Criminal Law 1.3: Theories of Punishment
I. Why study theories of punishment?
Theories for when punishment is appropriate inform the scope of the rules of criminal law. So, theories of punishment help us better understand criminal law rules.
Theories of punishment help us draw distinctions between different possible rules. We can identify appropriate rules by looking to whether a rule aligns with our underlying theories of who deserves punishment and how much punishment should be given out.
Theories of punishment provide a philosophical vocabulary that we use to make arguments. In fact, judges often make arguments about theories of punishment when deciding whether a particular defendant should win or lose on appeal.
Theories of punishment are tools that you can use to make arguments about whether a particular defendant should be punished, or arguments about whether a particular rule should cover certain kinds of conduct or whether it shouldn’t punish certain kinds of conduct.
In class, look for places where utilitarian arguments would say that someone should be punished, but retributivism would say that they should not be punished (or vice versa).
II. Theories of Punishment
A. Utilitarian Theory
According to utilitarian theory, we punish people because doing so creates a good in the world.
Jeremy Bentham is associated with the utilitarian theory of punishment. According to him, punishment is evil, and we should do it only to the extent necessary that it can produce benefits in the world.
i. Utilitarian Rationales
a. Specific Deterrence
- If we punish someone, this will deter them from committing crimes in the future.
b. General Deterrence
- If we punish someone, this will make other people decide not to commit crimes in the future.
- If we put someone in prison, they won’t be able to harm anyone out in the public.
- Punishing someone may make them a better person.
B. Retributivist Theory
We punish people who commit crimes because they deserve it since they did something bad.
Immanuel Kant is associated with the retributivist theory of punishment. According to him, punishment is something that is necessary, even if it is not necessarily going to accomplish anything.
Example: Imagine an island society that was about to dissolve itself, and everyone there was about to go live in other parts of their world. Even there, they would have to punish a murderer, even if it was their last act as a society. If they did not punish the murderer who deserved punishment, blood guilt would be on their hands.
i. Pure Retributivism
- Punishment is deserved. Because someone did something wrong, that is sufficient reason to punish them.
ii. Negative Retributivism
- While we should punish people only if they have done something wrong, doing something wrong is, alone, not enough to justify punishment. There must also be some utilitarian reason for the punishment.
C. Hybrid Theories of Punishment
There are many hybrids of the above arguments related to theories of criminal punishment.
For example, some people believe that we should punish only because it produces good in the world, but that a system of punishment is going to be more effective if it follows retributive intuitions about who deserves punishment.
Judges often make arguments under both utilitarian and retributivist theories.
This Lesson’s Topic: Theories of Punishment and Why They Matter
So, this lesson is going to talk about (00:02) theories of punishment. Theories of punishment are something that many Criminal Law classes and criminal law case books begin with. And sometimes, students find this a little perplexing. You think, “I’m here to learn the law, right? Why am I learning what basically is moral philosophy? And why is that relevant to the law? Law isn’t philosophy.” Well, what I want to do in this lesson is just provide a very, very high-level overview of (00:34) what the theories of punishment are. But, more importantly, what I want to do is try to tell you (00:39) why they might matter and why Criminal Law classes typically have you learn about theories of punishment. And let me start with that second part first. And so, why—(00:50) why do we bother learning theories of punishment? Well, a few reasons.
Why Theories of Punishment Matter
These theories inform the rules of criminal law.
So first, learning the theories of punishment helps us (00:58) understand the rules that we’re going to cover in Criminal Law. There’s (01:02) different theories for why different people deserve punishment—for when punishment is appropriate—and those theories (01:09) inform the scope of the rules.
These theories help us draw distinctions between different possible rules.
And they help us also (01:12) draw distinctions between different possible rules. We might say, (01:16) "Is this rule better or worse? (01:18) Does it better accord with our underlying theories of who deserves punishment and how much punishment should be given out?”
These theories provide us with a vocabulary that will help us make legal arguments in criminal cases.
And then, beyond that, learning these theories is going to provide a (01:30) vocabulary that will help you make arguments in specific cases. (01:35) Judges often make particular arguments about theories of punishment when deciding whether a particular defendant should win or lose on appeal. And so, you need to be able to (01:45) make arguments that use this kind of philosophical vocabulary, even if you’ve not committed yourself to any one particular theory of punishment. And I think that’s why it matters.
Theories of Punishment
Utilitarian Theory versus Retributive Theory
So, what do we mean by theories of punishment, though? Well, there’s two big classifications—one, (02:04) utilitarian; second, (02:04) retributive. To understand that, I think it helps by sort of trying to look at your own intuitions. And so, how do you feel about criminal punishment? Do you feel like we need to punish people because punishing people (02:20) produces some good results in the world, whatever that might be? Or do you feel like we need to punish people who commit crimes because (02:28) they deserve it, because they did something bad, and it’s just the right thing to do to punish them? If you’re in the first group, if you think that we need to punish people because it’s going to (02:39) produce some good in the world, you have (02:42) utilitarian intuitions. And if you’re in the second group (you think we need to punish people because they deserve it), you have (02:50) retributive intuitions. Now, that said, you very well might have intuitions along (02:55) both of these lines. And I’ll talk about that more in a minute. But, we typically try to teach these theories in their pure form, just so you can understand the different kinds of arguments.
Philosophers: Bentham (Utilitarian) and Kant (Retributive)
So, let’s talk about what these look like. In explaining this divide between these two theories, some of your case books are going to use some old philosophers. And on the utilitarian side, we’re going to have (03:19) Jeremy Bentham, the father of utilitarianism. And on the retributive side, we’re going to have (03:24) Immanuel Kant, the stodgy German philosopher. They have very different attitudes towards punishment.
Bentham’s Theory of Punishment
Bentham says punishment is an evil, and it’s something we should only do to the very extent necessary that it can (03:38) produce benefits in the world.
Kant’s Theory of Punishment and Island Society Example
Kant, on the other hand, says punishment is something that is (03:44) necessary. And he has this very, very famous example where he says even if there was an (03:48) island society that was about to dissolve itself and everybody on the island was going to go live in other parts of the world, as their last act, they still need to (03:57) punish the murderer. Because if you don’t punish the murderer who deserves punishment, (04:03) blood guilt will be on the hands of all the people. So, punishment is something we absolutely have to do, even if it’s not going to accomplish anything.
Specific Deterrence and General Deterrence
But let’s make things a little bit more specific. Because it turns out that, as with any distinction, there’s all sorts of smaller distinctions we can make. And so, on utilitarianism, there’s different kinds of utilitarian justifications. We might have (04:25) deterrence. And that is, we want to punish people (04:27) to stop them from committing crimes. And that subdivides into two kinds of deterrence—(04:32) specific deterrence and (04:34) general deterrence. (04:35) The first is we want to punish you because we think that if we punish you, (04:39) you won’t commit a crime in the future. And (04:40) general is we want to punish you because we think punishing you will make (04:45) other people decide not to commit crimes in the future.
But there’s a couple other utilitarian rationales. There’s (04:51) incapacitation, where we want to lock you up in prison where you (04:55) can’t harm anyone. You’re not going to harm anyone out in the public because you’re going to be incapacitated.
And then, there’s the idea of (05:02) rehabilitation. We want to punish you because we think it’s going to (05:06) make you a better person.
And then on the other side, we have (05:11) retributivism—the idea that punishment is appropriate because it is deserved. And there, we have a couple of flavors. We have the (05:19) pure retributivism, wh[ich] thinks that punishment is (05:23) deserved, and that because someone (05:25) did something wrong, that is a sufficient reason to punish them.
And then, we have something we might call (05:29) negative retributivism, wh[ich] thinks that at a minimum we should only punish people who (05:35) deserve punishment because they did something wrong. But, that isn’t a sufficient reason. We also need some kind of (05:28) utilitarian reason to punish someone.
Hybrid Theories of Punishment
Now, there are many (05:45) hybrids of these arguments. There’s people who believe that we should only punish because it (05:52) produces good in the world, but a system of punishment is going to be more effective if it follows (05:58) retributive intuitions about who deserves punishment. And in the real world, you’re going to see (06:02) judges move between these theories [and] make (06:05) arguments in both registers. And very few people other than law professors ever are strict adherents of only one theory.
These theories are tools that you can use to make arguments in criminal law.
And that’s why it’s helpful for you to understand how the different kinds of arguments work and understand that these are just kind of (06:22) arrows in your quiver. These are (06:24) tools you can use to make arguments about whether a particular defendant should be punished or shouldn’t be punished, (06:32) whether a particular rule should cover certain kinds of conduct or shouldn’t punish certain kinds of conduct.
Look for situations where one theory will contradict the other.
And you want to look for places where maybe the arguments (06:40) cut in opposite directions—where (06:42) utilitarianism would say, “Yes, it would be beneficial to punish here,” but (06:46) retributivism says, “No, this person doesn’t deserve it.” Or, the opposite, where we think someone (06:51) did something wrong and deserves punishment, but we think it wouldn’t really produce any good in the world. And those are the really hard cases that your Criminal Law professors are going to like to talk about.
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