THE UTILITARIAN THEORY OF PUNISHMENT
I. Utilitarian Theories of Punishment: Utilitarian justifications are forward-looking (consequentialistic) in nature. All of the questions about the justification of punishment (general justification, title and severity) will be answered by appeal to the utility (value) of the consequences of an action. A. The General Justification: All punishment is, according to the utilitarian, intrinsically bad, because it involves the infliction of pain or some other consequence normally considered unpleasant. Nevertheless, punishment may be justified because of its effects—that is, its extrinsic (instrumental) benefits may outweigh the intrinsic badness. Thus, a system of punishment is justified only by its consequences. The good consequences of punishment are usually said to be the promotion of utility (happiness/pleasure/desire satisfaction) through the reduction in crime. (The justification will only work for systems where reducing behavior classified as criminal will promote utility. Societies that criminalize behavior that is not harmful will have difficulty establishing that reducing the incidence of these sorts of be actions will produce utility). Systems of punishment are usually claimed to reduce crime by three means: 1. Deterrence: ‘Deterrence’ refers to the reduction in crime as a result of making crime too costly to the would-be criminal—“pricing” crime too high. The individual deterred may still desire to commit the crime in question but will not do so given the likelihood and severity of punishment. a) b) 2. 3. Special: The tendency of the punishment to deter the person punished from future criminal acts. General: The tendency of the punishment of one person to deter others from committing criminal acts.
Incapacitation: ‘Incapacitation’ refers to removal of the opportunity or ability of the potential criminal to commit criminal acts (sometimes only of a certain sort). Rehabilitation (Reform): Rehabilitation takes place when the character of the person punished is altered so that he or she no longer desires to commit the sort of act for which he or she was punished.
Evaluation of Punishment on Utilitarian Grounds: Assume, for argument’s sake, that utilitarianism is the correct theory for evaluating our response to criminal actions. On this assumption, is a system of legal punishment justified. (That is, assume that utilitarians were deciding how to respond to crime. Should they, on their moral theory, select a system of criminal punishment?) 1. Two Questions: a) b) 2. 3. Does punishment actually produce the desirable effects advertised by the utilitarian defender of punishment? Call this the ‘effectiveness issue’. If so, does this provide a better utilitarian rationale for the institution of punishment than for alternative institutions? Call this the ‘rationale issue’.
Caveat: These issues are largely empirical—they are questions for sociologists, psychologists, and anthropologists to answer. However, philosophical issues about methodology and the implications of the empirical data are relevant as well. Rehabilitation a) Effectiveness: Current forms of punishment are probably not very effective in rehabilitating criminals.
The Utilitarian Theory of Punishment
Rationale: The goal of ensuring that people are not the sort of people who desire to commit crimes would seem to argue, not for a system of punishment, but for a system of preventive therapy. (“A stitch in time . . .” and all that.) Rather than wait until people have actually committed the crime, it would make more sense, to the degree that rehabilitation is our goal, to incarcerate and reform those who are likely to commit such crimes—those who have a criminal character—whether or not they have done so. The argument for punishment (which must be for a supposed, not an anticipated, offense) over a system of preventive therapy must rest on the assumption...
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