Document Type

Article

Publication Date

Fall 2000

Rights

In Copyright

Abstract

This paper is a defense of utilitarian penology, against the familiar retributivist charge that it promotes framing the innocent, and other charges similarly depending on the notion that utilitarianism encourages officials to deceive the public. Our defense proceeds from the striking fact that utilitarianism's critics do not cite textual evidence that the originators of utilitarian penology in fact endorsed punishing the innocent or deceiving the public. Instead, critics claim that these unsavory policies follow logically from the premises of utilitarianism. Our argument, in brief, is that the charge of framing the innocent rests on a misunderstanding of utilitarian penology. We show that Bentham's utilitarianism was primarily concerned with the problem of how to design government so that it could accurately identify and faithfully pursue the public good, and be seen to do so. Thus utility is wrongly understood as a conception of the good and utilitarian penology is wrongly understood as the application of an ethical theory. Utility is a criterion for democratic deliberation over public policy. Although it is a consequentialist doctrine, it prioritizes certain methods and institutions as prerequisites to reliable public knowledge about consequences. These commitments preclude deception of the public, and so preclude framing the innocent.

Publication Title

Rutgers Law Journal

First Page

115

Last Page

224

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