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Why do we punish? Why isn’t requiring a defendant to pay damages to his victim “enough”? These are hardly new questions; philosophers have debated them for millennia. This chapter explores some of the answers they have given, upon which modern criminal law is founded. The two usual answers—utilitarianism and retributivism—are explored and assessed within the context of current legislative efforts to broaden the reach of the criminal law.
In general discussions we often use the term “punishment” as the equivalent of any suffering or loss that a person endures. Thus, if A has recklessly killed his beloved child in a hunting accident, we may be loath to prosecute him criminally because “he has been punished enough.” That usage of the term “punishment,” however, is both inadequate and inaccurate in the law (and in philosophy as well). Punishment is suffering (1) purposely inflicted (2) by the state (3) because one of its laws was violated.
Thus, when Carl negligently injures Alice, compelling for injury he caused to compensate Alice, while causing loss to Carl, is not punishment.[1] Punishment, instead, connotes a blaming, a stigmatizing, of the perpetrator as a choosing agent.
In the criminal system it is often said that the individual victim is not relevant, and that the victim is the state.[2] Compensating Alice, therefore, does not compensate the victim of the criminal act, the state. Instead, the state punishes the offender—purposely inflicts discomfort upon him—because he has broken the law. In fact, no individual “victim” is required. Consider statutes punishing bribery, failure to pay taxes, or drug use.
As we saw in Chapter 1, criminal law and tort law were once joined in the same proceeding. Even today most acts that constitute crimes also constitute torts. Thus, if Charlie purposely hits Doug with a baseball bat, Charlie will have to pay Doug for the injuries for the tort of battery. Why, then, also punish Charlie criminally? What does criminal punishment add to the goals of the civil legal system?