A Popular Objection Against Deterrence-Based Punishment Analysis

Question 1: A popular objection against deterrence-based legal punishment is that it would justify punishing the innocent, an objection that critics of the theory consider to be decisive. The first element of this objection is clarifying the definition of punishment so that it can successfully be incurred on innocents. From there, the weight of the argument falls on how our moral judgments against punishing the innocent are a priori and universal rather than an empirical observation on this world. This aims to refute an anticipated reply to the fundamental concept of this argument, this being that punishing the innocent is immoral regardless of its utilitarian effect, up to a certain extent at least. However, this does not succeed at being a decisive rejection of the theory.

I will begin by explaining the definitional element of this objection, since it must be possible to punishment the innocent for this to have any ground.

This is relevant as there are utilitarians that rebutted this objection by defining punishment as an infliction of evil on an offender (Primoratz 51). In situations where there is a deliberate decision to “punish” somebody known by the judge to be innocent--that is to an inflict an evil on somebody that, if he were guilty, would be considered punishment, the utilitarian has sufficient grounds to deny this is punishment because the man is not an offender and therefore say this scenario as a consequence of the utilitarian view of punishment (52). Primoratz views this as “poor consolation” as while it might not strictly be a consequence of a utilitarian view of punishment, it is an implication of the ethical consequences of utilitarianism in general, meaning the argument still strikes at fundamental base of utilitarianism, which truly determines whether the doctrine should be taken seriously

(Primoratz).
Now I will discuss the moral argument against punishing the innocent. To do so, Primoratz first rejects the premise that there are possible worlds where punishing the innocent does not conflict with our moral judgments. He does this through reasoning that there cannot be a world in which punishment, necessarily meaning the infliction an evil, cannot conflict with our moral principle that we ought not to give inflict undeserved evil. Irrespective of all potential worlds, punishment of the innocent will fall under acts that are banned under this principle. Therefore, if one is to subscribe to this principle, it must follow that punishment of the innocent would be universally in conflict with this moral.
One could propose that theories ought to remain true to our world’s empirical beliefs to form a theory and need not consider possible worlds, thereby reducing the efficacy of this argument if there are not real situations where punishing the innocent would be the correct outcome for the utilitarianism approach. This is easily rebutted by citing examples showing its empirical probability, such as the Moscow trials in the 30s where lawyers who spent their life’s work in such a trials attributed their work as “having in mind the most desirable results for the masses of workers and peasants (51).” Primoratz finds any objection on the basis that the application of the lawyers was flawed to be irrelevant (51). Only now in an objective, retrospective sense can they be deemed to fail in moral justification of their actions through utilitarianism, but it was still the prospective sense in which they judged themselves, meaning they were justified at the time, and the justification used in its time is the best means to judge the theory’s implications (51).
This ultimately fails at being a decisive end to detterenced-based punishment. Although he explains strong methods to refute any potential rebuttals, it does not necessarily prove the rebuttals are wrong. Primoratz himself states he cannot dispute definitional claims about punishment, and while his argument is strong, it is in no way definitive. In this same vein, one can also not accept that there is a moral premise that dictates we ought not to punish the innocent. A utilitarian can simply allow punishment of innocents to be implemented in any system. Definitive is simply too strong of a word for his argument.
Question 2: Feinberg introduced an entirely new manner of viewing legal punishment when he proposed that it necessarily expresses condemnation. The idea that punishment necessarily expresses a message, namely public condemnation, is a unique manner to characterize it, but in doing so, it emphasizes what can be considered merely a feature of legal punishment rather than a fundamental component of such. He’s correct that many punishments perform symbolic roles beyond what legal philosophers would typically associate with it, such as displaying public condemnation, but to state that is a fundamental component of punishment is farfetched.
The feeling that condemnation brings to either an external or internal perspective is best understood as a means to achieve another end, so it is truly subordinate to more fundamental components. As Primoratz proposes, the fundamental concept is that external expressionism indicates that the symbolic roles can be seen as an effective means to achieve another end, such as deterrence, civilized revenge, and re-establishing solidarity. As long as there are other methods to display reach such ends, this does not indicate that legal punishment taking on a role of expressing condemnation is a necessary component. If adding mustard on my sandwich were to achieve my goal of a tasty sandwich but it would still satisfy me taste-wise without such an addition, mustard is merely supplementary to my sandwich experience. Even if mustard was the most effective way to achieve my goal or there was a world where all sandwiches had mustard, this would not change the fact that it is not necessary.
In this way condemnation is merely supplementary to legal punishment, although it could be the most effective means to achieve its intended goals and thereby seen in all of our forms of legal punishment. Deterrence is considered a necessary component in almost all justifications of legal punishment, and it can be obviously demonstrate without the addition of condemnation. The act of being punished is a deterrent from committing crimes as an evil will be inflicted on the person who would commit the crime, and it is natural to understand people would want to avoid evils being inflicting on them. In addition to furthering legal punishment’s necessary conditions, it can also aid in reinforcing non-essential but helpful roles of legal punishment such as re-establishing solidarity as I mentioned above. This is not a necessary component because in situations where court rulings are highly controversial (such as refusing customers based on sexuality), punishment would only heighten conflict but is still understood as punishment. The symbolic gesture of displaying condemnation is clear in this scenario, but this can be easily explained again as the most effective method employed to serve another purpose, such as deterrence or other components used to justify legal punishment.
While I have explained why condemnation is not necessary in an external expression viewpoint, it could still be considered necessary for its role as being internally expresses. This claims that public rejection is intrinsically called for and justified when dealing with the wrongs committed by an offense, assuming the law is just because its violation constitutes a moral wrong. The violation ought to be publicly condemned by the state for this reason. From this, Primoratz makes the argument that legal punishment is required to adequately express public condemnation for these violations, and this thereby justifies legal punishment. However, this justification emphasizes the moral component of legal punishment as its critical feature, neglecting its role in maintaining order in a society. In doing this it fails to capture a critical component of all law and punishment in general, meaning this also does not succeed in representing condemnation as a necessary feature of legal punishment.