Punishment Notes for April 17

Main points

Today’s class was primarily concerned with the three kinds of reasons for punishment that Feinberg identified: utilitarian, retributive, and vindictive.


I tried to show that utilitarianism does not come off as badly as you might think. For instance, punishing the innocent is quite unlikely to deter crime but it would have significant costs.

There may still be cases where utilitarian practices would be different from our own. For instance, utilitarians may be indifferent to utility producing crimes, such as Robin Hood’s (Brian), punishment that would harm third parties, like families (Nina), or petty crimes (Alex, via The Big Lebowski).

Or they may inflict what we regard as excessively harsh punishments in any of these cases. For instance, directly harming third parties is a common tactic used against suicide terrorism. You can’t deter suicidal terrorists by issuing threats against them, but you can threaten to harm their families. And states that face suicide terrorists do exactly that, with reasonable utilitarian justification.

One other thing is worth keeping in mind when thinking about utilitarian and retributive reasons for punishment. Utilitarians always push for the rationale for the non-utilitarian position. What is it to “fit” the punishment to the crime and how do we know what punishments are “fitting”?


Bernice uncovered an ambiguity in the second proposition of Feinberg’s “pure” version of retributivism. This says that “Moral guilt is a sufficient condition (‘irrespective of the consequences’) for justified punishment” (p. 800).

Here is one way to interpret that. The fact that a person is guilty is enough to show that the state ought to punish him or her. This is so even if doing so is otherwise pointless or costly. (I think this is what Feinberg meant. The part in parentheses is what persuades me).

Here’s a different way to interpret it. The fact that a person is guilty is enough to show that the state would do nothing wrong by punishing him or her. The guilty person cannot legitimately complain if he or she is punished. But it does not follow that the state must punish. Perhaps, for instance, the costs of doing so are excessively high.

The second way is in keeping with my proposed impure rationale for punishment.


This is a bit of a curious category since all of its members fall into either the utilitarian or retributivist camps. What unifies all of the accounts described as “vindictive” is that they’re all concerned solely with the desire for vengeance.

These desires count for utilitarians just like any desires do. At least, they do provided we haven’t excluded them along the lines that Nina and David were suggesting.

They’re also related to retributivism since the desire for vengeance is a desire that people get what (bad things) they deserve. What seems to separate it from retributivism for Feinberg is that there’s no story told about desert. Rather, punishment is just a matter of expressing hatred towards criminals.

This page was written by Michael Green for Philosophy of Law, Philosophy 34, Spring 2007.
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