Richard Brandt: A Utilitarian Theory of Punishment plus notes on Lewis

Richard Brandt: A Utilitarian Theory of Punishment
plus
Some Notes on Lewis

This essay is an exercise in the application of ethical theory to a particular social problem. The theory is utilitarianism, and the problem is crime and its appropriate punishment. Brandt does not offer what he takes to be definitive solutions to the problem. He does illustrate how a utilitarian will approach such issues.

Brandt begins with a comparison: questions of "criminal justice" -- an in particular, of punishment for criminal acts -- are in many ways like questions of proper economic distribution. Among other things, systems of economic distribution allocate "welfare" -- not in the sense of checks for the unemployed, but in the sense of social goods. Systems of punishment distribute "illfare." And incentives are at work in both cases. Ideally, economic reward should reflect and provide incentives for contributions to the public welfare; punishment reflects an provides disincentives for "contributions" to the public harm.

Brandt identifies three questions that a philosophical examination of systems of punishment needs to address:

What justifies the infliction of pain on account of past acts.
Are there valid general principles of punishment?
What sorts of defenses should excuse from punishment?

The first question may seem odd. You might think: past misdeed justify punishment. But the utilitarian won't say that. Utilitarianism a form of consequentialism. And that means that the answers to all moral/ethical questions must be in terms of consequences for the general good.

In fact, Brandt is a rule utilitarian; he is, in particular, an "extended" rule utilitarian. The term "extended" here is his own, and simply refers to an additional principle he accepts: that insofar as possible, goods should be distributed equally. That part of the theory will mostly not concern us. But Brandt's overall answer to the first question must be where we begin. The essence of rule utilitarianism, in Brandt's words, is this:

Our actions should be guided by a set of prescriptions the conscientious following of which by all would have maximum net expectable utility.

It is important to keep in mind: this, and not some specific set of proposals about the details, is what the utilitarian is committed to. Failure to remember this will lead to no end of confusion. For a utilitarian, everything depends on the facts. If the facts aren't what we thought they were, then what we should do will be very different. It is almost impossible to stress this too strongly.

But of course, for the utilitarian, it is the principle just quoted that tells us what to do with the facts. And so we need to look a bit closer at this principle. What is net expectable utility? Let's approach the question in two stages, by means of simple examples.

Example one: suppose you have two courses of action open to you. Suppose that we can measure the good entirely in monetary terms (not always true, but this will help keep things simple.) Choice #1 would lead to a gain of $100; choice #2 would lead to a gain of $80. Then choice #1 has greater utility. It is the right choice.

Now let's look a little more closely. Perhaps this $100 total for choice one breaks down as follows: there are only exactly two people affected by the choice. If we make choice #1. Person A will get $110 and person B will lose $10. The $100 is the net gain. On choice #2, person A would get $85 and person B would lose $5. Again, the $80 is just the total of A's gain and B's loss.

In general, the net result comes from adding up all the separate utilities. But there is another factor that we need to add to the equation: chance.

Let us simplify by not looking at the details of gains and losses for the individual involved. We will look only at the net. But suppose choice #1 could have two outcomes. The first outcome would yield a net gain of $150. The second would yield a net loss of $50. Similarly, choice #2 has two possible outcomes. The first yields a gain of $120, and the second a loss of $20. Now how do we decide?

We need probabilities. Suppose the situation is this:

       
                  Choice #1:

possible outcomes:      A             B
net utilities:        $150          -$50    
probabilities:         .6            .4


                  Choice #2:

possible outcomes:      A             B
net utilities:        $120          -$20    
probabilities:         .7            .3

The expectable utility of choice #1 is

.6 x $150 - .4 x $50 = $70.

The expectable utility of choice #2 is

.7 x $120 - .3 x $20 = $78.

So choice #2 has higher net expectable utility, though not by a huge amount.

This is the sort of thing that ultimately determines what you should choose if you are a utilitarian. As you can see, the right answer can be extremely sensitive to the factual details, including the probabilities. But we also need to be clear on where we apply the calculation. We use it to choose the correct social rules. We don't apply it to each individual act. We choose the set of rules or practices that would produce the greatest net expectable utility if everyone followed them.

Just what sort of criminal justice system this would produce is entirely an empirical question -- entirely a matter of fact. But Brandt begins with the assumption that something like the sort of system we find in typical democracies would be the result, and he looks at the possible utilitarian justifications for such a system.

The general rationale for our system is based on at least these three assumptions, he thinks:

Fear of punishment typically deters criminal behavior.
Imprisonment or fines make repeat criminal behavior less likely.
Imprisonment in any case stops the criminal from harming society while s/he is in prison.

All of these assumptions are open to some question, but that would not show that utilitarian approaches to punishment are wrong; it would only show that we need to get a better grip on the facts.

One thing that is important to note in this collection of rationales, however: misconduct is not punished for its own sake. This makes utilitarianism different from other approaches. The utilitarian reasons thus: punishment produces unhappiness. Other things being equal, unhappiness is an evil. This evil can only be justified if the result is an overall increase in good, understood as utility -- as good consequences.

We have, so far, an answer to our first question: what is the justification for punishment? The answer is: it produces more good than evil. If that turned out to be wrong, the utilitarian would say: don't punish. But for now we assume that overall, the claim is true. The utilitarian approach also leads to a general answer to our second question: are there any valid general principles of punishment? The answer is that a punishment for a particular sort of crime should be chosen so that if we punished less severely, we would likely lose some utility. But if we punish more severely, we would also lose some utility. Clearly this will be well nigh impossible to achieve in practice. But it is the ideal to which we should strive.

At a less abstract level, Bentham made the following suggestions:

Punishment should be severe enough that the trade-off isn't worth it. Example: if robbing a bank meant I would only be put in jail for a week, then it might be worth robbing a bank even if I knew I would be caught.
further, even if I am not certain of being caught, the gain from committing the crime shouldn't be worth the risk of being caught. In other words, the expected utility of the crime should be lower than the expected utility of not committing the crime.
More serious crimes should carry more severe penalties. Among other things, this encourages criminals to commit less serious crimes.

This is all a bit crude. For example, the criminal who is contemplating #2 will be more or less strongly deterred depending on how smart the police are. But let us pass on to the third issue: what conditions should excuse someone from punishment? Bentham offers a sample list:

If the law was passed after the act was committed
If the law was never made public
If the person committing the act was insane, was a child or was drunk
If the crime was committed under physical compulsion (e.g., someone held a gun to my head.)
If the person was innocently confused about the facts (e.g., if the person had good reason to think it was a toy gun and not a real one.)
If the motive was so strong that no law could have prevented the crime. (Crimes of passion might count.)

Obviously there is a lot of room to argue here. However, we will move on to the next issue Brandt takes up: does this broad account and defense of our usual approach to punishment hold up? He considers various criticisms.

Some say that the deterrent value of punishment is actually very small. Brandt's reply is not to agree or disagree, but merely to point out that the Utilitarian will be guided by the facts. Utilitarianism per se is not committed to the idea that punishment deters crime; that is a factual question.

Some people think that utilitarianism requires a strict liability approach to punishment: you should be punished whether or not you were negligent or even had any criminal intent.

We do take this approach to some problems of liability in manufacturing. A manufacturer might be liable for defects in his product however caused. This gives manufacturers a strong incentive to produce safe products. Should we apply this idea to criminal punishment? Brandt thinks it likely would produce more bad than good. For example, it would produce enormous anxiety every time i drove my car if I knew I could be jailed for accidents that I could have done nothing to prevent. But the issue, once again, is a factual one.

Some say that utilitarianism couldn't admit mitigating circumstances -- circumstances that don't excuse entirely, but do reduce the punishment. Brandt suggests that if mitigation doesn't harm deterrence and if we can save good people for society in this way, then the utilitarian would be in favor of allowing mitigating circumstances.

A much more serious issue is whether utilitarianism might sometimes lead to allowing the innocent to be punished. Brand makes two points. First, he is a rule utilitarian. Rule utilitarianism does not proceed on a case-by-case basis. It asks: what rules of punishment would produce the most good? So we ask: is it really likely that a rule or practice that allowed us sometimes to punish people we knew to be innocent would promote utility? Brandy doubts it. He also points out that extended utilitarianism has more to say. Here I fill in a bit. Criminals typically come from disadvantaged classes. If the police were to convince people that an innocent person were a criminal, it would probably be an innocent person who already had less than his share of social goods. Punishing the innocent would violate the extended utilitarian's commitment to equality.

My reply, as I said in class, is that this is simply the wrong place to begin. Even if, by some social fluke, punishing the innocent led to more utility, we still shouldn't do it. Utilitarianism -- even in Brandt's version -- doesn't allow us to make this simple declaration.

Some people think that the present system is radically in need of reform. Brandt doesn't' agree nor does he disagree. He insists that all such questions are empirical. But he describes the alternative briefly. The proposal is to replace deterrence with psychiatric treatment and prevention. In practice, the pattern might be:

First, establish that a crime was committed
The put the offender in the hands of experts, who would decide when he was ready to return to society.
In general, the result would be a criminal-oriented system rather than a crime-oriented system.

Brandt briefly considers some objections. One is that the police would not be adequately protected. But he simply insists that this is an empirical question. Another objection is that psychiatrists and criminologists don't have the tools to make precise judgments. But Brandt replies by questioning whether their judgment is any worse than that of judges, lawyers, legislators, etc.

This provides an appropriate segue into the objections that C. S. Lewis has to any such scheme. My discussion here will be very summary.

Lewis's fundamental objection is that if we put dealing with criminals in the hands of psychiatrists and their ilk, we have severed the essential connection between punishment and justice. Someone might reply by insisting that the new model is therapeutic; it is concerned with treatment and not with punishment. But Lewis insists: from the offender's point of view, there difference is not at all obvious. The defender is still deprived of his liberty and subjected to various forms of treatment to which he may well not consent. On the "humanitarian" scheme, however, this is not done as his just reward for his crimes; the concept of what the offender deserves has no place in this scheme. Instead of treating the criminal as a responsible person, the therapeutic, "humanitarian" approach to punishment effectively treats him as an object -- as a thing.

There is another consequence of this approach. On the usual model, questions about punishment are moral questions. They are decided by people trained in matters of justice and jurisprudence. More important, they are ultimately subject to input from the conscience of any informed person. Everyone is entitled an opinion o the moral dimensions of punishment on what crimes deserve what punishment. We are all entitled simply insofar as we exercise our capacity for moral reflection. But most of us have no expertise in psychiatry; most of us aren't entitled to any opinion about whether psychotherapy or haldol or electroconvulsive therapy is the best way to treat a psychiatric condition. So if we put punishment in the hands of psychiatric and penal "experts," we deprive ourselves of the right to the moral opinions that we so clearly do have a right to.

This is not to say that the psychiatrists and other such experts want to be cruel. Their intentions may be utterly benign. But from the criminal's point of view, all he can do to escape their clutches is to be broken or to fool them into thinking he has been. The result, Lewis thinks, would be a tyranny.

Notice: Lewis doesn't have to say that psychiatry has no role in dealing with criminals. His point is that the fist question to settle is: what is just? If we have a choice among equally just forms of punishment, then choosing the one most likely to reform the criminal would be acceptable, But that is only because the punishment has already been shown to be just.

This may narrow the difference between Lewis and his opponents. What I suspect is that the open-ended quality of the "humanitarian" scheme is what bothers Lewis most. If we replace "punishment" with "therapy" then I might be confined for years on account of a minor offense simply because I haven't been cured. That would be wrong, as I suspect we all agree. If the "humanitarian" theory requires this, it is indeed a bad theory. It i a bad theory, one is inclined to say, even if somehow it produces more social utility than the alternatives. Of course, Brandt, for example, might doubt that this is really possible. If people can be held indefinitely for minor offenses while we try to cure them, it's very likely this will result in an excess of misery. But Lewis would no doubt say that we shouldn't ask that sort of question in the first place. Our first question should be: what punishment does this crime deserve? If we ever forget that question, then our system of "justice" will be justice in name only.