What's Wrong with Harmless Theories of Punishment

Kenworthey Bilz, Northwestern University Law School
John M. Darley, Princeton University

Abstract

This paper argues that both consequentialist and retributivist punishment philosophies rest on similar analyses of the social value of punishable behavior; that is, they both rest on definitions of what counts as a “harm” of crime. The different outcomes the different philosophies produce stem from competing conclusions about which of those harms are empirically valid or morally legitimate. Once we have spelled out what counts as the harms of crime, however, retributivist and consequentialist philosophies add little to the equation. Alternative punishment regimes at their best are up front about offering a distinctive account of the harms of crime. When such regimes instead try to fit themselves into the mold of traditional punishment philosophies, their relative advantage is lost. We argue that restorative justice is at risk of going this route.