7.3.1 Utilitarian Theories
Consequentialism According to Jeremy Bentham’s classical utilitarianism, laws
should be used to maximize the happiness of society. This means that punishment
can only be justified if the harm that it prevents outweighs the harm it creates
through punishing the offender. The state should therefore only inflict as much
punishment as is needed to prevent future crimes. Utilitarian theories are “conse-
quentialist” in nature; they are all forward-looking theories of punishment as
criminal sanctions are only justified when they have beneficial consequences, like
deterrence of criminal behavior. If the realization of such future-oriented goals fails
to occur or has more negative side effects, a utilitarian justification for punishment
may be absent.
Deterrence A major utilitarian rationale for punishment isindividual deterrence
andgeneral deterrence. Individual or specific deterrence punishes an offender in
order to prevent the same person from reoffending. General deterrence uses the
threat or example of punishment to discourage other people from committing
crimes. A recent example of an attempt at general deterrence is that most
European systems have significantly increased the penalties for driving under the
influence of alcohol in order to deter citizens from drunk driving.
In discussing whether punishment has a deterrent effect, critics point out that the
high recidivism rates of persons sentenced to prison are evidence of a lack of
effectiveness of individual deterrence. There are also some limits to the effect of
general deterrence. This theory assumes that human beings are rational, autono-
mous individuals who are always able to calculate the risk of being caught and
convicted for the commission of an offense. Critics consider this to be an unrealistic
view, arguing that most people remain law-abiding, not because they fear criminal
sanctions but as a result of moral inhibitions and socially accepted norms of
conduct. Moreover, some crimes, such as sexual offenses and crimes committed
under the influence of drugs, can hardly be deterred as their perpetrators don’t
rationally weigh the benefits versus the costs before breaking the law.
However, this fails to account for cost/benefit analyses that may occur more implicitly or
less strategically as criminals commit their illegal behaviors.Rehabilitation Another utilitarian rationale for punishment is rehabilitation. The
object of rehabilitation is to prevent future crime by giving offenders the necessary
treatment and training that enable them to return to society as law-abiding members
of the community. We may think here of programs that will teach prison inmates
how to control their crime-producing urges, like the tendency to abuse drugs or
alcohol or to commit sex crimes (e.g., pedophilia). Part of a classical rehabilitation
program is usually that an offender will be released on probation under some
conditions.
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