What Do People Mean When They Say the Punishment Should Fit the Crime?

“The man who has a conscience suffers whilst acknowledging his sin. That is his punishment.”– Dostoyevsky, Crime and Punishment

What do people mean when they say the punishment should fit the crime? Is it possible for this principle to really make sense? The former philosophical question can be, to some degree, easily delineated by the following: proportionality. The latter philosophical question, however, will require a more extensive explanation due to its complexity. Through an analysis of philosophical literature, I aim to provide an in-depth breakdown of the arguments relating crime and punishment, specify the pressing problems of each argument, respectively, and offer an alternative solution to the arguments derived from the previously stated questions.

We begin with a definitional approach to the following question: What is the punishment? Punishment can be conceptualized as the “infliction of hard treatment by an authority on a person for his prior failing in some respect (usually an infraction of a rule or command)” (Feinberg 629). It is worthwhile to note this definition as it provides a structural foundation which can be used in application to our next logical question: When is punishment justified? As Feinberg presents, “punishment is justified only on the ground that wrongdoing merits punishment.

It is morally fitting that a person who does wrong should suffer in proportion to his wrongdoing. That a criminal should be punished follows from his guilt, and the severity of the appropriate punishment depends on the depravity of the act. The state of affairs where a Sandlin 2 wrongdoer suffers punishment is morally better than one where he does not, and is so irrespective of consequences” (Feinberg 1).

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According to this argument, the primary justification of punishment is to be found in looking to the prior guilt of the crime committed—not in any future advantage. Does this really make sense? Consider the following hypothetical scenario: a parent punishing a child. The parent, presumably, is not punishing the child in order to deliberately cause the child suffering retaliation for his/her infraction of the parent’s rule or command. Instead, the parent punishes the child while considering the possible future advantages. The child is being punished in the short-term in order to learn a valuable lesson from which the child will be better off in the long-term. In this case, there is no emphasis on deserts. In other words, there is no clear evidence of revenge or vengeance. Furthermore, punishment must do some good. To achieve clarity, it is worthwhile to understand the philosophy of punishment by comparing and contrasting two important theories: the utilitarian theory of punishment and the retributive theory of punishment. The utilitarian theory of punishment (not to be conflated with the general moral theory of utilitarianism) can be described as a necessary evil. It is a means to an end.

The theory states that the “punishment is never good in itself, but is (like bad-tasting medicine) justified when, and only when, it is a means to such future goods as a correction (reform) of the offender, protection of society against other offenses from the same offender, and deterrence of other would-be offenders. Giving the offender the pain he deserves because of his wickedness is either not a coherent notion, on this theory, or else not a morally respectable independent reason for punishing” (Feinberg 4). There are three essential elements to the utilitarian theory of punishment.

According to this theory:

1. Social utility (correction, prevention, deterrence, etc.) is a necessary condition for justified punishment.
2. Social utility is a sufficient condition for justified punishment.
3. The proper amount of punishment to be inflicted upon the offender is that amount which will do the most good or the least harm to all those who will be affected by it” (Feinberg 4).

For clarity, it is necessary to unpack each of the three previously stated theses of the utilitarian theory of punishment, respectively. Thesis one is the most attractive insofar as it implies that the act of punishment must do some good. We see this theory played out in the story of a parent punishing a child in the pursuit of a greater good. There is a gain in social utility in this example. As the child matures into an adult and enters into civilization, society will benefit from the child being properly nurtured as opposed to if the child was equipped with inadequate moral values that would inevitably disrupt the social order of society. Thesis two, however, may not be as adequate in utility maximization. One could argue against this theory by pointing out the moral atrocity the theory presents in the punishment of innocents. Consider the following situation: The world is overpopulated.

In order to increase social utility, three million people must be exterminated. Does this increasement in social utility justify the killing of three million people? To avoid this definitional stop, it may behoove the argument to not include the hurting innocents in the definition of punishment. Instead, the argument should consist only of those who are legally guilty. Thesis three presents its own similar set of problems: disproportionate punishments. In this thesis, “the appeal again is to moral common sense: It would be manifestly unfair to inflict a mere two dollar fine on a convicted murder or life imprisonment, under a balance of terror policy, for parking offenses” (Feinberg 4). This brings us to our next question: Is punishment just pointless suffering? The objection here can be derived from the previously stated utilitarian theory of punishment. We will now see the second theory.

The retributive theory of punishment contains three elements. Consider the following propositions:

1. Moral guilt is a necessary condition for justified punishment.
2. Moral guilt is a sufficient condition (‘irrespective of consequences”) for justified punishment.
3. The proper amount of punishment to be inflicted upon the morally guilty offender is that amount which fits, matches, or is proportionate to the moral gravity of the offense” (Feinberg 2).

According to Feinberg, “the Retributive Theory [of Punishment] which mentions neither condemnation nor vengeance, but insists instead that the ultimate justifying purpose of punishment is to match off moral gravity and pain, to give each offender exactly that amount of pain the evil of his offense calls for, on the alleged principle of justice that the wicked should suffer pain in exact proportion to their turpitude” (Feinberg 638). It appears that Feinberg is referring to the principle of lex talionis (an eye for an eye).

This theory of retaliation raises an important question: If punishment is to be deserved, who gets to be the Punisher? Should the State be the Punisher? Should we give the State that much power? These are not trivial philosophical questions to contemplate. Consider the following case: a man is convicted of murder, rape, assault and battery, kidnapping, and forcible sodomy (Clayton Lockett). According to lex talionis, we need to perform the same heinous crimes on the guilty offender (Lockett) in order to compensate for the acts of the originally committed crimes. How do we go about choosing the person to rape and brutally kill a man? Should it be a volunteer? Should it be a public spectacle? One could counter by saying, “It is ugly to be punishable, but there is no glory in punishing. Hence that double system of protection that justice has set up between it and the punishment it imposes. Those who carry out the penalty tend to become an autonomous sector;

Justice is relieved of responsibility for it by a bureaucratic concealment of the penalty itself” (Foucault 6). Here we would conclude that two wrongs do not make a right. By the same token, two rights do not make a good. Punishment is not good. Punishment is a necessary evil that must be carried out in order for the prevention of an evil or evils, even greater than the original evil itself to occur. While the family of the victim may feel a sense of justification in the suffering of the offender, it does not provide substantial grounds to cause suffering by a means of torture.

What do people mean when they say the punishment should fit the crime? Is it possible for this principle to really make sense? The former philosophical question can be, to some degree, easily delineated by the following: proportionality. However, as we have seen through extensive evaluation, it is actually not that easy. We see this divergence by analyzing the two distinctive theories of punishment: the utilitarian theory of punishment and the retributive theory of punishment. Through an analysis of the philosophical literature of Feinberg, Foucault, and Dostoyevsky, I aimed to provide an in-depth breakdown of the arguments relating crime and punishment, specify the pressing problems of each argument, respectively, and offer an alternative solution to the arguments derived from the previously stated questions.