13.1 Utilitarian approaches

Utilitarian approaches to punishment typically focus on the good that punishment can do. Thus they tend to be forward-looking. Punishment itself is the deliberate harming of someone and this is wrong for utilitarians unless it is a way of attaining a greater good for all involved. There are three different views that are all broadly utilitarian in their approach to crime and punishment:

1. Isolation theory: the criminal is enough of a threat to society to warrant confining him or her to prevent more harm from being done.
2. Deterrence theory: crime should be prevented by harshly punishing those convicted for crimes – this will make non-criminals think twice about whether to commit crimes or not.
3. Correction theory: crime is a sign of a maladjusted character that needs to be coercively readjusted to fit in better with society. Punishment is one important tool in readjusting criminals to society.

Isolation

The first of the utilitarian approaches to punishment is based on the idea that punishment, imprisonment or even execution, is primarily a way of removing certain people from circulation in the public world. This can be justified, on this view, if isolation of the prisoner costs less, both monetarily as well as in terms of pain and suffering to all affected, including the prisoner, than the benefit enjoyed by society as a result. So if my being stuck in a jail cell causes everyone else to sleep better at night knowing that I will not be climbing through their windows looking for valuables to steal, and reduces the costs of my criminal activities in other ways that outweigh the costs of imprisoning me, it may be justified to imprison me. I say here that it may be justified because, if the price of keeping me in jail is high enough, or people’s desire to sleep well weak enough, it may not be justified. But in spite of these complications about the exact consequences of confining me, the basic idea should be clear – justification for punishment is to be sought in its ability to make the world a better place for those on the outside of prison walls. This approach to punishment clearly requires us to be able to predict whether or not imprisonment of offenders will lead to a greater good or not, and this may be difficult to determine. Are all of the billions of dollars we spend on locking people away in jail well-spent billions, or are they an expensive relic of a past approach to crime in which people who committed crimes were assumed to possess an inherently criminal nature that would cause them to always commit further crimes?

Deterrence

An alternative, and very popular attempt to justify punishment points to the possible deterrent value of punishment for other people besides the one being punished. The claim is that punishment is justified to the degree that it sends out a message to everyone else (especially people who may be thinking about committing crimes themselves) that crime does not in fact pay. If we see someone who committed a crime being punished we will think twice about violating the law ourselves. There are (at least) two issues that need to be addressed when considering this approach to crime – whether it is effective crime control policy, and whether it is just. The first issue can only be settled by figuring out the degree to which people who commit crimes are in fact motivated by the expected results of their actions, as this view claims. Then we need to find out how different punishments have different deterrence results. Many advocates of the “get tough” approach to crime assume that a more severe punishment will have a higher deterrence value, that killing a murderer will prevent more murders than fining murderers $50. This seems to make sense. Yet empirical studies of crime and punishment carried out both by advocates of and critics of deterrence theory have so far been unable to come up with any solid answers about whether or not there is any meaningful connection between severity of punishment and the crime rate. Perhaps the real world is just too complicated for this simple bit of armchair psychology to be of much use in determining the behavior of such complex creatures as ourselves. Whatever the case may be about the real effects of punishment on people thinking about committing crimes there is a deeper problem with deterrence theory. Since punishment is supposed to be effective to the degree that it sends out a loud and clear message it seems like it would be effective only if that message is “swift and sure” – if the day after the bank is robbed someone is caught and thrown in jail. It’s all a matter of making the connection between crime and punishment as clear as possible to everyone watching. But, unfortunately for this view, most criminals attempt to protect themselves from capture by committing crimes in ways that make it difficult if not impossible to get the person who did it. Besides all of this, justice seems to demand that only the person who really committed the crime should be punished for it. All of this, however, adds up to delays in getting the message out, so it seems that on the utilitarian grounds we are here considering, the innocence or guilt of the individual punished is not that important. If punishment is justified by its effects on others, then sometimes framing an innocent person seems justified if there is no other way to effectively send out the massage that crime doesn’t pay. This, of course, is the problem with utilitarianism in general once again – if what is right is what leads to the greatest good for the whole of society, sometimes it seems acceptable to sacrifice innocent people for the good of all others.

Correction

The last utilitarian approach to punishment we will consider is the idea that punishment can be justified only to the degree that it serves to readjust criminals’ behavior in socially more acceptable way, that it “corrects” people. At first glance it may seem strange that this view is grouped together with deterrence theory under the general heading of utilitarian approaches to punishment. This is because contemporary debate about crime policy is often framed in terms of the two opposing views of deterrence theory (a favorite of political conservatives) which demands a getting tough on crime and correction theory (a favorite of political liberals) which requires helping people to overcome their anti-social behavior in more cooperative and less punitive ways. But these two views share a number of features:

• Both look at the justification of punishment in terms of its results, lowered crime rates
• Both are willing to manipulate individuals to achieve this, by making them afraid to commit crimes, or by readjusting their behavior through job training and counseling as well as punishment
• Both insist on looking at the effectiveness of punishment rather than the issue of justice. That is, neither ever asks the question, are people getting what they deserve?

In spite of these similarities, there are clearly also differences that need to be taken into account here. If punishment is justified to the degree that it prevents people from repeating criminal acts, then it seems to make a difference whether or not the one being punished is the one who committed the crime. That is, if it ain’t broke don’t fix it – if you did nothing wrong it is a waste of time to readjust your attitudes by sending you to jail to think about what you did wrong and convince you never to do it again. So the problem of punishing innocent people is not as bad here as it was for deterrence theory. Here an effective crime policy requires at least finding the person who committed a crime.