Others worried that offenders were being released from addere
not serving a long enough sentence to deter them from committee
These concerns led to maior changes for sentencing in the United States
law rank org, 2016)
there is no
utilize an
longer one system of sentencing Approximately half of the state with
indeterminate system, but other states and the federal government have
OF
moved to using determinate sentencing or a form of sentencing oddines Deter
minate sentencing is based on deterrence theory or the idea that if the punishment
outweighs any benefit one would receive from committing anime, then one would
rationally choose not to engage in the crime Determinate sentencing when
an offender receives a set sentence for a crime, for instance a person serves three
years. Determinate sentencing was implemented to decrease the discretion judera
and parole boards had in determining a sentence and to the offender knew endly
when they would be released from prison. States with determinate sentencing true
tures also no longer utilized parole boards. However, in some states a personen
tence could be reduced by good time credit
, where every day they served in prison
and did not get into trouble could be applied towards an earlier release date
Claw.jrank.org. 2016)
Some states and the federal government also implemented entending commission
to create specific sentencing guidelines that would be followed by judges to reduce
their discretion in sentencing. These guidelines can be used in states with determinate
or indeterminate sentencing, and there are two types. Presumptive sentencing guide
lines provide a required base sentence for each crime that is determined by these
ousness of the offense as well as the offender's prior criminal history. Under
presumptive sentencing guidelines, the judge still retains some discretion as they can
take into consideration aggruvating circumstances and increase the sentence or mit
igating circumstances and decrease the sentence. However, if a judge departs from
the required sentence under the sentencing guidelines, they have to provide written
justification, and the judge's decision is later reviewed at the appellate level. Other
states rely on voluntary advisory guidelines or recommended sentences for each crime
that also take into consideration the seriousness of the offense and prior criminal
history as well as aggravating and mitigating circumstances. However, the main dit
ference is that voluntary advisory guidelines are not required, but rather suggestions
as to what the judge should follow. There also is not a review process in place for
when a judge deviates from the recommended sentence (Austin, Jones, Kramer, &
Renninger, n.d.)
The research conducted on the use of determinate sentencing and sentencing
guidelines has been mixed with some research studies finding these measures to be
less effective than indeterminate sentencing and other studies finding them to be
more effective. An example of this is a study conducted by Zang, Zang, and Vaughn
(2014), where the authors examined the differences between mandatory release do
terminate sentencing) and parole board release (indeterminate sentencing) in states
that utilized both types of release, including New York, Maryland, Oregon, Texas,
North Carolina, and Virginia. The others and feeds
for the types of rent through data on the perces fies
of release from prison. Overall, when camining
roentered their communities under mandatory
to be arrested more quiddy than those deased by pale
difered when examining data at the state led. These are te
York and North Carolina, for instance, we are likely to be
released on parole, while those in Virginia and Maryland
where mandatory de Horner in Oreye and Texas
release types were not found to be significant. The authors com
Sacen the states were likely due to how the parole program
with oty Zane Za 2014
Another research study conducted by Bales and her (2012)
in Florida under indeterminate sentencing to inmates are
sentencing to better understand the impact of sentencinger
conduct. The authors found that these tood under er
och more likely to get into trouble while incarcerated the
sentenced under tractares. The thon code
the determinate seededen daha the
denhed
while incarcerated as indesen
Prosecutorial Discretion and Plea Bargains
The current start of sending policies and within the
curred due to the fear that jede and parole boards had toch
cing and dece The
more
teristics, such
tadt, der and das background. However,
argued these are in contencing policies and have led to the
ence of protections having mot discretion within the criminal jam
than before, with some
the prostor is ow the most powerful pe
the sentencing pence. This
for concern, because there
Balances in place for prosecution. This is became pouco
are of the theme des beach
review and the public is largely
are not regned to keep a record of the decisione Se
& Johnson 2010). This can be problema de protectors have a lot
over the sentencing processadh as the discretion to disar redde charges and
Po barcours when the prosecutor and defense
and
the offender ad guilt inn for being charged with a lower les ofise
in the United States plea bargained in 90% of all criminal case dete
as through large
and or a shorter sentence. Pe bargains are no
Bordo com os srod the
agnatannicho the patients and
e so easy told
the state
ܘܙ ܘ ܩܘܐ
does not troby tecer
de done for the
woted to take a
Geresd dhey will be a longer
ofered a pleaded and retioned
flere og offenders go
7 JUDGES, PROSECUTORS, AND INDENT DE
impact
Prosecutors also have a lot of discretion and controle sentencing when it comes
offense category and receive a shorter sentence. In order to better understand the
to charge bargaining because when one's charge is reduced, they are placed in a lower
of charge reductions, Shermer and Johnson (2010) conducted a study where
they camined federal cases from initial charges through sentencing for United
States federal districts. The authors analyzed sentencing data to camine cases where
charges were reduced from the maximum possible sentence
The authors found that only 1296 of all cases received charge reductions from the
maximum sentence, but conduded this was most likely a conservative estimate since
in was based only on those cases where the maximum sentence had been upplied. In
those cases where the charge was reduced property offenders were two times more
likely to receive a charge reduction than violent offenders, while those charged with
immigration violations were the least likely to receive a charge reduction. Charge re
ductions also were impacted by gender, race, and ethnicity. Females, for example,
were significantly more likely to receive a charge reduction when compared to males
The authors concluded this was based on males being perceived as more dangerous
and more likely to reoffend as well as male offenders committing crimes that tended
to be more serious. Overall, there were not charge reduction differences based on
age or race, but Blacks and Hispanics were less likely to receive a charge reduction
than Whites for crimes that included a weapon offense (Shermer & Johnson, 2010),
Another study conducted by Wooldredge and Griffin (2005) examined the impact
of the implementation of Ohio's sentencing guidelines on prosecutorial discretion
by examining cases prior to the implementation of the guidelines and after. Overall,
charge reductions were 45 higher after the guidelines were implemented. The authors
also noted those charged with first degree felonies were more likely to have their
charges dropped post guidelines, which supported the notion that discretion had
moved from judges to prosecutors. There also were differences for charge reductions
based on gender, race, ethnicity, and dass. Males, for instance, were more likely to
have their charges dropped after the guidelines were implemented. However, Black
were significantly more likely to be charged with first and second degree felonies afte
the guidelines were implemented, while prior to the guidelines Blacks were significanti
more likely to have their charges dropped. Hispanics and those who were unemploye
also were significantly more likely not to have some charges dropped post guidelin
(Wooldredge & Griffin, 2005),
Another way federal prosecutors utilize their discretion is by using a substantial
sistance departure. This tactic is used when the defendant cooperates with the pre
ecutor and provides information to assist with the prosecution of another offend
In exchange for the defendant's testimony the prosecutor asks the judge for the
fendant to be sentenced outside of the sentencing guidelines. The prosecutor th
makes a sentencing recommendation, but the ultimate sentencing decision belo
to the judge. This tactic is particularly common in drug cases and is regularly us
for example, almost 20% of all federal offenders received a substantial assistance
parture, resulting on average in a 50% reduction in sentence. However, how of
624 CHAPTER 15
• Punishment and Responsibility
much
fails in this respect.
JOEL FEINBERG • The Classic Debate 625
have a bearing on the justice of conviction and of mulate a definition of "disease, there is
focus on the consequences of disease or defect that
only by the behavior phenomena that the
be said for excluding a condition that is manifesa
punishment. The Royal Commission proposal
sponsibility to be established. Although Britta
6. Paragraph (2) of section 4.01 is designed to
on the whole, that
defect" the case of so-called "psychopathic per- psychiatrists have agreed,
exclude from the concept of "mental disease or
chopathy should not be called “disease." there
considerable difference of opinion
sonality." The reason for the exclusion is that, as
in the United States. Yet it does not seem usci
the Royal Commission put it, psychopathy "is a
to contemplate the litigation of what is
statistical abnormality; that is to say, the psycho-
tially a matter of terminology; nor is it right
path differs from a normal person only quantita-
have the legal result rest upon the resolution
tively or in degree, not qualitatively; and the
dispute of this kind.
diagnosis of psychopathic personality does not
carry with it any explanation of the causes of the
on the
60 The Classic Debate
JOEL FEINBERG
is always to be found in the fact that an
has been committed which deserves the punish.
ment, not in
any
by its infliction."
. offens
future advantage
to be gained
Punishment is justified only on the ground that
wrongdoing merits punishment. It is morally fit
ting that a person who does wrong should suffer
in proportion to his wrongdoing. That a crimind
should be punished follows from his guilt, and
the severity of the appropriate punishment
The traditional debate among philosophers over
the justification of legal punishment has been
between partisans of the "retributive” and
"utilitarian" theories. Neither the term retributive
nor the term utilitarian has been used with per-
fect uniformity and precision, but, by and large,
those who have been called utilitarians have
insisted that punishment of the guilty is at best a
necessary evil justified only as a means to the
prevention of evils even greater than itself.
Retributivism, on the other hand, has labeled a depends on the depravity of the act. The state of
large miscellany of theories united only in their affairs where a wrongdoer suffers punishment is
opposition to the utilitarian theory. It may best morally better than one where he does not, and
serve clarity, therefore, to define the utilitarian is so irrespective of consequences.
theory with relative precision (as above) and then
define retributivism as its logical contradictory, so
Justification, according to these accounts
,
that the two theories are not only mutually exclu-
must look backward in time to guilt rather than
sive but also jointly exhaustive. Discussion of the
forward to “advantages”; the formulations are
various varieties of retributivism can then proceed.
rich in moral terminology (“merits,” “morally fit
Perhaps the leading form of the retributive
ting," "wrongdoing,” “morally better”); there is
theory includes major elements identifiable in
great emphasis on desert. For those reasons, we
the following formulations:
might well refer to this as a "moralistic" version
of the retributive theory. As such it can be con
pain.... The primary justification of punishment
to which punishment is for lawbreaking, no
(necessarily) for wrongdoing. Legalistic retributi-
vism holds that the justification of punishment is
about the practical interpretations of the key
always to be found in the fact that a rule has been
notions of fittingness, proportion, and moral grav-
broken for the violation of which a certain penalty
ity. Sometimes aesthetic analogies are employed
is specified, whether or not the offender incurs
(such as matching and clashing colors, or harmo-
any moral guilt. The offender, properly apprised
nious and dissonant chords). Some retributivists,
in advance of the penalty, voluntarily assumes the
including Immanuel Kant, attempt to apply the
risk of punishment, and when he or she receives
ancient principle of lex talionis (the law of retalia-
tion): The punishment should match the crime
comeuppance, he or she can have no complaint. not only in the degree of harm inflicted on its vic-
As one recent legalistic retributivist put it,
tim, but also in the mode and manner of the inflic-
Punishment is a corollary not of law but of law-
tion: fines for larceny, physical beatings for battery,
breaking. Legislators do not choose to punish.
capital punishment for murder. Other retributi-
They hope no punishment will be needed. Their
vists, however, explicitly reject the doctrine of
laws would succeed even if no punishment
retaliation in kind; hence, that doctrine is better
occurred. The criminal makes the essential choice:
treated as a logically independent thesis commonly
he "brings it on himself.93
associated with retributivism rather than as an
essential component of the theory.
Both moralistic and legalistic retributivism Defined as the exhaustive class of alternatives
have “pure” and “impure” variants. In their to the utilitarian theory, retributivism of course is
pure formulations, they are totally free of utilitar- subject to no simple summary. It will be useful to
ian admixture. Moral or legal guilt (as the subsequent discussions, however, to summarize
case may be) is not only a necessary condition that popular variant of the theory which can be
for justified punishment, it is quite sufficient called pure moralistic retributivism as consistent
“irrespective of consequences.” In the impure (at least) of the following propositions:
formulation, both guilt (moral or legal) and con-
ducibility to good consequences are necessary for
1. Moral guilt is a necessary condition for jus-
justified punishment, but neither is sufficient
tified punishment.
without the other. This mixed theory could
2. Moral guilt is a sufficient condition
with some propriety be called "impure utilitarian-
(“irrespective of consequences") for justified
ism” as well as “impure retributivism.” Since we
punishment.
have stipulated, however, that a retributive theory
3. The proper amount of punishment to be
is one which is not wholly utilitarian, we are com-
inflicted upon the morally guilty offender is
mitted to the latter usage.
that amount which fits, matches, or is pro-
A complete theory of punishment will not
portionate to the moral gravity of the offense.
only specify the conditions under which punish- That it is never justified to punish a morally
ment should and should not be administered, it blameless person for his or her “offense" (thesis
will also provide a general criterion for deter- 1) may not be quite self-evident, but it does
mining the amount or degree of punishment. find strong support in moral common sense.
It is not only unjust to be punished undeservedly Thesis 2, however, is likely to prove an embarrass-
and to be let off although meriting punishment, ment for the pure retributivist, for it would
it is also unfair to be punished severely for a have him or her approve the infliction of suffering
minor offense or lightly for a heinous one. What on a person (albeit a guilty person) even when no
is the right amount of punishment? There is one good to the offender, the victim, or society at
kind of answer especially distinctive of retributi- large is likely to result. “How can two wrongs
vism in all of its forms: an answer in terms of fit- make a right, or two evils a good?” he or she
tingness or proportion. The punishment must fit will be asked by the utilitarian, and in this
the crime; its degree must be proportionate to
case it is the utilitarian who will claim to
the seriousness or moral gravity of the offense. speak for "moral common sense." In reply,
Retributivists are often understandably vague the pure retributivist is likely to concede that
trasted with a "legalistic” version, according
Published in previous editions as part of the introduction to this section.
628 CHAPTER 15 • Punishment and Responsibility
putih
that it is an "abuse of definition,” and indeed it
is, if put forward by a proponent of the general
utilitarian theory. If the right act in all contexts
is the one which is likely to have the best conse-
quences, then conceivably the act of framing an
innocent man could sometimes be right; and
the question of whether such mistreatment of
the innocent party could properly be called “pun-
ishment” is a mere question of words having no
bearing on the utilitarian's embarrassment. If,
on the other hand, the definitional stop is
currently in favor with some
employed by a defender of the utilitarian theory
of the justification of punishment who is not a
their theories of the justification of
Theory of Punishment (to distinguish
We can call these approaches the Vint
vism) and then subsume its leading
from legalistic and moralistic forms of reti
under either the utilitarian or the retrib
kinds: (1) The escape-valve version, comme
rubrics. Vindictive theories are of three dition
associated with the names of James Fities
Stephen and Oliver Wendell Holmes, Jr.,
let for aggressive feelings, which would others
demand satisfaction in socially disruptive w
The prevention of private vendettas through
ers, holds that legal punishment is an
psychoanalytic
Some anthrop
feelings and judgm
morality” which i
cultures, and wh
tribal life of our
anthropologist to
ern criminal cod
that tribalism ha
tion in the crim
sions for which
its forms) wou
for which they
vist theories ar
defense. Com
ished more se
fail for accider
prising sincet
or her loved
can identify
anger there
orderly
E
utilitarian across the board, then it seems to be
a legitimate argumentative move. Such a utilitar-
state monopoly on vengeance is one of the
ian is defending official infliction of hard treat-
ways in which legal punishment has social ut
ment (deprivation of liberty, suffering, etc.) on
The escape-valve theory is thus easily assimila-
those who are legally guilty, a practice to which
he or she refers by using the word punishment, by the utilitarian theory of punishment. (2)
hedonistic version of the vindictive theory fini
as justified when and only when there is probably
the justification of punishment in the pleasure i
social utility in it.
No kind of utilitarian, however, will have gives people (particularly the victim of the crim
plausible recourse to the definitional stop in and his or her loved ones) to see the criminal su:
defending thesis 3 from the retributivist charge fer for the crime. For most utilitarians, and a
that it would, in certain easily imaginable circum- tainly for Bentham, any kind of pleasureerca
stances, justify excessive and/or insufficient pen- spiteful, sadistic, or vindictive pleasure, just inso-
alties. The appeal again is to moral common far as it is pleasure-counts as a good in the com-
sense: It would be manifestly unfair to inflict a putation of social utility, just as pain—any kind a
mere two dollar fine on a convicted murderer
pain-counts as an evil. (This is sufficient to dis-
or life imprisonment, under a balance of terror
policy, for parking offenses. In either case, the
credit hedonistic utilitarianism thoroughly
punishment imposed would violate the retributi-
vist's thesis 3, that the punishment be propor-
tional to the moral gravity of the offense. And
yet, if these were the penalties likely to have the
best effects generally, the utilitarian in the theory
of punishment would be committed to their
sup-
port. He or she could not argue that excessive or
deficient penalties are not "really” punishments.
Instead he would have to argue, as does Jeremy
Bentham, that the proper employment of the
utilitarian method simply could not lead to pen-
alties so far out of line with our moral intuitions
as the retributivist charges.
So far vengeance has not been mentioned
except in the context of charge and counter-
charge between theorists who have no use for emphasis
it. There are writers, however, who have kind
words for vengeance and give it a central role in
It might
absorbed
pline, or
suffering
of the p
missed t
articles
between
betwee
decisio
much
according to its retributivist critics.) The hedonis
tic version of the vindictive theory, then, is also
subsumable under the utilitarian rubric. Finally,
(3) the romantic version of the vindictive theory,
very popular among the uneducated, holds that
the justification of punishment is to be found
these emotions being those allegedly felt by all
in the emotions of hate and anger it expresses,
normal or right-thinking people. I call this theory
“romantic, despite certain misleading associa:
theory so labeled, it holds that certain emotions
not a kind of utilitarian theory and must be clas
needing no further justification. It is therefore
sified as a variety of retributivism, although
on to
to ma
gethe
theor
Medford v. Levy, vi
emotion and emph
feeling it is in marked
more typical retributive the
.
are
authoritative
TO Casx
de
miscellaneous
3
emphasis
from other kinds of penalties.
argue,
is a
a certain
conventional
COT
bar
on which the specific difference, I shall
ex
dei
3. In
and absent from all punishments,
part
m
ni
А
5.
and universally so. Again we might be tempted to
the
לל
accompanie
treatmen
strong motivation will be willing to pay
In cach case a certain kind of conduct is discour-
we would be better advised, I think,
attention to the examples of punishments.
630 CHAPTER 15 Punishment and Responsibility
JOEL FEINBERG • The Expressive Function of Punishment 631
vations for failures; but apart from these
penalties and punishments
Henry M. Hart, for example, gives eloquent
To say that the very physical treatment itself
further what distinguishes punishment, in the
important addition
to the point:
expresses condemnation is to say simply that cer-
strict and narrow sense that interests the moralist,
characteristic in common. That characteristic,
tain forms of hard treatment have become the
454
What distinguishes a criminal from a civil sanction
conventional symbols of public reprobation.
and all that distinguishes it, it is ventured, is the
Onc method of answering this question is to
focus one's attention on the class of nonpunitive features, penalties have a
judgment of community condemnation which
This is neither more nor less paradoxical than
sive function: Punishment is a
accompanies... its imposition. As Professor Gard-
to say that certain words have become conven-
for the expression of attitudes of resentment
ner wrote not long ago, in a distinct but cognate
tional vehicles in our language for the expression
identifiable characteristic common to them all,
connection:
of certain attitudes, or that champagne is the
distinction between the two might be grounded.
of the punishin
“The essence of punishment for moral delin-
alcoholic beverage traditionally used in celebra-
quency lies in the criminal conviction itself. One
The hypotheses yielded by this approach, how-
tion of great events, or that black is the color
cver, are not likely to survive close scrutiny. indignation, and of judgments of disapproval
alties are less severe than punishments, but authority himself or of those “in whose name
may lose more money on the stock market than
of mourning. Moreover, particular kinds of pun-
although this is generally true, it is not necessarily the punishment is inflicted. Punishment, in shan
in a courtroom; a prisoner of war camp may well
has a symbolic significance largely missing from
ishment are often used to express quite specific
provide a harsher environment than a state prison;
The reprobative symbolism of punishmen
death on the field of battle has the same physical
attitudes (loosely speaking, this is part of their
characteristics as death by sentence of law. It is
“meaning”); note the differences, for example,
interpret penalties as mere "price-tags"attached other kinds of penalties.
the expression of the community's hatred, fear,
between beheading a nobleman and hanging a
never separate in reality, must be carefully distin
or contempt for the convict which alone character- yeoman, burning a heretic and hanging a traitor,
to certain types of behavior that are generally
undesirable, so that only those with especially and its character as “hard treatment,
izes physical hardship as punishment.”
hanging an enemy soldier and executing him by
If this is what a "criminal” penalty is, then we
firing squad.
can say readily enough what a “crime” is.... It is It is much easier to show that punishment
conduct which, if duly shown to have taken place,
has a symbolic significance than to say exactly
and poor in quality are essentially no different such as fine or imprisonment, because of its con
urban centers to wilderness areas few in number by further "hard treatment”; and hard
will incur a formal and solemn pronouncement of
what it is that punishment expresses. At its best,
the moral condemnation of the community....
from various parking fines and football penalties. ventional symbolism, can itself be reprobatory
in civilized and democratic countries, punish-
Indeed the condemnation plus the added
[unpleasant physical] consequences may well
ment surely expresses the community's strong
aged without being absolutely prohibited: tion unaccompanied by any further hardt
be considered, compendiously, as constituting
disapproval of what the criminal did. Indeed
ment, and of inflictions and deprivations which,
thepunishment.
because of different symbolic conventions, bare
it can be said that punishment expresses the
Anyone who desires strongly enough to get to
no reprobative force. It will be my thesis in this
judgment (as distinct from any emotion) of the
the wilderness (or park overtime, or interfere
Professor Hart's compendious definition community that what the criminal did was wrong.
with a pass) may do so provided he is willing to
needs qualification in one
pay the penalty (price). On this view penalties essay that (1) both the hard treatment aspect of
respect. The
moral condemnation and the “unpleasant
I think it is fair to say of our community, however,
are, in effect, licensing fees, different from other punishment and its reprobative function
consequences” that he rightly identifies as
that punishment generally expresses more than
judgments of disapproval; it is also a symbolic
afterward rather than in advance. Since a similar and (2) each of these aspects raises its own kind
essential elements of punishment are not as dis-
purchased permits in that the price is often paid be part of the definition of legal punishment
interpretation of punishments seems implausible, of question about the justification of legal pun
way of getting back at the criminal, of expressing
tinct and separate as he suggests. It is not always a kind of vindictive resentment. To any reader
the case that the convicted prisoner is first sol-
it might be alleged that this is the basis of the dis- ishment as a general practice. I shall argue that
tinction between penalties and punishments. Some of the jobs punishment does, and some of
emnly condemned and then subjected to
who has in fact spent time in a prison, I venture
However, while a great number of penalties the conceptual problems it raises, cannot be intel
unpleasant physical treatment. It would be
to say, even Professor Gardner's strong terms-
“hatred, fear, or contempt for the convict”-
more accurate in many cases to say that the
ligibly described unless (1) is true; and that
unpleasant treatment itself expresses the con-
will not seem too strong an account of what
license fees
, this is hardly true of all of them. It is the incoherence of a familiar form of the retribo
demnation, and that this expressive aspect of
imprisonment is universally taken to express.
certainly not true, for example
, of most demo- tive theory results from failure to appreciate the
Not only does the criminal feel the naked hostility
tions, firings, and flunkings, that they are force of (2).
his incarceration is precisely the element by rea-
"prices" paid for some already consumed benefit;
son of which it is properly characterized as
of his guards and the outside world that would
and even parking fines are sanctions for rules
punishment and not mere penalty. The adminis-
be fierce enough—but that hostility is self-right-
“meant to be taken seriously as... standard[s] I. PUNISHMENT AS
trator who regretfully suspends the license of a
eous as well. His punishment bears the aspect of
of behavior,” and thus are more than mere pub-
conscientious but accident-prone driver can
legitimized vengefulness; hence there is much
lic parking fees.
CONDEMNATION
inflict a deprivation without any scolding,
truth in J. F. Stephen's celebrated remark that
“The criminal law stands to the passion of
express or implied; but the reckless motorist
who is sent to prison for six months is thereby
revenge in much the same relation as marriage
inevitably subject to shame and ignominy—the
to the sexual appetite."7
very walls of his cell condemn him and his rec-
reserve the less dramatic term
ord becomes a stigma.
resentment for the various vengeful attitudes,
and the term reprobation for the stern judgment
must
Rather than look for a characteristic common That the expression of the community's condem
and peculiar to the penalties on which to ground nation is an essential ingredient in legal punish-
the distinction between penalties and punishments, ment is widely acknowledged by legal writer.
If we
454
JOEL FEINBERG. The Classic Debate 627
resemblance
excuse.
5
626 CHAPTER 15 Punishment and Responsibility
on the basis die
alone. To be sure, there is
in itself," but will also point out that single acts
inflicting suffering on an offender is not "good Justice requires assignment
cannot be judged simply “in themselves” with
cies finding vent under the unconscious
a great danger of revengeful and sadistic
no concern for the context in which they fit
of a righteous indignation calling for just a
ment, since the evil desire for revenge, if not
and the events preceding them which are their
occasion. Personal sadness is not a "good in
tical with the latter, bears a
sufficiently close to deceive those who
itself" either, and yet when it is a response to
the perceived sufferings of another it has a
unique appropriateness. Glee, considered "in
Indeed, it is commonly thought that
itself,” looks much more like an intrinsically
good mental state, but glee does not morally
fit the perception of another's pain any more
than an orange shirt aesthetically fits shocking grown out of earlier practices, like the vende
pink trousers. Similarly, it may be true (the and the law of deodand, that were
analogy is admittedly imperfect) that "while through expressions of the
the moral evil in the offender and the Still, the retributivist replies, it is unfair to iden
a belief with one of its corruptions,
pain of the punishment are each considered
separately evils, it is intrinsically good that a cer practice with its historical antecedents. There
tain relation exist or be established between mistake is an instance of the "genetic falla
which is committed whenever one
on moral intuitions, can deny that a deliberate
imposition of suffering on a human being is it is with an analysis of what it has become.
The third thesis of the pure morali
yet find it justified, nevertheless, as an essential retributivist has also been subject to heavy attad
Can it really be the business of the state to ense
among citizens in proportion to their mon
deserts? Think of the practical difficulties invohe
urge to
through
vengean
or a modo
them."* In this way the pure retributivist, relying
account of how something came to be the
confuses
are distributed
either good in itself or good as a means, and
component of an intrinsically good relation. Per-
that happiness and unhappiness
haps that is to put the point too strongly. All the
retributivist needs to establish is that the com-
plex situation preceding the infliction of punish-
in the attempt simply to apportion pain to me
ment can be made better than it otherwise
would be by the addition to it of the offender's guilt in a given case, with no help from utiliter
suffering.
considerations. First of all, it is usually impossing
The utilitarian is not only unconvinced by to punish an offender without inflicting suffering
arguments of this kind, he or she is also likely on those who love or depend upon him and me
to find a "suspicious connection" between phil- themselves be entirely innocent, morally sped
osophical retributivism and the primitive lusting. In that way, punishing the guilty is self
for vengeance. The moralistic retributivist pro- defeating from the moralistic retributive point
tests that he or she eschews anger or any other of view. It will do more to increase than to dimin
passion and seeks not revenge, but justice and ish the disproportion between unhappiness and
the satisfaction of desert. Punishment, after all, desert throughout society. Secondly, the aim d
is not the only kind of treatment we bestow apportioning pain to guilt would in some caso
deserve it. Teachers give students the grades rudeness, as heavily as more socially harmi
upon persons simply because we think they require punishing “trivial” moral offenses, li
performance. There is no necessary jubilation at
amount of suffering to inflict in a given car
moment) and also an assessment of his or her The utilitarian theory of punishment can be
total lifelong balance of pleasure and pain. More- summarized in three propositions parallel to
over, there are inevitably inequalities of moral those used above to summarize pure moralistic
guilt in the commission of the same crime by dif- retributivism. According to this theory:
ferent offenders, as well as inequalities of suffer-
ing from the same punishment. Application of
1. Social utility (correction, prevention, deter-
the pure retributive theory then would require
rence, etc.) is a necessary condition for justi-
the abandonment of fixed penalties for various
fied punishment
crimes and the substitution of individuated
2. Social utility is a sufficient condition for jus-
penalties selected in each case by an authority to
tified punishment.
fit the offender's uniquely personal guilt and
3. The proper amount of punishment to be
vulnerability.
inflicted upon the offender is that amount
The utilitarian theory of punishment holds
which will do the most good or the least
that punishment is never good in itself, but is
harm to all those who will be affected by it.
(like bad-tasting medicine) justified when, and The first thesis enjoys the strongest support
only when, it is a means to such future goods as from common sense, though not so strong as
correction (reform) of the offender, protection of to preclude controversy. For the retributivist, as
society against other offenses from the same has been seen, punishing the guilty is an end in
offender, and deterrence of other would be itself quite apart from any gain in social utility.
offenders. (The list is not exhaustive.) Giving The utilitarian is apt to reply that if reform of
the offender the pain he deserves because of his the criminal could be secured with no loss of
wickedness is either not a coherent notion, on deterrence by simply giving him or her a pill
this theory, or else not a morally respectable inde- that would have the same effect, then nothing
pendent reason for punishing. In fact, the utilitar- would be lost by not punishing him or her, and
ian theory arose in the eighteenth century as part the substitute treatment would be "sheer gain."
of a conscious reaction to cruel and uneconomi- Thesis 2, however, is the utilitarian's greatest
cal social institutions (including prisons) that embarrassment. The retributivist opponent
were normally defended, if at all, in righteously argues forcefully against it that in certain casily
moralistic terms.
imaginable circumstances it would justify punish-
For purposes of clarity, the utilitarian theory ment of the (legally) innocent, a consequence
of punishment should be distinguished from util- which all would regard as a moral abomination.
itarianism as a general moral theory. The standard Some utilitarians deny that punishment of the
of right conduct generally, according to the lat- innocent could ever be the alternative that has
ter, is conducibility to good consequences. Any the best consequences in social utility, but this
act at all, whether that of a private citizen, a leg. reply seems arbitrary and dogmatic. Other uth-
islator, or a judge, is morally right if and only if it tarians claim that “punishment of the innocent"
is likely, on the best evidence, to do more good is a self-contradiction. The concept of punish-
or less harm all around than any alternative con- ment, they argue, itself implies hard treatment
duct open to the actor. (The standard for judging imposed upon the guilty as a conscious and delib-
the goodness of consequences, in turn, for erate response to their guilt. That guilt is part of
Jeremy Bentham and the early utilitarians was the very definition of punishment, these writers
the amount of human happiness they contained, claim, is shown by the absurdity of saying "I am
but many later utilitarians had more complicated punishing you for something you have not
conceptions of intrinsic value.) All proponents of done," which sounds very much like "I am cur-
general utilitarianism, of course, are also support- ing you even though you are not sick. Since all
ers of the utilitarian theory of punishment, but punishment is understood to be for guilt, they
there is no logical necessity that in respect to pun- conclude, they can hardly be interpreted as advo-
ishment a utilitarian be a general utilitarian across cating punishing without guilt. H. L. A. Hart
the board.
calls this move a “definitional stop," and charges
they have earned with no thought of "future crimes, since there can be as much genuine wid
advantage,” and with eyes firmly fixed on pastedness in the former as the latter. Thirdly, there
the problem of accumulation. Deciding the night
assigning low grades. And much the same is would entail an assessment of the character of
true of the assignments of rewards, prizes, the offender as manifested throughout his a
at one
grants, compensation, civil fiability, and so on.
her whole life (and not simply
wal
al utility.
h
in any of
a ready rationale, but
assimilated
hment. (2) The
Cictive theory finds
in the pleasure it
tim of the crime
the criminal suf-
pleasure-even
chief
vist theories are hard put to discover a plausible
for which the utilitarian and moralistic retributi
defense. Completed crimes, for example, are pun-
ished more severely than attempted crimes that
fail for accidental reasons. This should not be sur-
prising since the more harm caused the victim, his
or her loved ones, and those of the public who
can identify imaginatively with them, the more
anger there will be at the criminal. If the purpose
arians, and cer
2. John Rawls. "Concepts of Rules," The Philosophical
Review, 54 (1955). pp. 4-5.
3. J.D. Mabbott, "Punishment. Mind 58 (1939), p. 161.
4. A. C. Ewing. Ethicx (New York: Macmillan, 1953), pp.
16970
5. Ewing, Morality of Punishment, p. 27.
6. See O. W. Holmes, Jr., The Common Law (Boston: Lit-
tle, Brown, 1881), and Henry Maine, Ancient Law
(1861); repr., (Boston: Beacon Press, 1963).
7. See, for example, Anthony Quinton, "On Punishment,
Analysis, 14 (1954), pp. 1933-42.
8. H. L. A. Hart, Punishment and Responsibility (New York
and Oxford: Oxford University Press, 1968), pp. 5-6.
ire, just inso
in the com-
-any kind of
61
The Expressive Function of Punishment
JOEL FEINBERG
ient to dis-
oroughly,
hedonis-
1, is also
Finally,
heory,
s that
ound
ses,
absorbed in the classical literature of his disci-
It might well appear to a moral philosopher
pline, or to a moralist sensitive to injustice and
suffering, that recent philosophical discussions
of the problem of punishment have somehow
missed the point of his interest. Recent influential
articles? have quite sensibly distinguished
all
ry
between questions of definition and justification,
between justifying general rules and particular
decisions, between moral and legal guilt. So
much is all to the good. When these articles go
on to define "punishment,” however, it seems
to many that they leave out of their ken alto-
gether the very element that makes punishment
theoretically puzzling and morally disquieting.
Punishment is defined, in effect, as the infliction
of hard treatment by an authority on a person
for his prior failing in some respect (usually an
infraction of a rule or command). There may
be a very general sense of the word punishment
which is well expressed by this definition; but
even if that is so, we can distinguish a narrower,
more emphatic sense that slips through its
meshes. Imprisonment at hard labor for commit-
ting a felony is a clear case of punishment in the
emphatic sense; but I think we would be less will-
ing to apply that term to parking tickets, offside
penalties, sackings, flunkings, and disqualifica-
tions. Examples of the latter sort that I propose
to call penalties (merely), so that I may inquire
From Joel Feinberg, Doing and Deserving: Essays in the Theory of Responsibility (Princeton, NJ.: Princeton
University Press, 1970), pp. 95-118. Reprinted by permission of the author.
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