We maintain that conventional punishment theories obscure what is virtually always at the heart of punishment policy debates: harm. Namely, punishment policy disputes reflect contested views about what the harms inflicted by crime are as an empirical matter, and whether these harms ought to be acknowledged by the criminal justice regime as a normative matter. We argue that in order to know who, what, and how much to punish, one must take a position about what the harms of crime actually are. However, conventional punishment theories are mute on this question. When they supply an answer, it is because they have relied on a source outside the boundaries of their own theory to tell us why one crime is "worse" than another. We contend that discarding "harmless" theories of punishment, and instead focusing directly on competing views about the harms of crime, would clarify policy debates and open up possibilities for creative, pluralistic solutions to criminal justice problems. In addition to specifying in some detail what the harms of crime are, we offer two examples of how specific punishment policy debates would look different if they focused on harms instead of punishment theories. We also offer an illustration of a punishment policy originally motivated not by punishment theory but by a desire to explicitly address the multiple and particular harms of crime: "restorative justice."
Kenworthey Bilz & John M. Darley,
What's Wrong with Harmless Theories of Punishment,
Chi.-Kent L. Rev.
Available at: https://scholarship.kentlaw.iit.edu/cklawreview/vol79/iss3/32