Abstract

This paper follows Jeremy Bentham in holding that because punishment, even when not corporal, is pain, the state administration of punishment is inherently evil. Too many defenders of punishment see the deliberate infliction of pain as not evil at all, but rather as the justice due the criminal. The paper proposes that punishment is the lesser and necessary evil, and not justice, which is a positive good free of evil. The US Constitution teaches the proper democratic attitude towards punishment, which is that punishment should be done reluctantly and leniently. All the provisions of the criminal law in the document go in the direction of reluctance and leniency. One principal enemy of this spirit is the doctrine of retribution, as defended by Leviticus, Kant, and JS Mill. A critique is offered of this doctrine; deterrence is left as the basic justification for punishment, especially in a constitutional democracy