Law & Society Blog

Does it matter to the citizens, as the potential victims of crime, whether the state embraces a consequentialist or retributivist theory of punishment? Is a consequentialist theory of punishment even escapable? Responding to the call to re-examine consequentialist theories of punishment, let me take you along a series of steps, starting with my right to life & limb and ending with the state’s punishment of crime, and prosecutorial discretion. For the sake of discussion I will assume that we know that punishment is effective, that deterrence works; but that we don’t know to what degree exactly, or how. The assumption is that we do know that without punishment crime increases quickly and exponentially.

(1) The easy starting point: The government sends out a goon to kill me (without due process of law). I have a constitutional right not to have a government goon kill me. I don’t even have to wait until the goon is at my door; I can demand that goons not be sent out by the government.

(2) The government releases a pack of wild animals (I am thinking of something like bears that shoot laser beams out of their eyes). It is clear that at least some of these wild animals will attack citizens like me and harm or kill them. As a citizen, I have a right to demand that the government not release these dangerous wild animals (there is no social benefit in releasing these menaces).

(3) The government releases repeat murderers who have been shown in psychiatric tests to be incurably violent. (This example is not quite as far-fetched as the laser-eye bears, if you consider the sex-offender debate.) It is understood that these repeat murderers will kill again. Do I have a right to prevent the release of the murderers? The difference is that the murderers are citizens themselves, with rights and liberties; of course, in my example they are psychotic, which may make them more like wild animals than like citizens for purposes of public safety (what else would be the reason for calling certain criminals “predators”).

(4) The government decides to fix the budget crisis by no longer prosecuting or punishing murder and other violent crime (tax evasion continues to be punished). Murder, robbery, and rape all increase, as (potential) criminals are no longer deterred by the threat of punishment. It was my assumption, as you’ll recall, that deterrence is known to work to some degree. Unlike the murderous psychopaths of the last hypothetical, most of these no-longer-deterred criminals are sane citizens without prior criminal records: responsible, independent actors in society. Still, as a citizen I feel threatened. Do I have a right to demand that the government resume punishing crime? My argument is that I have a right to life, of which I may not be deprived without the due process of law, and that, since deterrence is known to work, the government’s failure to punish murder (increasing significantly the likelihood that I will be murdered) is like the government sending out a goon to kill me; or at least it is like sending out wild animals; or at the very least like releasing known, violent psychopaths.

The real-world implication of hypothetical (4) is prosecutorial discretion. In the U.S., prosecutors have discretion to investigate and prosecute only some crime. The reasoning is that prosecuting less than 100% of all crimes will still deter criminals, especially if you pick high-profile, visible crimes to prosecute; it will be sufficient to achieve the ends of the criminal law. But is there a minimum level of crime that prosecutors must prosecute? And would there be a private right of action to ensure this minimum level is met? Unfortunately, this question is not far-fetched. There have been several studies of racial bias in the use of prosecutorial discretion. Poor black neighborhoods may be left lawless, their murderers unprosecuted.

Notice the consequentialist argument: A certain level of prosecution of crime is sufficient for deterrence, for the prevention of crime. This argument is interesting because it limits rather than justifies punishment. Does it chime with a retributivist justification of punishment? Commonly, a distinction is drawn between the reasons for threatening punishment and the reasons for actually punishing the criminal. If we punish for no other reason than the crime itself (the retributivist approach), can we choose to not punish for reasons other than the crime itself? Put differently, does a retributivist theory of punishment commit society to the punishment of every crime? (You’ll notice that I’ve backed into Kant’s island parable.)

The implication of this line of thought is the inescapability of consequentialist theories of punishment. Perhaps we cannot do without them, and the task is not to use the weaknesses of consequentialist theories of punishment as proof that retributivism is right. Rather, the task is to fix the consequentialist theories. If you know how, please drop me an email.