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A Tough Pill to Swallow 155
remedial effects by either preventing future crime or by making society a “safer
place”, for instance, by incarcerating offenders and keeping them off the streets in
the short term while they are rehabilitated for (hopefully) the long term
betterment of society. The problem with this theory is that it produces
counterintuitive results in two possible scenarios. First, in cases where no social
good would be served by punishment, the theory would disallow any punishment
as it would, on balance, be more harmful than helpful. Imprisoning someone,
thus lessening the amount of “good” (freedom, happiness, etc.) in the world,
when it produces no “good” in return, would be wrong on this view.
Problematically, this means that where there is no deterrent, remedial, or public
safety effect, punishment cannot be justified and offenders get off “scot free”.
Some might argue that prison time is never a “good” because it hardens criminals
at the worst and makes them difficult to reintegrate into society at best. If indeed
this is true, then prison might very well be abolished altogether, on the utilitarian
account, except perhaps in the second and even more counterintuitive set of
circumstances, namely that the theory would condone punishing random
innocent people if doing so would enhance the overall social good. That is, if it
would be better to make an example out of an innocent person than to let the law
appear to have been flouted or avoided by the true culprit who got away, then we
should punish the innocent person.
Beyond the philosophical absurdities, there are practical reasons why a purely
utilitarian justification for punishing NCR persons would not be tenable. There
are many provisions in the Code relating to treating and rehabilitating NCR
persons as a condition for their release back into society. 37 Therefore, since there
are already safeguards in place to ensure public safety by denying the mentally ill’s
re-entry into society until they are better, there is arguably no social good to be
obtained by further punishing the mentally ill person for their reckless actions
which precipitated their mental instability. It is possible that there may be some
deterrent effects to be had, insofar as non-adherence to medication would be
recognized as potentially inculpatory, and this deterrence would function as a
social good justifying punishment on the utilitarian account; however, I think it is
clear that the primary motivation in punishing reckless omissions of medication
adherence is in reality largely based on the desire to punish a perceived moral
wrong – that is, retributive justice and social denunciation.
Retributivist theories of punishment presuppose a unified moral theory
(which may vary by society) and condones punishment where the moral theory is
violated. 38 Such theories may be as fundamental and simple as the imperative of
adhering to the state-made laws of the land or may involve higher-order ethical
37
38
Criminal Code, supra note 2 at s 672.54.
Thom Brooks, “Kantian Punishment and Retributivism: A Reply to Clark” (2005) 18:2 Ratio
237 at 241.