Utilitarian Versus Retributivist Views - Essay Example

? Utilitarian versus Retributivist Views Number Introduction If there are principles that are sacrosanctto the dispensation of justice, law and order, then they are punishment and justification. While punishment is the deliberate and strategic meting out of suffering on an individual who has been found guilty of a criminal offence, justification refers to the declaration of an individual’s actions as reasonable or necessary in the court of law, and thereby extricating the individual of any legal liability. Justification may also refer to the validity of the punishment that is being exacted on the offender as necessary and commensurate with the extent of the offense. Because of the seriousness of the concept of punishment, moral philosophy has attempted to rationalize punishment and justification, with two main theories being the most dominant: utilitarian and retributive theory. The essence, focal points, main ideas and the merits of these two main theories are therefore to be discussed forthwith, in the ensuing discourse. Primarily, utilitarianism places focus on the consequences of the punishment, while retributivism is concerned with the retributive justice which is associated with the infliction of harm on the transgressor. Ideas Used In Utilitarian or Retributivist Theories Given that that utilitarianism is both a theory of punishment and ethics, it mainly takes on a consequentialist nature, because of its particular focus on the consequences of actions that have been executed by a particular group or an individual. Because of this, the moral theoretical standpoint of utilitarianism is that the balance of good and bad in a given action generates either good or bad. Under the principle of the greatest good for the greatest number, pain stems from the bad, while pleasure, from the good. Because of this, pain and pleasure are taken by utilitarians as the yardsticks for values in a utilitarian system. The import of this is that utilitarians deem punishment as being evil in itself, or intrinsically evil. The evil that utilitarians see in the infliction of punishment is premised on the assumption that punishment heralds suffering or unhappiness. Utilitarians hold it that despite the negative connotations of punishment, yet its consequences can be positive, and hence, justifiable (Ewing, 1927). On the converse, retributionists see punishment as being intrinsically good. In fact, so convinced are retributionists about the goodness of punishment that that they assert that even if it appears that nothing beneficial will come from the meting out of punishment, yet it is expedient. This is to the extent that Emmanuel Kant waxes polemical that even if the end of the world should be imminent, yet the need to execute the last murder convict in prison is still indispensible. To retributivism, the meting out of punishment is intrinsically good since: it is needful for the dispensation of justice; it allows people the chance to be treated in the manner that they deserve; and it allows people to treat one another with utmost respect, as autonomous agents, given that their choices and actions determine how they will be treated, in turn. In this case, there is justification of punishment since it is premised on a rational individual’s action. To utilitarians, the retributional approach to punishment and justification is unfavorable since it only increases the extent of suffering in the world, instead of abating it. Again, utilitarians posit that by vouching for the meting out of punishment, instead of reducing the suffering of this world, retributionists compound them, without making any reimbursements for them. Because of this, the retributionist approach does not move the world towards utmost happiness (the greatest pleasure for the greatest number), but away from it. The gravity of this is that utilitarianism takes away from the justification of punishment, given that punishment imposes suffering (Leo, 2006). Instead, for the utilitarians, the justification of punishment is only possible in an instance where positive results outweigh the negatives involved. Utilitarians acknowledge the fact that there are some positive results that emanate from the retributionist approach to punishment and dispensation of justice such as gratification and comfort to the families of the victims and the victims themselves (through the isolation and execution of the criminal). Nevertheless, utilitarians are categorical that it is most beneficial to rehabilitate the wrongdoer, in lieu of punishing him. Utilitarians are categorical that rehabilitation makes the individual a happier and more productive member of the society. In this light, utilitarians reject punishment and the use of correctional facilities such as jails, in favor of treatment. Weiner, Graham and Reyna (2007) explain that retributionists see the utilitarian approach as untenable on several accounts. First, retributivism asserts that the utilitarian view undermines human dignity, since it cannot guarantee the respect of persons. The same retributionists charge that utilitarians aim at using people as a means to an end, which is preventing crime. Retributivism also repudiates utilitarianism by charging that through rehabilitation, it seeks to manipulate individuals’ personalities, with the goal of molding individuals into what the society wants individuals to be. The import of this charge by retributivism is that utilitarianism violates the right to individuality and autonomy. Retributivism is poignant that in order for the justification of punishment to be appropriate and successful, two principles must be observed: punishment must only be meted out because a crime has been committed and on the criminal; and that punishment must be proportional to the import of the offense (and not really identical to it). Summarily, these two principles call for the balancing of the scales of justice and the ratification of Kant’s propositions on capital punishment, and thereby, ultimately giving the justification for the execution of punishment. Retributivism argues in favor of punishment on several accounts. One, retributivism is categorical that unlike rehabilitation, punishment takes an individual as an end in himself. Secondly, retributivism asserts that the administration of punishment shows utmost respect for people, since it treats people the way they deserve to be treated. On third account, retributivism waxes polemical that the administration of punishment respects people by taking individuals as rational and free moral agents. As such, retributivism respects people’s choices and holds them accountable for their choices, by either rewarding or praising these choices. Retributivism is also tenable enough to specify the justification of punishment, since it excludes from personal responsibility, those below the legal age and the mentally unfit (Ewing, 1927). In a closely related wavelength, retributionists assert that by allowing individuals to determine their self conduct, retributivism respects free choice. In light of this, those who expect good treatment must treat others well, while those who mistreat others must expect the same in return. This forms the very bedrock for the justification of punishment. The criminal justice system, particularly the law, greatly factors free will, in the dispensation of justice. Merits of Retributionist and Utilitarian Approaches to the Justification of Punishment There are several merits that accost the utilitarian approach to the justification of punishment. First, utilitarianism aims at rehabilitation, instead of the use of punishment and correctional facilities such as jails, as a way of foiling crime. This means that utilitarianism aims at deterring crime, rather than just administering punishment. By using rehabilitation to free the individual of the criminal intent, utilitarianism will have fulfilled its three-pronged goal which is deterrence, rehabilitation and incapacitation. Crime is best incapacitated at the individual level, since social change begins with the individual. This is well seen in the case of Crimnon (No Crime) program, an organization that has 30 men who had initially been referred to as the most dangerous people in prison. Led by Diaz J (an expert on criminal rehabilitation) and humanitarians such as Joan Lonstein and Ron Hubbard, Crimnon program successfully works from the premise that every criminal’s criminal career began with a sense of loss for self-esteem. Crimnon program therefore goes back to the point of the loss for self-esteem when doing rehabilitation. The successful rehabilitation of the 30 ex-prisoners shows that the utilitarian approach of using rehabilitation to inhibit crime can work. At the same time, utilitarianism may be arguably fronted as the most comprehensive approach in defeating crime and dispensing justice. This is because, on one hand, it is unlikely that administering punishment can totally eradicate punishment. On the other hand, rehabilitation seeks to redraw an individual’s behavioral and criminal predispositions, as a way of making the individual a law-abiding citizen. Positive change is best brought, not by meting out punishment, but by conforming an individual’s mind to be a responsible patriot. There are strengths that complement the reasons that retributivism advances. In the first place, retributivism acknowledges the importance of free will and the importance of choice in the dispensation of justice and in presenting the justification for punishment. According to Leo (2006), as free moral agents, people have the power to make their own decisions and to be responsible for their own decisions. Without the consideration of free will, there can be neither the dispensation justice, nor the proper functioning of the criminal justice system. Free will is factored not to have come into play upon one being below the legal age, or having been declared non compos mentis. There are legal cases which are too heavy to be left legally unaccountable, on the account of rehabilitation. The case Philip Garrido (1951) is a clear testament of the danger that ensues when accountability for the exercising of free will is sidestepped, in favor of rehabilitation. Initially, Garrido, a convicted violent sexual offender had been released on parole to pave way for his rehabilitation. However, the culmination of this blunder was Garrido kidnapping Jayce Lee Dugard on her way to school, and keeping her as a sex slave for 18 years. Resultantly, Dugard sired two children now 13 and 16, following Garrido’s repeated rapes. Apparently, when Garrido was first incarcerated for having kidnapped Katie Callaway, the US Parole Commission had him released on the account that he had a clean record and would therefore be rehabilitated easily. As opposed to utilitarianism, retributivism treats people with utmost respect. This is because, by recognizing free will as sacrosanct, people are treated in the manner they deserve. It is beyond gainsay that personal conduct or action is the most accurate yardstick that should be used when determining the manner in which an individual should be treated, either in the court of law, or within the social context. References Ewing, A. C. (1927). Punishment as a Moral Agency: An Attempt to Reconcile the Retributive and the Utilitarian View. Mind, 36 (143), 292-305. Leo, Z. (2006). Punishment and Retribution. Ashgate Publishing Limited. Weiner, B., Graham, S. & Reyna, C. (2007). An Attributional Examination of Retributive versus Utilitarian Philosophies of Punishment. Social Justice Research, 10 (4), 431-452. Read More