1. The Utility of Punishment

Understanding why one punishes necessarily involves many levels of analysis. The "why" we will be concerned with in this session is an instrumental "why" (for what purpose?) in that it relates to the broad goals of criminal justice, rather than whether these goals are strictly justifiable from the point of view of various theories of justice (notably rights based ones). The latter will be examined in the next session. It may be of course that, at the minimum, punishment is only justified if it has some use; but it may also be (and is, in fact, more likely) that everything that would be "useful" for society is not necessarily justifiable. In that respect, the conflation of questions of utility and fairness can be nefarious for our understanding of the social rationality of criminal justice, either because utility and fairness are collapsed (as in utilitarian normative theory) or because the claimed utility of criminal justice is taken at face value. In the session on the critiques of criminal justice we will explore the extent to which criminal justice may be about something other than what it claims, but here we will stick to the more obvious claims made about the utility of punishment both as process and outcome. What are these claims and how are they structured?

The minimum goal of most criminal justice systems is quite simply to punish crime, but that is rarely an end in itself and begs the question of why punishing crime is useful. Rather, the goal is typically to reduce crime as a result of punishing it. But the idea that punishment will be conducive to that end is not as evident as it sounds. Broad theories of how punishment is supposed to protect society have emerged over the decades. They include a number of claims made about incapacitation, special and general deterrence, as well as possibly rehabilitation. You should make sure you familiarize yourselves with these claims. How do these claims fare on their own terms, even leaving aside the issue of their inherent justice or injustice? In other words, do they actually and verifiably work, and if so when and why? Moreover, because some of the goals of criminal justice may be in tension, they may actually militate for different types of punishment. For example general deterrence might be understood to argue for harsh sentences and rehabilitation for moderate ones, limiting the effectiveness of either goal or at least making it difficult to pursue them simultaneously.

Alongside criminological theories of punishment lie a number of more general sociological ones that try to assess the fundamental utility of punishment not necessarily in criminal justice's own terms but as a de facto social practice. What is punishment in society arguably for beyond even deterrence or rehabilitation? Although not necessarily critical of criminal justice, these theories, by scrutinizing what lies beyond the discourses and the attempts at social engineering, provide a way to understand, ameliorate and criticize existing practices.

Arguments about the general social utility of punishment will of course feed into the individual utility of punishment that we will examine in more detail in the session on sentencing. The difference, however, is that in sentencing the law mandates that certain personal characteristics of the accused be taken into account and that there be a degree of individualization. General theories of punishment are not bothered by such niceties; instead they are interested in broad social effects. It could be for example that rehabilitation or deterrence will demonstrably not work in one individual case, but rehabilitation and deterrence would continue to be broad rationales worth pursuing for criminal justice.

The class preparation will require you to consider all of these ideas. Why do we actually punish? What would be lost if we did not punish? Why is punishment seen as so central to the maintenance of social order? Is there a case that punishment sometimes leads to the opposite of the intended result? Is punishment an end in itself or something that leads to something else?

Further Reading:

• • Deterrence and the Death Penalty (Washington, D.C.: National Academies Press, 2012).

  • Are Prisons Schools of Crime? A Dose-Response Estimate of the Effect of Prison Peers on Reoffending | CCJS L Criminology and Criminal Justice Department L University of Maryland online <https://ccjs.umd.edu/projectprofile/1047>.

  • Toby, Jackson. “Is Punishment Necessary?” J. Crim. L. Criminology & Police Sci. 55 (1964): 332

• "Row over sexual abuse letter brings down Iceland's government", The Guardian, Accessed September 16, 2017.