Retributivist/Utilitarian Theories Justification of Criminal Punishment
The Theories and Their Ideas
Punishment, as a legitimate sanction imposed on a person for a criminal offense, must first consist of 5 elements (Banks, 2009). These are an unpleasant experience for the victim; an actual or supposed offense; an actual or supposed offender committed the act; the act is committed by a person rather than as a natural consequence of an action; and punishment must be imposed by an authority whose rules are violated by the offense. Benn and Peters (1959 in Bean, 1981 as qtd in Banks) added the element of unpleasantness as an essential part of the offense intended. The philosophical debate on punishment converges on the two main theories, namely the retributive and utilitarian. These theories eventually led to the development of other theories on deterrence, retribution, incapacitation, rehabilitation, and restorative justice (Banks).
How They Justify Punishment
The retributive theory justifies punishment because it is deserved (Banks, 2009; Dubber & Kelman, 2009). It originates from the concept of "an eye for an eye," "a tooth for a tooth," and "a life for a life" held as far back as Biblical times. Supporters of this theory uphold the moral connection between punishment and guilt and that punishment as a responsibility or accountability in that connection. Legal rules represent and reflect the moral order. When society accepts these legal rules, it means that the makers of the rules are justified in their decision and thus establish the oral climate for everyone to live in. The legitimacy of the rules is beyond question as the concept operates under an order of consensus wherein the community, through the system, acts corrects and criminal offenses are wrong. It does not provide for changes in social conditions. The social causes of the crime and the effectiveness of the punishment cannot be appealed (Banks, Dubber & Kelman).
German philosopher, Immanuel Kant, leads other retributivist proponents, in supporting this theory (Dubber & Kelman, 2009; Banks, 2009). He states in his work, "Metaphysics of Morals," that the moral worth of an act is independent of the expected result and the principle of the action. He and his co-advocates view this theory as actually responsive to and enhancing the criminal's dignity as a rational person who commits the offense. Deserved punishment is a valuable end in itself that does not need justification, according to the theory. It is imposed because the offender merits it and not because it provides an opportunity for reform. And per its just desert angle, the focus of punishment is almost exclusively on the past event as the basis of the level of punishment to be imposed (Dubber & Kelman).
The utilitarian theory, introduced by Jeremy Bentham, was a lot different from the retributivist theory (Dubber & Kelman, 2009; Banks, 2009). It seeks to produce the greatest level of happiness for the greatest number of people. This theory or concept was also known as the "felicity calculus." While Bentham believed that punishment was essential in insuring obedience to public laws, he viewed that criminal sanction should be used to help insure the greater good and benefit to society. He saw all punishment as only mischief and evil in itself. He advocated the non-infliction of punishment if there is no mischief committed or to prevent; when it is not effective to prevent the mischief; when it is not profitable or too expensive; when it is unnecessary (Dubber & Kelman, Banks). Joshua Dressler reasoned that the goal of all laws is to maximize the net amount of happiness (Haist, 2009). Punishment should, therefore, be imposed if it increases overall pleasure more than pain. Other supporters John Robinson and John Darley believe that punishment for a past offense is justified only by apparent future benefits to society. As consequentialists, the supporters of this theory are concerned only with the effects of punishment on some future actions and society's aggregate happiness. They see punishment as producing these in two ways. One is by preventing future crimes and future criminals. And the other is by either disabling or rehabilitating convicts away from the commission of future crimes (Haist).
Evaluation of Their Merits
Retribution is a payment for an offense and the offender is made to pay his debt to society (Banks, 2009). It may be in the form of censure, which holds the offender accountable for his or her conduct, informs the offender about the injury caused upon others and the consequent disapproval of society for the act. Punishment by censure symbolically includes hitting back at the offender and the expression of "vindictive resentment." The recent concept of "communicative practice" provides that punishment communicates the offense to the offender's understanding and according to the level of that offense. The censure may also be formally communicated in more harsh forms, such as imprisonment, fines or community service. Hard treatment is justified because it makes the offender not only understand but also repent the crime committed as wrong (Banks).
Retribution also justifies punishment of crime in that it takes unfair advantage over others in society and that punishment restores that fairness (Banks, 2009). When someone violates the laws and goes un-punished, he continues to enjoy the benefits o living in society and puts his victim at a disadvantage. Punishment restores that lost balance disturbed by the crime (Banks).
Arguments against the Utilitarian Theory
The utilitarian theory states that punishment is justified only if it contributes to the greatest volume of happiness in the greatest number of people (Dubber & Kelman, 2009; Banks, 2009). But this theory is inferior to the retributivist theory in five ways: First, it promotes public welfare and the maximum happiness of all by ignoring the suffering of the innocent or victims, which does not produce the desirable effects of a better or alternative institution; second, the effectiveness or rationale issues of punishment are matters to be determined by sociologist, psychologists or anthropologists and not by legal authorities; third, the current forms of punishment have not proved effective in many types of criminals who cannot be rehabilitated; fourth, incapacitation is effective only for a time and on some forms of crime only; and punishment does not deter some crimes (Dubber & Kelman, Banks).
There are three fallacious arguments against the deterrent effect of punishment (Banks, 2009). The threat of punishment does not affect criminals who do not consider the possibility of getting caught and punished. The high rate of recidivism shows that punishment is not an effective deterrent. And criminals and others who do not reason do not think like professionals in making decisions. They do not consider benefit and costs or reason in any way. Furthermore, a comprehensive review of studies on the deterrent effects of punishment found no evidence of such effects (Banks, 2009). These concluded that an official deterrence policy can be "no more than a short in the dark or a political decision to pacify 'public sentiment (Beyleveld 1979 in Hudson 1996 as qtd in Banks).' " Tens (1987) and Walker (1991), appraising the research studies, commented that capital punishment is not more deterring than life imprisonment. Nagin (1998) also considered the findings of three sets of time-series studies on the effects of specific policy initiatives and found that policy targeting only has a temporary effect and not a successful deterrent (Banks).
Tullock (1987 as qtd in Banks, 2009) surveyed the economic and sociological models of deterrence in multiple regression studies. Results showed that increasing the frequency or severity of punishment reduced the likelihood of a given crime. But Blumstein, Cohen and Negin (1978 as qtd in Banks) argued that the results did not necessarily establish the general deterrent effect of sanctions. In the overall, researchers are not agreed that punishment generally deters (Banks).