On Justifying Punishment: The Discrepancy Between Words and Actions

Readers may wonder whether severity of harm is truly orthogonal to utilitarian justifications of punishment. Intuitively, it may seem that society has more need to deter serious crimes than petty crimes, and thus that utilitarians ought to carefully consider the danger posed by a particular crime. There are two responses to this. First, the effect of a given crime extends far beyond the initial victim, and includes all those who subsequently live in fear of future crime and those who become more likely to commit crimes as a result of witnessing an unpunished crime. Thus, the “cost” of punishment (borne by the offender) is almost certainly outweighed by the benefit to society, regardless of the punishment’s severity. Second, the logic of deterrence is that it will prevent future crimes merely by the threat of severe sanction. Thus, when Draco decreed in the 7th century BC that virtually all crimes would be punished by death, he perhaps imagined that no more crimes would be committed, and thus that the sentence would never be enforced. Indeed, if one believes in the efficacy of deterrence, then one need not be concerned about “overpunishing” minor crimes, since the threat of punishment alone will ensure that the punishment is never, in fact, carried out.

Retributive justice is largely synonymous with Immanuel Kant’s notion of “just deserts” in that they both seek to punish offenders according to their level of deservingness and in proportion to their offense (see Carlsmith et al., 2002, pp. 296–297). However, due to the negative connotations associated with the term “retribution,” I used the more positively valenced term “deservingness” in the survey descriptions and questions. For presentational clarity and to be consistent with the extant literature, I retain the term “retribution” throughout this article.