Criminal Justice intends to reduce crime. It could be seen, therefore, to have a utilitarian rationale. ‘Utility’ would be obvious if a punishment deterred an offender from reoffending or if it discouraged others from offending in the first place. This comment indicates that there are two fundamental ways in which criminal justice can work: either at an individual or at a general level (Cavadino and Dignan 2002).
Criminal justice involves the punishment showing the offender that her/his action was unwanted because it brought her/him more pain than pleasure; so the fear of punishment would avert the individual from repeating the offence. General criminal justice works by showing others who may think a criminal act that they will suffer excruciating consequences if they commit the offence.
Before we try to evaluate the effectiveness of criminal justice as a basis for punishment, it would be useful to investigate the relationship between the utilitarian philosophy that underpins justice and punishment. While utilitarian approaches to punishment are not just synonymous with reductivist approaches, recent theories of punishment that focus on crime reduction are obviously linked with the theorizing of the Enlightenment thinkers Cesare Beccaria (1738-1794) and Jeremy Bentham (1748-1832), the classic exponents of utilitarian theory.
Essentially, the utilitarian argument is that actions are ethical if they are useful, and so punishment can be ethically justified only if the harm and suffering it prevents is greater than the harm it imposes on offenders; and unless punishment reduces future crime then it would add to rather than reduce the sum of human suffering.
While Beccaria published An Essay on Crimes and Punishments in 1764 he advocated a system of justice and punishment as much as an rationalization of crime and, in similar vein to the British philosopher Bentham, proposed that punishment must be used to achieve some greater good for society – with a reduction in crime being a obvious example of such a good. Beccaria proposed that a graduated system of penalties with the particular punishment suitable to the crime would work as a deterrent.
Prior to the move to democratic, constitutional governments (as opposed to monarchies) in Europe in the eighteenth and nineteenth centuries, punishment was often illogical and down to the whims of the dignity and monarchy. Bentham developed what has become known as the ‘classicist’ penal code based on the classic ideas of the Enlightenment. He stressed the significance of human reason rather than notions such as the divine right of monarchs as a means of governing.
As regards punishment, he argued that this must be rationally based. Bentham saw the criminal as an individual with free choice who could therefore be deterred by the danger of future punishment. He also argued for a strict link between crime and punishment: once a crime was committed it must be punished accordingly, with no room for justifying circumstances to be taken into account. For both theorists, then, the crime issue was essentially the punishment issue; and punishment should be rational, fair and just.
They argued that excessive and violent punishments were barbaric and not worthy of civilized nations, and that each particular form of punishment should impose just enough pain and suffering to offset the pleasure that may come from committing the specific crime. In summarizing Bentham’s approach, Hudson (2003) highlights three ways in which he suggests an individual can be deterred from reoffending: first, through taking away the individual’s capability and power to offend; second, by taking away the individual’s desire to offend; and third, by making the individual afraid to offend.
The first of these would entail some form on incapacitation; the second refers to a reformist or rehabilitative approach; while the third, deterring someone through fear of the potential punishment, is the meaning that is conservatively attached to criminal justice. Now an obvious way in which criminal justice might work would be to have very draconian punishments that were so harsh that people would be bound to be put off committing crimes.
This sort of approach could be called utilitarian, in that there is no effort to limit the amount of pain as there would be no limit on the severity of punishment. as life imprisonment for driving over the speed limit or for shoplifting might lead to a striking reduction in those offences, and while ‘get tough’, ‘hard’ approaches to punishment can be attractive to politicians because of their petition to the wider public, the notion of very severe punishment for any but very staid crimes would be held by most to be unacceptable from a human rights point of view.
A compromise position is the notion of passing ‘exemplary sentences’ – sentences that are more rigorous than would typically be given for a particular offence as they aim to get over a message that such behavior is being taken especially seriously. The view of such ‘exemplary’ penalties raises the interesting point that for punishment to work as a general deterrent it is not necessary that just guilty people are punished. While the punishing of innocent people would, hopefully, be rejected by all ethical systems, there can be some justification, for punishing people for something they have not yet done but can be likely to do in the future.
The focus of the criminal justice is, fundamentally, on frightening people into not offending; and it is, therefore, usually associated with severer penalties such as long prison sentences. One problem with this idea is that what one person may feel to be severe might be viewed by another as mild. Another is that for general criminal justice to be effective, the punishment has to be severe, and painful, enough to outweigh the potential pleasure that the particular offence might give the offender – a difficult assessment to make.
It is also necessary that there is sufficient publicity so that would-be offenders are aware of the particular punishments meted out. Indeed, any publicity that leads to an increased awareness that numerous crimes are not being solved or that highlights an increase in what are seen as lenient punishments can work against the effectiveness of deterrent punishments. Walker (1991) points out that individuals can be deterred from committing offences at certain times and in certain places, but simply commit that (or another) offence elsewhere – and that such ‘displacement’ of offences barely constitutes deterrence.
He also points to the effectiveness of ‘on-the-spot’ deterrents, which pose practical difficulties for would-be offenders, but which again can only serve to ‘displace’ offences. Furthermore, deterrence can work ‘at a distance’; for instance, the potential ‘stigma’ of being known as a shoplifter might put several people off from even considering such an offence. These sorts of examples indicate that the expected form of punishment is certainly not the only possible consequence that will influence a would-be offender.
On the other hand we have deontological approach. It is probable to reconcile our intuition that numbers matter with the claim that the world goes no worse if one group of people passes away than if another, different group meets its end. And in doing so we need not deny that somebody forced to choose between two sets of lives in the absence of a settled policy for selecting survivors fails to decide fairly if he saves the larger number straightaway, instead of choosing people randomly.
Thus in case of criminal justice, The reconciliation comes from construing the formation of an intention to act in a way that increases everyone’s antecedent chance of survival as universally beneficial, even if the conditions that would call forth that action never happen to obtain. Regarding a conditional benefit as a present advantage is plainly reasonable: a prepaid insurance policy, for example, is not worthless simply because the recipient has no immediate claim to dividends.
Thus, if by resolving to choose in accordance with the maximizing criminal justice policy before one is actually faced with a choice between lives one confers a benefit on everyone by improving their odds of being saved should their lives be in jeopardy, and if one has a duty, however weak, to extend benefits to others if one can do so at negligible cost to oneself, then one ought to frame an intention to save the greater number when the lives of people about whom one does not especially care or towards whom one has no special obligations are at stake (Walker, 1991).
To be sure, the present value of the benefit one thereby confers on others is minuscule, given the small likelihood that their lives will be in danger in circumstances where one will have to choose to save but one of two or more unequally sized groups of people. But since the provision of that benefit is costless, one ought nevertheless to form the intention to rescue more rather than fewer. Having formed that intention, one should then save the greater number if one is actually confronted with such a choice.
To pull back and flip a coin would be to nullify the benefits one meant and ought to confer, for antecedent benefits exist only to the extent that the resolution one formed guides one’s actions at the appropriate time. To toss a coin would also be to act contrary to one’s self-interest, to the (very slight) extent that one’s own chance of survival is improved if others choose according to the criminal justice and if one’s refusal to do so weakens their resolve or reduces the number of other people who have a resolve to let the relative sizes of groups determine their choice when they must decide.
Choosing in accordance with the criminal justice policy involves no unfairness, for everyone’s antecedent chance of survival is increased equally by one’s intention to save the larger group. And the stricture against nonrandom choice is met by making the crucial chance event governing choice the process leading to the formation of the two groups rather than the spin of a wheel, the toss of a coin, or the unbiased selection of some other criterion once groups are formed.
If one neglected to adopt the maximizing policy before one was faced with a choice between groups of different size -and one then decided to save the larger number, one’s decision might be open to criticism if one could not have decided to save the smaller number with equal probability, for members of the smaller group might then be denied an equal chance of survival. “A growing list of texts focuses more often and more intensely on this middle-road approach of either professional ethics or professionalism”.
(McCarthy, 1996) However, if one resolved to follow the maximizing policy in advance, the charge of unfairness would clearly be inappropriate, for the criterion of relative size embodies no unjustifiable disdain and does not result in anyone’s having less chance of survival than someone else. This argument applies to both individuals and governments. The state has a duty to treat its citizens as equals and to advance their interests as far as possible for a given sum of money.
Since the criminal justice benefits everyone equally, government officials should be enjoined to save the greater number, provided that members of the larger group are no more to blame for their plight than are members of the smaller group. Formal legislative approval of the policy appears unnecessary to render its adoption morally permissible or its implementation imperative, for it is obviously in everyone’s self-interest that it be put into effect.
But governments ought to enshrine it in law anyway, to discourage officials from deviating from it to the advantage of their friends or favorites and to induce citizens to make the policy their own (Walker, 1991). If one believes that citizens are obliged, albeit to a lesser extent than those who hold public office, to act in accordance with the just and fairly adopted policies of their government when doing so would cost them little or nothing, then their obligation to follow the maximizing rule might be stronger still.
In fact, if this belief is correct, and if the criminal justice policy has been embraced officially, then it might be argued that even people who formed no intention to rescue the larger group before they were confronted with a choice between different numbers of lives ought to save the greater number, rather than toss a coin.
For citizens, in this view, should follow the official course if it is morally permissible and carries little or no cost, and those in the smaller group would not be treated unfairly if rescuers did honor the government’s rule, inasmuch as they had reason to expect that any rescuer who happened along would save a larger group before he saved a smaller one.
Cavadino, M.and Dignan, J. (2002) The Penal System: An Introduction, 3rd edn, London: Sage. Hudson, B. (2003) Understanding Justice: An Introduction to Ideas, Perspectives and Controversies in Modern Penal Theory, 2nd edn, Milton Keynes: Open University Press. Walker, N. (1991) Why Punish? , Oxford: Oxford University Press. McCarthy (1996) Justice, Crime and Ethics by, 5th Edition, Anderson Publishing.