C.S. Lewis argues that deterrence is woefully inadequate as the (sole) justification for punishment. It “removes from Punishment the concept of Desert. But the concept of Desert is the only connecting link between punishment and justice. It is only as deserved or undeserved that a sentence can be just or unjust.”
Now first of all, we are dealing with the problem of the reasoning the judge must employ to determine the punishment. We all agree presumably that establishing guilt or innocence is the task of the jury, and that is “objective.” We are looking for the justification of a definite punishment after the jury has unequivocally delivered a guilty verdict. The question is not whether a person is guilty which we assume has been settled but how or to what extent and how to respond to his guilt.
So, then. Desert. Justice. Fine words, these. Did it occur to Lewis to answer the following question: Who are we (society or the judge) to style ourselves righteous avengers? Who will dare to throw the first stone? Lewis replies that
the judge who did it was a person trained in jurisprudence; trained, that is, in a science which deals with rights and duties, and which, in origin at least, was consciously accepting guidance from the Law of Nature, and from Scripture. … the propriety of the penal code, being a moral question, is a question on which every man has the right to an opinion, not because he follows this or that profession, but because he is simply a man, a rational animal enjoying the Natural Light.
… in so doing, self-evidently contradicting himself. If a judge needs to be “trained,” then he is no longer an “every man.”
Second, empirically, punishments motivated by deterrence are most of the time far less severe than those motivated by retribution. Mises writes, for example:
The age of capitalism has abolished all vestiges of slavery and serfdom. It has put an end to cruel punishments and has reduced the penalty for crimes to the minimum indispensable for discouraging offenders. It has done away with torture and other objectionable methods of dealing with suspects and lawbreakers. It has repealed all privileges and promulgated equality of all men under the law. It has transformed the subjects of tyranny into free citizens. (Money, Method, and the Market Process, Ch. 21)
Compare the results achieved by these ‘shopkeepers’ ethics’ with the achievements of Christianity! Christianity has acquiesced in slavery and polygamy, has practically canonized war, has, in the name of the Lord, burnt heretics and devastated countries. The much abused ‘shopkeepers’ have abolished slavery and serfdom, made woman the companion of man with equal rights, proclaimed equality before the law and the freedom of thought and opinion, declared war on war, abolished torture, and mitigated the cruelty of punishment. What cultural force can boast of similar achievements? (Socialism, 440-1)
(In fairness to Christianity, I will correct Mises that Christianity is grace that builds on the nature of Capitalism. Christianity did as well as it could with what it was given. Once capitalism was invented, the natures of individuals and society have been strengthened beyond measure, and with such help, Christianity could reach far nobler goals than before.)
Third, retributive punishments seem to require commensurability of offense and penalty. Why does stealing a car deserve exactly 5 years in prison, no more and no less? I’d understand if stealing a car worth $20k meant that the thief would have two of his own cars, if worth no more than $40k, confiscated. Must we then compare (dis)utilities interpersonally? The same amount of suffering that Smith inflicted on Jones (or twice that) will be in turn inflicted on Smith. How are we supposed to manage this calculation?
It is certainly true that deterrence is faced with a calculation problem of an even greater, far greater in fact, magnitude. But at least we call a spade a spade and explicitly recognize it as the chief challenge posed by the theory. The point is that retributionism is not exempt from the unenviable task of reading the criminal’s mind and heart.
Fourth, the prohibition of cruel and unusual punishments is explicitly contrary to retributionism. For if the criminal tortured his victims, then retributionism must allow that he himself will be tortured, and more severely at that. Would Lewis have denied even this provision of the (very utilitarian) US Constitution? Or does the criminal really “incur the hate and sadism of the judge, the policeman, and the ever lynch-thirsty mob”? (Mises, Liberalism, 58)
Fifth, the judge acts within the law. Say, the law specifies 5-15 years in prison for stealing a car. We might say that the offender “deserves” this much. But the whole point of the leeway for the judge after he is handed down a guilty verdict is to take into account deterrence, rehabilitation, and even condemnation. Sometimes he is justified to throw the book at the criminal. Other times he needs to be more lenient. In short, judges must be wise and judge aright. The retributionist seems to reduce complex justice to vengeance graspable by his “every man.” But not every man qualifies to be a judge.
Sixth, framing an innocent man and using that as a deterrent is a red herring. This is so obviously against the longer-term interests of the government as to be an implausible strategy. If even one such act becomes public knowledge (and it will), then criminals will no longer have any reason to fear the state which, as they can clearly see, does not discriminate between the law-abiding and lawbreakers. Arbitrarily picking innocent people to frame to deter others fails on utilitarian grounds in any realistic society.
Seventh, Lewis is worried about people being “sacrificed to society.” But people are sacrificed to society every day. The inventor of the new mousetrap puts the vested interest, the producer of old inferior mousetraps, out of business. Why, the old guy would wring his hands, is his income being sacrificed on the altar of consumer sovereignty? Well, because the society in which such things are permitted is the happiest of all. QED, TS, etc. If you obey the law, then you will be the person enjoying the consequences of the “sacrifices” of other people. On average, you’ll gain more happiness that you lose. Even when standing behind some veil of ignorance while designing society, it makes sense to choose that society where the combined happiness of its members is greatest; this way, your chances of being incarnated as a happy person are maximized.
In any case, the judge breaks no law by upping the criminal’s punishment for the sake of society. He is totally free to select any number of years in prison from 5 to 15 in our earlier example.
Finally, let’s consider one of Rothbard’s objections. He quotes Armstrong:
[W]hy stop at the minimum, why not be on the safe side and penalize him [the criminal] in some pretty spectacular way — wouldn’t that be more likely to deter others? Let him be whipped to death, publicly of course, for a parking offense; that would certainly deter me from parking on the spot reserved for the Vice-Chancellor! (The Ethics of Liberty, 93n)
First of all, even if the punishment for parking in the wrong spot is death, it is not guaranteed to deter everyone. A person might forget or choose to defy the law for whatever reason. Utilitarianism will not permit sentencing even one such person to death as a result. This is because the criminal’s well-being, too, is taken into account during sentencing. The criminal remains a member of society whose happiness the judge tries to maximize.
Second, deterrence considers not an isolated offense but the judicial system as a whole. Thus, David Friedman writes:
You live in a state where the most severe criminal punbishment is life imprisonment. Someone proposes that since armed robbery is a very serious crime, armed robbers should get a life sentence. …
An economist points out that if the punishments for armed robbery and for armed robbery plus murder are the same, the additional punishment for the murder is zero — and asks whether you really want to make is in the interest of robbers to murder their victims. (Law’s Order, 8)
When you look at the whole legal network, if may not make any sense from the purely utilitarian standpoint to punish crazily or haphazardly.
I am not saying that deterrence is a perfectly serviceable theory of punishment when considered in isolation from the other three. But it is at least equal to them and demands to be given its due.