The counterexamples that Moore gives against the utilitarian theory of punishment are scapegoating and preventive detention. In the case of scapegoating, when the actual criminal cannot be found, an innocent person might be punished in order to deter people from committing similar crimes. This way, social good may come before the personal interest of an individual. Preventive detention theory states that preventive punishment may be executed only if a person has committed a crime and is likely to commit crimes in the future.
However, courts may condemn even an innocent person if they believe he is expected to become a troublemaker in the future. Thus, utilitarian theories come down to the outright contradiction: an innocent person should be punished for societal benefit and should not be punished as he did not commit any crime at the same time. This contradiction makes the theory inapplicable to all cases of judicial practice.