Unit 2: Theories of Punishment
Dudley & Stephens (CP)
One of the most important questions in criminal law is how we justify punishment. The concept is abstract but the implications are concrete: “we the people” (at either the state or federal levels) incarcerate our fellow citizens, deprive them of liberties, and sometimes even kill them for violating our criminal laws. On what basis do we punish?
Two general theories of punishment have emerged within criminal law scholarship. We will simplistically refer to them in this class as utilitarianism and retributivitism. Their roots are philosophically complex and nuanced, and alternate theories have also been proposed. But for purposes of our course, we will stick to this basic and simplified dichotomy.
Generally speaking, utilitarianism is forward-looking and retributivism is backward looking. Utilitarianism cares about the results of punishment and whether its benefits (e.g., deterring future crime, making people feel safer, enforcing respect for the law) outweigh its costs (e.g., removing someone from his or her family and community, paying for incarceration, risking wrongful convictions). Retributivism cares about enforcing justice by ensuring that wrongdoers are punished and innocent parties are not punished.
Utilitarianism often focuses on general deterrence, that is, the extent to which punishment of an offender convinces the rest of society that the law will be enforced. The idea is that potential offenders who would otherwise have violated the law will be deterred from doing so, which will result in a net reduction in crime for society.
Sometimes utilitarians raise arguments about specific deterrence. These arguments focus on the ways in which the actual offender is deterred from future criminal offenses in two ways: (1) by physical incarceration (when the offender is sentenced to prison); and (2) by the threat of future punishment for another offense (similar to the general deterrence rationale).
Because we will refer back to these two theories of punishment throughout the course, you should be comfortable knowing and applying the basic distinctions between them.
Questions for Review:
Q1. Jim attacks Bill and Sue, a married couple. He murders Sue and badly wounds Bill. Jim escapes arrest. Two years later, Bill spots Jim walking down the street. Filled with anger, Bill attacks and kills Jim. How would you punish Bill under a utilitarian framework? Under a retributivist framework? How, if at all, does the distinction between specific and general deterrence change your analysis?
Q2. In 1966, William Barnes shot and wounded police officer Walter T. Barclay Jr. during a botched burglary. Barnes served twenty years in prison. In 2007, twenty-one years after Barnes’s release from prison (and forty-one years after the crime), Barclay died of a urinary tract infection. The district attorney then charged the now 72-year-old Barnes for Barclay’s murder. Assume that there are no issues with causation (a concept that we will learn about later in the course). Was the district attorney correct to prosecute for the murder of Officer Barclay? Why or why not? What kind of punishment would you seek, if any?
Those of you interested in the role of forgiveness in the criminal justice system may find interesting this 2013 article in the New York Times.