Retribution Essay

Retribution is one of the principal justifications of punishment, including legal punishment in the context of criminal justice. The core of a retributivist approach is the notion of desert—that punishment is justified by being deserved, with the fact (not the feeling) of guilt being the basis of desert. In that respect retribution focuses on what the agent has done rather than focusing on what punishment might accomplish. Retribution is not revenge. The latter is often motivated by passion and may pay little heed to proportionality or even to wrongdoing, while the former is claimed to be a matter of justice and requires that severity of punishment should be proportioned to the seriousness of the crimes being punished.

Immanuel  Kant’s  account  of  the  justification of punishment is perhaps  the closest to a pure retributivism, that is, a view not including other kinds of considerations. G. W. F. Hegel’s view is another historically important retributivist conception. Kant argued that punishing those guilty of criminal wrongdoing is morally imperative. Thus, punishment is not only permitted, it is morally required,  and it would be a second morally wrong act not to punish. That sort of strong retributivism is not widely held, and it is not generally regarded as an essential feature of retributivism.

Kant’s main claim was that in committing a crime the agent violates principles of permissible conduct (principles that recognize other persons as free and equal rational agents) that the criminal himself/herself rationally endorses; and in recognizing that violation the criminal also can recognize that she or he deserves punishment proportioned to the severity of the wrong committed. This is not to say that the agent wills or desires to be punished but that—as a rational agent—wills the principles grounding the punishment. While punishment is not literally like-for-like  regarding  the crime (society does not sexually assault rapists or hold kidnappers for ransom), it is to be as closely proportional as possible, without involving degradation and inhumane treatment.

Hegel argued that punishment annuls the crime in that punishment is a deserved deprivation of freedom proportional to the violation of freedom constituted by the crime. A crime is a wrongful violation of someone’s free agency; it is a coercive violation of the victim’s will. Punishment, in turn, justifiably limits the wrongdoer’s freedom. It is interpreted as annulling the crime and restoring the proper balance of the standing of the agents in question—the criminal and the victim. It is not simply “payback”; it restores the criminal and the victim to their proper, equal standing, neither having the right to harm the other.

For Kant and Hegel retribution is a core element of the justification of punishment. If punishment also has desirable effects, such as the moral reform of the criminal, and deterring others from committing crimes, or elicits a sincere apology on the criminal’s part, that is welcome, but the prospect of such desirable results is not part of the justification of punishment. Neither Kant nor Hegel appealed to such possible outcomes as justifying conditions. That is the basis for one objection to retributivism; namely, it pays insufficient regard to the social consequences  of legal punishment and whether it accomplishes anything socially desirable. There are numerous forms of retributivism and some of them are ‘mixed,” including some considerations regarding the results of punishment and whether they are beneficial to society or to those punished.

Defenses of Retribution

Some defenses of retribution maintain that desert can be explained in terms of punishment as a response to the wrongdoer taking unfair advantage. The criminal fails to respect limits on conduct that law-abiding citizens accept. The latter do not simply take others’ property or assault others when made angry or insulted, and so forth. Punishment is deserved, and it is a way for the unfair advantage, taken by the criminal,  to be annulled. This approach is one way to develop the Hegelian claim that punishment annuls the criminal’s mistaken claim to have a right superior to that of the victim.

Adam Smith argued  for retributivist considerations on a quite different basis, namely, the sentiments that would be endorsed by what he called “the impartial spectator.” Smith’s approach focuses on resentment as an element of moral sensibility  and  the  importance of  resentment with regard to seeing that justice is done. Smith explained the rightness of moral judgments on the basis of the considered sentiments of the impartial spectator. He held that mercy to the offender would be cruelty to the victim, and the impartial spectator sees that the vulnerability of the criminal, once under the control of the authorities, is not a proper basis for diminishing or forgoing the punishment the impartial spectator deems appropriate.

Some contemporary theorists have argued that moral sentiments have an important epistemic role and that retributivist sentiments are not intrinsically or inevitably mean-spirited, excessive, or otherwise morally suspect. Indeed, they hold that to lack retributive sentiments indicates a failure to acknowledge the reality of the wrong done and the harm caused. Defenders of there being a role for sentiments of resentment are not simply saying that people will feel hatred toward criminals, feelings for which people must find an orderly outlet. Instead, they argue that there are proper, appropriate sentiments of resentment regarding criminal conduct, and it would be a mistake to try to eliminate or minimize them, though, of course, they need to be disciplined and carefully focused.

In Jeffrie Murphy’s influential handling of the issues he examines the moral psychology of resentment and its relation to matters of moral principle. Murphy has argued that there is a morally acceptable form of “retributive hatred,” which is fueled by resentment of the wrong done but is not merely an angry desire to hit back. Retributive hatred can be an appropriate sentiment if it is a disciplined expression of one’s conviction that as social creatures each person merits certain forms of respectful regard by others. Crime is an unjustified violation of the respect owed to the victim— a baseless assertion of superiority on the part of the criminal. Retributive hatred shows that people are not indifferent to such assaults and that they insist that the wrongdoer receive his or her just deserts. There are some Kantian and Hegelian resonances in Murphy’s view.

Retribution also has a place in conceptions of the justification  of punishment that  emphasize the communicative aspect of punishment. R. A. Duff’s work elaborates a communicative theory of punishment. In this view punishment is a mode of address to the offender, communicating in morally intelligible terms society’s denunciation of the crime and its commitment to the values and principles informing the criminal law. In addition, punishment is justified on the basis of how it is uniquely able to motivate an offender to reflect on the wrongfulness of his action and on moral self-correction. This is a morally significant step and not merely a contribution to deterrence. While the rule of law in a liberal political order does not enforce a specific, substantive, comprehensive conception of values (it permits considerable diversity of values, commitments, perspectives, and so forth), criminal law reflects basic values and principles appropriately shared by the members of the society, and it is reasonable to expect violators to re-engage with those values.

Herbert Morris  has argued  for a retributivist account that emphasizes the ways in which retributivism respects individuals as voluntary, accountable, rational agents. He holds that consequentialist, rehabilitative, and therapeutic approaches do not respect persons in a manner that is essential to full acknowledgment of their moral standing as agents possessing rights and liberties. Nonretributivist approaches unavoidably regard and treat persons as means to realizing whatever desirable ends are sought by consequentialist approaches. The risk in rehabilitative and therapeutic approaches is that they will slide down a slope to a medicalized conception, regarding criminals  as suffering from  disease rather than regarding them as autonomous agents. That opens the door to indefinite detention and modes of compulsory treatment, expanding the coercive discretion of the state in troubling ways.

One might justify the overall institutions of criminal law and criminal sanction on the grounds that those institutions limit the extent to which persons harm each other while defending retribution as part of the justification of the punishment of individuals.  Thus,  some theorists  maintain that retribution is not among the reasons there is criminal law, including the threat of sanction. The main reason is the security of persons and their property and interests. However, the justice of this or that particular application of criminal sanction—what has been called by Herbert Hart “retribution in distribution”—is justified on, or at least in important part it is justified by, retributivist considerations. The claim that only those who deserve punishment should be punished can be defended as part of a nonretributivist account, one aimed at minimizing vulnerability to blamelessly suffering punishment. Hart and John Rawls have developed arguments along those lines.

The idea of proportionality is especially significant for retribution in practice because of retribution’s emphasis on “just desert.” Critics object that  there is no nonmetaphorical, precise way to ascertain proportionality, only highly general notions such as that those who commit the most serious crimes are to receive the most severe punishment. But that does not even indicate a floor and a ceiling for punishment, or specify how to pair crimes and punishments between the floor and the ceiling. Nonretributive approaches can point to deterrence and/or rehabilitation and/or increased feelings of public security and confidence in justifying strategies of sentencing. However, while the proportionality issue is a difficulty for retributivism, it is (its defenders argue) to its credit that it regards proportionality as having moral weight, and there may well be some shared notions of how to fit punishments to crimes justly.

Conclusion

One of the chief issues concerning  retribution is whether the justification of punishment can plausibly ignore the likely consequences of punishment, for those punished and for members of society in general. Some defenders of retribution argue that its moral core—desert—is sufficiently solid and significant to make it the preeminent consideration. Others  seek to integrate  desert with considerations such as the moral reform of offenders, responding to appropriate sentiments of outrage and resentment of wrongdoing, and communicating society’s  commitment to  certain values and principles. Retribution has been understood in a variety of ways, and both as a matter of moral principle and in regard to moral sentiments it remains at the center of the debate concerning the justification of punishment.

Bibliography:

  1. Duff, R. A. Punishment, Communication, and Community. New York: Oxford University Press, 2001.
  2. Hart, H. L. A. Punishment and Responsibility. Oxford: Oxford University Press, 1975.
  3. Hegel, G. W. F. Elements of the Philosophy of Right. H. B. Nisbet, trans. New York: Cambridge University Press, 1991.
  4. Kant, Immanuel. The Metaphysical Elements of Justice. 2nd ed. John Ladd, trans. Indianapolis, IN: Hackett, 1999.
  5. Moore, Michael. Placing Blame, a General Theory of the Criminal Law. New York: Oxford University Press, 1997.
  6. Murphy, Jeffrie, ed. Punishment and Rehabilitation. Belmont, CA: Wadsworth, 1994.
  7. Murhpy, Jeffrie and Jean Hampton. Forgiveness and Mercy. New York: Cambridge University Press, 1998.
  8. Rawls, John. “Two Concepts of Rules.” The Philosophical Review, v.64 (1955).
  9. Von Hirsch, Andrew. Doing Justice: The Choice of Punishments. New York: Hill and Wang, 1976.
  10. Walker, Nigel. Why Punish? Theories of Punishment Reassessed. New York: Oxford University Press, 1991.

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