Abstract
The deterrence theory of punishment is more accurately called the crime prevention theory, as deterrence is one of several possible methods of inflicting harm for the sake of crime prevention. Deterrence includes General Deterrence (punishing one person to influence others) and Specific Deterrence (punishing one person to deter him from committing future wrongs). Other methods include incapacitation (physically preventing the wrongdoer from committing future crimes) and rehabilitation (inculcating moral values in the wrongdoer in order that he not commit future wrongs). The basic objection to any crime prevention theory is that it appears to presuppose the utilitarian moral theory. But it is widely accepted that utilitarianism is an unacceptable moral theory, for it violates basic moral intuitions such as the principle that one may not use people ameans to the greater social good, or that the end does not justify the means. If the utilitarian theory is rejected, then specific and general deterrence must be rejected as well. However, incapacitation and rehabilitation do not presuppose the utilitarian moral theory. They can rather be accommodated within a deontological moral theory, so long as it incorporates the Doctrine of Double Effect. Thus it turns out that at least these two methods, contrary to the Abolitionists, can be morally justified. Still, it seems clear that the most fundamental rationalization for punishment is retributive.
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Notes
- 1.
Strictly speaking, the goal of rehabilitation need not be crime prevention, as it can be pursued simply for its own sake. However, for purpose of the present discussion our concern is its use as a justification for crime prevention.
- 2.
“Panopticon versus New South Wales,” (1802), cited in Zimring and Hawkins, Incapacitation, 21.
- 3.
This critique is meant to apply as well to those theories that are not explicitly consequentialist, but that in practice follow the consequentialist acceptance of harming people as a means to the greater good. This is true for example of the various “harm-shifting” theories of punishment (e.g. Phillip Montague, Jeff McMahan); I discuss these theories in Kaufman (2008).
- 4.
The classic argument against rule-utilitarianism is found in Smart and Williams (1963).
- 5.
See detailed discussion in Chap. 4.
- 6.
It may also be noted that in some cases where a guilty person deserves punishment, the consequentialist theory will dictate that he not be punished, on grounds of social utility. But this is yet another example of the failure of consequentialism to produce what we view as the requirements of justice.
- 7.
It is also possible and I think plausible to accept the idea that at least in some cases, it is permissible to override a moral rule simply for the sake of consequences, provided that the consequences are severe enough in comparison to the importance of the moral rule. This view is often called “threshold deontology,” and it should be sharply distinguished from consequentialism, in which consequences are always sufficient to override moral rules (since moral rules have no independent moral standing). I leave aside discussion of this complication, noting that for our purposes, no threshold deontologist would hold that punishment in general can be justified on these grounds, given the severe harm inflicted on the criminal, let alone the near-sacred moral rule prohibiting the deliberate punishment of the innocent.
- 8.
One might try to argue that the key distinction is between what one does versus what one merely allows. However, the moral significance of this distinction rests entirely, I would argue, on the intend/foresee distinction: ordinarily, what one “allows” corresponds to what one merely foresees, and what one “does” corresponds to what one intends.
- 9.
See also Vidmar (2000).
- 10.
Cf. also Robinson and Cahill (2006, 126).
- 11.
Kahan actually refers not to the retributive theory, but the “expressive” theory. But I argue later that what he calls the “expressive” is but another name for retribution (ironically then, Kahan commits the same error he accuses others of: using the name “expressive” to avoid having to openly endorse a controversial theory of punishment!).
- 12.
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Kaufman, W.R.P. (2012). Punishment as Crime Prevention. In: Honor and Revenge: A Theory of Punishment. Law and Philosophy Library, vol 104. Springer, Dordrecht. https://doi.org/10.1007/978-94-007-4845-3_2
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