Part 4: Mixed Theories of Punishment
John Rawls: The Practice of Punishment
Rawls's essential claim is that any system of punishment must rest upon both utilitarian and retributionist principles. Utilitarian principles will justify the system of punishment as a whole and retributionist principles will justify punishment in individual cases . The the system or rules are set up to benefit society. The determination of punishment for a particular case is what that individual deserves. This will resolve the problems of both theories, especially the problem of punishing innocents. To illustrate, Rawls provides the following example of a conversation between a father and son:
Suppose the son asks, "Why was J put in jail yesterday?" The father answers, "Because he robbed the bank at B. He was duly tried and found guilty. That's why he was put in jail yesterday." But suppose the son had asked a different question, namely, "Why do people put other people in jail?" Then the father might answer, "To protect good people from bad people," or "To stop people from doing things that would make it uneasy for all of us; for otherwise we wouldn't be able to go to bed at night and sleep in peace."
Notice the two different questions discussed. One asks why an individual was punished, which 
earned a retributive justification in response. The other asked about why we have an institution of legal punishment, which earned a utilitarian justification in response. The question then becomes, is the father contradicting himself by appealing to two, generally incompatible, principles? Or, are the types of things the question refers to best resolved by appealing to two principles? Rawls notes that the retributive answer looks backwards, justifying an action in the individual case based upon what had occurred prior. The utilitarian answer looks forward, justifying the system based upon what that system will accomplish for the future good.
Rawls thinks that these two answers are not in conflict as the utilitarian answer sketches out only the duties of the legislators who make the law, whereas the retributive answer sketches out only the duties of the judge who enforces the law. Each job is guided by a different set of duties. Legislators should be motivated by utilitarian justifications (and not retributive concerns) when devising the system of punishment. Judges should be motivated by retributive justifications (and not utilitarian concerns) when enforcing the law. In this way Rawls thinks we can resolve the conflicts and problems of these two theories while compatibly garnering the best parts of each.
Does Rawls have the solution? What objections, if any, do you see with this approach?
Alan H. Goldman: The Paradox of Punishment
Goldman thinks that systems such as Rawls' cannot succeed because no utilitarian system can succeed if the level of punishment is limited by retributionist concerns. For example, the only way to achieve proper deterrent effect, given our conviction rate, is to jack up the punishments to a level that retributionist judges would reject. As such, one or the other has to give, which will collapse Rawls's system into either a retributionist or utilitarian theory. Consider the following cases that would apply:
Case #1
In the name of deterrence, several state legislatures have adopted "three strikes and you're out" laws. But this has entailed that the man with two robbery convictions who then writes bad checks gets a life sentence. Either we reject this law (and utilitarian deterrence) or we reject what the man deserves (retribution). How can we resolve this?
In order to deter drug trafficking the Michigan legislature imposed life sentences for possession over a certain amount. If this did deter crime but was more than the person deserved (a life sentence for a suitcase of pot seems excessive), then what are we to do?
Case #2
Rawls's mixed theory of punishment does eliminate the problem of punishing the innocent. However, it does not resolve the issue of over punishing the guilty. As such, Goldman claims, the conflict between retribution and utilitarian justifications for punishment is not resolved as Rawls suggests. Is Goldman right? Can a defense of Rawls mixed theory be offered?
At this point what justification of punishment is the best (or perhaps the least worst)?