In this chapter, Lee considers contemporary consequentialist theories of punishment. Consequentialist theories look to the consequences of punishment to justify the institution of punishment. Two types of theories fall into this category—teleology and aggregationism. Lee argues that teleology is implausible because it is based on a problematic assumption about the fundamental value of criminal punishment. Aggregationism is a more reasonable alternative. It holds that punishment is morally justified because it is an institution that helps society to aggregate important moral values. Several theories fall into this category, including general deterrence theories, specific deterrence theories, and preventionism. Lee critically evaluates these theories and argues that only one specific deterrence theory, namely, her rights-protection theory, provides the most reasonable consequentialist account of punishment.
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For example, Bernard Harcourt suggests that, according to consequentialism, “punishment was a central part of prevention: it was, for instance, fully justified to lengthen a sentence (to punish more) for someone who recidivated because the recidivist carried a higher likelihood of reoffending” (2013, 258). Similarly, Kevin Arthur says that “detention designed to protect society from predicted but unconsummated offenses does not increase the likelihood of a fair trial. Accordingly, such detention is not simply regulatory” (1987, 403–4), and “a restraint on liberty such as preventive detention is regulatory rather than punitive only if it serves a ‘legitimate and compelling’ state purpose. The [U.S. Supreme] Court decided that crime prevention was such a purpose” (396).
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Lee, HW. (2023). Consequentialist Theories of Punishment. In: Altman, M.C. (eds) The Palgrave Handbook on the Philosophy of Punishment. Palgrave Handbooks in the Philosophy of Law. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-031-11874-6_7
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