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.