DETERRENCE AND RETRIBUTION

• NCJ Number: 58417
• Journal: ETHICS Volume: 86 Issue: 3 Dated: (APRIL 1976) Pages: 181-199
• Author(s): A WERTHEIMER
• Date Published: 1976
• Length: 19 pages
• Corporate Author: University of Chicago Press
• Publication Format: Article
• Language: English
• Country: United States of America

Annotation

THIS ARTICLE CONTENDS THAT LEGISLATIVE UTILITARIANISM (LU) REQUIRES ENFORCEMENT UTILITARIANISM (EU) FROM THE PERSPECTIVES OF CRIMINAL BEHAVIOR, DETERRENCE, AND RETRIBUTION.

Abstract

IF THE ARGUMENT FOR ENFORCEMENT RETRIBUTION IS TO BE ACCEPTED, IT IS NECESSARY TO SUPPORT THE CLAIM THAT DETERRENCE IS A NECESSARY OBJECTIVE OF ANY JUSTIFIABLE SYSTEM OF PUNISHMENT. THERE ARE, HOWEVER, SEVERAL REASONS FOR STATING THAT DETERRENCE EFFICACY CANNOT AND SHOULD NOT BE THE SOLE CRITERION USED AT THE LEGISLATIVE STAGE IN ESTABLISHING A SYSTEM OF LAW AND PUNISHMENT: (1) IN DETERMINING HOW MUCH DETERRENCE IS DESIRABLE, THE AMOUNT OF DETERRENCE TO BE ACHIEVED BY POLICY DOES NOT PROVIDE SUFFICIENT INFORMATION ABOUT THE COST OF CRIME REDUCTION; (2) IT IS CONSIDERED DESIRABLE AND JUST TO FIX THE PENALTY FOR A CRIME IN SOME PROPORTION TO THE SERIOUSNESS OF THAT CRIME; AND (3) EVEN IF THE REHABILITATION OF CRIMINALS IS NOT THE PRIMARY OBJECTIVE OF A SYSTEM OF PUNISHMENT, IT IS CERTAINLY AN OBJECTIVE TO BE KEPT IN MIND. IN ANALYZING LU AND EU, IT IS ASSUMED THAT CERTAIN INDIVIDUALS ARE LESS LIKELY TO COMMIT CERTAIN ACTIONS WHEN DOING SO ENTAILS SOME PROBABILITY THAT THEY WILL BE PUNISHED FOR THEIR ACTIONS. THAT A SYSTEM OF PUNISHMENT NOT CAPABLE OF DETERRING OR REDUCING THE INCIDENCE OF CRIMINAL ACTIONS CANNOT BE JUSTIFIED, AND THAT DETERRENCE IS NOT THE SOLE CRITERION TO BE USED IN ESTABLISHING A SYSTEM OF LAW AND PUNISHMENT. CERTAIN CONFLICTS BETWEEN RETRIBUTION AND UTILITARIANISM ARE NOT RESOLVABLE, PARTICULARLY THE PROBLEM OF DETERMINING THE APPROPRIATE SEVERITY OF PUNISHMENT. THEORETICAL ASPECTS OF PUNISHMENT, HOWEVER, INDICATE THAT SOME CONFLICTS BETWEEN RETRIBUTION AND UTILITARIANISM ARE RESOLVABLE AND THAT LEGISLATIVE RETRIBUTION AND UTILITARIANISM ARE NOT RESOLVABLE, PARTICULARLY THE PROBLEM OF DETERMINING THE APPROPRIATE SEVERITY OF PUNISHMENT. THEORETICAL ASPECTS OF PUNISHMENT, HOWEVER, INDICATE THAT SOME CONFLICTS BETWEEN RETRIBUTION AND UTILITARIANISM ARE RESOLVABLE AND THAT LEGISLATIVE RETRIBUTION AND LU EQUALLY ENTAIL ENFORCEMENT RETRIBUTION. FOOTNOTES ARE INCLUDED. (DEP)