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The Case Against Punishment

The Case Against Punishment: Retribution, Crime Prevention, and the Law

Deirdre Golash
Copyright Date: 2005
Published by: NYU Press
Pages: 219
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  • Book Info
    The Case Against Punishment
    Book Description:

    What ends do we expect and hope to serve in punishing criminal wrongdoers? Does the punishment of offenders do more harm than good for American society? In The Case against Punishment, Deirdre Golash addresses these and other questions about the value of punishment in contemporary society. Drawing on both empirical evidence and philosophical literature, this book argues that the harm done by punishing criminal offenders is ultimately morally unjustified. Asserting that punishment inflicts both intended and unintended harms on offenders, Golash suggests that crime can be reduced by addressing social problems correlated with high crime rates, such as income inequality and local social disorganization. Punishment may reduce crime, but in so doing, causes a comparable amount of harm to offenders. Instead, Golash suggests, we should address criminal acts through trial, conviction, and compensation to the victim, while also providing the criminal with the opportunity to reconcile with society through morally good action rather than punishment.

    eISBN: 978-0-8147-3329-5
    Subjects: Law

Table of Contents

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  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-viii)
  3. Acknowledgments
    (pp. ix-x)
  4. 1 An Institution in Search of a Moral Grounding
    (pp. 1-21)

    Punishment, at its core, is the deliberate infliction of harm in response to wrongdoing. As an institution, it is so deeply rooted in history that it is difficult even to imagine a society without it. We have grown up with it, and it seems natural and inevitable to us. At the same time, there is no denying that it is a human creation; we must accept responsibility, collectively and individually, for the harm that we do in punishing: the deprivation of life, liberty, or property, or the infliction of physical pain. We ought not to impose such harm on anyone...

  5. 2 Does Punishment Do More Good than Harm?
    (pp. 22-48)

    For the utilitarian, a social practice is justified insofar as it tends to produce more good than harm. A practice that produces the same benefit with less harm is morally preferable, and one that produces more harm than good is unjustified. The harms done by punishment would be justified, on utilitarian reasoning, provided that those harms are necessary to produce a greater good by averting a sufficient number of crimes. Given perfect information, the utilitarian would first rule out any penal policy that caused more suffering (through punishment) than it prevented (through crime prevention). She would then choose, from among...

  6. 3 Preserving the Moral Order
    (pp. 49-71)

    At the heart of retributivism is the contention that it is the wrongness of the criminal act that justifies the imposition of punishment on the offender. Yet punishment itself consists in the performance of a parallel act against the offender. Thus showing that the harmful acts that are crimes have a moral value precisely opposite to that of the harmful acts that are punishments is the central task of retributive theory. It is not enough to show that some crimes involve acts unacceptable in any context, such as rape and torture. In addition, the retributivist must demonstrate that the rightness...

  7. 4 Retribution and Social Choice
    (pp. 72-94)

    In contrast to utilitarians, Kant holds that each individual must be respected as an end in himself; no person is to be used as a mere instrument for the furthering of another’s purposes, but instead must be treated in ways that respect his own choices.¹ We must respect the choices of others, according to Kant, because, from a rational point of view, all persons have equal moral worth; thus (other things being equal), it is irrational to subordinate any other person’s desires to our own.

    The paradigm cases of using persons as mere means to one’s own ends are deception...

  8. 5 Punishment as Self-Defense
    (pp. 95-116)

    We saw in chapter 2 that the core of the objections to utilitarian theories is that we have a moral duty to treat individuals with the respect due to persons, rather than to use them as mere instruments to our own ends. This is the same concern that prevents us from killing off the more needy members of society to benefit the rest. Harming some to benefit others is, at best, morally precarious. Social contract theories seek to show that punishment results from the choice of the offender, rather than from the choices of others, and so does not use...

  9. 6 Punishment as Communication
    (pp. 117-146)

    Moral reform theories seek to show that punishment is justified (in whole or in part) because it conveys a moral message—a message that may benefit the offender by improving his moral character. These theories take as central that the source of wrongful behavior is the failure of the offender to appreciate the wrongfulness of his conduct, that this failure is a defect of moral character, and that hard treatment (punishment) is necessary to the communication that the conduct was wrongful.

    Moral reform theory shares with retributivism a focus on individual moral responsibility. As we have seen, it is problematic...

  10. 7 Is Punishment Justified?
    (pp. 147-152)

    In the preceding chapters, I have considered the main lines along which current justifications of punishment have been proposed: that it does more good than harm, primarily through deterrence and incapacitation; that it is good to harm offenders, because doing so annuls the crime; vindicates the victim, assuages justified anger, preserves the moral order, or counts as justified self-defense; and that it aims at the benefit, rather than the harm, of offenders through moral reform. I have sought to establish that each of the proposed justifications fails, some on their own terms, and others when examined in light of the...

  11. 8 What If Punishment Is Not Justified?
    (pp. 153-172)

    We have seen that punishment as a social institution, and particularly as currently practiced in our society, is deeply problematic. The question naturally arises whether it is an institution that we can, in practical terms, do without. Is the price of a morally defensible approach to crime complete social disintegration? I think we need not become moral martyrs; that the criminal justice system is not in fact serving the functions we intend it to serve; and that measures short of punishment can serve many of these functions as well as or better than current punishment practices. Rather than seeking to...

  12. Notes
    (pp. 173-196)
  13. Bibliography
    (pp. 197-210)
  14. Index
    (pp. 211-218)
  15. About the Author
    (pp. 219-219)