Theories of Punishment – Utilitarian vs. Retribution Theorists

Much debate surrounds how to punish criminal offenders. Social norms, necessity, and social desirability are some of the factors that lawmakers balance when developing punishment statutes. Two different schools of thought, in regards to punishment, are discussed below:

Utilitarian Theorists

Premise: General punishment will deter the public from committing a crime

Utilitarian Theorists believe that punishment should be developed based on what is best for the public as a whole. A major focus is on the deterrent effect of a criminal statute because if a criminal statute deters a criminal act then the public benefits because the crime does not occur. Utilitarian theorists are “forward looking” as opposed to retribution theorists, discussed below.  The goal of utilitarian theorists is to prevent a crime from happening again. In a general sense this means that the punishment for a certain crime needs to be greater than the possible reward for committing the crime. A utilitarian theorist believes that if this appropriate level of punishment is met, most individuals will be deterred from committing the crime.

One of the problems with this approach is that it is often difficult to put the public on notice of the punishment of a particular crime. For example, most of the public is unaware of the exact punishment for petit larceny. Without notice this theory is practically thrown out the window because an individual cannot be deterred, in accordance with this theory, if he does not know the potential punishment. Another problem for utilitarian theorists is that, for the theory to work properly, other factors such as moral culpability or remorse cannot be weighed in determining punishment. If the public does not believe that punishment is consistent for every offense of a certain crime then, even with notice, the potential punishment may not deter an individual from committing a crime. Finally, even if punishment was consistent and the public had actual notice of the punishment for a crime, studies are conclusive on whether punishment is actually a deterrent to potential criminal offenders.

Premise: Specific punishment will reduce the rate of recidivism

Utilitarian Theorists believe that punishment should also be specifically tailored to the individual so that he will not commit future crimes. For example, an utilitarian theorist would believe strongly in incarcerating, or incapacitating, an individual who is likely to commit another crime (incapacitating could include the death penalty). If a criminal offender is in prison, he cannot commit another crime against the public. The practical problem with this belief is that it is hard to identify specific individuals who will become repeat offenders. In addition, this belief may be in conflict with the idea of punishing consistently. For example, if it is unlikely a criminal offender will repeat, than incarceration may not be the proper punishment. However, another criminal offender, who committed the same crime and the justice system believes is likely to repeat, may be incarcerated. The public may then believe that punishment is not consistent and therefore punishment will lose some of its deterrent effect. Finally, utilitarian theorists believe that rehabilitation of criminal offenders is good because they want to change the individual. However, studies are not conclusive that treatment programs really work.

Retribution Theorists

Premise: The punishment must fit the crime

Retribution Theorists are “backward looking” as opposed to the “forward looking” utilitarian theorists. Their beliefs could be summed up as “an eye for an eye.” A retribution theorists looks at the suffering of the victim to determine the level of punishment. The punishment of the criminal offender should be proportional to the suffering of the victim. This theory may also look at social norms when determining punishment. For example, a society may view the harm caused by cannabis to be less than the harm caused by cocaine so the punishment for an individual convicted of possession of marijuana may be less than the punishment for an individual convicted of possession of cocaine. One disagreement with this approach is that a retribution theorist does not care about future conduct of a criminal offender. Opponents of retribution theorists believe that this theory will not deter an individual from recidivism.

Ewing v. California, 538 U.S. 11 (2003)

Case Name: Ewing v. California
Citation: 538 U.S. 11 (2003)

Facts: The goal of the “Three Strikes and You’re Out” law was to protect public safety by providing lengthy prison terms for habitual offers. Ewing had a record (mostly theft and battery – at least two serious or violent crimes) and was being sentenced for stealing about $1,200 worth of golf clubs. The judge had some discretion whether or not to sentence under Three Strikes but refused and sentenced Ewing to 25 years to life.

Issue: Whether the 8th Amendment prohibits the State of California from sentencing a repeat felon to a prison term of 25 years to life under the State’s “Three Strikes and You’re Out.”

Defendant’s argument: Ewing’s 25 years to life sentence is disproportionate and is cruel and unusual punishment for theft charges. It does not match up with “the gravity of the offense and the harshness of the penalty.”

State’s argument: This law targets the class of offenders who pose the greatest threat to public safety: career criminals. Also, statistics showed that the new law seemed to deter crime because the recidivism rate went down.

Holding: The sentence was affirmed.

Reasoning: Deference to the legislature – it is a legislative judgment that offenders who continue to commit violent or serious crimes be incapacitated. Spoke about the cruel and unusual clause contains a “Narrow proportionality principle” that “applies to noncapital sentences.”

Scalia’s concurrence in judgment: Proportionality should only be tied to capital offenses. The plurality is evaluating policy (making it more difficult than it has to be).

Thomas’ concurrence in the judgment: 8th Amendment contains no proportionality principle

Dissent: Proportionality is required by the 8th Amendment.

Commonwealth v. Mochan, 177 Pa. Super. 454 (1955)

Case Name: Commonwealth v. Mochan
Citation: 177 Pa. Super. 454 (1955)

Facts: Mochan was indicted for making numerous harassing phone calls to a woman. He was convicted of a misdemeanor under common law because his act was not a criminal offense under any Pennsylvania statute.

Issue: Whether the court can convict a defendant under common law when his actions did not constitute a criminal offense under state statute.

Defendant’s argument: nulla poena sine lege – no punishment without law. The defendant argues that he cannot be convicted of an action that is not illegal.

State’s argument: The state’s common law is sufficiently broad to allow a court to act and declares that “whatever openly outrages decency and is injurious to public morals is a misdemeanor at common law.” The defendant’s actions fit this criterion; therefore, the court can charge and convict him of a misdemeanor.

Court’s reasoning: The question is whether the alleged crimes could have been prosecuted and punished under common law. Because the controlling principles are broad, “[a]ny act is indictable at common law which from its nature scandalously affects the morals or health of the community…”

Holding: The charges correctly identified the offense as a common law misdemeanor.

Dissent: This allows the courts to supersede the legislature’s power. Although common law is part of the state’s law, our country has had 200 years of the legislative branch determining which actions require punishment. This is a slippery slope as “there is nothing to prevent our invasion of the legislative field except our own self restraint.”

United States v. Gementera, 379 F.3d 596 (2004)

Case Name: United States v. Gementera
Citation: 379 F.3d 596 (2004)

Facts: Gementera stole mail and plead guilty to mail theft. He had a long criminal history for a twenty-four year old. The U.S. Sentencing Guidelines recommended a two to eight month incarceration. The judge sentencedGementera to two months incarceration and three years supervised release. One of the conditions of the release was 100 hours of community service that would consist of standing in front of a post office with a sandwich board that state “I stole mail. This is my punishment.” After another hearing, other options were added for the community service (i.e. writing apology letters and speaking at local schools) and the sandwich board activity was diminished to one day of eight hours.

Issue: Whether a punishment that shames or humiliates serves a legitimate objective and is reasonably related to the nature and circumstances of the offense and the history and characteristics of the defendant.

Defendant’s argument: The punishment was meant for the impermissible purpose of humiliation; in violation of a federal statute. Also, that the humiliation was not “reasonably related” to rehabilitation.

State’s argument: The humiliation was not an “ends” in itself but a “means” to the legitimate objective for the defendant to understand the seriousness of his crime (that it was not a victimless crime). It is also reasonably related to offense and the history of the defendant.

Court’s reasoning: The district court seemed to think that the defendant did not understand the seriousness of his crime. There is still academic debate whether “shaming” works to rehabilitate the criminal and prevent others from committing a crime as opposed to recidivism.  The district court did not have to display scientific evidence that this type of punishment was effective.

Holding: The condition was reasonably related to the statutory objective of rehabilitation.

Dissent: The sandwich board condition violates the Sentencing Reform Act. Furthermore, this “shaming” goes to dehumanize the defendant not rehabilitate. Affirming the condition “recalls a time in our history when pillories and stocks were the order of the day.”