The United States of America has
the highest rate of people incarcerated compared to the rest of the world, but
do most people who are incarcerated deserve that form of punishment? The two
forms (ideas) of legal punishment that will be discussed are the Retributive
theory of punishment and the Utilitarian theory of punishment, which are quite
different when it comes the type of punishment’s that should be enforced on
people who commit a crime. The following paragraphs will first define (explain)
what the two theories are, followed by possible objections and replies to both
theories. Finally I will argue why I think that the Utilitarian theory of
punishment is the more plausible form of punishment.
The Retributive theory of
punishment is a form of legal punishment where the belief is that the
punishment should be equal to the wrong that was committed. Basically what this
theory says is like the old saying “an eye for an eye”. The principle of proportionality state’s that the level of punishment
should be equal to the crime that was made, which can best describe RTP. Overall
this theory just means that the people who commit a crime know what they are
doing and therefore should know the consequences that come with it, and must
suffer the punishments. By committing the crime the person also chose the
punishment that fits what he did.
The Utilitarian theory of
punishment is quite different from the Retributive
theory of punishment, because in this theory the belief is that the punishment enforced
on a criminal will be for the better of the criminal. In other words to punish
with a purpose and looking into the future actions a criminal will do and stop
them from doing wrong things. Based on the punishment they saw fit to give
him/her according to the wrong they did. This theory wants to deter the person
from ever committing a crime again as well as stop other people from doing an
illegal act unlike the RTP, which just focuses on the level of punishment based
on the crime without looking at future actions. This theory (UTP) looks to
punish someone according to the crime without any unnecessary harm to try and
basically salvage a citizen and teach him right from wrong.
The first possible objection to RTP might be that, what if a person
wanted to rob a house where they thought no one was in the house at the time
they planned on robbing. Once they decided to break in by breaking a window and
started to take things and then they found out that there were kids inside the
house, which saw everything that was happening. The robbers saw them and left
the house with the few things they managed to take. What would be the RTP be?
Since this theory focuses on the “backwards looking stance” on punishment based
on the crime that was committed which was breaking an entry and robbery how
would they punish the person for that, and not to mention if they
physiologically harmed the kids that saw everything happen. There is no
punishment that can be enforced on the person that psychological harm to the
kids, would the punishment be to harm the criminal’s kids as well as braking
into his house too.
The RTP reply to this objection might be that no matter the crime that
was committed, they have to be certain that he committed the crime and if so
he/she must be punished, because they knew what they were doing before they did
it so they gave up their rights in a way. Another way of explain this, comes
from Edmund L. Pincoffs article “… the punished should get no glimpse of
kindness hidden behind this hardness, he must yet admit that justice was done
him…” (Pincoff, 539). No matter the crime the person must be
punished for doing a wrong, they just have to find the correct punishment that
fits the crime and what harm he caused to the kids that saw everything.
I think that this reply is strong in defending RTP well while some what
explaining again what RTP is and what the overall goal of this theory is, which
is to basically not show people who did a wrong light at the end of the tunnel.
The second objection to the RTP could be that this theory is too harsh on
people who did a wrong, because the objective or goal is to, yes punish people
who did a wrong, but to do so in a manner so people learn from it. Punishing
people with no goal for there future is not right because some people may not
learn from this and will just see it as torture. The goal should be once again
to punish people in a way that they understand what they will get if they do a
The RTP’s response to this might be that the punishment (again) has to
fit the crime. The person who did a wrong has to suffer what is coming to them,
and they should know this. The harm that will be done to the person will not be
done for no reason they brought the punishment upon themselves, like this sentence
from the article ” it is not inflicted because it will give an opportunity for
reform, but because it is merited” (Pincoff, 539). There is a reason behind the level of
punishment and the punishment itself, but most of all because it is deserved.
This reply is stronger compared to the one made to the first objection.
The reason I think this reply is stronger is because it defends the point that
was raised in the objection right on the head. It was straight to the point,
and in my opinion used a better quote, which makes this reply superior to the
Now I move on to the first objection to the Utilitarian Theory of
Punishment, where the overall goal is to punish people who did a wrong, but
doing so in a way that does not inflict unnecessary harm. The goal is to deter
them from doing anything wrong again. That being said the first possible
objection might be that a person committed a crime and they were put in prison
for some time with the goal to deter him from doing it again, but what if they
did not learn from there mistakes and did it again. What would they do if they
just keep punishing them and they didn’t learn from their mistakes?
The reply to this might be that each time they were caught doing a crime
to punish them more severely so they wont want to do it again this passage from
one of the readings “…not only because the greater disutility justifies the use
of heavier penalties in order to prevent them” (Brandt, 317). They would just
make the punishment hard enough so they would not do it again. As well as
punish them for the other crimes they had committed and had not been caught for
because they should not be let off the hook for a past wrong they did. In order
to keep control and enforce something they have to be hard in this area.
This response is somewhat strong considering what the objection was. I
think the reply was somewhat strong because its still not clear on what will
happen to the person who keeps committing crimes, like what type of punishments
they will give them.
The second objection is the level of punishment like what if a person
commits a gruesome crime. For example torture and murdered of little kids, and
since this theory does not believe in punishment that causes harm that isn’t
necessary to the punishment. In most cases the punishment for this would be
either the death penalty or life in prison, but what if the parents of those
children do not think those punishments are enough. Especially the death
penalty because it is like an easy way out for the criminal, what if they want
to criminal to for example go to prison for life, but be tortured in there or have
some sort of harm done to him while he is in there.
The UTP reply to this objection could be that they will not do anything
that is unnecessary. Of course they would look at the crime committed and take
that into consideration and find a punishment that fits it, but again the
ongoing debate here is what is considered a too harsh of a punishment, where we
do not return to punishments that were done in medieval times. Richard Brandt
says this in his article “punishment is itself an evil, and hence should be
avoided where this is consistent with the public good” (pg. 316). Utility is
the overall message here so criminals can in a way learn and benefit from there
punishment. In this case with the severity of the crime the death penalty and
life in prison might be the only suitable punishments.
The effectiveness of this response is not strong enough for people who
are victims to coup with, They obviously what the person who murdered a loved
one to get something of equal or more serious punishment for it. The theory
itself is less medieval than that of the RTP.
That being said, I think that the
response to the objections that were brought up to the RTP where more
effective. The reason I think this is because they were clearer to understand
because the RTP in itself is easier to understand than the UTP in my opinion.
Although I think the RTP had better responses I don’t think that theory is the
more plausible of the two. For the simple reason that I don’t ever think this
would be adopted in any type of society or law practices, because it is too
much of a gruesome way of doing things in todays world, which is more focused
on the future and how to fix things that are wrong. For these reasons I think
the UTP is the more plausible of the two.
Legal punishment in itself is a subject
that will forever have controversy. Trying to find a suitable punishment for
different levels of crime is just a difficult thing to solve while still trying
to keep control in society, which is why I think the UTP is the more Plausible
theory to be adopted.
Brandt, Richard B. ” The Utilitarian Theory of Criminal
Pincoffs, Edmund L. ” The Classic Debate: Retributivism
PowerPoint slides and notes