Law and order (part 7)

It’s official: the series on justice systems is now the longest on this blog, even longer than the series on the fourth dimension. Today’s post will address the question that has been repeatedly reappearing throughout this series: how can a utilitarian justice system deter crime? Because a system based on “the greater good” (defined as reducing unhappiness and creating happiness) and on rehabilitation is not as painful as a revenge-based system, critics argue that utilitarian justice does not deter criminals in the first place. This argument needs answering, as it is appears to be a major flaw in utilitarian and ‘rehab’ justice systems.

The deterrence argument is certainly a substantial one, and there are several aspects of it that must be addressed. The argument can be summarized as follows: a justice system that involves inflicting physical pain on lawbreakers prevents crime from happening in the first place because people are afraid of the consequences; a utilitarian system does not inflict pain, and thus it does not deter crime very effectively. I see three distinct points here that must be discussed: (1) the fact that pain deters crime, (2) the fact that utilitarian systems are pain-free, and (3) that a utilitarian system (assuming it is without pain for the purpose of deterrence) does not deter crime.

First, let’s tackle the issue that pain is a deterrent to crime. Obviously this argument has some truth to it, as both simple logic and empirical evidence indicate. The idea of “improper action leads to consequences” is one that is embedded in our culture, and I am sure that the fear of prison or pain has driven away many a potential criminal. But note that the pain-as-deterrence method of social control is not always as advocates of the current system claim it is—repeat offenders are not exactly uncommon in America. Of course, this is not much of a substantial argument since no system is perfect. Overall, though, this part of the deterrence argument is correct: physical pain can prevent crime from happening, and it is a useful method of social control because of this. 

Second, let’s look at the nature of utilitarian justice systems: are they really as pain-free as I have made them out to be? Naturally they do not include and unnecessary pain or pain for the purpose of revenge, but, as our current system proves, pain (whether in the form of prison, fines, etc.) is a very effective method of rehabilitation. Though many ex-convicts immediate return to their criminal ways, many others are profoundly affected by their sentence and do not return to crime. Also, consider the Catholic private schools that existed about 30 or 40 years ago: these schools were mostly run by nuns, who did not shy away from corporal punishment. As we know, this was actually a very effective method of instilling discipline, regardless of the fact that the nuns did subscribe to the revenge-as-justice theory. A utilitarian justice system would not completely reject pain because of its educational ability—though the system would try to restrict the use of pain as much as possible, since it has been proven to be an effective method of rehabilitation it would not be absent from a utilitarian justice system. This significantly weakens the deterrence argument, because if pain is present in rehabilitation—or if there is the chance that it is involved in rehabilitation—this would act to deter crime just as the standard revenge-based justice system does. Also, note that this use of pain-as-education would still be morally justified according to utilitarianism because the purpose it preventing crimes in the future, which is clearly in the interest of “the greater good for the greatest number.”

Finally, let’s examine deterrence in utilitarian systems a bit more. Recall that the US’s current justice system uses indirect techniques—such as prison, fines, forced community service, parole, and so forth—to “punish” criminals. Because the Bill of Rights forbids “cruel or unusual punishment,” flogging and other more painful forms of punishment have been outlawed—but the more humane methods have remained, and because they are unpleasant they still serve the deter crime. But how does this relate to a utilitarian system? The key point to remember is how a person’s rehabilitation would be achieved. It would almost certainly involved isolation from society for some time, and, as I discussed in the paragraph above, it might even involve pain. Even if a system did not use the pain-as-education method, though, the fact that a person must be removed from society to be rehabilitated may be enough of a deterrent for some criminals. Also, remember that a person’s rehabilitation may take a long period of time, which makes it even more undesirable to be sentenced, even in a system that is based around minimizing pain.

The bottom line is this: the deterrence argument certainly has some truth to it, most of its claims denouncing utilitarian justice systems are false. Utilitarian systems are not necessarily as pain-free as they might seem initially, and they can deter crime just as much as revenge-based systems. 

Again, this series may or may not continue tomorrow, depending on the news and on my mood.