Theory of Utility

        After having given a justifying aim for punitive action, the next step for Bentham is to provide a comprehensive framework for penal distribution. At the level of distribution Bentham classifies cases in which doling out punishment is groundless, inefficacious, unprofitable or needless. Reiterating each of these cases is not only an exhaustive task but maybe regarded as punishment on utilitarian grounds. Therefore this paper will avoid delving in each case and shall instead provide examples of each category so that the reader has a general idea of Bentham’s “Cases Unmeet for Punishment.” The first of these categories where punishment ought not to be doled is where it is groundless. This seems intuitive where in cases where no crime has been committed and accordingly punishment is groundless. But in cases where the value derived from committing a crime outweighs the mischief of the act, it seems to trump individual rights in the name of the collective good. Should a murderer be let off if he kills a terrorist who could possibly have caused the deaths of thousands of people?  A prime example of such a catastrophe was in the recent news where the London police killed an alleged Brazilian terrorist under the License to Kill Act. Next is the category of inefficacious punishment with obvious examples such as infancy, grounds of insanity or crimes committed under heavy influences of intoxication. An interesting case that Bentham describes as ineffective punishment is in cases where “by the predominant influence of some opposite cause upon the will, it must necessarily be ineffectual.” The influences being referred are moral and religious such that the belief of those standards outweighs any evil he could possibly commit in pursuit of those standards. Prime examples of such acts are Islamic fundamentalists who believe that killing infidels in the name of Jihad is warranted by their religious teachings. The unprofitable category that follows is just a cost-benefit analysis between the crime committed and the punishment awarded. If the evil of the punishment is outweighed by the benefit provided from the act, then punishment should not be awarded since it is deemed unprofitable. Lastly Bentham makes his case for reform and rehabilitation in the “punishment is needless” classification. Quoting Bentham, “the pen is the proper weapon to combat error with, not the sword.”  Bentham is vague in the techniques that might be employed in reformation and rehabilitation of the will. Invasive rehabilitation have been criticized on the grounds that it is an assault on the offender’s personality and his free will.

        On the proportion between punishments and crimes committed, Bentham lays down a concrete system that is logical in ever sense except that as a consequence at times excessive punishment may be awarded in the name of prevention and deterrence.  For this aim of deterrence, Bentham’s rule that “The value of the punishment must not be less in any case than what is sufficient to outweigh that of the profit of the offence” is coherent but once again leaves us in the realm of subjectivity for certain offences. To illustrate this point, lets say that a murder has been committed, who is to choose and according to what measure, what the extent of the punishment must be. Furthermore, his second assertion that punishment should be progressively more severe for crimes that are more serious than those that are not works for most crimes but not to all. A serial killer for example who has killed ten victims is subject to the same punishment as one who has killed three. In cases of mitigation Bentham acknowledges that punishment ought not to be more than what is necessary for deterring future offenders. Bentham recognizes that, “the profit of the offence is more certain than the punishment” from the offender’s point of view and so allows for more than proportional punishment. Conversely however it may be argued that the punishment is more certain than any deterrence it may provide for future crimes. Punishment is irrevocable, especially in cases of capital punishment and should be exercised with careful restraint.  Again, for the sake of prevention and general deterrence Bentham asserts that punishment maybe more than proportional “to answer the purpose of a moral lesson.” However practicable, this system of punitive action seems to be unfair in that it warrants more punishment than is justly deserved by the offender.

        In the last section of his methodology for distribution of punishment, Bentham focuses his attention to cases that require a lot of punishment and the nature of these punishments. Punishments vary from each other in eleven ways, e.g. in their popularity, remissibility, subserviency to reformation, frugality, etc. These factors present Bentham at his analytical best; they constitute an unrivalled contribution to the Theory of

Punishment and endure to our day as well. It should be noted that for Bentham in order for punishment to be effective, the idea of it (appearance) is what is important and not the real punishment itself. Bentham argues that it is this apparent punishment that acts upon the mind and not the actual punishment and therefore is found to be more exemplary.  While underlying that the punishment should be proportionate to the crime committed, Bentham time and time again makes exceptions to follow his principle of utility. Although Bentham himself acknowledges that this utilitarian approach to penal proposals is prone to be more severe than he would like, he makes concessions for incapacitation and even the death penalty. Bentham’s guiding light is the pursuit of the greatest happiness for the greatest number of people, which seems to be a rational choice abiding by the rules of logic and reason but floating away from an essential part of our existence; our humanity.

        In assessing Bentham’s utilitarianism applied to the criminal justice system, one can criticize the constraints set out by him at the level of distribution but the overall justifying goal is on target.  Perhaps the main criticism of his utilitarian theory is that happiness is subjective and varies from one individual to another. Hence the pursuit of happiness cannot be universalized. Although this criticism is valid, it seems to me to be a weak one. Human beings are rational creatures who can come to a consensus of what it means to be happy. It may be argued that ice-cream makes Alex happy whereas coffee makes Jane happy, but what Bentham was aiming at seems to be something more profound then the problem of subjectivity which challenges his maxim.

Secondly, his theory may be criticized because he effectively allows Utilitarians to trample over the rights and desires of the individual in pursuit of the greatest happiness for the greatest number. This objection is seen in political structures such as democracy and is known as tyranny of the majority, which John Stuart Mill later aimed to overcome. The reality is that although this is a grave problem, we as human beings have been unable to overcome this challenge with an alternative theory, which does not come with its own set of problems.  Then there is the problem of excessive punishment in the name of deterrence. This excessive punishment also leads to another problem, that of punishing the innocent in pursuit of promoting the greatest amount of happiness. Bentham himself recognizes his systems tendency to be excessive but that is the price that he is willing to pay for the pursuit of the overall goal. Yet despite these criticisms Utilitarianism offers a 'common sense' approach to making moral decisions. It seems normal that I should, in the main, seek to find ways to increase your pleasure rather than your pain.

In order to overcome the challenges faced by utilitarian theory, one cannot just look at an alternative theory but must resort to comply with a hybrid mix of different theories of state punishment. With all that said, I hope that in the spirit of the utilitarian camp the reader has suffered less pain than the pleasure that I have derived in writing this discourse.

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