Foreword: Terrorism and Utilitarianism: Lessons from, and for, Criminal Law

Abstract

Punishment is violent, but it is violence with a purpose. The same observation might be made of terrorism. This Article compares instrumentalist justifications of utilitarian punishment and terrorism. Both terrorism and the harsh punishment for crimes favored by American criminal justice are premised on a construct of cost-benefit analysis that, while (arguably) efficient, is immoral. The Article argues that both terrorism and excessive punishment can be justified by instrumentalism, but neither should be. The comparison of terrorism and American criminal justice does not mean that they are equally bad. Terrorism is worse. There are, however, many people in the United States who are punished for social, not individual ("just desert"), objectives. When we remember that punishment is the "deliberate infliction of pain" we understand that the state is intentionally hurting people to achieve some goal. This is not as bad as what terrorists do, but the difference is one of degree, not kind.