Punishment

In a rational system of penal law, a close connection will exist between accepted theories of punishment and both the boundaries of the substantive criminal law and the procedures by which criminal guilt is determined. The justifications obviously touch on sentencing policies and the sorts of activities that should be made criminal ("criminalization" decisions), but they are much more pervasive.

As far as criminal procedure is concerned, a dominant theme is avoidance of conviction of the innocent. The system of determining guilt is thus responsive to a view that such convictions are very bad, a view that is shared by both retributivists and utilitarians. In addition, concern over comparative desert is evidenced by worry about the unfairness of executing those whose behavior has been no worse than that of many others who receive only prison sentences. This worry has led to judicial and legislative reform of procedures for imposing capital punishment and has strengthened support for abolition of that penalty.

Definitions of guilt in the substantive criminal law place great emphasis on intentional, knowing, or reckless wrongdoing, largely eschewing criminal treatment for those who have the misfortune to be the accidental instruments of harm. Again the retributivist and the utilitarian largely unite, the retributivist claiming that punishing those who are not morally culpable is simply wrong and the utilitarian suggesting that such punishment is unproductive. There is, however, a point of significant difference. The retributivist may reject strict liability offenses, and perhaps even criminal liability for negligence (inadvertent, careless wrongdoing), on the basis of absolute principle; the utilitarian will remain open to the argument that in special settings such liability is warranted.

Similarly, justifications and excuses can be related to theories of punishment. For example, a person who acts in necessary self-defense is not morally culpable, nor will punishment serve any significant purpose. Such a person need not be reformed or deterred, others acting in self-defense should not be deterred, and punishment is much too high a price for a slight addition to the deterrence of those not acting in self-defense. Self-defense is made a justification for intentional assault that would otherwise be criminal. The insanity defense excuses those who are not blameworthy; it also reaches roughly to the class of those who are not deterrable by the sanctions criminal punishment can provide. Persons judged insane require incapacitation and need rehabilitation, but both can be accomplished by a mandatory civil commitment.

The conclusion that these and other major features of the substantive law are consonant with each of the two major theories of the justification of punishment should not be too surprising. Theories of justification are often built with existing practices in mind and do not usually stray too far from the reflective moral views of ordinary citizens. The fact that sharply divergent philosophical theories can have closely similar implications across a broad range of actual practices is less a startling coincidence than a product of the existential basis on which those theories are constructed.