Deterrence theory again
Deterrence theorists are not without resources to respond to the retributivists' objections. They have argued, for example, that the requirement that we should punish only the guilty comes from the fact that there would be much disutility associated with the fear we would all feel if we knew that our society practiced random victimization.
The retributivist can counter that this effect could be avoided by keeping the practice secret. (Needless to say, we couldn't keep it secret from the innocent people we victimized or the guilty people who escaped punishment.) Even if we did keep it secret from most people, so that most people escaped the disutility of fearing arbitrary victimization, victimization would still be wrong. But the deterrence theorist can reply that even if it were possible to keep this secret from most people, having a secret system risks very serious abuses. If we had a system that allowed victimization to masquerade as punishment, then officials of the system could use the law to exercise their private grudges. If we want to maintain a democracy, official secrecy is simply very dangerous.Just as deterrence theorists can try to explain in this way why only the guilty should be punished, so they can explain why we believe there should be some proportion between crime and punishment. The reason, of course, is that deterrence theory is based on the recognition that “punishment in itself is evil.” It follows, as I have already pointed out, that a deterrence theorist will not allow the penalties for crimes to exceed the minimum necessary to avoid the harm of offenses.
But each of these replies depends on the deterrence theorist being right about very complex social facts: How much fear would really be created by a system of publicized victimization? Would that really be worse than the offenses it might deter? Is the harm done by those offenses we think should be punished seriously always greater than the harm done by those offenses that we regard as trifling?
There are many factual conditions that would have to hold if the deterrence theorist's views are to fit with what we normally believe to be right.
Let us call these conditions the “presuppositions of deterrence.” Then one important factual question to consider is whether the presuppositions of deterrence are true.The answer to this question is almost certainly no. But even if the deterrence theorist's factual claims were true, they still would not establish that the deterrence theorist was right. For, as we have repeatedly seen, most of us believe that the retributivist's constraints on punishments should be respected even if the presuppositions of deterrence is false. Our moral views are views about what would be right not just in this world but also in other possible worlds where the facts are different.
What this means is that it is no defense of the utilitarian view of punishment to show that, given the way the world actually is, it will lead us to do just what retributivists require. For in thinking about the justice of punishment we are trying to understand not only which punishments are right but also why they are right. And to decide that, it is necessary to consider what we would do if the facts were different.
I mentioned earlier two ways in which a punishment might fit a crime, but I gave only one of them. We can see, finally, how different the basic conceptions of punishment held by deterrence theorists and retributivists are if we consider this second way in which punishments and crimes might fit each other.
Suppose offenders were obliged to compensate the victims of their offenses. Not every crime has a victim—who is the victim of my speeding on an empty highway?—and not every harm can be compensated—you can't give someone back his or her life. But, some retributivists have said, where possible it is a virtue in a legal system if offenders make reparation to their victims. Being obliged to make reparation to your victims is an especially fitting punishment where it is a practical possibility.
The retributivist will see compensation as internal to the system of punishment, as flowing from the very meaning of the idea.
But Bentham, who would agree that the compensation of victims is desirable, would say that it was a separate question how they should be compensated. Maybe it would be more efficient if the government took on the task of compensating victims, using taxes or perhaps fines and the proceeds of prisoner's labor to pay for it. If that were true, Bentham would see no advantage in making the offender compensate the victim directly. There are deep differences between the views of those who see moral ideas as internal to the very idea of law and punishment—the natural law theorists—and those positivists who do not, and these have very different consequences for social policy.7.10face="Times New Roman">