Criminal Law 1.3: Theories of Punishment
So first, learning the theories of punishment helps us understand the rules that we're going to cover in criminal law. There's different theories for why different people deserve punishment for when punishment is appropriate and those theories inform the scope of the rules.
And they help us also draw distinctions between different possible rules. We might say, is this rule better or worse? Does it better accord with our underlying theories of who deserves punishment and how much punishment should be given out?
And then beyond that, learning these theories is going to provide a vocabulary that will help you make arguments in specific cases. 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 make arguments that use this kind of philosophical vocabulary, even if you're not committing yourself to any one particular theory of punishment. And I think that's why it matters.
So what do we mean by theories of punishment, though? Well, there's two big classifications. One, utilitarian, second, 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 produces some good result in the world, whatever that might be? Or do you feel like we need to punish people who commit crimes because 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 produce some good in the world, you have utilitarian intuitions. And if you're in the second group, you think we need to punish people because they deserve it, you have retributive intuitions. Now, that said, you very well might have intuitions along 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.
So let's talk about what these look like. In explaining this divide between these two theories, some of your casebooks are going to use some old philosophers, and on the utilitarian side, we're going to have Jeremy Bentham, the father of utilitarianism, and on the retributive side, we're going to have Immanuel Kant, the stodgy German philosopher. They have very different attitudes towards punishment.
Bentham says punishment is evil and it's something we should only do to the very extent necessary that it's going to produce benefits in the world.
Kant, on the other hand, says punishment is something that is necessary, and he has this very, very famous example where he says even if there was an 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 punish the murderer, because if you don't punish the murderer, who deserves punishment, 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.
But let's make things a little bit more specific 'cause it turns out that as with any distinction, there's all sorts of smaller distinctions we can make. And so in utilitarianism, there's different kinds of utilitarian justifications. You might have deterrents, and that is we want to punish people to stop them from committing crimes. And that subdivides into two kinds of deterrents: specific deterrents and general deterrents. The first is, we want to punish you because we think that if we punish you, you won't commit a crime in the future.
And general is, we want to punish you because we think punishing you will make other people decide not to commit crimes in the future. But then a couple other utilitarian rationales. There's incapacitation, we want to lock you up in prison where you can't harm anyone. You're not going to harm anyone out in public because you're going to be incapacitated.
And then there's the idea of rehabilitation. We want to punish you because we think it's going to make you a better person.
And then on the other side, we have retributivism, the idea that punishment is appropriate because it is deserved. And there we have a couple of flavors. We have the pure retributivism, who thinks that punishment is deserved and that because someone did something wrong, that is a sufficient reason to punish them.
And then we have something we might call negative retributivism, who thinks that at a minimum, we should only punish people who deserve punishment because they did something wrong, but that isn't a sufficient reason. We also need some kind of utilitarian reason to punish someone.
Now, there are many hybrids of these arguments. There's people who believe that we should only punish because it produces good in the world, but a system of punishment is going to be more effective if it follows retributive intuitions about who deserves punishment. And in the real world, you're going to see judges move between these theories, make arguments in both registers, and very few people other than law professors ever are strict adherents of only one theory.
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 arrows in your quiver. These are tools you can use to make arguments about whether a particular defendant should be punished or shouldn't be punished, whether a particular rule should cover certain kinds of conduct or shouldn't punish certain kinds of conduct.
And you want to look for places where maybe the arguments cut in opposite directions, where utilitarianism would say yes, it would be beneficial to punish here, but retributivism says no, this person doesn't deserve it. Or the opposite, where we think someone 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.
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.
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