The concept of punishment, its justification, and its practical application in modern society have shown a marked departure away from efforts to rehabilitate and reform offenders to incarceration and retribution in modern times. It is in public domain that punishment in its very conception is now recognized to be an intrinsically retributive practice. To many, the goal of the social order cannot be achieved without punishment (Adams, 2005). Another school of thought argues that people must first ask themselves if it is morally right to inflict pain inform of punishment to a person on the account of past misdeeds. Utilitarianism denotes that punishment produces unhappiness which is evil in itself. This evil can only be justified if the results of punishment would be an increase in good for the offender, victim, and the society at large (Allen, 1985). The question that therefore abounds is whether punishment is best justified by a utilitarian or a retributive theory, or a mix of both theories. To answer the question efficiently, the prepositions of both theories need to be carefully analyzed and compared.
Various theories have been put forward in an attempt to explain justification of punishment. The utilitarian view advocates for punishment only if it will bring benefits to society while the retributive view sees punishment as deserving to the offender if he or she has been found guilty. Mixed theorists try to blend the two approaches. Differences have emerged over which theory best justifies punishment. From my point of view, offenders who have been found guilty by a court of law should be punished only if society stands to gain from it (Adams, 2005).
The utilitarian approach rests on the premise of cases unmeet for punishment. Whether an offender is guilty or not, punishment should always be determined by what society stands to gain from the punishment. There are some cases that have been put forward, that are unmeet for punishment that is, society gains nothing by inflicting pain and suffering to the offender and in some cases, actually stands to lose. When a case is groundless, that is, no offense has been committed and/or if committed, produces a benefit that outweighs the crime then there is no need for punishment. Where a case is inefficacious that is, the threat of punishment does not really prevent the crime from occurring or when meting the punishment is too expensive, then punishment is not justified. Lastly, where a case is needless that is the wrong can easily be prevented by another form other than punishment then there is no need to punish (Adams, 2005).
My inclination to uphold the utilitarian approach is that it is based on morality. If a punishment leaves both the society and the offender no better than it first found them then it serves no purpose and as such, then it doesn’t need to be meted out. The aim of punishment is to correct and rehabilitate the offender in a manner that promotes his welfare and the welfare of society in general. This means that if society does not stand to gain from the punishment then there is really no need for the law courts to undertake such an ineffective and often expensive gesture. A lot of things have to be taken into account when deciding whether or not an offender deserves to be punished. Culpability and subsequent punishment should therefore be determined by whether a case is unmeet for punishment (Adams, 2005).
At times, the accused may not have committed any crime at all or he/she may have obtained fair consent from the complainant prior to the offense being committed. At times also, the offence may have been committed in order to promote a greater good for society. In this instance, the offender does not deserve to be punished because he did not intentionally commit the said offence and would therefore not benefit from rehabilitation as he is not a criminal. We should not for instance, punish a doctor who having been begged by his patient to end their life on account of their continuous suffering, does so. This doctor may have committed an illegal ac t, but that does not render him a criminal due to the circumstances (Banks, 2004).
A penal provision can also be effected after a crime has been committed. In this instance, it would be wrong to punish the offender using laws that have been stipulated after the act as he did not know that his actions would warrant such consequences. Doing so is extremely unfair and portrays the law as a predator. This also applies if the judge punishes someone outside the stipulations of law (Adams, 2005).
The legislator has a duty to appraise everyone within the stipulations of the law on various crimes and their legal provisions. In this instance, ignorance can be argued to be a defense since the offender is clearly not a criminal if he is not aware that what he or she has done is a crime. What does society stand to gain by punishing him? Nothing really. It will just be an exercise in futility and a congestion of the correctional facilities as the offender is really not a criminal and can therefore not be rehabilitated. In fact, society stands to loose by inadvertently inducting this individual into a world of crime as he brushes shoulders with the real criminals in jail and will probably go on a revenge mission once he gets out (Adams, 2005).
If an offender is mentally incapacitated then, though he has committed the offence, should not be punished as this will not have any net gain on society. There is no benefit in punishing an insane person who obviously did not set out to commit the crime knowingly and will not understand the significance of the punishment, simply because he or she is guilty of an offence and therefore deserves to be punished. If the person was intoxicated then he was not in his right senses to make a proper judgment and deserves a more lenient form of correction as opposed to wholesale judgment reflecting on nature of the crime (Banks, 2004).
Ignorance can also be argued to be a defense where the offender committed the crime unintentionally or if it was intentional, he or she did not know that it would produce the undesired consequences. This person though an offender, is not a criminal and would not benefit from rehabilitation. One can only rehabilitate something which was crooked in the first instance.
Self defense is another provision under the utilitarian view, in which punishment is unwarranted. If someone’s life is in danger, say, of a murderer, then if the endangered person kills this murderer then punishment is inefficacious as the crime actually produced a greater good in saving this person’s life (and ridding the world of a murderer). This should also extend to distress calls, such that if one is found attacking another by a third party, then the third party has a right to defend the attacked with no threat of punishment (Adams, 2005).
Where punishment is seen to be unprofitable such as if the evil of the punishment appears to be greater than the crime that was committed especially if this is felt by those by whom the law is observed. For instance, chopping someone’s hand off because he or she has stolen a few coins is perceived to be unnecessary and evil. Punishment should not strip a man off his dignity as its aim is to restore, not avenge. Punishment is also perceived to be needless when if the offender can be stopped in other cheaper ways like in simply being given instructions or being warned of the consequences of their actions (Adams, 2005).
Critics feel that the utilitarian theory promotes punishment of anyone, whether guilty or innocent, so long as society stands to gain from it. This is a wrong view. The theory does not mean that innocent people should be punished if this promotes the welfare of society for example, in terms of deterrence of future crimes. In all criminal cases, due process has to be followed and if the offender has been found guilty, then punishment will be meted out with a view to increasing the welfare of society. Net gain refers to the society AND the offender as part of that society. The offender should also gain from the punishment in terms of being rehabilitated and reintegrated back into society. The point of the utilitarian view is that we cannot just punish individuals indiscriminately as if we were avenging the crimes, without first listening to their side of the story and determining if they deserve to be punished or not (Banks, 2004).
One may also wonder why the utilitarian theory seems to dispute punishment of some offenders and to argue for the ignorant to be treated with leniency when it is widely acknowledged that ignorance is no defense. In this respect, it may appear that the theory is actually promoting criminality. This is an inaccurate view. The aim of the utilitarian is to objective while giving punishment so as to protect non criminals from paying for crimes that they did not intentionally do. While all offenses can certainly not go unpunished, we cannot on the other hand punish non criminal offenders to the full extent of the law. It is not only an exercise in futility but is also not right. There are other ways to deter these offenders from committing the said crimes without making the society worse of. If a woman kills her husband for raping their underage daughter, is she entitled to capital punishment? Can we really argue that she deserves what she is getting? Evidently, the woman is not a criminal but was sufficiently provoked to commit the act. Society would therefore not in any way benefit from the death of this woman as it will not mean that there is one less murderer in their midst. Punishment for this woman should be very lenient to serve only as deterrent from taking the law into one’s own hands but sympathetic also, towards the larger circumstances under which the crime was committed. The retributive view seems to have a vengeance ring to it and therefore cannot be welfare enhancing. The mixed theory also fails to capture the essence of punishment by sitting on the fence in terms of its views (Adams, 2005).
The aim of any form of punishment is to correct and rehabilitate the offender as well as educate the public. However, this cannot be achieved if we set out in vengeance against all offenders. On the contrary, it will portray the law as a predator and not a reformer. Not all offenders are criminals and therefore, not all offenders deserve to be punished to the full extent of the law. Sometimes, culpability is circumstantial and applying the law is not only perceived as an exercise in futility but also that of extreme unfairness. Punishment should either do some good or prevent some evil thus enhancing social welfare; otherwise it will not be justified. At the end of the day, the theory that best justifies punishment is one that holds a humane and enlightened approach towards criminality (Adams, 2005).
From the arguments above, is punishment best justified by a retributive theory, a utilitarian theory, or a mix of both theories? It can be clearly discerned that punishment is best justified by utilitarian theory. Punishment must have some value or utility rather than that of settling old scores. Punishment should be used in modern society to prevent further crime and its application must be most conducive to the welfare of society in general. The value gained by the society as a whole should be more than the mere fact of punishing the offender and the subsequent disadvantages that such an offender incurs. The overriding principle of any punishment should be to reduce crime through reformation, deterrence, or incapacitation. All these are generally taken care of by the utilitarian theory of punishment. A system of punishment must only be justified by the beneficial consequences that arise from it. This is not to say an offender must not undergo the pain of punishment after breaching the law. Infact, infliction of pain to the offender in moral guilt is a thing of value in itself (Hart, 1968). But it should not stop there. Punishment must be seen to benefit the whole society and that is why utilitarian theory justifies the concept of punishment better than the retributive theory.
References
- Adams, D.M. Philosophical Problems in the Law (4th ed.). California State Polytechnic University Pomona, 2005. ISBN: 0534584284
- Allen, R. Concepts and Theories Relating to Punishment. 1985
- Cyndi Banks, Criminal Justice Ethics: Theory and Practice, SAGE, 2004.
- Hart, H.L.A. Punishment and Responsibility: Essays in the Philosophy of Law. Oxford University Press. 1968. ISBN: 0198251815