THE REEVALUATION OF PUNISHMENT

Kaplow and Shavell, two scholars of law and economics, defend the utilitarian approach to punishment. They try to find the most efficient way to deter crime using a mathematical formula. According to their efficiency formula, the ideal sanction is the expected utility of the crime divided by the probability of conviction. This calculation could be effective in deterring crime, but it often leads to disproportionate punishments. I argue that a retributivist approach is a better option for a society as it uses proportional punishment with an underlying principle of punishing for justice. Even in the United States, cruel and unusual punishments are prohibited and that includes those that are disproportionate. This shows that on a practical basis, using a proportional punishment model that is often expressed in a retributivist philosophy can be effective.