Framed: Utilitarianism and Punishment of the Innocent

110 Pages Posted: 9 Sep 2011 Last revised: 7 Apr 2017

See all articles by Guyora Binder

Guyora Binder

University at Buffalo Law School

Nicholas J. Smith

affiliation not provided to SSRN

Multiple version iconThere are 2 versions of this paper

Date Written: 2000


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 Our defense proceeds from the striking fact that utilitarianism's critics do not cite textual evidence that the originators of utilitarian penology in fact endorsed punishing the innocent or deceiving the public.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.

Keywords: criminal law, punishment, utilitarianism, institutions, transparency, Bentham

Suggested Citation

Binder, Guyora and Smith, Nicholas J., Framed: Utilitarianism and Punishment of the Innocent (2000). Rutgers Law Journal, Vol. 32, p. 115, 2000, Available at SSRN:

Guyora Binder (Contact Author)

University at Buffalo Law School ( email )

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Nicholas J. Smith

affiliation not provided to SSRN

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