Theories of why we punish offenders are crucial to the understanding of criminal law; in fact it is not easy to define legal punishment, however one thing is clear within the different theories of punishment is that they all require justification. There are many theories of punishment yet they are predominantly broken down into two main categories. The utilitarian theory seeks to punish offenders to discourage, or “deter,” future wrong doing. The retributive theory seeks to punish offenders because they deserve to be punished due to their behaviour upsetting the balance of society.
This essay will consider what legal punishment is; it will draw a distinction between the two main categories. It will focus on utilitarianism otherwise known as consequentialist theory of punishment, in particular a side constrained theory provided by Daniel Farrell. It will look in particular at what it is Farrell is attempting to achieve through his modified theory. It will consider the three questions of justification put forward by Hart in application to Farrell’s theory and finally it will consider criticisms made to Farrell’s theory and the modifications made if any to appease such objections.
With no precise definition of legal punishment it has been described that it is intended to be burdensome or painful on a supposed offender for a supposed crime by a person or body who claims the authority to do so. The practice of punishment must be justified by reference either to forward or to backward looking considerations. If the practice is considered to be forward looking the theory is consequentialist, accordingly the point of practice of punishment is to increase overall social welfare by reducing (ideally, preventing) crime. It is mainly focused on the ways it can prevent future crime either through deterrence, incapacitation or reform/rehabilitation. It justifies punishment as the good brought about by inflicting harm will outweigh the pain imposed.
Bentham argues that the aim of utility is a morally right action for every situation; Bentham said “the punishment suffered by the offender presents to everyone an example of what he himself will have to suffer if he is guilty of the same offence,” he adds the principle may also be described as the greatest happiness principle, that asserts the only morally right and proper goal of action is to achieve the greatest happiness of all individuals whose interest is affected by the action. Bentham rejects the concept that the law of reason is a sufficient principle of morality, such concepts as common sense, the rule of right, the law of reason, and the laws of nature are only theoretical or speculative principles and cannot be practically applied to every moral situation.
The underlying theory of human action is that individuals act on the basis of assessment of the relative costs and benefits of a particular action. What makes it criminal is its effect upon other members of society. In other words, the costs which it inflicts upon them either directly or indirectly in the form of feelings of insecurity and fear of crime. Consequentialists traditionally justify punishment with an assessment of its costs and benefits. If the practice is considered to be backward looking, the theory is deontological; on this approach, punishment is seen either as a good in itself or as a practice required by justice therefore making a direct claim on our adherence.
A deontological justification of punishment is likely to be a retributive justification. Here the underlying theory of human action is that individuals are held to have free will; there actions therefore provide the basis which they can be held to have moral responsibility. Moore highlights the rationale that retributivism is a very straightforward theory and further suggests that it is justified punishment because and only because offenders deserve it.
Punishment can be seen as an effective method of crime prevention yet it can be argued that there are other more efficient methods. Pure theories are often criticised due to the fact punishment can be unjust, some would argue that seemingly harsh punishments would be justified if they produced the best consequences, retributivists would argue about the moral injustice of actions like this. Suggestions have been made that the principles of the pure consequentialist theory should be retained and certain limitations be put in place for these objectives to be achieved.
Side-constrained consequentialism has the same justifying principles as the pure theory but pursuit may be by non-consequentialist means, such as forbidding the punishment of innocents or excessive punishments of the guilty. The article, by Farrell puts across the theory of modified consequentialism which bases attempts to justify the use of deterrent threats and the subsequent infliction of harm when those threats are ignored based around the fundamental right of self protection by appealing to certain principles of distributive justice. Farrell does not consider punishment entirely; he states he is only primarily concerned with the idea of deterrent threats and justifying the infliction of harm when those threats are ignored, thus showing flaws in his theory. He does not consider incapacitation or rehabilitation as other consequentialist theorists have such as Goldman.
The pure model of consequentialism focuses on the punishment itself as a means of deterrence of future crime which can be disproportionate. Farrell attempts to modify the pure consequentialist theory through discussion of and the introduction of backward looking ideas of the justification of deterrent threats and the subsequent infliction of harm based on the fundamental principle of self defence and fairness. Farrell is wholly concerned with the deterrence by threats and moving the burden of responsibility or choice from the potential victim to the potential offender. For example, as Farrell has discussed, if I were threatened by a potential attacker and, in an attempt to deter that violent act I threatened to injure them in return or in my own self-defence, then the responsibility falls on the potential aggressor as to whether they want to risk the potential pain. Farrell states a threat should create sufficient fear in the mind of a potential aggressor to deter them from a criminal act.
The burden of a potential offender is to be constrained from what they had no right to do in the first place, which he believes is reasonable. Threatening someone to attempt them from wrongfully harming another is justifiable self defence. He argues that, when someone threatens to attack you, in order to deter them you are justified in making almost any threat you want as long as, should the threat be ignored, you can justify carrying out the threat. Some theorists would agree with Farrell that self defence can be justified. “The defender has a right to act so long as he believes there is a probability of attack and inquiry into the reasonableness of this belief is not required,” however the examples provided by Farrell, in an attempt to explain his justification of general deterrence, are scenarios that fail to recognise a number of elements of human behavior, which is a problem with the overall theory of consequentialism.
The pure theory considers that all people commit crimes through free will and have knowingly fully weighed up the positives and negatives before doing so. Although this may be true in many criminal situations, this is not always the case and is another primary flaw in the pure consequentialist theory, something which Farrell has failed to address, opening him to a number of criticisms’. Similarly the retributivist idea that all individuals have free will and therefore act independently and are never subject to force from others.
Farrell mentions a situation where a person may act wrongfully without knowing, or having a good reason to believe a harmful situation is likely to occur, but he does not indicate how he believes this should be dealt with. Farrell’s deterrent theory gives offenders a reason to obey the law but it does so in matters of self interest, not as a result of a person’s morals. Hegel argues “deterrence treats a man like a dog instead of with the freedom and respect due to him as a man.”
Going back to the original point, the scenario has a number of flaws; e.g. it fails to consider that not all potential aggressors are well informed or have fully weighed up the benefits and pains of committing a certain act when that is not the case.
Consider for example, crimes committed by children or the mentally ill. If an ARD were to be used by the state that would automatically punish those who have committed a crime, how would that address the problem of proportionality? The ARD metaphor used by Farrell faces the problems of proportionality when considering elements of distributive justice. Nathanson addresses this by distinguishing proportionality between state sanctioned punishment in defence of society and individual self defence; he proposes that, killing another person may be justifiable when it is self
defence or immediate defence of others as a means of preventing the aggressor from hurting or killing a potential victim. However, Nathanson goes on to argue that state sanctioned killing of a person who has committed a crime, say of murder, is disproportionate as the crime has already been committed so there would be no real benefit to the punishment issued.
Farrell fails to properly address this problem, again another flaw open to harsh criticism in his overall argument as, although it may be relatively easy to justify disproportionate threats and actions on an individual level when concerning self defence, the idea of societal defence is much more difficult to justify. When such a system is in place to deter crime in defence of society, it can be considered as punishing the innocent. It would be extremely difficult to determine who intends to commit crime therefore, intention to punish before a crime is committed is hard to justify.
Farrell justifies threats on the basis of self defence thus enforcement is justified because ignoring the threat is wrong. Farrell is not justified in arguing that an advanced warning justifies excessive harm, he does not distinguish between crimes; therefore there is a lack of proportionality. For his theory to work the threat of force would exceed what is necessary to prevent an attack to deter future offenders. Unlike Farrell retributivist theorists have tried to deal with this by trying to create a link between the crime committed and the punishment received. Farrell’s article could be argued as obsolete, therefore not adequate in more modern times, evidently his theory may has some strengths, such as the innocent being justified in using self defence, on the other hand it is a lot harder to put his theory into practice.
Goldman, put forward a different version of side-constrained consequentialism, evident in his article; he prohibits excessive punishment which Farrell does not consider and he also discusses the rights of criminals and how these can be regained by rehabilitation. Goldman focuses on rehabilitation and incapacitation while Farrell looks at deterrence. It can be said that both theorists have interesting ideas but whether they would work in practice is questionable. It is generally agreed that punishment of some form is needed, albeit a fairer and less harsh system than those in place today.
Farrell does not really overcome any of the flaws of the pure consequentialist theory of punishment, and after considering Hart’s questions Farrell does not look at who may be properly punished, instead he allows for punishment of the innocent, or how punishment should be determined appropriately as he considers threats and creation of fear before a crime has been committed. His general justifying aim is that punishment can be justified in terms of self-defence and the beneficial effects of this. He discusses punishment without consideration of different circumstances; therefore everybody is to be punished in the same way by the same means, which is unjustifiable. This lack of proportionality needs to be considered in a similar way to the ideas of retributivist theorists such as Moore for his theory to work.
Farrell’s article does not deal with problems of the pure theory such as the rights of offenders which are overlooked to achieve reduction in crime or whether the prevention of future crimes can really be said to outweigh the potential harm inflicted on individuals. Farrell deals with individual crimes and does not consider how to deter others away from the particular situation.
In conclusion, Farrell acknowledges the problem of the innocent aggressor and how such a system would, unavoidably, punish the innocent but he fails to offer any further discussion or possible alternative to the problems acknowledged or encountered in his article. The argument in favour of disproportionate threats and actions, although sound on an individual level i.e. self defence, is not adequately addressed when looking at a model applied to the wider society and state-sanctioned punishment.
In essence it is not really a workable theory that could work in practice when it only deals with one individual at a time. All theories of punishment will continue to be argued and unsupported by other theorists and whilst both theories have some workable ideas, the flaws have to be considered in more detail for either theory to work in practice.
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