In my last couple of Criminal Law classes, I’ve taken a little time out from doctrine to discuss punishment theory. As is conventionally done in Criminal Law, I’ve contrasted utilitarian and retributive theories. Doing this makes me a little nervous, because I’m afraid students will get the wrong idea that punishment theory is useless. Here’s the image I have: a student stuck at the crossroads of punishment theory — one road heading towards utilitarianism and the other towards retributivism — feeling utterly incapable of choosing which path to take. ”The Kantians and Benthamites have been arguing over the foundations of moral theory for two centuries,” I imagine the student thinking, “so how can I hope to resolve the debate?”
Indeed, this is pretty much where I was when I started teaching Criminal Law — stuck at the crossroads.
What I have since come to appreciate, and what I now tell students, is that the choice of which path to take is much less important than first appears — these are twisting paths that run closely parallel to one another about as often as they head in opposite directions. For one thing, when it comes to the basic criminal law questions of what conduct to criminalize and how to grade offense severity, utilitarian and retributive approaches will both be concerned with many of the same variables (intent, mistake, dangerousness, justification, voluntariness, etc.).
Moreover, neither approach has a scientific precision to it. As the late Norval Morris argued with respect to retributivism, it is more accurate to think of these theories as ruling out some wrong answers than as ruling in some singular right answer. Put differently, what a realistic punishment theory can do for us is to point us to a range of “good enough” answers, rather than to a discrete best answer. (We had a nice illustration of this in Criminal Law today with the discussion of a case involving a provoked killing: using retributive concepts, the class was about evenly split between those who thought the defendant deserved a murder conviction and those who favored a lesser conviction for manslaughter, but no one argued that the defendant should walk away without any punishment at all — a wrong answer clearly ruled out by retributivism.)
If we appreciate the (significant, but not complete) indeterminacy of the competing punishment theories, then we should be able to see the likelihood that different theories will yield overlapping ranges of “good enough” answers. (This powerful insight underlies the theory of limiting retributivism, which is embodied in pending reforms of the sentencing provisions of the Model Penal Code.) So, we might usefully think about punishment theory as “both and” instead of “either or” — different approaches can be consulted in conjunction with one another to identify an overlapping range of answers that are satisfactory under each approach.
There is also another, more subtle, reason to think that retributive and utilitarian approaches will tend to converge. Paul Robinson argues that the criminal justice ought to focus on giving offenders their just deserts (consistent with retributive theories) because doing so will most effectively advance utilitarian crime-control objectives. His reasoning, grounded in a good deal of social scientific research, goes like this: (1) people obey the law more out of an internalized sense of obligation to do so than out of fear of punishment; (2) the extent to which this internalization occurs is closely connected to the perceived legitimacy of the legal system; and (3) the legal system can enhance its perceived legitimacy by ensuring that offenders get what they deserve (in a retributive sense).
You don’t have to be fully persuaded by the strong form of Robinson’s argument (and I am not) in order to see some sense in the basic intuition that extraordinarily harsh or lenient sentences may be counterproductive from a utilitarian standpoint — crime-control objectives are more easily achieved when attitudes towards the legal system are positive than when they are negative. To my mind, Robinson’s argument establishes at least a rebuttable presumption that a retributively satisfactory answer should also be regarded as consistent with utilitarian purposes.
Am I just being sloppy or lazy — and perhaps encouraging students to dodge the intellectually or ethically hard questions in life — when I suggest that we need not commit fully to a particular foundation for our moral reasoning? Perhaps, although it seems to me that few of us are pure consequentialists or deontologists in our day-to-day moral reasoning. My sense is that we tend to use categorical rules of thumb to guide our judgments, but that these rules can be overcome in particular cases if they clearly produce bad consequences. If that is the structure of our day-today moral reasoning, then why not employ a similar approach in our thinking about punishment?