Toward a new theory of punishment

Abstract

Criteria for a successful theory of punishment include first, that it specify a reasonable limit to punishments in particular cases, and second, that it allow benefits to outweigh costs in a penal institution.

It is argued that traditional utilitarian and retributive theories fail to satisfy both criteria, and that they cannot be coherently combined so as to do so. Retributivism specifies a reasonable limit in its demand that punishment equal crime, but this limit fails to allow benefits to outweigh costs of punishing. Utilitarians demand the latter but cannot guarantee the former. Combinations continue to violate one requirement or the other.

The most vulnerable element of the traditional theories is the retributive limit. An alternative is suggested according to a new but similar model of reciprocal social rights and obligations. The rights of a citizen in the moral community are considered as a package, which reverts temporarily to the community in trusteeship when the citizen seriously violates the rights of others. The community must exercise the least restraint necessary to protect others until the full package of rights can be restored to the individual.

Problems for this new theory and advantages over alternative models are discussed in the final section.