VICE, CRIME, AND AMERICAN LAW

Our first theoretical foray into punishment is the utilitarian perspective. The utilitarian authors will offer answers to such questions as: Why do we punish? How should we punish? What are the limits of punishment? In addition, we will give voice to some major objections to the utilitarian theory.

Cesare Beccaria: The Origin of Punishment

"No man ever freely sacrificed a portion of his personal liberty merely in behalf of the common good. That chimera exists only in romances. If it were possible, every one of us would prefer that the compacts binding others did not bind us; every man tends to make himself the center of his whole world."

According to utilitarians like Beccaria, the first communities were based upon necessity. Then the nature of having these first communities "caused the formation of others to resist the first, and the primitive state of warfare thus passed from individuals to nations." Laws are those things necessary to preserve communities. Each person, tired of war, gives up some of their liberty in exchange for peace, safety, and the benefits of living in a group.  Since individuals will always try to usurp the benefits of the community for their own end, the laws had to act against them. Punishment was the tool whereby the community protects the common good against the individual. Only punishment could serve to contain the ill motives of individual greed. The limits of punishment are that it must not go beyond what is necessary for defending the public good lest it become unjust.

Jeremy Bentham: "The Utilitarian Theory of Punishment"

WEBLINK: Click here to read "The Utilitarian Theory of Punishment."

Bentham begins by laying out the principle of utility: 

"...that principle which approves or disapproves of every action whatsoever, according to the tendency which it appears to have to augment or diminish the happiness of the party whose interest is in question: or, what is the same thing in other words, to promote or to oppose that happiness."

When Bentham speaks of the common good, he is referring to the sum total of all individuals' interests. Laws, for Bentham, are about promoting happiness. But laws also involve punishment, which is in itself an unhappiness. Utilitarians therefore, have a prima facie difficult time justifying punishment. Thus, the two questions Bentham wishes to apply utilitarian moral theory to answer are: When are we justified in punishing? What are the limits of just punishment?

When are we justified in punishing?

The short answer is when the costs of punishment in terms of utility are outweighed by the gains in utility by punishment, then we should punish. However, there are at least three ways in which this might be the case.

1. Pure cost benefit

   For example, locking up a violent criminal in order to protect society from further violence (deterrence through incapacitation). The costs to him are great, but given his propensity towards violence, the benefits of removing him from the community far exceed the costs to him.

2. Deterrence

When humans decide how to act, we tend to look towards the consequences of our actions. Punishment, when factored in as a consequence, can therefore prevent (deter) crime. What is especially interesting about this idea is that it may not require that a punishment be actually used, as in virtue of knowing the punishment, the crime will rarely occur. Thus, utilitarians take special favor in deterrence, as not only does it lower the overall crime rate, but it often does so by imposing minimal punishment (as punishment is an evil in itself).

3. Rehabilitation

   Punishments to shape the future behavior of the criminal are considered rehabilitation. Utilitarians favor rehabilitation because it salvages one more person from becoming a criminal and transforms them into a productive law-abiding citizen. Deterrence, on the individual level, may have a similar effect to rehabilitation (criminals stop committing crimes), but the motive is different. Rehabilitation means an individual no longer wants to commit the crime(s) in question. In contrast, individual deterrence means a criminal is simply afraid to commit the crime(s) again.

Examples of rehabilitation and deterrence

When we think of rehabilitation, we often think of sentencing drug users and drunk drivers to treatment or the violent offenders to "anger management." These are classic examples but there are many more. Think of prison life in America and a great many rehabilitation efforts are in place. Why do we offer educational opportunities in prison? Why are prisoners encouraged to work? We do these things, not because they are the brightest students or because they work so well for so little. We do them in the hopes that prisoners will learn the value of legitimate work and hopefully gain the skills needed to be productive citizens. Can you think of other examples of rehabilitation in American punishment?

Deterrence is even more interesting. We are all familiar with deterrence in that our fear of punishment deters us from breaking the law. For instance, you slow down every time you see a police car. However, here is a list of seven more extreme punishments at home and abroad which were attempts to deter:

1. In Singapore an American was "caned" for graffiti. Caning, a common punishment in Singapore , involves a martial artist with a bamboo rod whacking your exposed backside. The process causes major wounds (too graphic to show here), yet Singapore streets are some of the cleanest in the world due to deterrence. (Below is a picture of a caning about to begin.)

   

2. In Saudi Arabia the punishment for theft is the chopping off of one hand. (There are no third time offenders!) In addition, the punishment for drug smuggling is a public beheading. Though extreme, the result is a country with a very low reported rate of theft and drug smuggling.



3. In Iran the punishment for adultery (among other things) is to be buried waist deep and stoned. The example is extreme, but one can imagine how such a punishment would deter adultery.



4. In Tampa Florida some youths stole some stop signs (a crime not uncommon in America ). As a result of the missing signs, a deadly accident occurred at the intersection. The judge, aiming to deter this sort of crime, sentenced the youths to 15 years in prison. The result of the highly publicized case was a huge decrease in reported stop sign thefts in Florida and neighboring states.
   
   
5. To deter prostitution in Michigan the police have begun to confiscate any automobile used to solicit a prostitute. (We will return to this case later on as it went to the Supreme Court.)
   
   
6. To deter prostitution in Oklahoma the police began to broadcast pictures of johns and prostitutes on local TV. This attempt backfired, however, as it became a form of "free advertising" for the prostitutes. The following news clip tells the story:

   OKLAHOMA CITY , Oklahoma (Reuters) -- The real shame of Shame TV was the ratings.

   Shame television is off the air in Oklahoma after the channel aimed at humiliating men who frequented prostitutes ended up providing free advertising for city street walkers but gaining few viewers. Oklahoma City officials this week pulled the plug on a city-run television channel used to show pictures of prostitutes and their customers. They said the channel did not deter prostitution. "There were more females than males, and we kept seeing a lot of the same people," said Oklahoma City spokeswoman Marsha Ingersoll. The channel dubbed "John TV" aired mugshots of women arrested for prostitution and the men who consorted with them. It was launched in 1999 with the intention of frightening people not to engage in prostitution out of the threat that their face would be splattered across the airwaves. The scrolling and repeating mug shots of disheveled streetwalkers helped would-be customers identify prostitutes, the spokeswoman said. "It was almost a promotional thing for them. It wasn't a deterrent at all," Ingersoll said.

7. To deter drunk driving, Detroit area judges began requiring drunk drivers to affix a bumper sticker to their car notifying others of their conviction. This sort of deterrence goes way back in American society to the "scarlet letter" employing shame to deter behaviors. The following news article explains this case:

   DETROIT (AP) - Drunken drivers sentenced to probation in one suburban court will carry a sobering message to other motorists the next time they take to the road. Starting yesterday, Troy District Judge Michael Martone ordered drunken drivers to attach bumper stickers to their cars that read: "Drunk Driving, you can't afford it." "Every time you get into your car, you see this bumper sticker," he said. "You're going to think, 'I better not do it again.'" Martone says the stickers also will spread the don't-drink-and-drive message to others. "You stop at a light, you look at the car in front of you," he said. "What I found is that when you try something creative, the notoriety gets other people interested." The stickers are royal blue with the "Drunk Driving" in bright red and the "you can't afford it" in white, Martone said. He had two batches printed - one with tiny text saying the sticker is affixed pursuant to court order, and one with just the message. The latter batch is for non-convicted drivers who want to display stickers on their cars. "My first approach to this was not to make it a 'scarlet letter,'" Martone said. "I wanted to see the reaction." But in future printings, he said he might consider stronger wording for second- and third-time offenders. Each of Troy District Court's three judges handles up to 40 drunken driving cases a week, Martone said. All three will have access to the stickers. "Just think about it," Martone said. "If at the end of the month if I have 125 bumper stickers out there, they're going to be all over south Oakland County ." The stickers cost a little less than $1 each, and Oakland County paid for them, he said. So far, Martone has received no criticism for his bumper sticker idea. And convicts who complain about messing up their cars won't get much sympathy from him. "I think it's a reasonable condition of probation, and they're just going to have to do it," he said. Martone's campaign against drunken driving began in the early 1980s, when he prosecuted drunken driving homicide cases. He had to attend autopsies and visit sites of fatal crashes. That served as an inspiration when Martone last month sentenced Steven Allor, 18, of Grosse Pointe Farms , to attend an autopsy. Allor had been convicted for alcohol possession three times, Martone said. And though he wasn't driving himself, he did get into a car with a drunk driver, Martone said. The teen has called the sentence "ridiculous." "He may not believe it, but I'm trying to save his life," the judge said. Martone has designed a "Courts in the Schools" program that teaches kids about the dangers of drunk driving and the importance of making good choices. The program is offered in Michigan, Arkansas, Wisconsin, New Jersey, Missouri, Florida, and Oklahoma.

These are only a few examples of deterrence-motivated punishments. Can you think of others?

What are the limits of punishing?

Bentham cashes out the principle of utility to provide the following instances of when punishment cannot be justified:

1. Where punishment is groundless (punishing innocents, for instance). 

   If the mischief was necessary to achieve a greater good, this too would make punishment groundless. Suppose I have someone in need of emergency medical assistance in the car and as such I run red lights after looking both ways and finding no traffic. Punishing me in this case serves no gain in utility. This area would also include cases where compensation can be made for the harm done without punishment. For example, if someone breaks your window but pays for repairs and compensates you for the inconvenience, then there is no need for the state to punish. Though Bentham doesn't mention it, Mill, of course, would include in this category not only innocent people but also cases where everyone involved consented.

2. Where punishment is inefficacious (it is unable to prevent bad behavior).
   
   This would include cases:
   
   
   • Where the law is ex-post facto (where the act was not illegal when performed).
     
   • Where the law is passed but is not conveyed to those it is intended to regulate (this is not to say ignorance is an excuse, but it is to say that if a law is never posted or publicized, then there is no justification for enforcement).
     
   • Where the law, though passed and conveyed, could not have an impact on the person (i.e. infant, children, and the insane).
     
   • Bentham also lists intoxication into this class of inefficacious punishments (although other utilitarians would reject this).
     
   • Finally this would include unintentional acts, acts done due to fear (self-defense) and acts that are involuntary (acting from compulsion, "your money or your life," sort of situations).
   
   
   
3. Where punishment is unprofitable (Where the costs of punishment outweigh the benefits of punishment).

   Costs of punishment include the evil of coercion, restraint, apprehension (the pain of the person), and sympathy (the pain others experience out of concern for the one punished). These costs must be weighed against the benefits of punishment which include the degree of the offense, the number of offenses, the likelihood of repeat offense (or of deterring future offenses) and the displeasure of the people who are aware of the crime. Interestingly, Bentham includes foreign powers and communities in determining the benefits of punishment. If by punishing a person we would greatly offend another nation, this would be justifiable reason for not punishing.

4. Where punishment is needless (where the mischief will itself cease or can be prevented without punishment).

In a case where education will prevent a crime, then we ought to forgo punishment. Or if pure pressure alone will prevent the action in future (i.e. you did learn your lesson by the reaction of others).

In addition to these four, Bentham speaks to 28 additional rules guiding punishment (punishment must fit the crime, circumstances must be taken into account, etc.), but we will not go over all of them here. Suffice it to say, more often than not, utilitarians justify punishment for its propensity towards rehabilitation or deterrence. Punishment just for the sake of punishment (without any deterrent or rehabilitative effect) seems immoral to the utilitarian as not only does it accomplish nothing while causing pain, but it also smacks of revenge. What is your take on the utilitarian theory of punishment? As we shall see, it has plenty of objectors.

 

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