Legal Punishment - Utilitarianism vs Retributivism with Moore and Dolinko

In the philosophical battle to justify the existence of legal punishment, there are two major contenders, utilitarianism and retributivism. Each theory has its own primary justification for punishment, and both exert a heavy influence on the way that law is passed in the United States. Many philosophers and political theorists adopt views that are combinations of the two theories. This is partly because it has become dubious whether or not either of them alone can provide a complete justification for our system of legal punishment. However, from my perspective, retributivism couldn't justify its way out of a metaphorical paper bag. For the sake of balance, I will be analyzing Michael Moore's (not the Michael Moore you're thinking of) The Argument for Retributivism and David Dolinko's Some Thoughts About Retributivism, which seek to systematically tear down utilitarianism and retributivism respectively. After both sides have been laid out, I will proceed to evaluate the relevant arguments with my own perspective.

Michael Moore's essay seeks to prove, through the use of several thought experiments, that pure retributivism is the only theory that is consistent with our intuitions about the nature and justification of legal punishment. Retributivism, simply put, says that a justified punishment always corresponds with what the offender deserves. Every individual crime deserves a specific punishment, and said specific punishment is the only one justified for that specific crime. Thus, if the legal system works properly, every criminal should get what they deserve. Retributivism makes no considerations towards future crime prevention, social structure, or the general opinions of society. In contrast, any theory about the justification of legal punishment which makes reference to these considerations when punishing criminals would be considered a utilitarian theory. This is because these considerations have to do with net social gain and loss, unlike retributivism, which cares only for the moral desert of the accused. Moore also introduces what he calls the mixed theory of punishment, which requires both a net social gain and just desert for justification.

Moore's argument against pure utilitarianism takes the form of a hypothetical scenario in which an unusual crime is committed and the offender escapes capture. The unusual nature of the crime and the criminal's escape has a high chance of causing a dramatic increase in similar crimes across the country. With this in mind, it seems plausible to say that the conviction of an innocent man in place of the culprit would end up producing a net social gain, and thus be justified. This result contradicts our intuitions about how the legal system should work. Since utilitarianism states that punishment should be dealt if and only if it creates a net social gain, it seems as though utilitarianism could be used to justify punishing of the innocent.

Moore's mixed theory of punishment evades the issues of the previous scenario, as it also requires that the defendant deserve the punishment received. Suppose instead that the culprit from the first scenario is caught and taken to court. However, in the process of being captured, the criminal is severely injured and is no longer physically capable of repeating his crime. Now consider the possibility that the court claims the criminal has been punished, when he has in fact been set free. The deterrence factor for the rest of society remains, and the criminal (who is now harmless) is not punished. In this situation, actually punishing the criminal would create no net social gain, and thus would not be justified under the mixed theory of punishment.

Moore's strategy of argument here is essentially the process of elimination. By using thought experiments to show the untenability of both utilitarianism and mixed punishment theory, we are left only with retributivism as a viable alternative. I will now move on to Dolinko's essay before formulating my rebuttal for both.

Similarly to Moore, Dolinko seeks to prove retributivism untenable by systematically revealing the flaws in each of its most successful incarnations. Historically, retributivism has not done a very good job of explaining itself. In Dolinko's words, “Notoriously, proponents of retributivism have frequently relied heavily on metaphor and imagery whose suggestive power exceeds its clarity. (Dolinko, Thoughts about Retributivism p.539 )” Despite this, a few modern philosophers have attempted to clarify exactly how retributivism is supposed to work. These are the explanations that Dolinko sets out to defame. Dolinko explicitly states that he is only considering retributivism as it relates to the justification of punishment, rather than to who should be punished or how. With this established, Dolinko makes an extremely important distinction between rational justification and moral justification. When applied to the topic at hand, the relevant questions become, “Why do we punish those who break the law? ” (rational justification) and, “What makes it morally acceptable to punish criminals? ” (moral justification). These two questions are distinct and they need not have they same answer, although they may.

A retributivist, according to Dolinko, is someone who answers one or both justification questions with the answer, “criminals deserve punishment.” Which question that statement answers depends upon which retributivist you're talking to. For further clarity, Dolinko distinguishes between “bold” and “modest” retributivism. A bold retributivist would consider the concept of just desert to answer both justification questions, while a modest retributivist would only answer the moral justification question that way. According to the bold retributivist, the fact that criminals deserve punishment is by itself a sufficient reason for society to punish criminals. However, says Dolinko, society doesn't go out of it's way to make sure people get what they deserve in other situations. So why are criminals the only group to which society deals out just deserts? Any answer to this question which makes reference to the good of society suggests a utilitarian viewpoint. Because of this issue, most modern retributivists are of the modest persuasion. However, even modest retributivism has its issues. The modest viewpoint asserts that we are morally justified in infringing upon the rights of criminals because its what they deserve. Once again, Dolinko asks why this should only apply to those who break the law. He uses inheritance as an example. The government never awards inheritance on the basis of merit. Rather, it respects the established rights of the people involved and the contents of the will, even if no one gets what they deserve. Dolinko points out that the modest retributivist could insist that there is something about the nature of crime that necessitates the dealing of just deserts.

Dolinko then moves on to the more explicit modern formulations of retributivism. The first comes from Herbert Morris. According to Morris, a criminal's desert is determined by the unfair advantage he obtains when he commits his crime. Punishment is justified because it rectifies this unfair advantage. All citizens share in the benefits and limitations of our society. When a crime is committed, the criminal retains society's benefits but ignores its limitation, creating an unfair advantage. But how to quantify this advantage? If the advantage is created by releasing self restraint in order to commit the crime, then it should be proportional to the restraint still held by non-criminals. However, how hard it is to resist committing a crime has nothing to do with the penalty for said crime, so that explanation is out. George Sher provides a different explanation. The advantage gained is not proportional to the discarded restraint, but to the severity of the “moral prohibition” that has been broken. However, this implies that all crimes are “malum in se”, or morally reprehensible even outside of a legal context. As Dolinko points out, many crimes (like tax evasion) are morally neutral in the absence of a legal system. We do have a moral prohibition against breaking the law, but if that prohibition is the basis for the unfair advantage then every crime would carry the same punishment. After consideration, it appears that Morris's explanation is inadequate in so much as no one can explain exactly what the advantage is that is gained from a crime and why punishment annuls that advantage.

With the opinions of both sides now firmly established, I shall move on to my evaluation of both authors, starting with Moore. Moore's thought experiments lead us to believe that utilitarianism can be used to justify the punishment of innocent men and the release of the guilty. What Moore doesn't seem to realize is that unlike retributivism, which thinks outside the boundaries of the law, utilitarianism works for the law. In his first example, Moore simplifies the utilitarian doctrine to “Punishment should be inflicted if and only if doing so achieves a net social gain. (Philosophical Problem in the Law, p.459)” All that needs be added to this in order to invalidate Moore's argument is, “...and the accused is guilty of the crime he is charged with.” In what twisted world would judges ignore the truth in the pursuit of some perceived net social gain? Utilitarianism provides rational and legal (but not moral) justification for the punishment of criminals. It can't be used to justify something that's already illegal. It simply seeks to find the greatest net social gain possible within the boundaries of the law. This also applies to his second thought experiment, where the court lies to the public about the outcome of the trial in order to attain the highest possible net social gain. I would also like to point out that Moore's assertion that inflicting punishment under the second experiment's circumstances would not achieve net social gain is false. Punishing the then harmless criminal would create the same deterrence effect as lying about it. The only difference would be the harm then inflicted upon the criminal, which would be somewhat insignificant on a societal scale. Ironically, Moore's one good criticism of utilitarianism was almost an afterthought. “nothing in utilitarianism can guarantee that utility is always maximized by the punishment of the guilty. (PpitL p.460)” Unfortunately, this is quite true, due to the fact that our legal system was created long before the rise of utilitarianism. However, I personally believe that we should be changing the way we think about crime and punishment to incorporate utilitarian ideas, rather than adopting a legal theory from the dark ages just so we don't have to revise the system.

In contrast to Moore, Dolinko does a spectacular job of showing that there's no effective way of explaining how retributivism is actually supposed to work. Rather than being based upon logic or evidence, retributivism is based upon emotion and intuition, which don't help much in the face of a complex system of overlapping rules and regulation. Although it wasn't relevant to this discussion, the edges of Dolinko's paper are filled with frightening statistics about retributivism's effects on punishment in the United States, especially the capital variety. This type of evidence alone should be enough to make people think twice about taking retributivism too seriously.

In conclusion, although utilitarianism is sometimes slightly at odds with the way our legal system works, formulating a working version of retributivism is simply impossible. The fact that the moral content of an action is just as dependent upon the circumstances as the action itself should make anyone question a theory which asserts that every crime deserves a specific punishment. Dolinko gave retributivism its best chance at survival when he chose to ignore the questions of who should be punished and how.