What’s Wrong with Harmless Theories of Punishment

Source: (2004) Chicago-Kent Law Review. 79:1215-1252.

In Part I, we show that when discussing particular punishment policy proposals, academics usually insist that one cannot be both a consequentialist and a retributivist at the same time; and policies that purport to do both simultaneously are assailed as incoherent. In Part II, we challenge this conclusion, by arguing that neither retributivism nor consequentialism — either their pure or hybrid forms — can address the issues at play in a typical punishment policy debate. This is because both are indeterminate when it comes to telling us who and what to punish, and how much.
Part III is the heart of our Article. There, we use findings from philosophical and empirical literature to suggest an alternative approach to understanding the purposes of punishment — one that focuses on a more sophisticated specification of the harms of crime. In this part, we describe the nature of the harms of crime generally, and also offer a specific schedule of potential candidates for the harms of crime. We also describe the nature of disputes about these harms; namely, that various harms either are or are not empirically real or morally worthy of recognition. We also offer two examples of how specific punishment policy debates would look different, if they focused on harms instead of on punishment philosophies.
Finally, in Part IV, we offer an illustration of how the recognition of diverse crime harms can be addressed by one especially flexible and creative approach to criminal punishing: restorative justice. In this final part, we argue that a multiplicity of harms can often best be cured with a multiplicity of punishments. We also describe how several scholars are currently criticizing restorative justice for its failure to commit to a (standard) purist punishment philosophy, and we caution that forcing it to do so undermines its genuine potential for improving punishment regimes. (excerpt)