for what is essentially the same crime on grounds that the six-year sentence
is intended to ‘send out a message’ – and thus deter others. This is incompatible
with equal treatment. Fourth, consequentialists have only a very weak sense of lex
talionis. Some crimes may be more sensitive to deterrence than others: speeding
offences may be more susceptible to reduction as a result of harsher punishment,
whereas murder may not be. In this case we should have draconian anti-speeding
measures but relatively light sentences for murder.Retributivism versus consequentialism: the argument so far...
Before discussing theories of punishment that seek to avoid the weaknesses of both
retributivism and consequentialism it is worth outlining in summary form the key
differences between them.148 Part 1 Classical ideas
Retributivism Consequentialism
Backward-lookingto the crime committed. Forward-lookingto the consequences of
However, punishment does address the punishment. For a utilitarian, punishment
implications of crime: if you steal you assert must serve the global goal of maximising
(or will) that ‘anybody can take property’ – utility. For a non-utilitarian consequentialist,
therefore, being deprived of something, such punishment can serve a plurality of goals,
as your liberty, is simply the expression of without necessarily seeking to maximise
your will: in thissense punishment is something.
forward-looking.
Intentionality is central– only the guilty should Intentionality is important but not central–
be punished. Punishment is concerned with the punishment should deter, so it does act on a
willof the criminal. Certainly, there can be person’s intentions: deterrence gives you a
miscarriages of justice, but you can never reason not to commit a crime. However, a
justifypunishing an innocent person. utilitarian is obliged to punish an innocent
person if by so doing utility is maximised.
Punishment must be strictly distinguished from Punishment is not fundamentally different
treatment and prevention. Retributivists can from treatment and prevention– deterrence,
support treatment and reform, but these are treatment, and prevention are all different
secondary aims of punishment. They can also ways to increase utility. This opens up the
recognise the value of deterrence, but they possibility of the Minority Report(precrime)
cannot ‘pre-emptively’ punish. scenario.
Punishment must be proportional to the crime. The character of the punishment is
Unlike crude retributivism, more sophisticated calculated by its consequences,for example,
versions do not see punishment as restitution it must be sufficient to deter. This- the victim is actually not that important. disconnects the gravity of the punishment
There must, however, be some notion of from the seriousness of the crime – if most
equivalence: we do not give someone a fine people are disinclined to murder this
for murder and execute another for a suggests that its punishment need not be
parking offence. that severe.
There must be equity– you cannot give one Sentences for the ‘same’ offence can vary
person a six-year prison sentence and another depending on the likely deterrent impact.
a one-year sentence for what is essentially There is an equity problem with
the same crime, committed with the same consequentialism.
degree of intentionality.