Theories of Punishment

The Primary Civil Liberty Issue

When someone gives us a gift, we naturally express our thanks. We rarely ask, ‘‘Why?’’ In contrast, when someone intentionally hurts us, perhaps by use of violence, we naturally demand an explanation. We are apt to ask, ‘‘Why me? Why this? Did I deserve this?’’ We feel rightly aggrieved unless we receive a good justification.

When society convicts and punishes a person for a crime, it, too, intentionally hurts that individual. The conviction represents the community’s condemnation of the convicted person’s wrongdoing and, at least indirectly, of the person. The conviction stigmatizes the wrongdoer, a real if intangible harm. Moreover, a criminal conviction for a serious offense in the United States nearly always entails loss of liberty by imprisonment or, in the case of murder, potentially the ultimate deprivation of liberty, loss of life. These denials of liberty (which are imposed in our name, as members of the community) demand a justification.

Why do we intentionally hurt persons who commit crimes, by punishing them? This is the most critical civil liberty question regarding any criminal justice system. Generally speaking, two theories of punishment imperfectly seek to provide justification for the restrictions on civil liberties that arise in the criminal justice system: utilitarianism and retributionism (or ‘‘retributivism’’).

Utilitarianism

The premise of classical utilitarianism, formulated by Jeremy Bentham in the nineteenth century, is that the goal of all laws is to maximize the net happiness of society. Laws should be enacted and enforced, as much as possible, to exclude all unpleasant events. To a utilitarian, crime is unpleasant and undesirable, but so is punishment. Ideally, neither crime nor punishment would exist in the world; since some persons are inclined to commit crimes, however, utilitarians believe that pain inflicted by punishment is justifiable if, but only if and to the extent that, it will result in a greater reduction of pain in the form of future crime.

According to Bentham, the mere threat of imposition of punishment—often by observing it inflicted on others—can significantly reduce crime because humans are rational calculators. They seek to augment their happiness and avoid unpleasantness. Therefore, they will avoid committing crimes if they believe that the risk of apprehension, conviction, and ultimate punishment is greater than the foreseeable benefits to them from the intended crime. This form of utilitarianism is called ‘‘general deterrence.’’ Crime is also deterred directly by incarcerating a criminal because wrongdoers cannot commit crimes in the outside society during the period of incarceration (‘‘specific deterrence by incapacitation’’) and, if released, the individual may be deterred from further crime as a result of the memory of the prior unpleasant experience (‘‘specific deterrence by intimidation’’).

Another, more modern version of utilitarianism is commonly called ‘‘rehabilitation.’’ Like classical utilitarians, the goal of rehabilitationists is to reduce future crime, but they would do so by diagnosing the cause of the wrongdoer’s conduct (e.g., drug addiction, illiteracy, mental illness) and then curing the problem.

Retributionism

Some persons would argue that retributionism stems from biblical teachings of lex talionis (an eye for an eye). Immanuel Kant’s writings in the eighteenth century, however, are most commonly cited in philosophical support of retribution. In disrepute in the United States during the early and middle twentieth century, retributivism experienced a renaissance in the latter decades of the last century.

Retributionists consider punishment proportional to the seriousness of the offense morally required as a response to wrongdoing, even if it does not result in future reduction in crime. Retributivism is often justified as follows: Rules (laws) forbid various forms of injurious or morally objectionable conduct; compliance with these rules burdens each member of society who exercises self-restraint. This self-restraint in turn benefits everyone by promoting what Herbert Morris describes in Persons and Punishment as ‘‘noninterference by others with what each person values, such ... as continuance of life and bodily security.’’ Punishment of offenders is justified because the wrongdoer is a free rider by renouncing a burden imposed on all while benefiting from others’ self-restraint. Punishment helps return a moral equilibrium to society. By paying a debt to society through punishment, the wrongdoer may return to the community, back in moral balance with others.

Additional Civil Liberty Issues

Even if utilitarianism plausibly justifies restricting criminals’ civil liberties, critics of the theory argue that it can also justify the intentional punishment of innocent persons. For example, assume that a murder occurs in a racially divided town. The victim is white and a rumor spreads that the killer is African American. Assume as well that as a result of racist activity in the community, a white mob threatens immediately to burn down the homes of black citizens and kill the inhabitants in order to exact revenge. The sheriff does not have adequate personnel to stop the mob, but is convinced that if he or she arrests a particular homeless African American for the crime and promises quick trial, the mob will be satisfied. Might a utilitarian sheriff determine that framing the innocent man is justified, since the pain to one innocent person will result in benefit to countless others who would have been victims of the mob?

Utilitarians commonly reject this suggestion by arguing that such hypothetical situations are unrealistic. They suggest, for example, that the sheriff could arrest the homeless man and release him later, prior to trial; even if the trial was held, there is too great a risk that the sheriff’s conduct would later be discovered, which would result in counterutilitarian disrespect for the law. Despite these arguments, many utilitarians concede that, at least in theory, their philosophy allows for such an outcome.

A second concern regarding utilitarianism relates to practice, not theory. Many state legislatures in the late twentieth century enacted recidivist statutes (‘‘three strikes’’ laws). These laws result in enhanced punishment of second- and third-time offenders; sometimes the third-time offender receives life imprisonment for any felony. Lawmakers justify these laws on the utilitarian ground that repeat offenders need this additional incapacitation because they have proven undeterrable. Utilitarians are themselves often critical of such legislation because the statutes are over- and underinclusive (some first-time offenders are far more likely to repeat than some repeat offenders); even when the right persons are incarcerated, such laws are often extreme (retaining persons in prison long past the age they are likely to re-offend, thus inflicting needless pain on them and costing the society for unnecessary incarceration).

Some civil libertarians are also concerned about rehabilitation theories. As humane as the concept sounds, a penal system that seeks to ‘‘treat’’ or ‘‘cure’’ offenders is demeaning to the dignity of such individuals—treating them as sick persons, unable to make free-will choices—and ultimately oppressive because freedom is tied to cure, not to the proportionality of the crime or even the dangerousness of the offender.

Retributionism is free of the preceding civil liberty concerns. By definition, retributivism would never justify punishment of an innocent person, since the basis of punishment is prior wrongdoing. Recidivist laws are usually not defended on retributive grounds, since they almost always result in punishment disproportional to the most recent crime committed. Retribution is premised on the belief that people generally have free will and thus can be held responsible for their wrongdoing; therefore, the fear of some civil libertarians that rehabilitation can result in disproportional loss of liberty is ameliorated.

Retributivism is also subject to civil libertarian criticism. Utilitarians argue that any theory of punishment that justifies imprisonment or death, even though it will do no future good, promotes senseless cruelty. Whether one treats the issue as a constitutional question or simply one of good public policy in a secular, liberal democracy such as the United States, critics argue that government denial of individuals’ freedom should not be justified in the absence of a Compelling State Interest. Prevention of future crime—the utilitarian goal—might be such a Compelling State Interest, but, it is claimed, retributionists offer nothing more tangible than a ‘‘balancing of the moral equilibrium.’’

JOSHUA DRESSLER

References and Further Reading

• Bayles, Michael D., ed. Contemporary Utilitarianism. Garden City: Anchor Books, 1968.
• Bentham, Jeremy. An Introduction to the Principles of Morals and Legislation. New York: Hafner Publishing Co., 1948. Binder, Guyora, Punishment Theory: Moral or Political? Buffalo Criminal Law Review 5 (2002): 321–371.
• Dolinko, David, Three Mistakes of Retributivism, UCLA Law Review 39 (1992): 1623–1657.
• Dressler, Joshua. Understanding Criminal Law. 3rd ed. New York: Lexis Publishing Co., 2001.
• Husak, Douglas N., Retribution in Criminal Theory, San Diego Law Review 37 (2000): 959–986.
• McCloskey, H. J. ‘‘Utilitarianism and Retributive Punishment.’’ Journal of Philosophy 64 (1967): 91–110.
• Moore, Michael S. ‘‘The Moral Worth of Retribution.’’ In Responsibility, Character, and the Emotions, edited by Ferdinand Schoeman, 179–219. Cambridge: Cambridge University Press, 1987.
• Morris, Herbert. ‘‘Persons and Punishment.’’ The Monist 52 (1968): 475–501.
• Murphy, Jeffrie G. ‘‘Retributivism, Moral Education, and the Liberal State.’’ Criminal Justice Ethics 4 (Winter/ Spring 1995): 3–11.
• Reiss, Hans, ed., and H. B. Nisbet, trans. Kant’s Political Writings. Cambridge: Cambridge University Press, 1970.
• von Hirsch, Andrew. Doing Justice: The Choice of Punishments. Boston: Northeastern University Press, 1976.

See also Bill of Rights: Structure; Capital Punishment; Capital Punishment: Executions of Innocents; Mandatory Minimum Sentences; Sentencing Guidelines; Theories of Civil Liberties