All Commentary
Tuesday, August 1, 1995

Justice or Utility

Society Should Punish Criminals in Proportion to Their Crimes

Mr. Bidinotto is a long-time contributor to Reader’s Digest and The Freeman and a lecturer at FEE seminars. Criminal Justice? The Legal System Versus Individual Responsibility, edited by Mr. Bidinotto and published by FEE, is available at $29.95 in cloth and $19.95 in paperback.

The core purposes of government are well expressed in the Preamble to our Constitution: to “establish justice” and to “insure domestic tranquility.”

But there’s a hierarchy of importance here. By seeking justice, you will necessarily promote domestic tranquility. However, if you seek domestic tranquility alone you won’t necessarily promote justice.

How, then, to address crime? Liberals emphasize prevention and rehabilitation. Conservatives, and many free marketers, emphasize deterrence and incapacitation (jail). But all share a utilitarian objective: to advance future public safety by altering the future behavior of the criminal. The problem is that utilitarian objectives can be sought without concern for justice.

For decades, liberals have run our legal system. Renouncing punishment as a proper response to an offender’s past crimes, their prevention-and-rehabilitation approach has tried instead to alter his future conduct, for the eventual betterment of society as a whole.

This anti-punitive strategy has obliterated personal responsibility. The felon endures few negative consequences for the damage he does to others. This has led to dual outrages: the unjust neglect of victims, and excessive leniency toward their victimizers.

But under utilitarianism, leniency is not the only option. If public safety is the sole objective, why not try to suppress crime rates by executing—or jailing forever–every criminal we catch, from jaywalkers to serial killers? Instead of inordinate leniency, why not try unbridled punitivity?

Many conservatives and free marketers prefer this alternative. Their deterrence-and-incapacitation approach represents the flip side of the same utilitarian coin. It, too, aims solely to alter an offender’s future conduct, for the eventual betterment of society as a whole. It, too, severs any clear causal connection between the degree of injury suffered by the innocent, and the degree of punishment imposed on the perpetrator.

Utilitarianism thus has led both the Left and Right to injustice: to disproportionate punishment in relation to the transgression. After all, once illegal acts are decoupled from a proportionate legal response, the only remaining argument is whether that response should be anemic or draconian.

Utilitarianism also leads both sides to collectivism. What counts to utilitarians, Left or Right, is not justice for individuals, but only lower crime rates for society in general. No longer gauged by the harm inflicted upon individual victims, punishments are instead based on arbitrary predictions of the criminal’s future dangerousness to “society.” In utilitarian social calculations, there is no place for the anguished human face of an individual crime victim. He or she sinks into a sea of faceless, collective crime statistics.

Don’t misunderstand: prevention, rehabilitation, deterrence, and incapacitation are worthwhile ancillary objectives of the criminal law. But they aren’t primary objectives. They address only general social conditions, so that anonymous citizens of tomorrow may not turn to crime. None of them, though, need be grounded in the principle of making punishments fit past crimes. None of them need be rooted in justice.

The alternative? A legal system that aims primarily at exacting retribution.

Retribution means administering punishment to a criminal in proportion to how much he has hurt others. I use “retribution” to mean “reflection.” The crook’s basic aim is to gain by force something at the expense of someone else. His actions impose damages upon an innocent person. The fundamental goal of a strategy of moral retribution, then, is to reflect those damages back onto the criminal himself.

This policy is both moral and practical. Moral, because it upholds innocent human life, and the just social framework upon which individual survival and well-being depend. Practical, because a policy of reflecting proportionate losses back upon the culprit frustrates and negates his desire, which is to profit at someone else’s expense. Retribution means he won’t get away with it.

A retributive system would incorporate many of the worthy crime-reduction ambitions of the utilitarian. For example, long terms of confinement under harsh conditions, with inmates forced to work and pay restitution to victims and taxpayers, would surely deter more criminals than does our current toothless system. Being locked up would also prevent them from causing ordinary citizens more trouble, and—who knows?—possibly encourage the occasional inmate to rehabilitate himself.

But since we cannot predict their future dangerousness, a retributive system would abandon such utilitarian fads as treatment programs and “selective incapacitation.” A term of confinement would be tied to the seriousness of a convict’s offenses–period.

Because retribution entails punishment, it’s often criticized as being motivated by a crude thirst for revenge. In fact, a retributive legal system is the antithesis of private revenge, and the basis for the rule of law.

My dictionary says “revenge” is “the carrying out of a bitter desire to injure another for a wrong done to oneself or to those who seem a part of oneself.” Of course, revenge-based punishment need not be just: the injured party may retaliate disproportionately to the harm done. By contrast, “retribution” is “just or deserved punishment, often without personal motives, for some evil done.”

If we’re to have a just and peaceful society, the use of after-the-fact, retaliatory force cannot be left to the arbitrary whims of private victims, each employing subjective criteria of personal injury. Precisely to minimize and avoid vengeance, vindictiveness, and vendettas, and the disproportionate punishments to which they lead, a justice system must be based upon retribution, not revenge.

Retribution constitutes the premise that the level of punishment must fit the severity of the crime. This does not mean we need to punish in kind: the law need not literally demand “an eye for an eye,” sinking to the specific tactics of the wrongdoer. But it does mean that society should punish in proportion: the law ought to recognize gradations of evil and injury, and respond accordingly,

In short, retribution is the only premise fully consistent with justice and individualism. With justice—because it implements proportionality in criminal sentencing, fitting the punishment to the crime. With individualism–because it bases punishments on actual harm done to individuals. Retribution does not look to society’s future: it remembers the individual victim.

Our nation’s Founders made it clear that they saw no clash between the moral end of justice, and the practical ends of insuring domestic tranquility. A valid conception of retribution, of “just desserts,” can incorporate many of the worthy purposes advanced by utilitarians. But it can also provide those purposes the crucial moral grounding they have never had.