Richard Brandt

Richard Brandt: Rule Utilitarianism Chapter two in our book Philosophical Perspectives on Punishment covers different philosopher’s views on Rule Utilitarianism and how it is applied to misconduct and unlawful acts. In Richard Brandt’s discussion he raises three questions that should be addressed when identifying our American system of punishment. What is justifiable punishment for a criminals past actions? What are good principles of punishment? What defenses should be used as good excuses to keep someone from being punished? Our actions should be guided by a set of prescriptions the conscientious following of which by all would have maximum net expectable utility” (Brandt, 1972).
In Utilitarianism they choose the set of rules or practices that would produce the greatest net expectable utility if everyone followed them.Net Expectable Utility is a more positive outcome for a higher percentage of the population. Brandt believes our system of punishment is based on three assumptions: (1) Fear of punishment deters criminal behavior. (2) Imprisonment or fines make repeat offenders less likely. 3) Imprisonment stops the criminal from harming society while that person is in prison or incarcerated. “Punishment is itself an evil, and hence should be avoided where this is consistent with the public good. Punishment should have precisely such a degree of severity that the probable disutility of greater severity just balances the probable gain in utility (less crime because of more serious threat)”(p.
94). I have to agree with Brandt on this view because if the punishment does not fit the crime, criminal behavior is sure to be more prevalent.I’m a firm believer in scaring the malicious minds into acting lawfully and abiding by the law in order to keep the majority of the public safe. Brandt says that the cost should be counted along with the value of what is bought. This means to me that the punishment HAS to equal, if not be greater, then the crime. He also says that many criminals will go undetected and because of that some penalties will have to be so severe that the risks outweigh the gain in whatever the crime might be.Another agreeable point Brandt makes is that the more serious crimes should carry the heavier penalties not just for prevention of the crime but also to motivate the criminals to commit a less serious rather then a more serious crime.

To make sure that the same punishment be inflicted on any social status, and that the same suffering is felt from the crime, Brandt says that heavier fines would be given to a richer man then to a poorer man. If a rich man were to receive the same fine as a poor man it may barely give him any suffering at all.While if a poor man met the same penalty financially as a rich man he may remain in debt for the remainder of his life. Brandt then begins to speak Jeremy Bentham and of such “excuses” that would not make a person criminally liable for a crime. He first mentions that a man who committed a crime that was not yet a law cannot later be punished for it. I have to agree here because you aren’t breaking the law if it isn’t one yet. I also, however, believe that if that prior “non-law” is severe enough and the evidence is still applicable in court then the person can be tried and found guilty after the fact.
His second excuse is that the law had not yet been made public. In order for the public to know they are performing a unlawful act they must first know that what they are doing is against the law and can result in punishment and fines. The third excuse is that if the offender was an infant, insane or intoxicated they should also be excused of the crime. I think that underage and insane offenders may have a legitimate excuse, and the same may go for the intoxicated but in order for the intoxicated to be excused from punishment, it must not be voluntary intoxication.Bentham then says the offender can be excused if they were ignorant of the possible consequences and thought they were acting in a lawful way. I don’t agree with this view because it is the citizens responsibility to know that he or she is acting unlawfully and what the consequences of their actions may be. “I didn’t know I couldn’t do that” is something police officers hear all the time and if they let everyone who said that to them go free they’d probably be out of a job.
Bentham’s final excuse is “that the motivation to commit the offense was so strong that no threat of law could prevent the crime” (Brandt, 1972).I believe that some offenders get angry enough to ignore the consequences of the crime they about to commit but this is still not excuse for breaking the law and the law should still be applied to these people. How would a judge be able to determine if someone was acting maliciously or out of pure emotion? Richard Brandt states that Bentham’s legal defenses need some amending. He says that not punishing in certain cases will reduce the amount of suffering brought to the public by the law and that by not punishing in all of these cases will cause a “negligible increase in the incidence of crime” (Brandt, 1972).Brandt says that the utilitarian is committed to defend the concept of “strict liability” in order to get a strong deterrent effect when everyone knows that all behavior of a certain sort would be punished. When speaking of impulsive actions that lead to criminal actions Brandt says that people who commit impulsive crimes in the heat of anger don’t think about the consequences of their action and therefore would not be deterred by a stricter law.He also says that these people are unlikely to repeat the crime so that a smaller sentence should be given to them in order to save a good man for society.
I like this idea but I find it hard to agree with completely. Who is to say which crimes are impulsive and which crimes are premeditated? Of course, some circumstances make it obvious which are impulsive for example, a man saving a small child or woman from a kidnapper and killing them in the process, but many crimes can be called impulsive and therefore let a man who isn’t telling the truth receive a lesser punishment for his crime.Richard Brandt says that some say utilitarianism needs to view imprisonment for crime in the same light as quarantining and individual. He uses the example of someone being quarantined after being diagnosed with leprosy. They are taken away from public for the greater good of the public in order to not spread disease. We cannot treat criminals the same however. Criminals need to be shown punishment for their crime so going to prison cannot be made comfortable to them.
It has to be a time of sorrow and pity so that it both fears prospective criminals and prevents criminals from becoming repeat offenders. Most criminals will be allowed back into society after severing their time, lepers will never see society again. “There is a difference between the kind of treatment justified on utilitarian grounds for a person who may have to make a sacrifice for the public welfare through no fault of his own, and for a person who is required to make a sacrifice because he has selfishly and deliberately trampled on the rights of others, in clear view f the fact that if he is apprehended society must make an example of him” (Brandt, 1972) My favorite part of this section is when Richard Brandt compared the utilitarian view of punishment to that of a parent with a child. A parent lets the child know of the rules, about how to be safe, and about right and wrong. The child must know of the bad act before he or she can be punished for it. A parent will give a more severe punishment to their child according to what they have done to break a rule.The parent establishes rules for the “future good of the child” (Brandt, 1972).
All this is done to make life at home tolerable and to ensure that the future of the child is a bright and successful one, punishment is an essential part of every one of our lives and whether we are avoiding it or being put through punishment, it is for the greater good. WORKS CITED Brandt, Richard. (1972). Rule utilitarinism (iii). In G Ezorsky (Ed. ), Philosophical Perspectives on Punishment (pp. 93-101).
Albany: State University of New York Press

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