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The justification of punishment

By Victor Tadros

When an offender commits a crime most of us think that the state is justified, and perhaps also required, to punish him or her. But punishment causes offenders a great deal of harm, it costs a lot of money, and it not only harms offenders, it also harms their family and friends. What could possibly justify doing these things?

Here is one answer:

Retributivism: when a person commits a serious wrong, it is good in itself that she suffers. The state ought to make her suffer for this reason.

Many people do get satisfaction in seeing offenders suffer – think of the feeling that you have when the bad guy gets it in the neck at the end of some cowboy film. Some people conclude from this that the suffering of offenders is good. I find it hard to believe that the suffering of offenders is good in itself. Suffering is in general bad. What makes the suffering of offenders good? And even if the suffering of offenders were good, why would we want to spend any significant resources on making them suffer? Haven’t we got better things to do with our money? Even if the suffering of offenders is good, the happiness of do-gooders is surely better. Why not spend all our money on making do-gooders happy?

Here is another answer:

Consequentialism: imposing suffering on offenders is bad in itself. But making them suffer does more good than harm. It does good by deterring people from committing more crimes. Were we not to punish offenders there would be a great deal of crime, and that would cause a great deal of harm.

Few could deny that deterring crime is good. Few could deny that the criminal justice system is successful in deterring crime, in the sense that were it not to exist at all there would be a great deal more crime. But the Consequentialist View seems to imply that it is always permissible to harm a person if doing so serves a greater good. This is hard to believe. Suppose that we could reduce the crime rate significantly by punishing some innocent people. Some people deny that it is possible to do this over the long run. But even if it were possible, many of us would nevertheless think that it is wrong to do so. The obvious reason is that it is not always permissible to harm a person for the sake of a greater good. People typically have a right not to be harmed, even if harming them will serve a greater good.

Here is a third view, one that I think more attractive:

The Duty View: it is permissible to impose punishment on offenders because of the duties that offenders incur as a result of their wrongdoing. These duties include the duty to recognise that what they have done is wrong and the duty to protect the victim and others from future offending. 

This view grounds the justification of punishment in what offenders owe to the victim and to others as a result of wrongdoing.

Unlike the Retributivist View, the Duty View is not committed to the idea that the suffering of offenders is good in itself. It rather holds that offenders must accept having burdens imposed on them, even these burdens are bad, in virtue of having done something wrong. For example, suppose that I have seriously assaulted you. I could now protect you from a further assault that you might suffer at the hands of someone else. It is plausible that I have a duty to do this. I can’t undo my own assault, but I could protect you from another assault. And I ought to do so. Furthermore, I ought to do so even if doing so involves taking on a heavy burden. It is not good in itself that I take on this burden. But I am required to do so for your sake. And, in accepting this, I ought to recognise that what I did was wrong.

The state is permitted to impose heavy burdens on offenders to protect the victims and others because offenders would be required to impose those burdens on themselves to protect the victims and others. On this view, punishment is justified in virtue of its deterrence effects. The state punishes in order to protect citizens from future offending. But it is permitted to do this not simply because doing so does more good than harm, as the Consequentialist View holds, but because offenders have a duty to protect citizens from wrongdoing.

The duty view is attractive for a number of reasons. First, it provides a natural explanation why it is wrong to punish innocent people. As innocent people do not have to bear heavy burdens in order to protect each other from crime, it would be wrong to punish them. Secondly, it can explain why punishment must be proportionate. The greater the wrong that a person has committed the more powerful the duty that she has to protect others from wrongdoing. Chopping a person’s hands off for committing theft is wrong because a person who has committed theft does not have a duty to protect other people from theft at the cost of her hands. She would have satisfied her duty at some lesser cost to herself. Thirdly, the view can explain why we think that something is amiss when offenders do not suffer – they will typically not have carried out the duty they owe to others. And it can explain this without appealing to the barbaric idea that the suffering of offenders is in itself good.

The Duty View is more humane than The Retributivist View and respects rights more effectively than The Consequentialist View. Don’t we have every reason to prefer it?

Victor Tadros is Professor of Criminal Law and Legal Theory at the University of Warwick. Prior to his appointment at Warwick he held positions at the Universities of Aberdeen and Edinburgh. He has written on criminal responsibility, criminal offences, criminal trials, the presumption of innocence, just war theory, and various aspects of moral and political philosophy. His latest book is The Ends of Harm: The Moral Foundation of Criminal Law.

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