Reading Notes


In 2016, the United States had the highest incarceration rate in the United States. This chapter is going to explore the reasons why we punish. As we will probably see, the reason will probably be to find a balance between detesting the crime committed while maintaining human respect for the offender.

Theories of Punishment


It’s probably a good idea to understand what punishment is before getting into the deeper philosophy. Professor Greenawalt says that punishment has 6 defining characteristics.

  1. Punishment is performed by and directed at agent who are responsible in some sense.
  2. The consequences are supposed to be harmful.
  3. Usually, the consequences are preceded by a judgement of condemnation.
  4. Imposed by someone with the authority.
  5. The consequence is imposed because of a breach of a rule.
  6. Imposed on actual or supposed violator of the rule.

This reading also goes into discussing threat and punishment. The threat needs to be treated as a punishment itself, otherwise, the threat will not be carried out and will lose its value. Consider a parent who threatens punishment but never carries it out. Eventually, the child will recognize that there is no punishment associated with it and continue conducting the ill-advised behavior.

Professor Greenawalt also introduces utilitarian and retributive justifications for punishment which will be discussed later.

Utilitarian Justifications

This justification is a balance of pleasure and pain. A community only wants pleasure and will thus create rules that exclude pain. So, if somebody causes pain, there is a justification to remove that pain by punishment. This way, the action is deterred and hopefully the breacher can be reformed.

Retributive Justifications

Retributive justifications deal with positive and negative retribution. Positive retribution states that a person should be punished for committing a crime, regardless of the utilitarian gain achieved. For this theory, the positive of deterrence is an added benefit but is not needed to justify punishment. On the other hand, positive retribution states that desert is a condition necessary for punishment, but it is not enough to justify it. There must be some additional utilitarian gain.

Putting the theories in action

The Queen v. Dudley and Stephens

Queen’s Bench Division, 1884. 14 Q.B.D. 273.


Dudley and Stephens as defendants, the Queen as prosecutor.


Should Dudley and Stephens be guilty of punishment for the crime they committed?


Four people were at sea when tossed from the boat and ended up sailing together on a smaller vessel for several days. With due time, the killed the youngest and weakest boy to survive. They were rescued and tried for murder.

Why should we care?

Should the boys be punished for the crime? Were their justifications for killing the boy sufficient, seeing how the other men had families and the boy was alone? Thus, how would you react if you were on a jury asked to determine the murder of these individuals?

Additional Notes

This is super important to understand so that we know how the legal rules are developed the way they are.

What is Punishment in General

As a society, we want to be right if we punish somebody. If we do punish somebody, then there better be a moral reason for us to punish.

So, what is Punishment? There are six characteristics of punishment:

  1. Punishment is performed by and directed at agent who are responsible in some sense. You can only punish a person.
  2. The consequences are supposed to be harmful.
  3. Usually, the consequences are preceded by a judgement of condemnation.
  4. Imposed by someone with the authority.
  5. The consequence is imposed because of a breach of a rule.
  6. Imposed on actual or supposed violator of the rule.

Notes from this. Civil commitment after prison is not considered punishment. Additionally, being sentenced to probation is punishment.

There are two theories of punishment: Utilitarian theory and Retributive theory

Utilitarian Theory

We are looking at things only looking forward. Punishment is bad, but eventually, the good from you being imprisoned will result in a greater good to outweigh the bad.

Why is punishment justified under utilitarian theory

We can justify punishment on the wrongdoer when the pleasure of the community outweighs the pain from the punishment.

This can be seen economically. “We will make a market decision, when the benefits to society exceed the cost.”

There are certain benefits that we receive from the utilitarian theory, they are

  1. General deterrence
  2. Specific deterrence
  3. Incapacitation
  4. Reform

Deterring community as a whole from committing crimes. Because they see the other person commit a crime, they decide not to commit a crime.


Deterring an individual from committing a crime again.


Removing people from society if they would be unable to be deterred from crime.


Helping an individual change from committing crimes.


However, there are circumstances where a punishment may not be justified (such as a person being framed for a crime). In these situations, unjustified punishment may also result in loss of trust for the law and bad precedent. Therefore, utility is not met because the temporary pleasure could be outweighed by the pain.

Retributive theory of punishment

The Moral Worth of Retribution, Michael Moore

People are punished because they deserve it and only because they deserve it. This is a positive retribution argument.

The Philosophy of the Law, Immanuel Kant

A person should be punished because they deserve it. But not only do they deserve it, they owe a debt to the person they committed the crime against. This is a “duty” to punish.

Moral Dilemma?

However, there are weakness to Retributive theory as well. A person who committed a crime a long time ago and had since become a good to society, would it then be justifiable to punish them. This is a moral dilemma. Does the society owe punishment for the sake of the individual and family against whom the crime was committed?

Queen v. Dudley and Stephens


Murder case. The boat had sunk and Dudley, Stephens, Brooks, and Parker were on a lifeboat. They discuss killing Parker, but Brooks disagreed. Parker was killed while Brooks was asleep. They were found four days later. It is assumed they would have died without the killing, and Parker would have died anyways.


Dudley and Stephens are charged with Murder


Why should they be punished?

Using Retributive theory

They committed the crime. So, they should be charged and punished for his death.

Using Utilitarian theory

Reform? Does Dudley and Stephens need reform? No!

Incapacitation? Do we need to lock them up so they stop committing another crime? No! This was an extreme circumstance.

Specific Deterrence? Do we need to prevent these people to stop committing crime? No! They will probably not do this again.

General Deterrence? Do we need to punish them so the general population does not commit murder? Yes! You do not want the rest of society to potentially commit the same crime.

In criminal law, there is a difference between acting, and omission to act. Therefore, those who are omitting an action will most likely be used as a witness in these situations.


The content contained in this article may contain inaccuracies and is not intended to reflect the opinions, views, beliefs, or practices of any academic professor or publication. Instead, this content is a reflection on the author’s understanding of the law and legal practices.

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