sense of doing. For example, given the choice between killing one person and
‘allowing’ 19 to live, or ‘standing by’ while all 20 are killed, utilitarianism requires
you to kill that one person. There are answers to these criticisms and they form the
basis of the ‘compromise’ theories of punishment, but we will focus on one very
common objection to utilitarianism: it justifies the punishment of the innocent.
Imagine the following scenario. A child has been murdered and somebody who
has a criminal record of sexual offences against children has been arrested (we will
call him A). Some very high-ranking police officers have evidence which proves that
he could not have murdered the child, but they believe that the chances of
apprehending the real killer (call him B) are remote. Although they know that A is
innocent they are confident that they can construct a case against A such that lower-
ranking police officers, the courts and the general population will be convinced that
A is guilty. In the absence of any conviction society will be faced with a series of
negative consequences (or disutilities):
- There will be considerable public disorder – for example, riots.
- There will be attacks on anyone who ‘looks’ like a paedophile.
- Parents will be afraid to let their children out of their sight and they will
communicate that fear to their children.
- There will be a loss of respect for authority.
- Knee-jerk, illiberal legislation might be passed.
- There will be a loss of deterrence as the murder is seen by other potential
offenders to have gone unpunished.
Although there is a risk that B will strike again the police calculate that it is
better that A is arrested, tried and convicted, than that no arrest is made. Obviously,
if the truth were to emerge then there would be massive negative consequences, but
the police can calculate probabilities – the less likely that the truth will emerge the
more they will discount the negative consequences of revelation. Clearly, there are
some conditions attached to the consequentialist ‘success’ of punishing A: (a) most
people must believe that A really is guilty, and (b) that requires a very high level of
deception and conspiracy. But, in principle, a utilitarian cannot explain how on
utilitarian grounds it is wrong to punish A. Indeed, utilitarianism is a moral theory,
such that the police and judiciary have a moral dutyto pursue and convict A in order
to avoid or reduce the negative consequences of non-conviction outlined above.
There are several other problems with the consequentialist theory of punishment.
First, if deterrence is justified then so is prevention. This opens up the Minority
Reportscenario whereby the state seeks to identify crimes (‘precrimes’) before they
have been committed. That film was a bit far-fetched – and complicated rather
than complex – in that it presupposed the existence of ‘pre-cognitions’, but a less
fanciful version of precrime would be the identification of social or behavioural
charac teristics that suggest an increased likelihood of committing crime. We would
not be punishing to deter, but rather to preventcrime. Second, consequentialists
need not believe in mens rea(intentionality). In fact, in many legal systems there
is the idea of strict liability, meaning that for certain offences courts do not need
to establish intentionality. There may be justifications^1 for strict liability but the
rejection of intentionality appears incompatible with respect for human freedom
and responsibility. Third, consequentialists have problems with equity. For example,
one person might receive a six-year prison sentence and another a one-year sentence
Chapter 7 Punishment 147