment.
"Compromise" theorists attempt to combine these two types of theories
in a way that retains their perceived strengths while overcoming their
perceived weaknesses. After discussing the various attempts at
justification, utilitarian and retributive approaches to determining
the amount of punishment will be examined. Finally, the controversial
issue of capital punishment will be briefly discussed.
1. Utilitarianism
a. Utilitarian Justification
Utilitarianism is the moral theory that holds that the rightness or
wrongness of an action is determined by the balance of good over evil
that is produced by that action. Philosophers have argued over exactly
how the resulting good and evil may be identified and to whom the
greatest good should belong. Jeremy Bentham identified good with
pleasure and evil with pain and held that the greatest pleasure should
belong to the greatest number of people. John Stuart Mill, perhaps the
most notable utilitarian, identified good with happiness and evil with
unhappiness and also held that the greatest happiness should belong to
the greatest number. This is how utilitarianism is most often
discussed in the literature, so we will follow Mill in our discussion.
When attempting to determine whether a punishment is justifiable,
utilitarians will attempt to anticipate the likely consequences of
carrying out the punishment. If punishing an offender would most
likely produce the greatest balance of happiness over unhappiness
compared with the other available options (not taking any action,
publicly denouncing the offender, etc.), then the punishment is
justified. If another available option would produce a greater balance
of happiness over unhappiness, then that option should be chosen and
punishment is unjustified.
Clearly, crimes tend to produce unhappiness, so in seeking to promote
a state of affairs in which the balance of happiness over unhappiness
is maximized, a utilitarian will be highly concerned with reducing
crime. Traditionally, utilitarians have focused on three ways in which
punishment can reduce crime. First, the threat of punishment can deter
potential offenders. If an individual is tempted to commit a certain
crime, but he knows that it is against the law and a punishment is
attached to a conviction for breaking that law, then, generally
speaking, that potential offender will be less likely to commit the
crime. Second, punishment can incapacitate offenders. If an offender
is confined for a certain period of time, then that offender will be
less able to harm others during that period of time. Third, punishment
can rehabilitate offenders. Rehabilitation involves making strides to
improve an offender's character so that he will be less likely to
re-offend.
Although utilitarians have traditionally focused on these three ways
in which punishment can reduce crime, there are other ways in which a
punishment can affect the balance of happiness over unhappiness. For
example, whether or not a given offender is punished will affect how
the society views the governmental institution that is charged with
responding to violations of the law. The degree to which they believe
this institution is functioning justly will clearly affect their
happiness. Utilitarians are committed to taking into account every
consequence of a given punishment insofar as it affects the balance of
happiness over unhappiness.
b. Objection and Response
Perhaps the most common objection to the utilitarian justification of
punishment is that its proponent is committed to punishing individuals
in situations in which punishment would clearly be morally wrong. H.J.
McCloskey offers the following example:
Suppose a utilitarian were visiting an area in which there was
racial strife, and that, during his visit, a Negro rapes a white
woman, and that race riots occur as a result of the crime, white mobs,
with the connivance of the police, bashing and killing Negroes, etc.
Suppose too that our utilitarian is in the area of the crime when it
is committed such that his testimony would bring about the conviction
of a particular Negro. If he knows that a quick arrest will stop the
riots and lynchings, surely, as a utilitarian, he must conclude that
he has a duty to bear false witness in order to bring about the
punishment of an innocent person (127).
A utilitarian is committed to endorsing the act that would be most
likely to produce the greatest balance of happiness over unhappiness,
and, in this situation, it appears that the act that meets this
criterion is bearing false witness against an innocent person. But, so
the argument goes, it cannot be morally permissible, let alone morally
mandatory, to perform an act that leads directly to the punishment of
an innocent person. Therefore, since the utilitarian is committed to
performing this clearly wrong act, the utilitarian justification must
be incorrect.
The standard utilitarian response to this argument demands that we
look more closely at the example. Once we do this, it supposedly
becomes clear that the utilitarian is not committed to performing this
clearly wrong act. In his reply to McCloskey's argument, T.L.S.
Sprigge states that if faced with the decision presented in the
example, a "sensible utilitarian" will attach a great deal of weight
to the near-certain fact that framing an innocent man would produce a
great deal of misery for that man and his family. This consideration
would receive such weight because "the prediction of misery… rests on
well confirmed generalizations" (72). Furthermore, the sensible
utilitarian will not attach much weight to the possibility that
framing the man would stop the riots. This is because this prediction
"will be based on a hunch about the character of the riots" (72).
Since well confirmed generalizations are more reliable than hunches,
happiness is most likely to be maximized when individuals give the
vast majority of the weight to such well confirmed generalizations
when making moral decisions. Therefore, since the relevant well
confirmed generalization tells us that at least a few people (the
innocent man and his family) would be made miserable by the false
testimony, the utilitarian would give much weight to this
consideration and choose not to bear false witness against an innocent
man.
This type of response can in turn be challenged in various ways, but
perhaps the best way to challenge it is to point out that even if it
is true that the greatest balance of good over evil would not be
promoted by punishing an innocent person in this situation, that is
not the reason why punishing an innocent person would be wrong. It
would be wrong because it would be unjust. The innocent man did not
rape the woman, so he does not deserve to be punished for that crime.
Because utilitarianism focuses solely on the balance of happiness over
unhappiness that is produced by various actions, it is unable to take
into account important factors such as justice and desert. If justice
and desert cannot be incorporated into the theory, then the punishment
of innocents cannot be ruled out as unjust, so a prohibition against
it will have to be dependent upon the likelihood of various
consequences. This strikes many theorists as problematic.
2. Retributivism
a. Retributive Justification
Regarding retributive theories, C.L. Ten states that, "There is no
complete agreement about what sorts of theories are retributive except
that all such theories try to establish an essential link between
punishment and moral wrongdoing" (38). He is surely right about this,
so, therefore, it is difficult to give a general account of
retributive justification. However, it is possible to state certain
features that characterize retributive theories generally. Concepts of
desert and justice occupy a central place in most retributive
theories: in accordance with the demands of justice, wrongdoers are
thought to deserve to suffer, so punishment is justified on the
grounds that it gives to wrongdoers what they deserve. It is
instructive to look at the form that a particular retributive theory
can take, so we will examine the views of Immanuel Kant.
Kant invokes what he refers to as the "principle of equality" in his
discussion of punishment. If this principle is obeyed, then "the
pointer of the scale of justice is made to incline no more to the one
side than the other" (104). If a wrongful act is committed, then the
person who has committed it has upset the balance of the scale of
justice. He has inflicted suffering on another, and therefore rendered
himself deserving of suffering. So in order to balance the scale of
justice, it is necessary to inflict the deserved suffering on him. But
it is not permissible to just inflict any type of suffering. Kant
states that the act that the person has performed "is to be regarded
as perpetrated on himself" (104). This he refers to as the "principle
of retaliation". Perhaps the most straightforward application of this
principle demands that murderers receive the penalty of death. So, for
Kant, the justification of punishment is derived from the principle of
retaliation, which is grounded in the principle of equality.
The concepts of desert and justice play a central role in Kant's
theory, and they are applied in a way that rules out the possibility
of justifying the punishment of innocents. Since an innocent person
does not deserve to be punished, a Kantian is not committed to
punishing an innocent person, and since it seems to some that
utilitarians are committed to punishing innocents (or participating in
the punishment of innocents) in certain circumstances, Kant's theory
may seem to be superior in this respect. Recall that the failure to
take desert and justice into consideration is thought by many to be a
major problem with utilitarian theory. However, while Kantian theory
may seem superior because it takes desert and justice into account, an
influential criticism of the theory challenges the idea that
punishment can be justified on the grounds of justice and desert
without requiring that the balance of happiness over unhappiness be
taken into account.
b. Objection and Response
Gertrude Ezorsky argues that we should test the Kantian position and
other retributive positions that resemble it "by imagining a world in
which punishing criminals has no further effects worth achieving"
(xviii). In this world, punishment does not deter or rehabilitate. For
whatever reason, incapacitation is impossible. In addition, victims
receive no satisfaction from the punishment of those who have harmed
them. In this world, a Kantian would be committed to the position that
punishments still ought to be inflicted upon wrongdoers. Furthermore,
the individuals that populated this world would be morally obligated
to punish wrongdoers. If they failed to punish wrongdoers, they would
be failing to abide by the dictates of justice. But surely it is quite
odd to hold that these individuals would be morally obligated to
punish when doing so would not produce any positive effects for
anyone. According to Ezorsky, this terribly odd consequence suggests
that the Kantian theory is problematic.
Kant would not agree that this consequence of his theory is odd.
According to Kant, "if justice and righteousness perish, human life
would no longer have any value in the world" (104). So, even the
inhabitants of our imaginary world are obliged to ensure that "every
one may realize the desert of his deeds" (106). If they do not live up
to this obligation, then they will be failing to abide by the dictates
of justice, and their lives will be of lesser value. Of course,
critics of the Kantian theory are unlikely to be persuaded by this
response. Indeed, it is appropriate to be highly skeptical of a
conception of justice that holds that justice can be promoted without
anyone's welfare being promoted.
As stated earlier, many of the theories that are referred to as
"retributive" vary significantly from one another. However, as the
Kantian theory possesses many central features that other retributive
theories possess, criticisms similar to Ezorsky's have been leveled
against many of them. Predictably, the responses to these criticisms
vary depending on the particular theory.
3. Compromise Theories
Many theorists have attempted to take features of utilitarianism and
retributivism and combine them into a theory that retains the
strengths of both while overcoming their weaknesses. The impetus for
attempting to develop this sort of theory is clear: the idea that
punishment should promote good consequences, such as the reduction of
crime, surely seems attractive. However, the idea that it would be
justified to punish an innocent in any circumstance where such
punishment would be likely to promote the greatest balance of
happiness over unhappiness surely seems wrong. Likewise, the idea that
justice and the desert of the offender should play a central role in a
justification of punishment is attractive, while being committed to
punishing an offender even when nobody's welfare would be promoted as
a result seems to be problematic. So, each type of theory seems to
have positive and negative aspects. But how to combine these seemingly
opposed theories and produce a better one? Is a compromise between
them really possible? In an attempt to explore this possibility, we
will examine the theory of H.L.A. Hart.
a. Hart's Theory
According to Hart, in order to clarify our thinking on the subject of
punishment,
What is needed is the realization that different principles… are
relevant at different points in any morally acceptable account of
punishment. What we should look for are answers to a number of
different questions such as: What justifies the general practice of
punishment? To whom may punishment be applied? (3)
The failure to separate these questions from one another and consider
that they might be answered by appealing to different principles has
prevented many previous theorists from generating an acceptable
account of punishment. Hart states that the first question ("What
justifies the general practice of punishment?") is a question of
"General Justifying Aim" and ought to be answered by citing
utilitarian concerns. The second ("To whom may punishment be
applied?") is a question of "Distribution" and ought to be answered by
citing retributive concerns. So, the general practice is to be
justified by citing the social consequences of punishment, the main
social consequence being the reduction of crime, but we ought not be
permitted to punish whenever inflicting a punishment is likely to
reduce crime. In other words, we may not apply punishment
indiscriminately. We may only punish "an offender for an offense" (9).
With few exceptions, the individual upon whom punishment is inflicted
must have committed an offense, and the punishment must be attached to
that offense.
Hart's theory attempts to avoid what may have appeared to be an
impasse blocking the construction of an acceptable theory of
punishment. Utilitarian concerns play a major role in his theory: the
practice of punishment must promote the reduction of crime, or else it
is not justifiable. But retributive concerns also play a major role:
the range of acceptable practices that can be engaged in by those
concerned with reducing crime is to be constrained by a retributive
principle allowing only the punishment of an offender for an offense.
Hart's theory, at the very least, represents a plausible attempt at a
"compromise" between those inclined towards utilitarianism and those
inclined towards retributivism.
Hart does admit that on certain occasions the principle stating that
we may only punish an offender for an offense (referred to as the
principle of "retribution in Distribution") may be overridden by
utilitarian concerns. When the utilitarian case for punishing an
innocent person is particularly compelling, it may be good for us to
do so, but "we should do so with the sense of sacrificing an important
principle" (12). Many people will agree with Hart that it may be
necessary to punish an innocent person in extreme cases, and it is
thought to be an advantage of his theory that it captures the sense
that, in these cases, an important principle is being overridden.
b. Objection and Response
This overriding process, however, cannot work in the opposite
direction. In Hart's theory, some social good must be promoted or some
social evil must be reduced in order for punishment to be justified.
Because of this, it is unjustifiable to punish a person who seems to
deserve punishment unless some utilitarian aim is being furthered.
Imagine the most despicable character you can think of, a
mass-murderer perhaps. The justifiability of punishing a person guilty
of such crimes is beholden to the social consequences of the
punishment. That a depraved character would suffer for his wrongdoing
is not enough. So, for Hart, considerations of desert cannot override
utilitarian considerations in this way. Some theorists find this
consequence of his theory unacceptable. Ten argues that, "it would be
unfair to punish an offender for a lesser offense and yet not punish
another offender for a more serious offense" (80). If we are behaving
in accordance with Hart's theory, we may, on occasion, have to avoid
punishing serious offenders while continuing to punish less serious
offenders for utilitarian reasons. Since doing so would be unfair, it
seems that Hart's theory may be seriously flawed.
In order to assess Ten's criticism, it is important to ask the
following question: If we were to avoid punishing the more serious
offender, to whom would we be being unfair? In an effort to answer
this question, we must consider whether the offender who has committed
the lesser crime has grounds for complaint if the more serious
offender is not punished. By stipulation, the lesser offender
committed the crime and cannot thereby claim a violation of justice on
those grounds. Is the justification of his punishment contingent upon
the punishment of others? Arguably not: The punishment of the lesser
offender is justified regardless of whoever else is punished. He may
bemoan his bad luck and wish that his punishment were not likely to
further any utilitarian aims so that he may avoid it, but he cannot
rightly accuse society of a violation of justice for failing to punish
others when he does in fact deserve the punishment that is being
inflicted upon him. The attractiveness of Ten's argument is derived
from the fact that its conclusion fits with our intuitions regarding
the idea that some people just deserve to suffer no matter what.
Perhaps we ought to reexamine that intuition and consider that it may
be rooted in an urge to revenge, not a concern for justice.
4. Amount of Punishment
The belief that, in most cases, the amount of punishment should vary
directly with the seriousness of the offense is widely accepted.
However, utilitarians and retributivists have different ways of
arriving at this general conclusion.
a. Utilitarians on Amount
Bentham, a utilitarian, states that, "The greater the mischief of the
offence, the greater is the expense, which it may be worth while to be
at, in the way of punishment" (181). Crime and punishment both tend to
cause unhappiness. Recall that utilitarianism is solely concerned with
the balance of happiness over unhappiness produced by an action. When
attempting to determine the amount of punishment that ought to be
permitted for a given offense, it is necessary to weigh the
unhappiness that would be caused by the offense against the
unhappiness caused by various punishments. The greater the unhappiness
caused by a given offense, the greater the amount of punishment that
may be inflicted for that offense in order to reduce its occurrence
before the unhappiness caused by the punishment outweighs the
unhappiness caused by the offense (Ten, 143).
So, utilitarians would often be committed to abiding by the rule that
the amount of punishment should vary directly with the seriousness of
the offense. However, it seems that there are cases in which they
would be committed to violating this rule. Critics argue that
utilitarians would sometimes be committed to inflicting a severe
punishment for a relatively minor offense. Ten asks us to imagine a
society in which there are many petty thefts and thieves are very
difficult to catch. Since there are many thefts, the total amount of
unhappiness caused by them is great. Imagine that one thief is caught
and the authorities are deciding how severely to punish him. If these
authorities were utilitarians, they would be committed to giving him a
very severe sentence, 10 years perhaps, if this were the only way to
deter a significant number of petty thieves. But surely making an
example of the one thief who was unlucky or unskilled enough to be
caught is unjust. Since utilitarians are sometimes committed to
inflicting such harsh punishments for relatively minor offenses, their
approach must be inadequate (143-144).
b. Retributivists on Amount
Retributivists argue that more serious offenses should be punished
more severely because offenders who commit more serious crimes deserve
harsher punishment than those who commit less serious crimes. Given
our previous discussion of retributivism, it should not come as a
surprise that the concept of desert plays a central role here.
According to many classic versions of retributivism, including Kant's,
the deserved punishment is determined by invoking the lex talionis.
The old adage, "An eye for an eye, a tooth for a tooth," is derived
from the lex talionis, which "requires imposing a harm on a criminal
identical to the one he imposed on his victim" (Shafer-Landau, 773).
Those who argue that murderers ought to be put to death have often
invoked this principle, but it is rarely invoked when attempting to
determine the proper punishment for other crimes. Its lack of
popularity can be explained by noting a couple of objections. First,
it is difficult to apply to many offenses, and it seems to be outright
inapplicable to some. How should we punish the counterfeiter, the
hijacker, or the childless kidnapper? Applying the lex talionis to
these crimes is, at the very least, problematic. Second, there are
many cases in which it would require that we punish offenders by
performing actions that ought not to be carried out by any government
(773). Surely we should not rape rapists! For these and other reasons,
except when the topic at hand is capital punishment, appeals to the
lex talionis in the contemporary literature are rare.
Many contemporary retributivists hold that the principle of
proportionality should be used in order to determine the amount of
punishment to be meted out in particular cases. This principle states
that, "the amount of punishment should be proportionate to the moral
seriousness or moral gravity of offenses…" (Ten, 154). Different
versions of the proportionality principle call for different ways of
establishing how severe a punishment must be in order to meet the
demands set by the principle. Must it merely be the case that there be
a direct relationship between the amount of punishment and the
seriousness of the offense, or must offenders suffer the same amount
as their victim(s) in order for the demands of the principle to be
met? Retributivists are not in complete agreement on how to answer
this question.
While retributivists seem to have an easier time ensuring that there
be a direct relationship between the amount of punishment and the
seriousness of the offense, their position is subject to criticism.
Because they are committed to inflicting the deserved punishment, they
must do so even when a lesser punishment would produce the same social
effects. Clearly, this criticism runs parallel to the objection to
retributivism discussed in section 2: if the retributivist is
committed to inflicting the deserved punishment regardless of the
social effects, then it seems that he is committed to inflicting
gratuitous pain on an offender. Of course, some resist the idea that
inflicting suffering in such a case would be gratuitous, which is why
this debate continues. In any case, the perceived shortcomings of both
the utilitarian and retributive approaches have led theorists to
attempt to develop approaches that combine elements of both. For
reasons similar to those cited in support of the aforementioned
"compromise" theories, it seems that these approaches are the most
promising.
5. Capital Punishment
Capital punishment involves the deliberate killing of a supposed or
actual offender for an offense. Throughout history and across
different societies, criminals have been executed for a variety of
offenses, but much of the literature is devoted to examining whether
those convicted of murder ought to be executed, and this discussion
will be similarly focused.
A combination of utilitarian and retributive considerations are
usually invoked in an effort to justify the execution of murderers.
The centerpiece of most arguments in favor of capital punishment is
retributive: Murderers deserve to be put to death. This is usually
argued for along Kantian lines: By deliberately causing an innocent
person's death, the murderer has rendered himself deserving of death.
Utilitarian considerations generally play a large role as well.
Proponents argue that the threat of capital punishment can deter
potential murderers. Since many human beings' greatest fear is death,
the intuitive plausibility of this claim is clear. In addition,
proponents point to the fact that capital punishment is the ultimate
incapacitation. Clearly, if a murderer is dead, then he can never harm
anyone again.
Opponents of capital punishment challenge proponents on each of these
points. Albert Camus denies that murder and capital punishment are
equivalent to one another:
But what is capital punishment if not the most premeditated of
murders, to which no criminal act, no matter how calculated, can be
compared? If there were to be a real equivalence, the death penalty
would have to be pronounced upon a criminal who had forewarned his
victim of the very moment he would put him to a horrible death, and
who, from that time on, had kept him confined at his own discretion
for a period of months. It is not in private life that one meets such
monsters (25).
This argument and others that resemble it are often put forth in an
attempt to counter the retributive argument. Also, any criminal
justice system that executes convicted criminals runs the risk of
executing some individuals who do not deserve to be executed: the
wrongfully convicted. Some argue that a fallible criminal justice
system ought not to impose a penalty that removes the possibility of
mistakes being rectified. The utilitarian arguments have also come
under attack. Some argue that the proponents of capital punishment
have overstated its deterrent value, and it has been argued that it
may even incite some people to commit murder (Bedau, 198-200).
Regarding incapacitation, it has been argued that the danger involved
in failing to execute murderers has been similarly overstated
(196-198).
6. Conclusion
These issues introducing punishment have received a great deal of
attention in the professional literature, and many philosophers
continue to discuss them and offer various answers to the questions
that are raised. However, the issues raised here are not the only
ones. There are many, including the role of excuses and mitigating
circumstances, the usage of insanity as a defense, the imprisonment of
offenders, and the cultural and historical context of punishment.
7. References and Further Reading
* Beccaria, Cesare. On Crimes and Punishments. Trans. David Young.
Indianapolis: Hackett Publishing Company, 1986.
* Bedau, Hugo Adam. "Capital Punishment." In Matters of Life and
Death: New Introductory Essays in Moral Philosophy. Ed. Tom Regan. New
York: Random House, 1986. 175-212.
* Bedau, Hugo Adam, and Paul Cassell, eds. Debating the Death
Penalty: Should America Have Capital Punishment? The Experts on Both
Sides Make Their Best Case. New York: Oxford University Press, 2004.
* Bentham, Jeremy. The Principles of Morals and Legislation. New
York: Hafner Publishing Company, 1948.
* Camus, Albert. Reflections on the Guillotine. Trans. Richard
Howard. Michigan City, IN: Fridtjof-Karla Publications, 1959.
* Duff, R.A. "Penal Communications: Recent Work in the Philosophy
of Punishment." Crime and Justice 20 (1996): 1-97.
* Duff, R.A., and David Garland, eds. A Reader on Punishment. New
York: Oxford University Press, 1994.
* Ezorsky, Gertrude. "The Ethics of Punishment." In Philosophical
Perspectives on Punishment. Ed. Gertrude Ezorsky. Albany: State
University of New York Press, 1972. xi-xxvii.
* Foucault, Michel. Discipline and Punish: The Birth of the
Prison. Trans. Alan Sheridan. New York: Random House, 1977.
* Hart, H.L.A. "Prolegomenon to the Principles of Punishment." In
Punishment and Responsibility: Essays in the Philosophy of Law. New
York: Oxford University Press, 1968. 1-27.
* Kant, Immanuel. "Justice and Punishment." Trans. W. Hastie. In
Philosophical Perspectives on Punishment. Ed. Gertrude Ezorsky.
Albany: State University of New York Press, 1972. 102-106.
* McCloskey, H.J. "A Non-Utilitarian Approach to Punishment." In
Philosophical Perspectives on Punishment. Ed. Gertrude Ezorsky.
Albany: State University of New York Press, 1972. 119-134.
* Mill, John Stuart. Utilitarianism. Indianapolis: Hackett
Publishing Company, 1979. Shafer-Landau, Russ. "The Failure of
Retributivism." In Philosophy of Law. Ed. Joel Feinberg and Jules
Coleman. Belmont, CA: Wadsworth/Thompson Learning, 2000. 769-779.
* Sprigge, T.L.S. "A Utilitarian Reply to Dr. McCloskey." In
Philosophical Perspectives on Punishment. Ed. Gertrude Ezorsky.
Albany: State University of New York Press, 1972. 66-79.
* Ten, C.L. Crime, Guilt, and Punishment. Oxford: Clarendon Press, 1987.
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