However, a person who makes a conscious choice to upset the balance of society should be punished. There are different moral bases for retribution. To many retributivists, punishment is justified as a form of vengeance: wrongdoers should be forced to suffer because they have forced others to suffer. This ancient principle was expressed succinctly in the Old Testament of the Judeo-Christian Bible: "When a man causes a disfigurement in his neighbour … it shall be done to him, fracture for fracture, eye for eye, tooth for tooth….
To other theorists, retribution against a wrongdoer is justified to protect the legitimate rights of both society and the offender. Society shows its respect for the free will of the wrongdoer through punishment.
Punishment shows respect for the wrongdoer because it allows an offender to pay the debt to society and then return to society, theoretically free of guilt and stigma. A third major rationale for punishment is denunciation. Under the denunciation theory, punishment should be an expression of societal condemnation. It is utilitarian because the prospect of being publicly denounced serves as a deterrent. Denunciation is likewise retributive because it promotes the idea that offenders deserve to be punished.
The U. The most widely accepted rationale for punishment in the United States is retribution. If convicted, the sentence a defendant receives is always, at least in part, a form of retribution. A sentence may, however, combine utilitarian ideals with retribution. For example, a defendant sentenced to prison for several years is sent there to quench the public's thirst for vengeance.
At the same time, educational programs inside the prison reflect the utilitarian goal of rehabilitation. These systems seek to limit punishment to the extent necessary to protect society.
The following are potential utilitarian reasons to punish:. For the utilitarian, it is not morally permissible to punish criminals in order to give them what they deserve by exacting revenge or retribution on them. For Kant, giving criminals what they deserve is the only legitimate reason to punish them. If we punish them in order to promote happiness, then we are violating the categorical imperative by treating them as a mere means to an end.
So, all of the utilitarian justifications for punishment are bad ones, according to Kant. Kant advocated two principles regarding how punishment should be administered.
Notice that utilitarianism does not endorse either of these principles. Contrary to 1 , it advocates punishing as a deterrent or in order to reform criminals. Contrary to 2 , the severity of punishment will depend on what maximizes utility, regardless of whether it is proportionate to the crime. This might involve making an example of an offender by administering a severe punishment in order to discourage others from committing the same offense.
It might also involve letting some people such as first time offenders off light, on the grounds that a lesser punishment will be enough to discourage them. In keeping with 2 , Kant supported capital punishment for murderers. The question arises, how does Kant justify punishment in the first place? Not according to Kant. Criminal actions, like any other actions, are associated with maxims. The maxims of criminal actions theft, assault, etc. For example, I will rob you when I have the opportunity to do so in order to promote my own interests.
As rational agents, people who act on these maxims are endorsing them as universal law. They are saying, in effect, this is how people ought to be treated. It tells us that we ought to treat others always as ends, and never merely as means.
By punishing a criminal, we are respecting his ends, because we are treating him in the way that he thinks people ought to be treated. Thus, we are not punishing him for our own benefit nor for his benefit , but because it is in accordance with the principles that he has endorsed through his actions.
Now we can see how Kant could make a distinction between suicide and capital punishment. But if we kill a murderer because he has murdered , then we are not using him as a mere means to an end.
We are not killing him in order to increase happiness. Rather, we are killing him in accordance with the principle of action that he chose to live by. Of course, the Kantian justification for punishment hinges on the assumption that the punished actually chose their actions autonomously, using their own rationality. It depends, in other words, on the assumption that they were moral agents when they acted. From the Bureau of Justice Statistics.
In , 65 inmates were executed, 6 fewer than in Prisoners under sentence of death. At yearend , 37 States and the Federal prison system held 3, prisoners under sentence of death, 20 fewer than at yearend All had committed murder. Bedau begins by noting the case of Furman v. Many states then re-instated the death penalty with new standards that required juries to decide on penalties separately from guilt and innocence, and to use uniform criteria in applying the death penalty.
Bedau claims that capital punishment is not a deterrent to capital crimes. This is obviously relevant to whether the death penalty is justified on utilitarian grounds. The innocent man did not rape the woman, so he does not deserve to be punished for that crime. Because utilitarianism focuses solely on the balance of happiness over unhappiness that is produced by various actions, it is unable to take into account important factors such as justice and desert.
If justice and desert cannot be incorporated into the theory, then the punishment of innocents cannot be ruled out as unjust, so a prohibition against it will have to be dependent upon the likelihood of various consequences.
This strikes many theorists as problematic. Regarding retributive theories, C. He is surely right about this, so, therefore, it is difficult to give a general account of retributive justification. However, it is possible to state certain features that characterize retributive theories generally. Concepts of desert and justice occupy a central place in most retributive theories: in accordance with the demands of justice, wrongdoers are thought to deserve to suffer, so punishment is justified on the grounds that it gives to wrongdoers what they deserve.
It is instructive to look at the form that a particular retributive theory can take, so we will examine the views of Immanuel Kant. If a wrongful act is committed, then the person who has committed it has upset the balance of the scale of justice. He has inflicted suffering on another, and therefore rendered himself deserving of suffering. So in order to balance the scale of justice, it is necessary to inflict the deserved suffering on him.
But it is not permissible to just inflict any type of suffering. Perhaps the most straightforward application of this principle demands that murderers receive the penalty of death. So, for Kant, the justification of punishment is derived from the principle of retaliation, which is grounded in the principle of equality.
Recall that the failure to take desert and justice into consideration is thought by many to be a major problem with utilitarian theory. However, while Kantian theory may seem superior because it takes desert and justice into account, an influential criticism of the theory challenges the idea that punishment can be justified on the grounds of justice and desert without requiring that the balance of happiness over unhappiness be taken into account.
In this world, punishment does not deter or rehabilitate. For whatever reason, incapacitation is impossible. In addition, victims receive no satisfaction from the punishment of those who have harmed them. In this world, a Kantian would be committed to the position that punishments still ought to be inflicted upon wrongdoers. Furthermore, the individuals that populated this world would be morally obligated to punish wrongdoers.
If they failed to punish wrongdoers, they would be failing to abide by the dictates of justice. But surely it is quite odd to hold that these individuals would be morally obligated to punish when doing so would not produce any positive effects for anyone.
According to Ezorsky, this terribly odd consequence suggests that the Kantian theory is problematic. Kant would not agree that this consequence of his theory is odd. If they do not live up to this obligation, then they will be failing to abide by the dictates of justice, and their lives will be of lesser value.
Of course, critics of the Kantian theory are unlikely to be persuaded by this response. Predictably, the responses to these criticisms vary depending on the particular theory.
Many theorists have attempted to take features of utilitarianism and retributivism and combine them into a theory that retains the strengths of both while overcoming their weaknesses.
The impetus for attempting to develop this sort of theory is clear: the idea that punishment should promote good consequences, such as the reduction of crime, surely seems attractive. However, the idea that it would be justified to punish an innocent in any circumstance where such punishment would be likely to promote the greatest balance of happiness over unhappiness surely seems wrong.
So, each type of theory seems to have positive and negative aspects. But how to combine these seemingly opposed theories and produce a better one?
Is a compromise between them really possible? In an attempt to explore this possibility, we will examine the theory of H. What is needed is the realization that different principles… are relevant at different points in any morally acceptable account of punishment. What we should look for are answers to a number of different questions such as: What justifies the general practice of punishment?
To whom may punishment be applied? The failure to separate these questions from one another and consider that they might be answered by appealing to different principles has prevented many previous theorists from generating an acceptable account of punishment.
So, the general practice is to be justified by citing the social consequences of punishment, the main social consequence being the reduction of crime, but we ought not be permitted to punish whenever inflicting a punishment is likely to reduce crime. In other words, we may not apply punishment indiscriminately. With few exceptions, the individual upon whom punishment is inflicted must have committed an offense, and the punishment must be attached to that offense.
Utilitarian concerns play a major role in his theory: the practice of punishment must promote the reduction of crime, or else it is not justifiable. But retributive concerns also play a major role: the range of acceptable practices that can be engaged in by those concerned with reducing crime is to be constrained by a retributive principle allowing only the punishment of an offender for an offense.
Many people will agree with Hart that it may be necessary to punish an innocent person in extreme cases, and it is thought to be an advantage of his theory that it captures the sense that, in these cases, an important principle is being overridden.
This overriding process, however, cannot work in the opposite direction. Because of this, it is unjustifiable to punish a person who seems to deserve punishment unless some utilitarian aim is being furthered. Imagine the most despicable character you can think of, a mass-murderer perhaps. The justifiability of punishing a person guilty of such crimes is beholden to the social consequences of the punishment.
That a depraved character would suffer for his wrongdoing is not enough. So, for Hart, considerations of desert cannot override utilitarian considerations in this way. Some theorists find this consequence of his theory unacceptable. In an effort to answer this question, we must consider whether the offender who has committed the lesser crime has grounds for complaint if the more serious offender is not punished. By stipulation, the lesser offender committed the crime and cannot thereby claim a violation of justice on those grounds.
Is the justification of his punishment contingent upon the punishment of others? Arguably not: The punishment of the lesser offender is justified regardless of whoever else is punished. He may bemoan his bad luck and wish that his punishment were not likely to further any utilitarian aims so that he may avoid it, but he cannot rightly accuse society of a violation of justice for failing to punish others when he does in fact deserve the punishment that is being inflicted upon him.
Perhaps we ought to reexamine that intuition and consider that it may be rooted in an urge to revenge, not a concern for justice. The belief that, in most cases, the amount of punishment should vary directly with the seriousness of the offense is widely accepted. However, utilitarians and retributivists have different ways of arriving at this general conclusion. Crime and punishment both tend to cause unhappiness.
Recall that utilitarianism is solely concerned with the balance of happiness over unhappiness produced by an action. When attempting to determine the amount of punishment that ought to be permitted for a given offense, it is necessary to weigh the unhappiness that would be caused by the offense against the unhappiness caused by various punishments.
The greater the unhappiness caused by a given offense, the greater the amount of punishment that may be inflicted for that offense in order to reduce its occurrence before the unhappiness caused by the punishment outweighs the unhappiness caused by the offense Ten, So, utilitarians would often be committed to abiding by the rule that the amount of punishment should vary directly with the seriousness of the offense.
However, it seems that there are cases in which they would be committed to violating this rule. Critics argue that utilitarians would sometimes be committed to inflicting a severe punishment for a relatively minor offense.
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