Legal Commentary

Perhaps it?s odd that I?m thinking about Michael Vick, Plaxico Burress, and Jeremy Bentham.  After all, Vick, the NFL player who pleaded guilty to offenses arising from illegal dog fighting, finished his sentence of twenty-three months a while ago.  (There?s been recent outrage, of course, over the NFL?s decision to reinstate Vick, and the Eagle?s decision to hire him).  For his part, former Giants player Plaxico Burress was recently indicted on weapons charges after he accidentally shot himself at a nightclub.  (As I think SNL put it, if you?re wearing sweatpants, don?t try to keep a gun in the waistband.)  And for some reason, I?m wondering what Bentham would do. 

Bentham, of course, advocated a prospective approach to punishment.  For Bentham, criminal jurisprudence should produce the ?greatest happiness for the greatest number,? a concept frequently referred to as the ?felicity calculus.?  In his Introduction to the Principles of Morals and Legislation, Bentham explained that a criminal sanction should only be utilized when it could help ensure the greater good of society and provide a benefit to the community.  By contrast, where punishment would produce a greater mischief than the mischief prevented, punishment should not be imposed. 

Which brings me back to Vick and Burress.  It seems to me that one of the thorny issues in Bentham?s principle of utility is that punishment may not be appropriate for the individual who, though guilty of a crime, prospectively provides a net benefit to society, which benefit would be lost if the individual were punished.  Some would argue that Vick and Burress, by playing football and providing pleasure to thousands of spectators, provide a net benefit to society that should outweigh the harm of punishing them.  Although I would disagree?now is a good time to concede that I?m not a big football fan?certainly there are cases out there where this calculus would be true.  Consider the filmmaker Roman Polanski.  If society had a choice between having another visual masterpiece such as Rosemary?s Baby or Chinatown, or for that matter Knife in the Water, versus imprisoning Polanski on molestation charges, especially where the victim opposes prosecution, might the felicity calculus weigh against punishment?  And are there times when we engage in this calculus to reach this result?  I know this is going way back, but is this one way to read the acquittal of Bill Clinton following his impeachment trial?