Deterrence in a sea of "just deserts": are utilitarian goals achievable in a world of "limiting retributivism"?

• Author: Haist, Matthew

1. INTRODUCTION

   The question of why we should punish criminals is age-old, and elicits many more answers than the lay person would imagine. Punishing what society deems wrong or unwise seems to be an integral part of any civilization. (1) Specific guidelines for punishment date back to Hammurabi's Code, (2) while theoretical and philosophical justifications for punishment can be seen as early as Aristotle. (3) Simply put, criminal justice is, and has always been, at the center of public concern, so much so that modern societies often view and compare themselves to one another through the lens of what we now call criminal justice. (4) Given the importance of criminal justice to obtaining a safe and prosperous society, recent developments in the field must constantly be monitored to ensure that we operate under a theory of criminal punishment that either is optimally in line with our concepts of morality or best serves to provide the needed security. (5)

   Fortunately, scholars have spent much time and effort--increasingly so within the past twenty to thirty years--debating this issue. (6) These debates affect our view of which system of criminal punishment is ideal, and demonstrate that the discussion is never-ending. (7) Criminal justice has evolved over the millennia and will continue to do so over the next. Under Hammurabi's Code, the punishment for almost any crime was death. (8) Under the Qur'an, crimes were given specific punishments, yet required a particular level of proof to be established to find guilt. (9) English common law guaranteed a criminal defendant a right to trial by his or her peers. (10) And our founding fathers added the right against self-incrimination and the prohibition of cruel and unusual punishment, while preserving the English common law right to trial by jury. (11)

   This evolution of criminal procedures and customs has been accompanied by rigorous academic debate over the goals and rationales of criminal punishment. (12) The progression can be seen from its beginning under Aristotle, (13) to the nineteenth century works of Immanuel Kant (14) and Jeremy Bentham, (15) and into the twentieth and now twenty-first centuries. (16) Today, the debate largely involves three theories of criminal punishment: utilitarianism, retributivism, and denunciation--although denunciation tends to take a back seat to the first two frameworks. (17)

   Some modern scholars have attempted to form theories of punishment by mixing the three concepts into a single theory of punishment, or have argued in favor of one theory through appeals to another. (18) A common argument is to support a retributivist system of punishment, but with attempts to appeal to certain utilitarian concerns. (19) The most widely accepted form of this theory is Norval Morris's "limiting retributivism." (20) This Comment attempts to further the debate over theories of criminal punishment by investigating whether such retributivist appeals to utilitarianism are valid and can achieve utilitarian goals. Specifically, this Comment seeks to determine whether Morris's limiting retributivism theory, and its appeal to utilitarian concepts, can achieve utilitarian goals.

   I undertake to answer this question in five parts. Part II presents a brief historical overview of theories of criminal punishment in order to provide the reader with sufficient background and context to understand the recent movements in this debate. Part III then describes the current movement of scholarship towards the retributivist camp, the several factors that potentially determine the severity of a criminal's punishment under a retributive theory of punishment, and, finally, this camp's attempted appeal to utilitarianism. Part IV describes the concept of limiting retributivism in greater detail. Part V describes why limiting retributivism's appeal to utilitarianism cannot succeed. In doing so, it utilizes recent behavioral psychology research to demonstrate how the structure of retributivist punishment leads to under-deterrence of crime. Specifically, it highlights how the factors involved in determining punishment under retributivism are affected by cognitive biases. Part VI then acknowledges that the same behavioral psychology research challenges utilitarianism's attempt to create sufficient and optimal ex ante incentives. However, while utilitarianism without any adjustment for cognitive biases leads to a one-time underdeterrent effect, limiting retributivism essentially creates a "double" underdeterrent effect. Because of this double effect, limiting retributivism's appeal to utilitarianism fails. Thus, based on this behavioral psychology research, utilitarian goals of punishment, and deterrence in particular, are best served through a purely utilitarian theory of punishment. Finally, this Part provides insights into how utilitarian punishment may be improved through the use of behavioral psychology research.

2. BACKGROUND

   Retributive and utilitarian theories of criminal punishment are the two predominant theories of punishment discussed today. (21) The two theories are often thought of as the two opposing concepts of what criminal punishment should be. (22) The debate between the two camps is by no means a recent phenomenon. It has evolved over hundreds of years and will probably continue to advance over the next hundred years. (23) But before we address the history and development of this debate, it is necessary here to give a quick synopsis of each theory.

   1. RETRIBUTIVISM

      Retributivism posits that punishment is necessary because society must engage in some form of retribution against those who violate its laws. (24) Its central tenet defines punishment as society's response to a criminal action that has occurred in the past. (25) The value of the punishment of the crime is in the punishment itself; (26) when someone has committed a crime, they simply deserve to be punished. (27) "Punishment that gives an offender what he or she deserves for a past crime is a valuable end in itself and needs no further justification." (28) Furthermore, society is morally obligated to punish wrongdoers. (29)

   2. UTILITARIANISM

      Utilitarian theories of criminal punishment stem from general utilitarian concepts. Joshua Dressier suggests that "[t]he purpose of all laws is to maximize the net happiness of society." (30) Therefore, punishment should only be administered if it results in an overall benefit to society. (31) Only when punishment leads to more aggregate pleasure than aggregate pain is punishment justified. (32) As John Robinson and John Darley argue, "Punishment for a past offense is [only] justified by the future benefits it provides." (33) In this manner, utilitarian theories are sometimes referred to as "consequentialist" because they are concerned solely with how punishment will affect future actions and with society's future aggregate happiness. (34) Punishment can do this in two main ways. First, it can deter future criminals from committing crimes; second, it can either incapacitate criminals or rehabilitate them so that they cannot or will not engage in future crimes. (35)

   3. HISTORY

      The history of these two theories of punishment is extensive. Each has enjoyed the support of legal scholars and intellectual giants, and each has had its periods of dominance. (36) While the specifics of the theories may have changed over the years, their foundations have remained constant. Retributivism has always been concerned with punishing criminals as simple punishment for their crimes, (37) while utilitarianism has valued the punishment of criminals because of the benefit society may reap as a result of such punishment. (38)

      Retributivism can trace its origins far into the past. (39) From the time of antiquity through the middle-ages, many criminal justice systems were based largely on the concept of retributivism--the criminal getting what he or she deserved. (40) Indeed, retributivism can be seen in biblical and Talmudic forms of justice. (41) The existence of early forms of retributivism is not surprising when one considers the emotional aspects of this theory-punishment based in large part on a feeling that the perpetrator deserves the punishment. (42)

      But retributivism was not solely a legal or emotional justification for punishment. It was also justified on moral and philosophical grounds. (43) Arguing in support of these justifications for punishment, Immanuel Kant wrote that "[p]unishment can never be administered merely as a means for promoting another Good...." (44) On the contrary, "Punishment ought to be pronounced over all criminals proportionate to their internal wickedness." (45) In this sense retributive punishment could be thought of as a moral or ideological and philosophical need to condemn wrongdoers. Hegel provided an even more comprehensive justification of retributivism. (46) He concluded that crimes needed to be negated in order to re-establish equivalence in society, and that negation could only be achieved through punishment. (47) Retribution was the link between the crime and the punishment. (48)

      Utilitarian theories of punishment, while perhaps not as old as retributivism, may also date back several millennia. (49) While early retributivism may have called for a thief to have his or her hand cut off (also potentially a utilitarian response), it is possible that a decision to imprison the thief instead of, or in addition to, cutting off his or her hand reflected utilitarian values. After all, the utilitarian principle of incapacitation asserts that while in prison, the thief is no threat. Seen in this light, utilitarian concepts may date back almost to the beginnings of civilization. Indeed, utilitarian justifications for punishment can be seen as early as in the work of Plato. In Protagoras, Plato argued that punishment for punishment's sake was "taking blind vengeance like a beast." (50) He continued, "No, punishment is not inflicted by a...