Jeremy Bentham's Utilitarian Theory of Punishment

1. Groundless

Where there is no mischief for it to prevent.

Where there never was any mischief, as where the person said to be injured consented. Where the mischief was outweighed, as in precaution against a calamity or the exercise of a lawful power. And where the mischief will for a certainty be cured by compensation, which is why Bentham says favour is shown to the offences of responsible offenders such as simple mercantile frauds.

2. Inefficacious

Where the punishment cannot operate to prevent the mischief, because the threat could not have reached the will of the person at the time.

This class is the ancestor of most of the general exceptions in a modern penal code: where the law was made after the act, or was never published; where the person was an infant, insane or intoxicated so that the threat could not act on them; where they were unaware of the facts, or acted under a mistake; and where they acted under a compulsion the threat of punishment could not overcome.

3. Unprofitable

Where the evil of the punishment would exceed the evil it prevents. Bentham lists among the considerations the extraordinary value of the services of a particular offender, where punishing would deprive the community of the benefit of those services; the displeasure of the people, where they conceive that the offence or the offender ought not to be punished at all or not in that way; and the displeasure of foreign powers.

This third class is the one modern readers find most uncomfortable, because it makes the propriety of punishment turn partly on the offender's usefulness and on public and diplomatic reaction. It is worth stating honestly rather than hiding, because it is the clearest illustration of what the utilitarian account permits and the retributive account forbids.

4. Needless

Where the mischief may be prevented as effectually at a cheaper rate. Bentham's own example is instructive: by instruction rather than by terror, by informing the understanding rather than exercising an immediate influence on the will. He says this is so of offences consisting in disseminating pernicious principles in matters of duty, whether political, moral or religious, because it is the readers rather than the writer whom instruction can reach.

Every argument for education, treatment, regulation or civil remedies in place of criminal sanctions is an argument from Bentham's fourth class, and saying so is a strong point in an answer.

Bentham's rules of proportion

Because punishment is an evil to be minimised, Bentham derives rules for fixing its amount, and the following are the ones most often set.

The value of the punishment must not be less than what is sufficient to outweigh the profit of the offence.

The greater the mischief of the offence, the greater the expense it is worth incurring by way of punishment.

Where two offences come in competition, the punishment for the greater offence must be sufficient to induce a man to prefer the less.

The punishment should be adjusted so as to induce the offender to do no more mischief than is necessary to his purpose.

The punishment ought in no case to be more than what is necessary to bring it into conformity with the rules here given.

Notice the direction of all of these: they are limits, aimed at using no more punishment than the purpose needs. Bentham is commonly described as the theorist of harsh utilitarian punishment, and his own rules point the other way.

The criticisms

The innocent objection. This is the central and the most damaging. If punishment is justified by consequences alone, then framing and punishing an innocent person is justified whenever it produces enough good, for example by quelling a riot. Utilitarian answers are available: the practice of punishing the innocent would be discovered, would destroy confidence in the system and would produce worse consequences overall. But the answer is contingent, and the objection is that a theory which condemns the punishment of the innocent only because it usually does not pay has not condemned it at all.

Disproportion in both directions. If deterrence is the aim, a very harsh sentence for a common minor offence might deter more than a proportionate one, and a trivial sentence for a grave offence that nobody is tempted to commit would be enough. Desert alone explains why neither is acceptable.

It uses the offender. Kant's objection: on this theory the person punished is a means to a public benefit.

Deterrence is empirically doubtful. Bentham's own emphasis on certainty over severity is well supported, and the evidence that increasing severity deters is weak, which cuts against the way the theory is usually invoked.

The third class is uncomfortable. Bentham's own list makes punishment turn partly on the offender's usefulness and on public and foreign reaction, which is exactly what equality before the law forbids.

A worked example

A first-time offender is convicted of selling adulterated food. Nobody was harmed. He has already been shut down, has paid compensation to those who bought the goods, and has cooperated with the prosecution.

On Kant's approach the question is what he did and what that deserves, and the absence of harm and the compensation go to the gravity of the offence but not to whether punishment is owed.

On Bentham's approach the four classes are worked through in order.

Groundless? Not entirely, since selling adulterated food is a mischief whether or not somebody happened to fall ill. But Bentham's own third head, mischief cured for a certainty by compensation, is engaged as to the purchasers' loss.

Inefficacious? No. He knew what he was selling; the threat could have operated on his will.

Unprofitable? Consider whether a prison sentence costs more in suffering, in the loss of a business that employs people, and in public expense than the mischief it prevents.

Needless? This is the strongest head on these facts. If licensing conditions, inspection and publication of the conviction will prevent repetition as effectually as imprisonment, then the mischief can be prevented at a cheaper rate, and Bentham's fourth class says punishment must not be inflicted.

The conclusion, and the contrast. A Benthamite may properly conclude that a fine and a licensing condition are sufficient and that imprisonment is forbidden. A Kantian will say that this reasoning has never asked what the offender deserved, and that the same reasoning would have licensed imprisoning him if the calculation had gone the other way, which is precisely the objection.

Distinctions that carry marks

What Bentham is NOT saying

He is not a defender of harsh punishment. His rules of proportion are limits, and his fourth class positively forbids punishing where a cheaper method will do.

He is not indifferent to the offender. Reformation is one of his four ends, and his fourth class prefers instruction to terror.

He does not say the innocent may be punished. He does not say it; the objection is that his theory does not rule it out in principle.

"All punishment in itself is evil" is not a criticism of the state. It is the premise from which he derives the conditions on which punishment becomes permissible.

Quick revision

1. The principle: "But punishment is mischief: all punishment in itself is evil. Upon the principle of utility, if it ought at all to be admitted, it ought only to be admitted in as far as it promises to exclude some greater evil."
2. Four ends: general prevention (the chief one), particular prevention, incapacitation, reformation.
3. Certainty over severity: a small penalty that is certain deters better than a heavy one that is unlikely.
4. Four classes where punishment must not be inflicted: groundless (no mischief; consent; outweighed; cured by compensation); inefficacious (the threat could not reach the will: retrospective, unpublished, infancy, insanity, intoxication, mistake, compulsion); unprofitable (the evil of the punishment exceeds the evil prevented); needless (the mischief can be prevented at a cheaper rate, by instruction rather than terror).
5. Rules of proportion are limits: no more punishment than is needed to outweigh the profit of the offence and to make the offender prefer the lesser offence.
6. Criticisms: the innocent objection, which is the central one; disproportion in both directions; the offender is used as a means; the empirical weakness of severity as a deterrent; and the third class making punishment turn on the offender's usefulness.

Test yourself

1. State Bentham's justification of punishment in his own terms. That the legislator's business is to promote the happiness of society and to exclude mischief, but that punishment is itself mischief, all punishment in itself being evil. It follows that upon the principle of utility punishment ought to be admitted, if at all, only in so far as it promises to exclude some greater evil. Punishment is therefore never owed and never deserved; it is a harm which must purchase a larger reduction of harm, and where it purchases nothing it is simply harm added to harm.

2. Set out the four classes of case in which Bentham says punishment must not be inflicted. Groundless, where there is no mischief to prevent, as where the person supposedly injured consented, where the mischief was outweighed by a lawful purpose, or where it will certainly be cured by compensation. Inefficacious, where the threat could not have operated on the will, as with retrospective or unpublished laws, infancy, insanity, intoxication, mistake of fact, and compulsion. Unprofitable, where the evil of the punishment would exceed the evil it prevents. And needless, where the mischief can be prevented as effectually at a cheaper rate, by instruction rather than by terror.

3. Why does Bentham prefer certainty to severity? Because deterrence works on the expected evil of the punishment, which is its severity discounted by the probability that it will actually be imposed. A heavy penalty that is rarely inflicted produces a small expected evil and deters weakly, while a modest penalty that is certain produces a reliable one and deters well. Since punishment is itself an evil to be minimised, the efficient course is to raise certainty rather than severity, which uses less punishment to achieve more prevention.

4. State the objection from punishing the innocent and the utilitarian reply. If punishment is justified solely by its consequences, then framing and punishing an innocent person is justified whenever it produces sufficient good, as by quelling a riot or reassuring a frightened public. The utilitarian reply is that such a practice would be discovered, would destroy confidence in the whole system, and would therefore produce worse consequences overall. The objection to the reply is that it is contingent on discovery and on the state of public confidence, so a theory which condemns the punishment of the innocent only because it usually does not pay has not condemned it in principle at all.

5. Which of Bentham's four classes underlies modern arguments for alternatives to imprisonment? The fourth, where punishment is needless because the mischief can be prevented as effectually at a cheaper rate. Bentham's own example is preferring instruction to terror, informing the understanding rather than acting immediately on the will. Every modern argument for education, treatment, regulation, licensing conditions or civil remedies in place of a criminal sanction is an argument of exactly that form, and identifying it as Bentham's fourth class is what turns a general observation into an answer.