Why punishment is necessary

Specific and General Deterrence Deterrence prevents future crime by frightening the defendant or the public.

Incapacitation Incapacitation prevents future crime by removing the defendant from society. Retribution Retribution prevents future crime by removing the desire for personal avengement in the form of assault, battery, and criminal homicide, for example against the defendant. Restitution Restitution prevents future crime by punishing the defendant financially. Figure 1. Key Takeaways Specific deterrence prevents crime by frightening an individual defendant with punishment.

General deterrence prevents crime by frightening the public with the punishment of an individual defendant. Incapacitation prevents crime by removing a defendant from society. Retribution prevents crime by giving victims or society a feeling of avengement. Restitution prevents crime by punishing the defendant financially. A first question, then, is what sufficiently important function punishment serves.

Even if we establish some sufficiently valuable function of punishment, this may not be enough to justify the practice. Some scholars contend that a crucial question is whether punishment violates the moral rights of those punished. If punishing offenders violates their rights, then it may be morally impermissible even if it serves some important function Simmons, ; Wellman, What we need, according to this view, is an account of why, in principle, the practice of imposing intended burdens on people in the ways characteristic of punishment does not violate their moral rights.

In addition to justifying the practice of punishment in general, a complete account of punishment should also provide guidance in determining how to punish in particular cases.

Even if the institution of punishment is morally permissible, a particular sentence may be impermissible if it is excessively harsh or on some accounts, if it is too lenient. What principles and considerations should guide assessments of how severely to punish? Relatedly, although this point has received less attention, we should ask not only about the appropriate severity of punishment but also about the proper mode of punishment.

We may critique certain sentences not in virtue of their severity but because we believe the form of punishment incarceration, capital punishment, and so forth is in some sense inappropriate Reiman, ; Moskos, What considerations, then, should guide assessments of whether imprisonment, fines, community service, probation, capital punishment, or some other form of punishment is the appropriate response to instances of criminal wrongdoing?

Furthermore, what gives the state the exclusive right to punish Wellman, ? Why may victims not inflict punishment on their assailants or hire someone to inflict the punishment? Another question related to the proper agent of punishment—a question that has become increasingly salient in the decades following the Nuremberg trials—is when if ever the international community, rather than a particular state, can be the proper agent of punishment.

What sorts of crime, and which criminals, are properly accountable to the institutions of international criminal law rather than or perhaps in addition to the domestic legal systems of particular states?

As we will see, various accounts of punishment focus on different questions. Also, some accounts seek to answer each of these questions by appealing to the same moral principles or considerations, whereas others appeal to different considerations in answering the different questions.

Consequentialism holds that the rightness or wrongness of actions—or rules for action, or relevant to our context institutions—is determined solely by their consequences. Thus consequentialist accounts of punishment defend the practice as instrumentally valuable: the consequences of maintaining an institution of legal punishment, according to this view, are better than the consequences of not having such an institution.

Thus for punishment to be justified, it must be the case that it brings about other, sufficiently valuable consequences to outweigh its onerousness for the person on whom it is inflicted. Typically, punishment is defended as a necessary means to the socially valuable end of crime reduction, through deterrence, incapacitation, or offender reform.

Deterrence accounts contend that the threat of punishment serves as a disincentive for potential criminals. On such accounts, for the threat of punishment to be effective as a deterrent, it must be credible—it must have teeth, so to speak—and thus the legal system must follow through on the threat and impose punishment on those who violate laws.

Theorists have distinguished two potential audiences for the deterrent threat: first, the threat of punishment might serve to dissuade members of the public generally from committing crimes that they might otherwise have committed.

This is called general deterrence. Second, for those who do commit crimes and are subjected to punishment, the threat of future punishment namely, the prospect of having to experience prison again, or pay further fines, and so forth might provide a disincentive to reoffending.

This is typically referred to as specific or special deterrence. Punishment might also help to reduce crime by incapacitating criminals. Unlike deterrence, incapacitation does not operate by dissuading potential offenders. Incapacitation instead aims to remove dangerous people from situations in which they could commit crimes.

Imprisoning someone in a solitary confinement unit, for instance, may or may not convince her not to commit crimes in the future; but while she is locked up, she will be unable to commit most crimes. A third way in which punishment might help to reduce crime is by encouraging or facilitating offender reform.

That is, the aim for both is that she should choose not to reoffend. But reform differs from specific deterrence in terms of the ways in which each seeks to induce different choices.

Punishment aimed at specific deterrence provides prudential reasons: we impose onerous treatment on an offender in hopes that her aversion to undergoing such treatment again will convince her not to reoffend.

Each of these aims—deterrence, incapacitation, and reform—will have distinct implications with respect to sentencing. Punishment aimed at reducing crime through deterrence would in general need to be severe enough to provide members of the public with a significant incentive not to offend, or to provide offenders with an incentive not to reoffend.

Also, as Bentham explained, the severity of sentences should reflect the relative seriousness of the crimes punished Bentham, More serious crimes should receive more severe punishments than do less serious crimes, so that prospective offenders, if they are going to commit one crime or the other, will have an incentive to choose the less serious crime. For punishment aimed at reducing crime through incapacitation, sentences should be restrictive enough that dangerous offenders will be unable to victimize others so, for instance, prison appears generally preferable to fines as a form of incapacitative punishment.

In terms of duration, incapacitative sentences should last as long as the offender poses a genuine threat. Similarly, sentences aimed at reducing crime through offender reform should be tailored, in terms of the form, severity, and duration of punishment, in whatever ways are determined to be most conducive to this aim.

Thus whether she endorses deterrence, incapacitation, reform, or some other aim or a combination of these , the consequentialist should also endorse a parsimony constraint on sentence severity Tonry, Typical consequentialist accounts of punishment contend that the practice is justified because it produces, on balance, positive consequences by helping to reduce crime, either through deterrence, incapacitation, or offender reform.

Critics have objected to such consequentialist accounts on a number of grounds. First, some have objected to deterrence accounts on grounds that punishment does not actually deter potential offenders. A key worry is that often perhaps typically those who commit crimes act impulsively or irrationally, rather than as efficient calculators of expected utility, and so they are not responsive to the threat of punishment.

The question of whether punishment deters is an empirical one, and criminological studies on this question have come to different conclusions. In general, evidence seems to indicate that punishment does have some deterrent effect, but that the certainty of apprehension plays a greater deterrent role than does the severity of punishment Nagin, A similar line of objection has been raised against reform-based accounts of punishment.

More recent criminological work, however, has generated somewhat more optimism about the prospects for offender reform Cullen, Whereas critics have questioned whether punishment deters or facilitates offender reform, there is little doubt that punishment—especially incarceration—incapacitates prisoners may still have opportunities to commit crimes, but their opportunities are at least significantly limited. Critics have raised questions, however, about the link between incapacitation and crime reduction.

For punishment to be justified on incapacitative grounds, after all, it would need to be the case not only that punishment in fact incapacitates, but that in so doing it helps to reduce crime. At least in some cases, there is reason to doubt whether the link between incapacitation and crime reduction holds. Most notably, locking up drug dealers or gang members does not appear to decrease drug- or gang-related crimes, because the incapacitated person is quickly and easily replaced by someone else Tonry, The costs of punishment are not limited to the suffering or other burdens inflicted on offenders, although these burdens do matter from a consequentialist perspective.

These costs matter in consequentialist calculations. In addition, we must consider the financial costs of maintaining an institution of criminal punishment. In , the Vera Institute of Justice released a study of 40 U. Thus defenders of punishment on consequentialist grounds must show not only that punishment is beneficial, but also that its benefits are significant enough to outweigh its costs to offenders and to society generally. If there are alternatives to punishment that are equally effective in reducing crime but are less costly overall, then from a consequentialist perspective, these alternatives would be preferable Boonin, 53, Suppose, however, that the benefits of punishment outweigh its harms and also that there are no alternatives to punishment that generate, on balance, better overall consequences.

In this case, punishment would be justified from a consequentialist perspective. Many theorists, however, do not endorse consequentialism. Indeed, the most prominent philosophical objections to consequentialist accounts of punishment take aim specifically at supposed deficiencies of consequentialism itself. Perhaps the most common objection to consequentialist accounts is that they are unable to provide principled grounds for ruling out punishment of the innocent. If there were ever a situation in which punishing an innocent person would promote the best consequences, then consequentialism appears committed to doing so.

McCloskey imagines a case in which, in the wake of a heinous crime, a small-town sheriff must decide whether to frame and punish a person whom the townspeople believe to be guilty but the sheriff knows is innocent if doing so is the only way to prevent rioting by the townspeople McCloskey, But knowingly punishing an innocent person strikes most of us as deeply unjust.

Consequentialists have responded to this objection in various ways. Setting terminology aside, the relevant questions are whether and why it is permissible to impose intended, condemnatory burdens on those believed to be guilty of crimes.

Such a practice would strike many as morally wrong, however. Thus the objection arises for consequentialists regardless of definitions.

Others have responded to the objection that consequentialism would allow for punishing the innocent by suggesting that scenarios such as McCloskey suggests are so far-fetched that they are unlikely to occur in the real world. In actual cases, punishing the innocent will rarely, if ever, produce the best consequences. For instance, some contend that the sheriff in the example would likely be found out, and as a result the public would lose its trust in law enforcement officials; the long-term consequences, therefore, would be worse than if the sheriff had not punished the innocent person.

As critics have pointed out, however, this response only shows that punishing the innocent will usually be ruled out by consequentialism. There might still be cases, albeit rare, in which punishing the innocent would generate the best consequences maybe the sheriff is adept at covering up his act. At best, then, consequentialism seems only able to ground a contingent prohibition on punishing the innocent.

Some consequentialists have accepted this implication, albeit reluctantly see Smart, On this view, it is morally wrong to subject those guilty of relatively minor crimes to harsh punishment; such punishment would be excessive.

For consequentialist accounts, though, it appears that excessively harsh sentences would be permitted indeed, required if they produced the best overall consequences.

Jeremy Bentham contended that consequentialism does have the resources to ground relative proportionality in sentencing—that is, lesser offenses should receive less severe sentences than more serious offenses receive. His reasoning was that if sentences for minor offenses were as harsh as for more serious offenses, potential offenders would have no incentive to commit the lesser offense rather than the more serious one Bentham, If Bentham is right, then there is a consequentialist basis for punishing shoplifters, for instance, less harshly than armed robbers.

But this does not rule out punishing shoplifters harshly more harshly than most of us would think justified and punishing armed robbers even more harshly; again, a consequentialist would seem committed to such a sentencing scheme if it promoted the best overall consequences. Defenders of consequentialist sentencing have another response available, namely that excessively harsh sentences do not, in practice, produce the best consequences.

This sort of response, of course, makes the prohibition of disproportionate punishment a contingent matter; in other words, if extremely harsh sentences did help to reduce crime and this produced, on balance, the best overall consequences, then consequentialism would appear to endorse such sentences. Critics thus charge that consequentialist accounts are unappealing insofar as they are unable to ground more than a contingent prohibition on disproportionately harsh punishment.

Even if we prohibit punishment of the innocent or disproportionate punishment of the guilty, a third, Kantian objection holds that consequentialist punishment is not properly responsive to the person being punished.

According to this objection, to punish offenders as a means to securing some valuable social end namely, crime reduction is to use them as mere means, rather than respecting them as ends in themselves Kant, ; Murphy, In response to this objection, some scholars have contended that although consequentialists regard punishment as a means to an end, punishment does not treat offenders as mere means to this end.

If we limit punishment to those who have been found guilty of crimes, then this treatment is arguably responsive to their choices and does not use them as mere means. Kant himself suggested that as long as we reserve punishment only for those found guilty of crimes, then it is permissible to punish with an eye toward potential benefits Kant, A more recent objection to consequentialist systems of punishment, developed by R.

Such a conception of the criminal law is inappropriately exclusionary, Duff claims. The criminal law, and the institution of punishment, in a liberal polity should treat offenders inclusively, as still members of the community who despite having violated its values could, and should, nevertheless re commit to these values. In response, one might object that systems of punishment aimed at crime reduction need not be exclusionary in the way Duff suggests.

In particular, punishment that aims to deter crime might be said to treat all community members equally, namely as potential offenders. For those who have not committed crimes, deterrent punishment regards them as potential offenders and aims to provide an incentive not to offend that is, general deterrence. For those who have committed crimes, deterrent punishment similarly regards them as potential re offenders and aims to provide an incentive not to re offend that is, specific deterrence.

In this way, punishment with a deterrent aim might be said to speak to all community members in the same terms, and thus not to be objectionably exclusionary.

As we have seen, consequentialist accounts of punishment are essentially forward-looking—punishment is said to be justified in virtue of the consequences it helps to produce. A different sort of account regards punishment as justified not because of what it brings about, but instead because it is an intrinsically appropriate response to crime.

Accounts of the second sort have traditionally been described as retributivist. In general, we can say that retributivism views punishment as justified because it is deserved , although particular accounts differ about what exactly this means. Theorists have distinguished two varieties of retributivism: positive retributivism and negative retributivism. Negative retributivism, by contrast, provides a constraint on punishment: punishment is justified only of those who deserve it.

Because negative retributivism provides only a constraint on punishment, not a positive reason to punish, the negative retributive constraint has featured prominently in attempts at mixed accounts of punishment; such accounts allow punishment for consequentialist aims as long as the punishment is only of those who deserve it.

On the other hand, because negative retributivism does not provide a positive justifying reason to punish, some scholars argue that it does not properly count as retributivism at all. The distinction between retributivism and consequentialism is not always a neat one. Notice that one might endorse the claim that punishment is a deserved response to wrongdoing and then further assert that it is a valuable state of affairs when wrongdoers get the punishment they deserve—a state of affairs that therefore should be promoted.

On this type of account, retribution itself essentially becomes the consequentialist aim of punishment Moore, ; Zaibert, Nevertheless, in keeping with general practice, this article will treat retributivism as distinct from, and in competition with, consequentialist accounts. One common version of retributivism contends simply that wrongdoers deserve to suffer in proportion to their wrongdoing. Often this claim is made by way of appeal to intuitions about particular, usually heinous crimes: surely the unrepentant war criminal, for example, who has tortured and murdered many innocent people, deserves to suffer for what he has done.

Proponents argue that retributivism is justified because it best accounts for our intuitions about particular cases such as these Moore, ; Kleinig, Justifying retributivism requires more, of course, than merely appealing to common intuitions about such cases. After all, even if many even most people do feel, in hearing reports of terrible crimes, that the perpetrators deserve to suffer, not everyone feels this way.

And even those who do have such intuitions may not feel entirely comfortable with them. What we would like to know is whether the intuitions themselves are justified, or whether, for instance, they amount to an unhealthy desire for vengeance. Critics contend that those who rely on our intuitions about particular cases as evidence that retributivism is justified fail to provide the needed explanation of why the intuitions are justified.

There are other questions for such a view: does any sort of moral wrongdoing deserve to be met with suffering, or only some cases of wrongdoing? Which ones? And why is meting out deserved suffering for wrongdoing properly the concern of the state? Another prominent type of retributivist account begins with a conception of society as a cooperative venture in which each member benefits when there is general compliance with the rules governing the venture.

However, social psychology has demonstrated that not all victims confront crime using such strategies, nor that they are likely to be the optimum strategies for overcoming or avoiding psychological disorder and suffering. The supposed domination by the perpetrator or the humiliation or subjection of the victim are no more than a subjective response experienced by some not even the majority of the victims. This response should not be turned into a reality by virtue of a legislative choice, nor could it constitute the foundation of criminal prosecution.

If it were indeed to be accepted, it would send an utterly incorrect message. Where, historically, within the ambit of private vengeance, the absence of a physical response to the crime through punishment was sanctioned socially with a loss of honour, this was because in a non-institutionalised system of control few alternative ways existed of obliging compliance with the so-called secondary rule, which addressed all of the members of the community.

In our opinion, the—at least abstract—potential of punishment to produce beneficial effects for the victims cannot be refuted. The effects consist principally of demonstrating the injustice suffered by them and offering a certain degree of non-repetition guarantees, thereby assuaging their need for justice, restoring their confidence in the law and in society, and encouraging their non-desocialisation. We must acknowledge it as evident that, as human beings, our sense of justice leads us to require that bad acts be punished.

However, we must not forget that these feelings respond to the calculated reciprocity mechanism, 57 present not only in the human being, but also in other species with social behaviours. In conclusion, we may state that a strategy that attempts to satisfy all of the interests in play in order to build a sustainable peace must not neglect to respond to past crimes.

Having said this, the state, through its monopoly on violence, may in our opinion moderate the understandable and legitimate instincts and desires for reciprocity of the victims and of the society as a whole and submit these to certain rational limits.

The various restorative justice mechanisms, eg mediation, are designed such that the victim has a voice in the conflict resolution process and is thus able to express his or her needs and obtain reparation. Furthermore, restorative justice mechanisms contribute—and do so more effectively than conventional criminal justice—to the acknowledgement of responsibility by the offender, to his or her re-socialisation and to the restoration of interpersonal relations.

Social psychology has also questioned the affirmation that only criminal punishment, based on the idea of just deserts, re-establishes justice. The situation of asking for forgiveness expresses, first, that the offender shares those values and, secondly, an acknowledgement of and restoration of the dignity of the victims.

In conclusion, these studies state that punishment may be seen as insufficient or as unnecessary for restoring justice for victims. It is worth clarifying that we do not deem restorative justice to constitute an alternative to the traditional criminal justice system. At the same time, when restorative justice is applied, there may be evidence of a reduced need for punishment if some of the purposes of the punishment are deemed to be at least partially fulfilled.

In such circumstances, there is an argument to be made in favour of the reduction of the criminal punishment, or its replacement by an alternative sanction, a conditional suspended sentence or probation. It is also appropriate to point out the differences between transitional justice and restorative justice, and how the latter must be understood within the framework of the former. While transitional justice is the product of a public design, restorative justice starts from the premise that all involvement in the various measures is voluntary.

For this reason, we cannot talk about an imposed restorative justice. Rather, it is a case of the transitional justice processes allowing, on the one hand, the application of restorative justice mechanisms and, on the other, adopting a restorative perspective in their design, by adapting some of those mechanisms to the specific transitional framework.

Of course, not even restorative justice, or transitional justice with a restorative perspective, is sufficient to fulfil all of the aims of a transitional process, since it focuses on relationships and the interpersonal plane. And even if some of the tools implemented under this perspective also have potential community benefits, they cannot provide an answer to the political, economic, or social macro aspects of the conflict, which are related to peace building.

For this reason, we must bear in mind that this is only one perspective to take into account within the set of tools that must make up the complex mechanism of transitional justice.

The aims that criminal law fulfils or should fulfil in relation to society undergo profound changes in the contexts of transition when faced with the legacy of experiences of mass violence.

The phenomenology of the crimes themselves calls into question some of the purposes traditionally attributed to criminal law and to punishment: in particular, special deterrence, general deterrence and retribution or desert. In addition, there is a marked tendency to entrust to criminal law the achieving of new aims that are central to all transitional processes, such as the search for truth, the building of peace, and the founding of the new social and legal order arising as a result of the transition.

The contexts of transition require at least a partial rethinking of the traditional purposes of criminal law and of punishment. The massive nature of the violence perpetrated gives rise to the impossibility in practice of trying all of the persons who in some way participated in committing the crimes. This circumstance frequently combines with the institutional weakness during the transitional period, which also affects the courts.

These factors normally impose a selective criminal prosecution, which should at least be based on rational criteria such as the gravity or type of crimes, the identification of those who bear the greatest responsibility 79 or the representative nature of the cases. Another common feature of the crimes faced by transitional processes is their commission by organised groups or organisational structures governed by a strict hierarchy and, usually, by an ideology political, religious or rooted in other beliefs that is very strong and exclusive.

Although these circumstances do not serve to dilute individual criminal responsibility within a more diffuse collective responsibility, it is worth asking whether, once the apparatus or group concerned has been dismantled, the risk that the criminals will commit new crimes really exists.

It can be argued that transitional processes do not always involve the disappearance of the organisations involved in committing the abuses, but, rather, their conversion into legitimate groups and their participation in the new regime.

Even in these cases, the disappearance of the context that favoured the structural violence, such as the cessation of armed conflict, the reduction in the power they held previously or the loss of support of part of the population, makes it really unlikely that these individuals would once again commit the same crimes. Otherwise, where these circumstances have not disappeared and the criminals continue to perceive that they are supported by the power structures to which they belong, criminal punishment actually does little to contribute to its elimination.

Similarly, both deterrence and the rehabilitation function of punishment appear to have less relevance when dealing with crimes that are not the result of the deviant conduct of one or a few people, but are the consequence of the activity of perverted institutions 87 or of an extraordinary context generated by an inter-community conflict.

The systematic nature of these crimes requires a response combining the penalties directed towards individuals with wider structural measures that eliminate, or at least reduce, the ground on which the ideology of the criminal system, or the origins of the conflict, is founded. The purpose of criminal law which has the greater chance of retaining its full validity in transitional contexts is the protection of legal interest through the positive general, or integrating, prevention 88 or, according to concepts pertaining more closely to Anglo-Saxon doctrine, through the expressive function of punishment.

This communication is delivered at two different stages. At a first stage, the mere existence of the law, by prohibiting some conducts and by threatening them with punishment, performs the function of informing about the prohibited behaviour and expressing the value of the protected legal interest. At a second stage, the same function is developed by the application of criminal law.

Here, we can distinguish three successive phases: first, the central core of the message of reprobation and stigmatisation is expressed through the ritual of the criminal trial, when the defendant is seated in the dock and faces the prosecution and the judge, as well as through the judgment officially declaring his or her responsibility.

Naturally, the validity and efficacy of the reproach expressed goes hand in hand with the legitimacy of the institutions national or international sending this message. The second phase in the construction of this message lies in sentencing.

We believe that the role of punishment is more than an element added to the message of reproach already contained in the fact of the criminal process and in the conviction. On the contrary, it appears to us that punishment meets an expressive function of its own that consists in reflecting the gravity of the offence and the degree of blameworthiness: the more serious the act and the greater the degree of blameworthiness of the convicted person, the greater the punishment required to express the negative evaluation merited by the crime.

The third phase in which this function is developed is the enforcement of the punishment. When the offender serves his or her sentence, the seriousness and importance of the message of reproach and the gravity and blameworthiness of the act are once again confirmed, giving it a concrete and thus tangible content.

An acknowledgement of the three phases in which the communicative function is fulfilled does not, however, mean that the complete elimination of one of these impinges on the fulfilling of this purpose. This circumstance may be seen in transitional contexts, where specific priorities and demands arise, such as reaching a peace agreement or maintaining it; involving the criminals in investigating what has occurred and in reparations to benefit the victims; or avoiding a resurgence of the violence.

The combination of these objectives with the demand for criminal prosecution and sanctioning for past crimes generates an intrinsic tension inherent to all transition scenarios.

They must achieve a balance between short-term solutions and long-term aspirations, which can be partially managed only by considering the objectives and transitional mechanisms as dynamic 94 and are therefore subject to a necessary balancing exercise. Incapacitation and other forms of risk management. Imprisonment temporarily puts the convicted criminal out of general circulation, and the death penalty does so permanently. These punishments physically prevent persons of dangerous disposition from acting upon their destructive tendencies.

Less drastic forms of risk management include probationary or parole supervision, and accompanying requirements for example, random urine tests to detect use of illegal drugs and prohibitions use of alcohol or firearms, association with certain persons, contact with the victim, and so on. As with individual deterrence, more severe risk-management measures are warranted for repeat offenders because such offenders are statistically more likely to commit further crimes.

However, incapacitation of a high-risk offender may nevertheless fail to prevent further crimes. This would be the case if such an offender were to be immediately replaced by another offender for example, on a street corner well-suited for selling drugs.

It would also be the case if the offender, when released from prison, had become more dangerous than he was before so that the crimes he commits after release are more numerous or more serious than those which were prevented while he was imprisoned. Punishment may help to reform the criminal so that his wish to commit crimes will be lessened, and perhaps so that he can be a happier, more useful person. Conviction and simple imposition of a penalty might themselves be thought to contribute to reform if they help an offender become aware that he has acted wrongly.

In that case, punishment acts as a form of norm reinforcement operating at the individual rather than the community level; the importance of promoting the offender's awareness of wrongdoing is also cited by those who stress the "communicative" aspects of punishment. However, reform is usually conceived as involving more positive steps to make offenders less antisocial by altering their basic character, improving their skills, or teaching them how to control their crime-producing urges for example, their tendency to abuse drugs or alcohol, or to commit sex crimes.

Various psychological therapies, medications, and even drastic interventions such as psychosurgery, are designed to curb destructive tendencies. Educational and training programs can render legitimate employment a more attractive alternative to criminal endeavors. These may indirectly help enhance self-respect, but their primary purpose is to alter the options that the released convict will face.

The utilitarian, in contrast to the retributivist, does not suppose that wrongful acts intrinsically deserve a harsh response, but utilitarians recognize that victims, their families and friends, and some members of the public will feel frustrated if no such response is forthcoming. Satisfying these desires that punishment be imposed is seen as one legitimate aim in punishing the offender. In part, the point is straightforwardly to increase the happiness, or reduce the unhappiness, of those who want the offender punished, but formal punishment can also help increase their sense of respect for the law and deflect unchanneled acts of private vengeance.

Community or victim restoration. Another utilitarian sentencing goal that began to receive much greater emphasis toward the end of the twentieth century is to repair the damage that the offense has caused, by requiring the offender to make restitution or perform compensatory service for the victim or the community.

Restorative justice goals are also sometimes defined to include acceptance of responsibility or repentance by the offender, forgiveness by the victim, and victim-offender or community-offender reconciliation, for example, by means of mediation or an apology.

Since some of these goals and measures may also benefit the offender, and depend heavily on his cooperation, they might not seem sufficiently unpleasant or stigmatizing to qualify as punishment; however, the same could be said for many measures designed to promote reform or manage the offender's risk of re-offending. Indeed, the broadest goals of restorative justice overlap with several previously mentioned punishment goals, in particular, norm reinforcement, risk-management, and reform.

Restorative measures can also be seen as a means of deflecting the desires of victims and the public for vengeance, and providing a more constructive outlet for such feelings. Unlike a basic retributive theory, the utilitarian approach to punishment is compatible with philosophical determinism.

Whether or not human acts are completely determined by prior causes, punishment can be an efficacious prior cause. A determinist can support even the "condemnation" component of punishment on utilitarian grounds, believing that condemnation and feelings of guilt are useful instruments in guiding human behavior.

From the utilitarian perspective, the acts for which criminal punishment should be authorized are those with respect to which the good consequences of punishment can outweigh the bad; the persons who should be punished are those whom it is useful to punish; and the severity of punishment should be determined not by some abstract notion of deserts but by marginal usefulness.

Each extra ingredient of punishment is warranted only if its added benefits outweigh its added harms and costs. Of course, in real life such a fine scale cannot be developed, but legislators and those administering punishment should be guided by this principle.

The utilitarian does not start with the premise that penalties of equal severity should go to those with equal blame. For general deterrence, roughly equal penalties for the same offenses may be appropriate, but goals relating to individual offenders may support individuation of treatment, leading, for example, to long confinement for those judged irredeemably antisocial, and to rehabilitation and prompt release for those whose character can be positively transformed or already has been, at the time of sentencing.

Philosophical objections to utilitarianism. Utilitarian programs for systems of punishment are subject to two kinds of objections: those which challenge basic philosophical premises, and those which claim that different systems would better accomplish social aims. When existing practices are attacked, disentangling the theoretical from the practical complaints often is not simple, but the following discussion tries to separate the two, dealing first with basic attacks on utilitarian theory and indicating what modifications may be needed to accommodate valid criticisms.

The most fundamental objection is to treating the criminal as a means to satisfy social purposes rather than as an end in himself. This objection bears on why, and how, guilty offenders may be punished; but the most damaging aspect of the attack is that utilitarianism admits the possibility of justified punishment of the innocent.

The retributivist asserts that such punishment is morally wrong even when it would produce a balance of favorable consequences. Various responses have been made by utilitarians. One is that since the term punishment implies guilt, the innocent cannot logically be punished. The terminological point is highly doubtful in cases in which innocent people are portrayed as guilty and given harsh treatment on that basis.

In any event, even if the point is sound, it merely requires the retributivist to restate his worry, now objecting that utilitarian theory countenances subjecting the innocent to harms that have the appearance of punishment. The utilitarian may answer that his theory will certainly not support any announced practice of punishing the innocent. The purposes of punishment would not be served if people knew a person was innocent, and even to establish a general policy that officials would at their discretion occasionally seek punishment of those they know are innocent would cause serious insecurity.

One version of utilitarianism, called "rule" utilitarianism, makes the standard of moral evaluation the rules that would, if publicly announced, accepted, and applied, produce the best consequences. Under this version, punishment of the innocent may cease to be a problem, since no rule authorizing such punishment should be accepted. Suppose, however, that an official or citizen is sure that surreptitiously promoting the punishment of someone he knows to be innocent will be very useful.

The rule-utilitarian account avoids the dilemma, but only by presupposing that proper moral decisions must be defensible in terms of rules that can be publicly announced.

They might, however, also try to foreclose intentionally punishing the innocent as a practical alternative, pointing to the severe insecurities that would be caused by knowledge of such punishment and the difficulties of maintaining secrecy.

Alternatively, they might concede that punishing the innocent would be appropriate if the balance of likely consequences were favorable, arguing that such a conclusion conflicts with moral intuitions only because those are developed to deal with ordinary situations. Many people will feel that none of these utilitarian responses adequately accounts for the unacceptability of punishing the innocent, which is regarded as inherently wrongful. Similarly, many regard it as intrinsically unfair and morally wrong to impose severe punishment on those who commit minor crimes, however useful that might be; to give widely variant punishments to those who have committed identical offenses with similar degrees of moral guilt; or to count the interests of an offender as having as much intrinsic weight as the interests of a victim or ordinary law-abiding person.

Mixed or hybrid theories. Given these problems with unalloyed utilitarian theory, some mixture of utilitarian and retributive elements provides the most cogent approach to punishment. The basic reasons for having compulsory legal rules backed by sanctions are utilitarian; these reasons should dominate decisions about the sorts of behavior to be made criminal. Moral wrongs should not be subject to legal punishment unless that is socially useful, and behavior that is initially morally indifferent may be covered by the criminal law if doing so serves social goals.

Notions of deserts, however, should impose more stringent constraints on the imposition and severity of punishment than pure utilitarianism acknowledges.

Relevance of deserts. Every practical system of punishment must admit the possibility that mistakes will lead to innocent persons being punished, but knowingly to punish an innocent person is to violate an independent moral norm.