Dressler, p. 33-37




Jeremy thinks that everything people do is the result of seeking pleasure and avoiding pain.  The goal of government, according to Bentham, is to promote the maximum amount of pleasure and the minimum amount of pain.


Both individuals and governments can make decisions that will either augment or diminish their own happiness.


Seeking pleasure and avoiding pain are the goals of government, while at the same time the use of pleasure and pain are tools towards these ends.


The goal of laws should be to increase the total happiness of society.  Yet, punishment is painful, and it should only be allowed if by implementing punishment a greater overall level of pleasure can be achieved.


Bentham gives four cases where punishment is not warranted:


1.     When there is no bad act to prevent

2.     When it won’t work – won’t have a preventative effect

3.     When the cost exceeds the benefit

4.     When the bad act can be prevented in another, cheaper way


Greenwalt again


Utilitarianism is a theory where the ends justify the means.


Greenwalt lists the potential benefits of punishment according to utilitarians:


1.     General deterrence – meaning that people will be less likely to commit crimes in general because they know there’s a chance they’ll be punished

2.     Individual deterrence – the experience of being punished once for an act will influence an individual to not commit that act again

3.     Incapacitation – imprisonment keeps criminals off the streets

4.     Reform – through treatment and education individuals can be made happier and less likely to commit crimes in the future


Notes and Questions


1.     There should be ways to test if punishment deters through empirical research.  Assuming someone is risk-neutral, which is perhaps not true of many criminals, a 5% chance of a 5 year sentence is a lower expected cost than a 95% chance of a 1 year sentence, because 5% of 5 years is a fourth of a year, while 95% of one year is 0.95 years.  Individual deterrence seems problematic in that it is nearly impossible to know what a particular person is going to do.  It seems you can only go for general deterrence based on broad statistical data.  On the other hand, utilitarians wouldn’t necessarily go for a small reduction in homicides based on a large increase in punishment.  They may find that the pain accrued by the prisoners may exceed the pain reduced from the murders that are prevented.

2.     Reform seems incompatible with a strict utilitarian, or more particularly, an economic view of crime.  An economist would say that reform could only succeed if you could permanently change either a person’s preferences or their level of risk aversion.  It’s more likely that punishment will succeed at preventing crime by changing someone’s incentives at the time they would commit the crime.

3.     Kant always says a person should be an end in itself and not a means to an end.  How does this apply to utilitarians?  If the stated purpose of punishment is to deter future crime, then in a sense you’re using the current prisoner to prevent future crime, rather than to help that prisoner.  I seem to recall Kant’s general objective is that it’s offensive to use a person as a means to an end because it denies that person’s status as a rational agent capable of free will.  Utilitarians might posit some occasions when an innocent person ought to be punished, although never knowingly.  The problem with the example of the sheriff arresting the homeless man is that in real life, the chance that such an action would be discovered is never zero, but the cost of that action being discovered is so great in terms of the credibility of the justice system that a rational, well-meaning actor would never do such a thing.

4.     The moral objection to rehabilitation is that the criminal does not deserve to be rehabilitated.


Back to Theories of Punishment

Back to Casebook Notes