Part 2: Arguments Against Utilitarian Justifications
C. L. Ten: The Effects of Punishment
The utilitarian theory justifies punishment on the grounds of rehabilitation and deterrence. Ten argues that rehabilitation just doesn't work and that deterrence isn't much better. His reason for this claim is that no solid proof has yet to demonstrate that rehabilitation programs succeed in lowering the rate of recidivism. According to Ten, the difference between deterring an individual and rehabilitating an individual is that deterrence scares the individual into not committing the crime again whereas rehabilitation makes 
the individual not want to commit the crime again. As such, deterrence is a somewhat viable theory of punishment as some effects can be proven, but rehabilitation fails as the rate of recidivism is the same for prisoners who receive rehabilitative forms of punishment as those who do not. Even with deterrence Ten is skeptical. Evidence exists that punishment to deter an individual from committing the same crime does not in fact deter them. What studies have demonstrated is that the rate of recidivism is the same amongst those who were caught, convicted, and punished as those who were caught, confronted, and let go. In other words, the actual punishment failed to deter shoplifting or drunk driving (the subject of the studies Ten cites); instead, it was being caught that served to deter the person by making them fear the real possibility of being caught again. The fear of being caught serves as the deterrent rather than the punishment for being caught.
This may not be the case with all crimes. In some studies there does appear to be a deterrent effect of punishment. This can be demonstrated by showing that areas with higher crime rates correlate to areas with lower penalties and vice versa. Some clear examples of deterrence working can be found in this way by comparing vandalism in the U.S. with Singapore or theft in the U.S. with Saudi Arabia . Yet other sorts of crimes seem not to be affected by deterrence. For example, when Hawaii legalized abortions, the rate of abortion did not increase which would indicate that the criminalization and punishment for abortions was not having any deterrent effect.
Deterrence does have some value in its incapacitative effect. By keeping people locked up in prison, their ability to commit crimes is curtailed. The more criminals are locked up for longer periods of time, the more the overall crime rate will be lowered. Incidentally, this is one argument behind the "3 strikes" laws found in several states. By locking up habitual criminals, we deter most of their future crimes, thereby lowering crime in society. Of course, the price for achieving this deterrent effect via incapacitation is to massively increase our prison populations. However, this incapacitative effect is of limited value as criminals do have opportunities to commit murders and other crimes while behind bars. Still, there is some deterrent value found through prison as a form of punishment.
In summation, Ten shows us that deterrence is not easily predicted. Many factors are involved in determining if a deterrent effect will be derived from a particular punishment and even then many factors may eliminate this deterrent effect. For example, upping punishments which overcrowds prisons may not increase deterrence when the result is an increased rate of parole to deal with overcrowding. There also seems to be a variety of psychosocial factors in determining if punishment can deter a person from committing a particular crime (i.e. the decision to have an abortion seemed to be beyond the reach of deterrence). In the final analysis this makes deterrence much more difficult to use as a justification for punishment. Deterrence appears to have some general effect in some cases as well as a limited incapacitative effect, but lacks the individual or universal deterrent effect utilitarians propose. This creates a problem for utilitarians because, if Ten is correct, rehabilitation fails and deterrence is not practical, leaving the utilitarians with a largely discredited theory of punishment.
Igor Primoratz: Arguments against the Utilitarian Theory
Even if the utilitarian theory of punishment works (and Ten indicates it might not work), there are direct objections to it. The essential objection in this article is that utilitarian punishment is unjust in at least three ways. First, there is no mercy. Second, it allows disproportionate (harsh or lenient) punishments. Thirdly, there is no thing connecting punishment to desert. Below is a summation of Primoratz arguments as well as other classic arguments against the utilitarian theory of punishment. If we were to get at the core objection to the utilitarian theory, it would probably be that utilitarianism does not respect the human person. How do you show proper respect for the human person? You punish them based strictly on what they deserve.
This argument derives from several sources including both Kantian moral theory, which is based upon 
respecting persons as ends in themselves rather than means alone, and Libertarianism, which also places primary value upon the individual's rather than society's interests. Utilitarians ignore the individual person by justifying punishment on the "larger" objectives of society's good. For example, the philosopher Hegel objects to utilitarian deterrence when he says, "To base a justification of punishment on threat is to liken it to the act of a man who lifts his stick to a dog. It is to treat a man like a dog instead of with freedom and respect due to him as a man"
Why can't the utilitarian punish based upon desert?
For utilitarians, punishment cannot be deserved. At best it can be right to punish. How can a utilitarian ever say someone "deserves something" as they determine everything based upon the greater good? Utilitarianism entails that you are entitled to something not because "you deserve it" but because "your getting it maximizes the greater good."
Why can't a utilitarian show mercy?
Mercy is a conflict between deserved punishment and justice. This conflict takes the form: We have good cause (justice) to punish, yet we find good cause (desert) not to. This cannot occur in utilitarianism because for utilitarians there is no difference between "desert" and "justice" as both simply mean utility.
Why does rehabilitation necessarily conflict with desert?
Rehabilitation is also a matter of society using a man and changing a man to meet its own ends. When we punish based upon rehabilitation, we are deciding to forcibly alter who this person is. We do this not for his benefit, but for our own benefit. Rehabilitationists don't argue that we should rehabilitate prisoners for their own good (though Aristotle might); they argue that we should make them "productive citizens," which is to say make them so they benefit the rest of us (not to mention get them out of jail so we don't have to pay for their upkeep, which is also based upon our interests and is not a question of what the person deserves). Thus, rehabilitation is using a criminal as a means rather than treating them as an end. It fails to respect a person or punish them based upon desert. Instead, rehabilitation sacrifices respect for the person and what they deserve in exchange for using a person for our own good.
Why does deterrence necessarily conflict with desert?
The nature of deterrence is to punish in excess of desert. We do not ask: what do they deserve given their crime? 
Instead, we are motivated by a desire to scare others and this will often entail a more spectacular form of punishment. For example, if we want to deter parking in handicapped lots? Well then, let's chop of the legs of offenders (then they can park there all the time). This would certainly deter, but it would also be excessive. When a punishment today fails to deter next week, the utilitarian response is to jack up the penalties continually. This itself indicates that punishment does not fit the crime as the same crime committed today earns one punishment where next week the penalty doubles, all because of how many other people commit the crime. Why should I be punished for what other people do? This, of course, works in reverse as if it were learned that half the punishment would net the same deterrent effect, suddenly my crime earns half the penalty as it did before.
Some further conflicts between desert and deterrence are:
- Deterrence takes crimes of passion or provocation, which are traditionally "extenuating circumstances" warranting less punishment, and turns this around making them "aggravating circumstances." This is because crimes of passion or provocation can only be deterred by increasing the punishment for them.
- Punishing the mentally ill is another problem for the utilitarian. Bentham holds that they should not be punished as the punishment would not have a positive effect. For certain it may not affect the behavior of the mentally ill, but what if punishing the mentally ill would deter normal people? The state of Texas has taken this sort of view in its defense of executing the mentally ill in the name of deterrence. Why wouldn't the utilitarian, when push came to shove, support punishing the mentally ill on deterrence grounds? Of course, the utilitarian might hold that even in these cases we should not punish the mentally ill because of the generally moral opposition of society (thereby making it against the greater good). But doesn't this answer demonstrate flawed reasoning in that what other people think is not determinative of what the mentally ill criminal deserves? Yet this is what the utilitarian appeals to.
- Punishing the innocent is also justified on the utilitarian theory for deterrent effect. Collective punishment,
where it is impossible to determine the innocent from the guilty, may be justified in some cases for its deterrent effect. This has occurred historically, when in the name of deterrence states have justified punishing the guilty person, his family, his village, or his acquaintances. One example of this today is when a suicide bomber strikes Israel , the Israeli military will bulldoze the home of the bomber's family. This is done as a deterrent and in at least one case a family member prevented a relative from committing a suicide bombing in order to preserve the family home.
To reiterate, when we punish based upon deterrence, we ask ourselves, "Will this deter others?" We are not in any way discussing if the person deserves this punishment. The person punished by deterrence is being used by society for society's own goals and is not being punished based on what he deserves. Deterrence then is using a man as a means to an end, regardless of what they deserve.
Further objections to the Utilitarian Theory
Moving beyond the rehabilitation and deterrence conflict with desert, there is also a general objection to viewing punishment as a way to achieve the greatest good. If punishment is justified because of the general good that comes from it, then the following seems justified:
- We might find a general case where punishing an innocent person serves the greater good.
For instance, if great social unrest occurs because a crime has not been solved and no solution is in sight, a utilitarian seems justified in picking out an innocent, unsavory character and convicting them for the greater good. Doing this will ease social unrest, serve as a deterrent, and ensure faith that the guilty do not escape. In these cases, utilitarianism not only holds that the courts punish the innocent, but that the innocent themselves accept guilt for the common good. A good confession to the false charge and claims of repentance before punishment best serves the public good, yet this seems an unjust result of utilitarian theory. - Bentham's theory also entails letting the guilty off scot-free.
For instance, if a punishment would offend the public or even a foreign power, then it would have more negative consequences than good ones-requiring us not to punish. We do not have to look far for these sorts of cases. Sometimes, when foreign nationals of significant prominence commit crimes in our country, they are not punished (typically they are just asked to leave the country) on the grounds that it would damage international relations. We might also find cases where the vast majority of the public opposes punishing a person for committing a crime (perhaps they are universally loved or their crime was the sort that people "would have done in their shoes"). Here too the utilitarian would let them off the hook, despite the commission of a crime, just because public opinion is opposed to punishment. What sorts of cases might fit this model? Would the utilitarian conclusion not to punish be the right solution? -
Granting criminals who become human subjects lighter sentences.
Kant asks, "What are we to think of the proposal that the life of a condemned criminal should be spared if he agrees to let dangerous experiments be carried out on him in order that the doctors may gain new information of value to the commonwealth, and is fortunate enough to survive?" Kant rejects any such deal as unjust, but the utilitarian is certainly tempted to accept it. What should we say to this sort of case? -
Propagate the illusion of punishment.
At the cape of Good Hope, the Dutch made use of a stratagem which could only succeed among the
Hottentots. One of their officers having killed an individual of this inoffensive tribe, the whole nation took up the matter, and became furious and implacable. It was necessary to make an example to pacify them. The delinquent was therefore brought before them in irons; as a malefactor he was tried with great form, and was condemned to swallow a goblet of ignited brandy. The man played his part-he feigned himself dead, and fell motionless. His friends covered him with a cloak, and bore him away. The Hottentots declared themselves satisfied. "The worst we should have done with the man," said they, "would have been to throw him into the fire but the Dutch have done better-they have put the fire into the Man. " Is this not the ideal utilitarian punishment? To give the illusion of great punishment without actually inflicting pain? Do you concur with this case?
What is the alternative view of punishment?
The major competitor to the utilitarian theory of punishment is known as retribution. Those who object to the utilitarian theory typically favor retribution because "...retributivism affirms the conception of human beings as persons; for we relate to another person when the way we treat him is determined by his own decisions and actions." The essence of retribution (favored by Kantians and libertarians) is desert. With retribution we first say "he deserves it" and then we punish in a way that he deserved, and if that punishment serves as a deterrent then so be it. This would be killing two birds with one stone, but the primary focus is always on what the person deserves and never on the deterrent or rehabilitative effect. Real justice and respect for a person's free will requires punishing only those who deserve it without forcing them to change against their will or using them for our purposes.