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Some Thoughts About RetributivismAuthor(s): David DolinkoSource: Ethics, Vol. 101, No. 3 (Apr., 1991), pp. 537-559Published by: The University of Chicago PressStable URL: http://www.jstor.org/stable/2381468.
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2/24
Some Thoughts
about
Retributivism
David Dolinko
The great end of punishment s not the expiation
or atonementof
the offense ommitted,
ut
the prevention
f
future ffenses
f
the
same kind.
[Hopt
v. Utah, 110 U.S. 574, 579 (1884)]
"Retribution s
no longer the dominant objectiveof the criminal
law," but neither s it a forbidden objectivenor one inconsistent
with
ur respect
forthedignity
f
men. [Gregg
v.
Georgia, 428 U.S.
153, 184 (1976), plurality
p.,
cite
omitted]
The Legislature
inds nd declares hat he
purpose
of
mprisonment
is punishment.This purpose
is best served
by
termsproportionate
to
the seriousness
of the offense. Cal.
Penal Code sec. 1170(a)(1),
enacted by
Stats.
1976,
c.
1139,
sec.
273]
The quotations above illustrate dramatic hange intheregard nwhich
courts
and
legislators
hold the doctrine
of retributivism. hat
doctrine,
seeminglyrejected by
the
Supreme
Court
a
century
go,
is
today
the
official asis for penal policy
n
the nation's most
populous
stateand
an
acceptable
basis
on which to
send
convicts o theirdeaths. This shift
n
the
part
of official
egal
sentiment
parallels
a shift
n
the views of
phi-
losophers and legal
scholars. Fifty ears ago
a
defender
of
retributivism
acknowledged
the
general
belief "that the retributive iew is the
only
moral theory except perhaps psychologicalhedonismwhich has been
definitelyestroyed y
criticism."1
ontemporary
cholars
ssert,however,
thatretributivisms no
longer
"the
poor
relation
n the
family
f
theories
of
punishment"
but "seems to be
in
the
ascendant,"2
nd
in
particular
"has
replaced
rehabilitations the conventionalustification
or
he
amount
of
punishment."3
1.
J.
D.
Mabbott, "Punishment,"Mind 48 (1939):
152-67, p. 152.
2. Hugo Adam
Bedau,
"Retributivism nd the
Theory
of
Punishment," ournalof
Philosophy5 (1978): 601-20, p. 602. See also JamesQ. Wilson and RichardHerrnstein,
Crime nd Human
Nature
New
York: Simon &
Schuster, 1985), pp.
496-97
(retributivism
has regained favorwithcourts and legal scholars).
3. Michael
Tonry
and
Norval Morris,
SentencingReform
n
America,"
n
ThePursuit
of
Criminal
ustice,
d.
Gordon Hawkins
and Franklin
Zimring Chicago: University
f
Ethics101 (April 1991): 537-559
(?
1991 by
The
University
f Chicago.
All
rights
eserved.0014-1704/91/0103-0513$01.00
537
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3/24
538
Ethics
April
1991
This born-again retributivism as had a substantial mpact on the
criminal ustice system, or example by fuelingthe recent trend toward
determinate entencing.4 erhaps its most visible mpacthas been as a
pillar of America's unique affection orthe death penalty.5 etributivism
has traditionally rovided the primarybasis of support for the death
penalty
n the
United States,6
nd data
from
ecent
polls strongly uggest
that the majority f those Americans
who
support capital punishment
today
do
so largely
n
retributive
rounds.7Likewise,
he death
penalty's
chief academic enthusiast,
Ernest Van Den
Haag,
has said that even if
execution
had no
extra
deterrent ffect
e would
support
t
"on
grounds
of
ustice alone."8
It
is precisely he prominence
nd
impact
f
modern-day etributivism
that should prompt
us to
investigate
ts credentialsmost
carefully.No-
toriously, roponents
of
retributivism ave
frequently
elied
heavily
on
Chicago
Press, 1984), p. 254.
Tonry
and Morris
trace the "renascence of retribution
s a
respectable
ustification
or punishment n
America" to the
1971 publication of Struggle
forJustice
New York:
Hill & Wang, 1971), a reporton U.S.
prisonsprepared by a
Working
Party for
the
American Friends Service Committee,
nd
the
appearance
five years ater
both of
Andrew von
Hirsch's book DoingJustice New
York: Hill
&
Wang,
1976) and
of
Fair and Certain unishmentNew York: McGraw-Hill, 1976), a report of the Twentieth
Century
Fund Task Force on
Criminal
Sentencing.
4. D. J. Galligan,
"The Return
to Retributivismn Penal
Theory,"
n Crime, roof, nd
Punishment,
d. C.
F.
H. Tepper
(London:
Butterworth, 981), p. 144.
5.
"Unique,"
at
least, among
what are called
the "Western emocracies."Capital
pun-
ishment
has been completely
bolished
n
France,
WestGermany,Austria,
he
Netherlands,
Sweden, Norway,Denmark,
and
Portugal Amnesty
nternational,
United tates
f
America:
The
Death
Penalty London:
Amnesty
nternational ublications, 987], p.
231). It
s retained
only
for
wartime
r
military
ffenses
n
Italy, pain,
and
Switzerland.
he United
Kingdom
retainsthe death penalty
only
for high treason in practice,
wartime ffense, or
which
the ast execution ccurred n 1946) and piracywithviolence.Belgiumand Greece, lthough
retaining
apital punishment
n theory,have
abandoned it n practice-the
last execution
in Greece took place
in
1972,
while
none
of the
thirty-seven
eath sentences
mposed
in
Belgium
between1962
and 1974 was carried ut.
See "European
ParliamentEP),
Strasbourg:
Resolutions
n
1981 concerning
Fundamental
Rights
and
Freedoms,"
Human Rights
aw
Journal
(1981): 427-28,
editors'note (*);
and
"Editor's Note,"
Human
Rights
aw
Journal
6
(1985):
80.
6. Lawrence Kohlberg
and Donald Elfenbein,
The
Development
of MoralJudgments
concerningCapital
Punishment,"
American ournal fOrthopsychiatry
5 (1975): 614-40.
7.
A
1985 Gallup
poll found that 71 percent
of those
favoring apital punishment
would continue to support teven if"new evidence showedthatthe death penalty . . does
not lower
the murder rate" Robert
Bohm,
"AmericanDeath Penalty
Attitudes:A
Critical
Examination of Recent Evidence,"
CriminalJustice
Behavior14
[1987]:
380-96, p.
388).
This confirmed
n earlier tudy
n
which,
f
273
respondents
who favored apitalpunishment
and believed it deterred would-becriminals,
6 percent
would stillfavor t even
if
t
were
proven no better
deterrent
han
life
mprisonment and
48 percent
even if t caused as
many
murders as it prevented )
(Phoebe
Ellsworth
nd Lee
Ross,
"Public Opinion
and
Capital
Punishment:
A Close Examination
of the Views
of Abolitionists
nd
Retentionists,"
Crime
&
Delinquency
9 [1983]:
116-69, p. 147).
8. Ernest
Van Den
Haag,
"The Death
Penalty
Once
More,"
U.C.
Davis Law Review18
(1985): 957-72, p. 965.
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4/24
Dolinko ThoughtsboutRetributivism 539
metaphor and imagerywhose suggestivepower exceeds its clarity.We
are told, for example, thatthe crime must be nullified, hatthe criminal
must pay his debt to society or, alternatively,hat societymust pay him
back), thatthe wrongdoerhas in some sense willed his own punishment,
and other puzzling things.One
who
believes,as
I
do, that retributivism
has had significant nd pernicious effects n the criminal ustice system
will
naturally
wonder whether ts devotees have been able to transform
such enigmatic tterances
nto
rationally
efensible
heory
f
punishment.
I believe theyhave not,and are not likely o do so. In whatfollows,
shall sketch rieflyomegeneral
doubtsabout
thevalidity
f a
retributivist
view nd thenexamine
n
detail three
recent, houghtful
ffortso
replace
metaphor
and
imagery
with
coherent theory
f
punishment.
Doubts about the validity f retributivismresuppose some notion
of
what retributivism
s. This is
by
no means
clear, given the wide range
of
positions
to
which
the retributivistabel has been
applied.9 The "re-
tributivism"
f
nterest
ere
s
that
whichpurports
o
provide ustification
for the institution f criminal
punishment.
shall therefore
isregard
theories concerned exclusivelywith
how to
structure
he
schedule
of
penalties
for
different
ffenses,10
s well as the use of
"retributivism"
o
characterize views as
to who
may properly
be
punished."1 Moreover,
because justification"s itself protean oncept, t shelpful odistinguish
twoquestions
hat
rise
n
discussions bout
the
ustification
f
punishment.
One concerns
what
could
be called the "rational
ustification"
f
the
practice f punishment:why-for whatreason or reasons-do we punish
wrongdoers?'2
The second
question asks, rather,
for
the
"moral
ustifi-
cation" of
punishment: why
s
it
morallypermissible
o
engage
in
this
particular
practice?'3
The demand
for a
rational ustification sks what
9. Nine versions of retributivism,.g., are discussed inJohnCottingham, Varieties
of
Retributivism,"hilosophical uarterly9 (1979):
238-46.
10. Michael
Davis, e.g.,
in "How to Make the
Punishment
Fit the Crime," Ethics
3
(1983):
726-52,
sketches "retributive
rinciple
for setting tatutory enalties"
p.
727)
which,
he argues,
could be accepted even
by omeone
whojustifies
he nstitutionf criminal
punishmenton purely
utilitarian rounds.
11. For example,
Martin Golding describes
the "minimalist"
etributivistosition-
which
he believesmostmodern
retributivists
old- as demanding
"only hat
no one should
be punished
unlesshe is guilty
of a
crime and culpable"
(Philosophyf
Law [Englewood
Cliffs,
.J.: Prentice-Hall,
975], p. 85).
AnthonyQuinton similarly
akes he
"fundamental
thesis" f retributivismo be "thatonlytheguilty re to be punished,thatguilt sa necessary
condition of punishment"
"On Punishment,"
Analysis
4
[1954]:
133-42, p. 136).
This
"minimalist"
osition,
however, an be
endorsed even
by omeone who rejects
retributivist
justification f the
practice
of punishment.
12.
It is important
ot to beg thisquestion
n favor
f some form f consequentialism,
as would
be done by asking,
e.g., "What
good does punishment
do?" or,
"What function
does punishment
erve?"
13.
The
distinction
etween
the rational
nd the
moral ustification
f punishment
s
drawn,
though
n differentanguage, by
K. G.
Armstrong
n "The Retributivist
its Back,"
Mind 70 (1961):
471-90, p.
474. Armstrong peaks
of "point"
and "justification"
ather
than rational and moral ustification.Armstrong's erminologys apt to confuse precisely
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5/24
540
Ethics
April1991
makes a particular ocial practice ensible, rvaluable, or worth ngaging
in, while the demand for moral ustification sks what makes t morally
legitimate.Loosely, the distinction s that
between, "For what reason?"
and, "Bywhatright?"
It could, of course, turn out thatthe answersto these two questions
are
interrelated.
erhaps,
for
example,
the
very ame considerations hat
establish
the moral
propriety
of
punishing
malefactors lso
give
us a
powerful, r even decisive,
reason to
punish
them
as might
be
true, .g.,
were
it
shown
that
punishing
offenders s
morallyobligatory).
But the
questions
themselves
re quite
distinct. ne
provides moraljustification
for
a
social
practice such
as
punishment)
by establishing
hat
we
may
institute r engage in thatpracticewithout ehaving mmorally r without
violating ny
moral
principles.
Whetherwe have
any adequate
reason or
doing
what we are
thus
morally
free to
do-instituting
or
engaging
in
the practice t issue-is a further uestion,whose answer may
but
need
not be furnished
by
the same considerations
hat
give
the
practice
ts
moral
ustification.
For example, the progressive ncome
tax is a social practice whose
rational ustification s partly hat
t
raises
revenue for
government p-
erationsand partly hat tpromotes egalitarianwealth redistribution.
moral ustification
for
this
practice might
take
the form of
a
political
theory
hat
explains why
the
state
may
use
coercive means to
fund its
legitimateoperations withoutviolating the moral rightsof its citizens,
and
why galitarian
wealthredistributions a
goal
that
he state s
morally
permitted
o
pursue.
The
rational and
the
moral
ustifications
f this
social
practice
are
obviously
distinct: follower
of Robert
Nozick can
acknowledge
that the rational
ustification
f the income tax
is
(partly)
to
redistribute
wealth while
insisting
hat the
practice
has no
moral
us-
tificationt all but is morally
llegitimate.14
Rational and moral ustificationmay
differ ven
for
social
practice
whose
rational
ustification unlike
thatof
the ncome
tax)
is
not
straight-
forwardly onsequentialist. magine
a
government
hat
adopts
a
policy
of
protecting ndangered species
from
xtinction
nd does
so
solely
out
of
a belief that
ensuring
continued
diversity
f life forms
s intrinsically
valuable.
The
rational
ustification
f
the
practice
s
simply
ts intrinsic
value,
but its moral
ustificationmight
well be more
complex, calling
for
an explanation of the circumstancesunder which a governmentmay
legitimately
evote
its
resources to
promoting
ntrinsically orthwhile
policies
that serve
no
instrumental
oals.
because "justification"s so frequently sed to mean what am calling rationaljustification"
(and what he wished to contrastwithhis sense of "justification")-the reason for ngaging
in a practice ratherthan the moral license for doing so.
14. Robert Nozick contests the legitimacy
f redistributive
axation
n
his Anarchy,
State, nd Utopia New York: Basic, 1974),
pp. 169-72.
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Dolinko Thoughts
boutRetributivism 541
I
take it, then, that one may ask both
for the rational ustification
of the practice of punishment
and for its moral ustification, nd that
theseneed not although heymight) oincide.The importance f carefully
distinguishing he differentssues that are apt to get lumped together
in discussionsof punishmentreceived ts classic
formulation hirty ears
ago from H. L. A. Hart
in
his "Prolegomenon
to the Principlesof Pun-
ishment."'15
The distinction am employing,
however, s not the same
as
thatwhichHart
drew,
nd this s deliberate:Hart's taxonomy hreatens
toblur ust what needs to be kept separateand is confusedbesides. Hart
speaks of "thequestion why
and
in
what circumstance
punishment]
s
a
good
nstitution o maintain"as the
question
of
the "general ustifying
aim" ofpunishment, istinguishinghisboth from he questionof defining
punishment and from"the question 'To whom may punishment be
applied?'
"-the
question
of"distribution."'6 But to
speak
of a
'justifying
aim" risks
conflating
he issue of
why
we
punish
(the
"aim"
or rational
justification f
the
practice)
with hat
of
what ntitless
to punish morally
'justifying"
he
practice)-as, indeed,
Armstronghad already
noted.17
And
to split off, s
Hart
does,
the
question
of who may be punished
from
both definition
nd
"general ustifying
im" suggeststhat we can
decide what punishment s and whywe engage in itwithoutknowing
who
is
supposed to receive punishment-which
seems
preposterous.
(Imagine being asked
to
decide
either
why
t
makes sense to
inflict
ep-
rivations n some people, or why t is morally
proper to do so, without
being told
which
people are to suffer
hese
deprivations ) ndeed,
Hart
himself nconsistentlyuilds an answertothe "distribution" uestion
nto
his
supposedly separate
"definition" f
punishment,
by specifying hat
punishment,
n
its "standard" or "central" ase, "must
be
of an actual or
supposed offender or his
offense.'
8
Working, hen,withthe distinction etween rational nd moral us-
tification, e can characterizeretributivism
n a way thatcapturesthe
class of views that are mostprominent nd
influential
n
current
egal
discourse.
Let us
think
f a retributivists a
person
who
explains
either
the
rational
ustification
f
punishment,
r its
moraljustification,
r
both,
by appealing
to
the notion that
criminals
deserve punishment
rather
than
to the
consequentialist
laim that
punishing
offenders
ields
better
15. Delivered as the presidential ddress to the
Aristotelian
ociety
on October
19,
1959, H. L. A. Hart's "Prolegomenon to the Principlesof Punishment"was subsequently
reprinted n Hart's Punishmentnd ResponsibilityNew York:
Oxford University ress,
1968),
pp.
1-27.
16.
Ibid., pp. 4, 9.
17. Armstrong, . 474. Hart's
distinctioneaves
it
unclear
whetherhe actuallymerges
the
rational nd the moral ustificationsf punishment nder
the rubric f "general
ustifying
aim." He
may ntend"general
ustifying im" to ncludeonlywhat am calling he "rational
justification" f punishment,while
using the who-may-be-punisheduestion
"distribution")
as his
way of asking what morally ustifies he practiceof
punishment.
18.
Hart.
D.
5.
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7/24
542
Ethics
April
1991
results han not punishing them. Retributivists,
o characterized, an be
classified s
"bold" or
"modest,"
withbold retributivistsnvokingdesert
to explain the rational ustification f punishment-the very point of
having such a practiceat all-and modest retributivistsnvokingdesert
only to explain why punishment
s
morally ustified.
believe that
both
views are highlyproblematic,
ecause the notion of desert s not strong
enough to account for either
the rational or the
moral ustification f
punishment.
The bold retributivistsserts oth hat
awbreakers eservepunishment
and that
this,
ll
by itself,
onstitutes good or
sufficient
eason for the
state
to
inflict
unishment
n them. Accepting,
for
rgument's ake, the
first ftheseassertions,wemaynevertheless
ind
he second one dubious.
After ll, the government, tate,or "society" oes not automatically ake
it upon itself o give people
what
they
deserve
n
other respects.People,
for xample,who do good deeds-people
who
are kind, haritable, aring,
who take care
of
ailing
relatives
r
help strangers
n
distress-might
be
thought
to
deserve reward, yet
the state does not routinely dminister
such a reward
system.
For that
matter,people
who
engage
in
behavior
that
might
be
thought
to deserve
or meritcensure or ill-treatment ut
which does not violate
a
criminal
aw
are
not
generally ubjected
to such
sanctionsbythe state.Why,then,should it be thought o important or
the
government,
he
state,
or
"society"
to
make sure that
people
who
violate
criminal aws receive their just deserts"?Why ingleoutprecisely
thisone category
f
persons
and insist hat
he
statemust
give
themwhat
they
deserve?
A
plausible
answer is
that
we believe
one
very mportant
task
of
government
s
to reduce or eliminate the incidence of those
harmful forms
of behavior that are
prohibited by
criminal
aws,
and
believe
further hat
government
an bestperform
hattask
by nflicting
punishment
n
those
who
breach
such laws.
But,
of
course,
this
s to
say
thatthe rational
ustification
f
punishing
offenders
s
actually
o reduce
crime
rather
than
simply
o
give people
"what
they
deserve"
for
ts
own
sake.
One
mightobject
that the
argument
ust presented
attacks straw
man-a
retributivistho believes hat
giving
awbreakers
heir
ust
deserts
is the only point or purpose
of
punishment
nd thus its entire rational
justification.
Real-life
retributivists,
he
objection runs,
need
not
adopt
so vulnerable
position
ut can
acknowledge
hat he
practice
f
punishing
offenderservesmultiple oals,ofwhich doingjustice"s one andreducing
the crime
rate
another.
Such a retributivistan concede
that an official
practice
whose
only point
would be
givingpeople
what
they
deserve
is
one we would
not
be
rationallyustified
n
adopting,
while
yetmaintaining
that
part
of our
reason
for
having
the
practice
of
punishment
s the
desire to
give
offenderswhat
they
deserve.'9
19. von Hirsch, for one, appears to adopt such a mixed position, sserting
hatboth
desert nd deterrence re needed to ustify riminalpunishment pp. 35-55). It is unclear,
however,whethervon Hirsch means that desert and deterrence re both relevant o the
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I
do not find hisobjection
persuasive. For one thing, view
actually
embraced byone of the most prominent
nd influential f retributivists,
Kant, cannot fairly e dismissed
as
a strawman.20
More important,
he
supposedly less vulnerable versionof retributivismhat the objection
envisions seems
to
me
to ascribe so feeble a role
to
"doing ustice"
as a
reason for punishing criminals hat wonder why t should be
thought
"retributivist"t all. That versionacknowledgesthatpart
of the rational
justification
f
punishment
s a desire
to deter crime-but
surelythat
goal is so important s to give us, all by itself, n excellent
reason to
adopt a social practice
that can
help
us achieve it? What need is
there,
in explaining he rationalustificationf punishment, o appeal in
addition
to a supposed general desire to give people their ust deserts-a
desire
whosefailure o set the machinery fgovernmentn motion nanyother
area suggests hat,by tself,
t
carries ittleweight?
The
only ground
that
I
can see for insisting hat
deterrence s not the whole story
nd that
"doing ustice" must
be
appealed to is
the belief
that, absent
such an
appeal,
the
deterrence
tory
would constitute
morallyunjustified
orm
of
"using people."
But this ortof
appeal
to
"giving
riminals heirdue"
uses thatnotion to explain
the
moral rather han
the
rationaljustification
of
punishment.
For these reasons, bold retributivisms an implausibletheory.And,
in
fact, great deal of
the
current
popularity f
retributivismeems to
focus
on
what have called modestretributivism,
he
claim
that, lthough
our
goal
in
punishing-our
rational
ustification-may
well be
the
de-
terrence
f
potential
awbreakers
r the
protection
f
law-abiding itizens,
what morally ustifies punishingwrongdoers
s that
they
deserve the
treatment
we mete out to
them.
But even
this
modest
form f retributivism
s
problematic.
he claim
is thatpunishment-which involvesdoingtowrongdoers hings hatwe
ordinarily
hink
of as
violatingpeople's rights,
ike
incarcerating
hem
against
their will
for
years-is
morally permissible
because
it
is
what
wrongdoers
deserve.
Yet
we do
not,
in
general,
believe that
treating
rational
ustification
f
punishment
r, nstead,
hat
esert
plays
role n the
moral
ustification
of
a
practice
whose rational
ustification
estson the need to deter potential
riminals.His
meaning s unclear because
he explicitly ses the
term justification"o nclude both
rational
and moral
ustification,
sserting
hat
'justification"
f
punishment
must not
only
dentify
the aimsofthe nstitutionfpunishment ut explain why hepursuit f thoseaimsthrough
punishment
s morallyustified"
p. 36, n.
*).
20.
Kant insists hat
punishment
can never be used merely s a means to promote
some other good for the
criminalhimself r
for civil society, ut
. .
. must
n
all
cases be
imposed on him only n the ground
thathe has
committed crime" Immanuel
Kant, The
Metaphysical
lements fJustice, rans.J. Ladd [Indianapolis:
Bobbs-Merrill,
965], p. 100
[emphasis added]).
That he believes
"doing ustice" must be the
rational ustification
f,
or reason for,
punishment emerges
clearlyfrom his rejection
of the idea that
we might
commute
the death sentence
of a condemned man who volunteers
to
allow dangerous
experiments
o
be performedon
him
and survives pp. 100-101).
Even
if
there s utility
to be gained by not punishing,we must punish.
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544
Ethics April1991
person
in
a way
that
would
otherwiseviolatehis rights s automatically
permissible imply
because the
person
deserves thiskindof treatment.
Consider, for example, Lear,
a rich man
with
two
sons,Jeremy
nd
Howard.Jeremy ruly ovesLear and has always reatedhimwith ffection
and respect, ven caringfor
him
at greatpersonal sacrifice) uringLear's
final llness. Howard, on the otherhand, is a reprobate who has spent
his time drinking, ambling,
nd chasing women, neglectinghis father
(forwhom,
n
truth,
e feels ittle
egard)
almost
completely. erversely,
however,Lear has always felt sneaking
admirationfor Howard while
secretly espisingJeremy
s
a
priggish,
nimaginative, verly epressed
bore. (This
is
grossly naccurate,
nd
unfair
o Jeremy,
ut Lear at
some
level always wishedhe himself ould have boldly defied the constraints
of propriety
nd
convention,
as he believes Howard
has.)
Lear's
will
leavesJeremy comparativepittance nd bequeaths the bulk of the estate
to Howard. Surely we mightwell agree
thatJeremy eserved to inherit
the
estate while Howard
deserved
to
be
cut out of
the
will. Yet
the
state,
acting through
ts
udiciary,
will not on
that account
set
aside Lear's
will
and hand
over to
Jeremy
hat
which
he,
ratherthan
Howard,
deserves.
To do so would violate Howard's right
o the
estate, right
he
possesses
despite deserving
to inherit
nothing.21
As
Joel Feinberg
has
noted, "a
person's
desert
of X
is
always
reason
for
giving
X
to
him,
but
not
always
a conclusive
reason,"
because
"considerations rrelevant
o his
desertcan
have overriding ogency
n
establishinghow he ought
to
be treatedon
balance."22
One
very ikelyresponse
to the
point
that
t is
not
always morally
permissible
o
give people
what
they deserve,
where
doing
so involves
what
would
otherwiseviolate
theirrights, s that we
need to focus on
preciselywhywrongdoers eservepunishment.
he retributivist
an argue
thattheparticular asison whichthewrongdoer's esertrests s one that
morally ustifiespunishing him,even though
there
are
other
instances
of desert
n which
t
would be
wrong
to
give
an individual
the
treatment
he deserves.
21.
If
one
objects
that he
example presupposes
the moral
propriety
f
our institutions
of inheritance, uppose instead
that Lear
had,
during his lifetime,made
a
gift
f the bulk
of his estate to Howard. We would not consider
t morallypermissible o seize the
estate
and give it to Jeremy n
the ground that he, ratherthan Howard, deserved it.
22. Joel Feinberg, Justice nd PersonalDesert,"
n his
Doing
and
Deserving
Princeton,
N.J.: Princeton University
ress, 1970), p. 60. Another example of someone's
deserving
treatment hat t is neverthelesswrong to mete
out appears
in
Thomas Nagel's
discussion
of the moral limits
n
the
conductof war: althoughone may ustifiably
ill
enemy
soldiers
even if they are draftees
personally opposed to the
war, one is not morally ustified
n
killingnoncombatants-even
those who wholeheartedly
upport theirgovernment's vil,
aggressive policy.
Thus "in war we may often be justified
n killingpeople who do not
deserve to die, and unjustified n killingpeople
who do deserve to die,
if
anyone
does"
(Thomas Nagel, "War and Massacre," Philosophynd
Public
Affairs
[1972]: 123-44,
pp.
139-40).
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Dolinko Thoughtsbout
Retributivism
545
What
is
probably
the
most nfluential
ontemporary
efenseof re-
tributivism,
temming
from Herbert Morris's
essay
"Persons and Pun-
ishment," akes
this pproach.23
For Morris, he basis
for he
wrongdoer's
desert is his possession of an unfairadvantage, and punishing him is
justified ecause
it
eliminates
hat dvantage.Criminal
aws are constraints
on behavior
whose
observance
benefits veryonebyassuring ach person
a "sphere"
of "noninterference y otherswithwhat
each
person
values,
such ...
as
continuance
of life and bodily security."24 person
who
violates these
constraints s a free rider
who
"has something
others
have-the benefits
f the system-but
[who] byrenouncingwhat
others
have assumed,
the burden of
self-restraint,.. has acquired an
unfair
advantage."25 unishing ucha personismorallyustified, hen,because
it "restores he equilibrium
of benefits
nd
burdens by taking
from
the
individualwhat
he owes"-the "unfair
dvantage"
he
gainedby
hiscrime.26
This account bridges
the
gap
between
"X
deserves punishment"
nd
"Punishing
X is morally ustified"
only to the extent hatwe understand
what "unfairadvantage"
criminals
derive from their crimes.
So
what,
precisely, s that
"advantage"?One might naturally
uppose,
as John
Finnis does, that
t consists
n the criminal's indulging (wrongful)
elf-
preference," permitting
imself n excessive
freedom n choosing,"or
"acting
ccording
to
[his]
tastes"
nstead
of
exercising
elf-restraint.27
ut
then
the
advantage
the criminal obtains
from his crime
ought
to
be
proportional o the burden
of self-restrainthat
otherscarry ut thathe
has thrown
off.And this
n
turn depends upon
how great a temptation
people generally
feel to commit
he
crime
n
question.
Thus
very
erious
crimes
which
mostpeople feel
ittle
nclination
o commit
e.g.,
murder)
yield
lesser
advantage-and
hence
deserve
a
lesserpunishment-than
those
(like speeding
or tax evasion) that
testmost
people's
self-restraint
23.
Herbert
Morris,
Persons
nd Punishment,"Monist 2 (1968): 475-501,
reprinted
in Herbert Morris,On
Guilt nd Innocence
Berkeley: University
f California
Press, 1976),
pp. 31-58.
24. Morris,
On Guilt nd Innocence, .
33.
25. Ibid., p.
34.
26. Ibid.
It should be noted that
Morrishimselfs not directly efending
he retributivist
account
of punishment.
Though he presents
the model of
punishment
ust sketched,his
concern
s not to argue for ts superiority
o alternative
moral ustifications
f punishment
butto argue
thatwrongdoers
ave a right o
be punishedrather han ubjected o "therapeutic
treatment."
Nonetheless,
Morris'smodel of
what ajust punishment
ystemwould look
like
has exerted
enormous
influenceover subsequent
proponents
of retributivism,
ho have
treated
t as the
paradigm
f
a
retributivist
oral ustification
f the nstitutionf punishment.
27. John Finnis,
The Restoration f
Retribution," nalysis
2
(1972):
131-35,
p. 132.
Jeffrie
Murphy endorsed
a similar view when
he described
punishment s a device
for
ensuringthat the criminal
does
not "gain an unfair advantage"
or "profit
rom his own
criminal
wrongdoing," nd characterized
he
"profit" ntrinsic o criminal
wrongdoing
s
"not bearing
the burden
of self-restraint"Jeffrie
Murphy,
Marxism nd Retribution,"
n
his Retribution,ustice,
nd Therapy
Dordrecht:Reidel, 1979],
p. 100).
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Ethics
April
1991
more severely.28 his, of course, s a most unwelcomeresult,
whichmust
be avoided if Morris's pproach
is to be tenable.29We need some better
account
of
exactlywhat "unfair dvantage" criminalsderive
fromtheir
misdeeds.
Just such an account is
put forward
n
the first
f
the three
efforts
I shallexamineto cash out or
replacethemetaphors n which etributivism
relies:George Sher's recentbook Desert.30 ccording o Sher,
"the strength
of one's inclination o
transgress
annot be what determines
he
amount
of extra benefit
one receives
rom ransgressing.''31 ather,
the
magni-
tude
of the
criminal's
"benefit"from
his
crime is determinedby "the
strength
f the
moral
prohibition
he has violated."32
her
explainsthat
a personwho actswrongly oes gain a significantmeasureofextra
liberty: hat
he
gains
s freedom
rom
he demands
of
theprohibition
he violates.Because
others ake thatprohibition eriously,
hey ack
a similar
iberty.
And
as the
strength
f
the
prohibition
ncreases,
so too does
the freedom
from t which
ts violation entails.
Thus,
even if the murderer and the tax evader do succumb to equally
strong mpulses,
heir
gains
n freedom
re far
from
qual.
Because
the
murderer
evades a
prohibition
f
far
greater
force
. . his net
gain
in
freedomremainsgreater.
And for
thatreason,
the amount
of punishmenthe deserves seems greateras well.33
Has Sher explained the
criminal's unfair dvantage"
in a way that
makes
Morris's version of modest retributivism
lausible?
I think
not.
First,
Sher's discussion
assumes
that
a crime
necessarily
nvolves the
violation
of
a
"moral
prohibition,"
ut
this s
in one sense
false and
in
another
useless forSher's
purposes.
It is
false
f
taken
to
mean that
very
crime
nvolves
behavior
that
s
morally mproper
even
prior
to its
egal
proscription.
ax
evasion, a
crime
Sher
mentions,
llustrates
his
point,
sinceit nvolvesbehavior thatwould not be immoral t all absenta legal
requirement
o
pay
the
tax
in
question. Driving
on
the left-hand ide of
28. See Richard
Wasserstrom, Capital Punishment
s
Punishment:
ome
Theoretical
Issues
and
Objections," n
Midwest
tudiesn
Philosophy,d.
Peter
French,
Theodore
Uehling,
and
Howard
Wettstein
Minneapolis:
University
f Minnesota
Press,
1982), vol.
7, pp.
496-98.
29. Nor would it do
to
maintain that
casting
off
he burden of
self-restraint
ields a
"benefit"whose magnitude s the same regardlessof how much temptation nyone feels
to do the
prohibited
ct. For this
would
implythat
"all
lawbreakers
have
benefited
n
the
same
way
and
.
.
.
to the same
extent
by throwing ff the
restraints
f law" and
hence
should
"receive he
same
punishment"Jean
Hampton, The
Retributivedea," in
Forgiveness
and
Mercy,
yJeffrie urphy
nd
Jean
Hampton [Cambridge:
Cambridge
University
ress,
1988],
p. 115).
30. See esp.
George
Sher,
"Deserved
Punishment,"
n his
Desert
Princeton,
N.J.:
Princeton
University
ress, 1987), pp.
69-90.
31. Ibid., p.
81.
32.
Ibid.
33. Ibid., p. 82.
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Dolinko ThoughtsboutRetributivism 547
the road, similarly,
s in
itself morallyneutral"
conduct
which can be
thought mmoral in the UnitedStates, houghnot n the
UnitedKingdom )
only insofar as
it
violates a law.
Such
crimes,
to which the
traditional
epithetmalum rohibitumpplies, re distinguishedrommalumn e offenses,
which nvolve behavior that would be immoraleven
in
the absence of a
legal prohibition:murder,rape, and robbery re examples.
And Sher's
criterion
for the
magnitude
of
a criminal's "unfair
advantage"-"the
strength
f the
moral
prohibition
he
had violated"-breaks
down for
malum rohibitumffenses:we would be forced
to conclude that none of
these
offenses esults
n
"advantage"
o the
offender,
o
that
no
punishment
for
such offenses an
be deserved.
Sher
might try
o
salvage his
criterion
y arguing
that even malum
prohibitumffenses o involve hebreachofa moralprohibition-namely,
the
moral prohibition gainst breaking
the
law.34
Taken
in
this sense,
however, the claim that every crime necessarilynvolves violation of a
moral prohibition s useless
for
Sher, because
every malumprohibitum
offensewill turn out to involve violation of the very same moral
prohibition-"Do not break the law." Hence, Sher's
criterionwould tell
us
that
ll such offenses
ield
he same "unfair dvantage," nd all deserve
thesame
punishment-income
tax
evasion
nd
big-time
ocaine
muggling
just as much as speedingordestroying irds'nests na public cemetery.35
Sher's analysis
s
vitiatednot only by
the
questionable
assumption
that
crimemust nvolve
moral
violation
but
even more
fundamentally
by the
dubious
status of
its
central claim-that
one who
breaks a law
thereby gains ... freedom
from the
demands
of the
prohibition
he
violates."36
n
what
way
does the
awbreaker
gain"
thisfreedom?
n
one
sense,
he
awbreaker as perhaps
revealed hat
he
has a
kind
of "freedom"
byexercisingt-by demonstratinghat
he is able to violate he
prohibition.
In this sense, however,he musthave been "free" fromthe prohibition
even
before his
lawless act
(or
he could
not
have committed
t ),
and
presumably,many law-abiding itizens re equally "free" in this sense)
to
violate
the
prohibition.
n
another
sense,
we
may
ask whether the
criminal's
wrongful
act has released
him
from
a
constraint
upon
his
actions
which
the
prohibition mposes
on the
actions
of his fellows.
One
would think he
answer
should be
"no."
Though
the
criminalhas
in
fact
done what
s
prohibited,
his
n
no
way
dissolves r
abrogates
he
obligation
34. This, of course, assumes there is such a moral prohibition.The
existence and
scope
of a
moral obligationto
obey
the
law has been
hotly
debated.
See,
e.g., Joseph Raz,
"The Obligation to Obey the
Law," in his TheAuthorityfLaw (Oxford: Oxford
University
Press, 1979), pp. 233-49; Richard Wasserstrom,
The
Obligation to
Obey
the
Law,"
in
Essays
n
Legal Philosophy,
d.
Robert Summers (Berkeley: University f California
Press,
1968), pp. 274-304; and M. B. E.
Smith, Is
There a Prima
Facie Obligation to
Obey
the
Law?"
Yale Law Journal82
(1973): 950-76.
35. This last s a misdemeanor n California,unless the birds n
question
are
swallows
(California enal Code, sec. 598
[West]).
36. Sher, p. 82.
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548 Ethics
April1991
he, like
everyoneelse, is under not to do thatact. (Indeed, there
would
be no basis for
deciding to punish thewrongdoer
f
hiscriminal ct
had
somehow
repealed
the
prohibition
t
is
alleged
to
violate.)
In
a third
sense,we mayassert thatby violating he prohibition, he criminalhas
manifested is
disregard r contempt orthatprohibition-has, we
might
say,
shown that
he regards himself s "free" from ts demands.
But it
seems
incorrect,
f we
are
using
"free"
n
this
manner,
to
claim thatthe
lawbreaker ains his
freedombybreakingthe law; rather,he
breaks the
law because he
already regards himself s "free" to do so. Indeed,
even
people
who in
fact
never
violate a given
prohibition-perhaps because
the occasion never
presents itself,
perhaps
because
they
fear
being
caught-could
inwardly eject
the
prohibition's
laim
of
authority
ver
them and thusregardthemselves s "free" to breach the prohibition.
It is hard to
assign any meaning
to
Sher's claim that the criminal
has
gained "freedomfromthe demands
of
the
prohibition
he
violates,"
unless t
simplymeans that
he
criminal as
in
fact
gnored
he
prohibition's
demands. To
make
Morris'sversionof
modest retributivism
ork, here
mustbe
something hat
criminal
necessarily gains"
from
awbreaking,
which we can claim
gives
him the "unfair
advantage"
that
punishment
removes. Confrontedwith
the difficulty
f specifyingwhat this "gain" is
in a way that willmake the theorycome out right,Sher has, I think,
simply
reified he criminal's ct of
law-violation,misleadingly
abeled it
"freedom,"
nd treated t as the "unfair
advantage"
to be
taken
away.
Once
we see thismove
clearly,
her's
analysis
becomes
virtuallyndistin-
guishable
from
Hegel's
obscure
claim that
punishment
omehow
"annuls"
the crime tself-a claim no more
convincing
n
its new
garb.
Nevertheless,
here does seem to be truth n
the
underlying
notion
that he
wrongdoer
njoys
"an unfair
dvantage"
as
compared
to his aw-
abiding
fellow
itizens.Unlike
them,
he
criminal
njoys
the
benefit
on-
ferred
by
the
self-restraint
f other
people (freedom
from
aggression
and
interference)
without
having paid
the
price everyone
else
pays
for
this enefit
restraining
is own
aggressive
mpulses).
But f
he
wrongdoer's
"unfair
advantage"
is
his
enjoying
a
benefit
he
has
not
paid for,
the
"advantage"
can be
removed
ust
as
readily by takingaway
the benefit
as
by exacting
the
unpaid "price."
Indeed, depriving
he
wrongdoer
of
his benefit s
perhaps
the
easier
and more
appealing solution,
because
it
spares
the rest of us the difficult
ask
of
calculating
what
kind
and
degree ofimposition n thecriminal ounts as theequivalentof theself-
restraint hat he
failed
to
"pay." Instead,we need only cease to
restrain
ourselves from
nterfering
with or
aggressing against
the
criminal.
He
thereby
oses
precisely
the
"sphere
of noninterference"
hat he had
wrongfully
ained,
rather
han
some
supposed
equivalent
f
thatbenefit.37
37. Perhaps,
hough, he criminal hould not ose his entire sphereof
noninterference."
After ll, one
might ay,the criminal resumablyhas obeyed some laws-i.e., has
displayed
some self-restraint-sowe should view himas having paid some but not all of the"price"
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ThoughtsboutRetributivism
549
Unfortunately,
hatwe now seem
to have arrived at is the notion
thatthe morally
ustifiedpunishment
for
a
criminal
onsists n licensing
everyone lse
toengage
in
aggressive
onduct towardhim. This amounts
to a kind ofoutlawry-declaring the criminalfairgame foranyone who
wishes
to
harm
him or his interests-far
different rom the formsof
criminalpunishment
we
actually
employ
and
which
Morris'sapproach
was intended
to ustify
morally.
Morris's
"unfair advantage"
approach
seems to
have
led us into
a
blind
alley,
and we noted that
Sher's
attempt
o salvage
that approach
appears,
on
analysis, n
unwitting ersion
of
Hegel's
metaphor
of
"an-
nulling" the
crime. A consciouseffort o
develop that metaphor
seems
to underlie a second and
quite different ffort-Jean
Hampton's-to
explain whycriminalsdeserve punishment, nd to do so in a way that
shows that t
is
proper
to
give
them
whatthey
deserve.38
or
Hampton,
punishment
s "deserved"
if
it is "necessary
to humble
the wrongdoer
and
thereby
vindicate the victim'svalue."39
She
regards
retributions
resting n two
eparate deas,
each "mandatinghe harm of
thewrongdoer
as
a
means
to
an
end."40 wish to
focus on
what
seems to me the
more
important f
these
deas,
whichHampton abels punishment
s a defeat."'41
Hampton believes that
Morris'sversion
of retributivismoes astray
because it fails"to linkour condemnationof a wrongdoerto thatwhich
makes is
conductwrong.
42
Her
own
account,
accordingly,
uilds on her
forothers'forbearance.
The
problem
then
becomes deciding
ust
how much of his
"sphere
of noninterference"
he
criminalhas failed to
pay
for nd must forfeit. hould
we say that
other
citizens
are free to inflict
n the criminal
the same wrong
he inflicted n
others?
How many
citizens should
be able to
do
this
to
him?
What
if
his
crime was one without
identifiable
ictims?Morris's
metaphor
betrays
s at every
turn.
38. Hampton
acknowledges
he Hegelian
rootsof her
enterprise
t
p.
131 and
p.
142.
39. Ibid., p. 158. She actuallysays "perceiveds necessary" my emphasis)-but it
seems
odd to
suppose
that
incorrectperceptions
could
make someone
actually deserve
punishment.
assume,therefore,
hat
whatwas meant
was that
culprit
eserves
unishment
if
punishment
really
would be necessary
o
"vindicate he victim's
alue,"
not merely f
t
is
believed
(by whom?)
to be necessary
for that purpose.
40. Ibid., p.
123.
41.
Ibid., p.
124.
The
other
idea
that Hampton thinks
underlies retributivism-
"punishment
s vindicating
alue
through
protection" p.
138)-receives
considerably
ess
attention.
Moreover, t
s hard to
understand
ust
what
this
second
idea is
supposed
to
be.
Some
of
Hampton's
discussion
of this econd
idea makes
t sound like
deterrence;
t
other
places "vindicating alue throughprotection" eemshardtodistinguish rom punishment
as a defeat." Ultimately,
vindicating
alue
through
protection"
eems to
presuppose
that
a
practice
f
punishing
offenders
s
already
n
place
and to call
simply
or
venhandedness
in
deciding
which offenders
o punish
(or,
more accurately,
which
victims o "vindicate"):
"Because society's
unishment
protects
hose
who are valuable,
people
who long for
high
valuation
may come to
demand punishment
.. because
theywant
the
expression
of what
the egal protection
ymbolizes"
pp.
141-
42).
But this easoning
annot
how
thatpunishing
wrongdoers
s
morally permissible-only,
at most,
that if
it is
permissible,
hen
society
should
not limit
punishment
to
only
those wrongdoers
whose victims
re
regarded
as
sociallyprominent,
wealthy,
well connected,
etc.
42. Ibid., pp. 116-17.
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550
Ethics
April
1991
notion
of what t s that
makes
thewrongdoer's
onduct
wrong-which,
she says,
s
that
t
"objectively
emeans"
thevictim.43
hat
is,thewrongdoer
fails
to treat
his victim
n a
manner
sufficiently
espectful
fthevictim's
value or worth,44hereby mplicitly laimingthathe is superiorto, or
higher
n value than,
his victim.45
unishment,
hen,
s ustified
or
ap-
propriate
because
it serves
to assert
or to
makemanifest
he
moral
truth
which
the wrongdoer's
ction
has denied:
thatwrongdoer
nd victim
re
of equal
value
and
entitled
to equal
respect.
The core
of Hampton's
analysis
s
set forth
n the followingpassage:
By victimizing
me,
the wrongdoer
has declared
himself
elevated
withrespect
tome,acting
as a
superior
who
is
permitted
o use me
forhispurposes.A falsemoralclaimhasbeen made.The
retributivist
demands
that
he
false
laim
be
corrected.
he lord mustbe humbled
to show that
he isn't
the ord of
the victim.
f I
cause
the
wrongdoer
to suffer
n
proportion
to mysuffering
t his hands,
his
elevation
over me
is denied, and
moral reality
s reaffirmed.
masterthe
purported
master,
howing
that
he is my peer.
So
I
am proposing
that
retributive unishment
s the defeat
of
thewrongdoer t
the hands
of the victim
either
irectly
r indirectly
through
n agent
of
the
victim's,
.g.,
the state)
that
ymbolizes
he
correctrelative
value
of
wrongdoer
and
victim. t
is
a
symbol
hat
is conceptuallyrequired to reaffirm victim's qual worth n the
face
of
a challenge
to it.46
Now,
it is not
entirely
learwhether
Hampton's
retributivism
s of
the
"bold" or
the "modest"
variety.
s
Hampton
suggesting
hat eaffirming
the
victim's
worth
n
the
manner
she describesrationallyustifiespun-
ishment?
r is her
analysis
meant
o tell
us
only
why
t s
morally ermissible
to
punish?
On the one hand,
she often
speaks
in
a
bold retributivist
manner,
as
when
(in
the
passage
ust
cited)
she asserts hat
punishment
is "conceptually equired,"and when she expands upon thisthoughtby
43. Of
course,
thispresupposes
that
we
are
dealing
with
crime hat
has an identifiable
"victim."
Many
crimes ack
this
feature, nd
it will
not do simply
o
suggest
as Hampton
does, p.
125,
n. 19) that
n such
cases all of
us somehow
countas victims.
When
somebody
violates
federal aw
by committing
he felony
of
unauthorized
possession
of
blank paper
of the sortused
to
dollar
bills
in
violation
f sec.
474 of Title
18 of
the United
States
Code),
I
simply
do
not see that
I
or
anyone
else
have
been "demeaned"
or
otherwise
victimized.
will gnore
this point
n
what
follows,
however,
because
Hampton
could
reply
thather analysisat least explains the propriety f punishingthe most serious typesof
crime-and
I want to show that
t breaks down
even
in those core
cases.
44.
Hampton,p. 124;
see also
pp.
44-45 (introducing
otion f
"demeaning"
reatment)
and pp.
52-53
(postulating
hat
wronging
person
entails
treating
him in an
objectively
demeaning way).
45.
Ibid., pp.
124-25.
Hampton
never
explains
why
treating
nother
person
in a
demeaning
fashion
necessarily
nvolves
claimingthat
one
is of superiorvalue, worth,
r
status
o
that person.
Couldn't
a
wrongdoer
be
acting
out
of
a belief hat
no one-neither
others
nor
himself- has any
inherent value
that requires respect?
I
think
quite
a
few
wrongdoers
re
in
fact people
who loathe
themselves
s much
as others.
46. Ibid., pp. 125-26.
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Dolinko ThoughtsboutRetributivism 551
explaining that punishment
s so
"uniquely
suited
to the vindication f
the victim'srelative worth" that it could not be
replaced by any other
means of achieving hatgoal.47Even more strikingly,
he endorses Kant's
viewthat failureto punish a wrongdoerwould make us "accomplices n
the crime."48
n
the
other
hand, Hampton acknowledges
hatdeterring
crime s
a "primary eason" why
offenders
re punished
and appears to
findthisreason legitimate.49 nd we findher arguing
thatpunishment,
as the
attempt
o
"master"
the
wrongdoer,
s "not morallywrong"-the
language of the modest retributivist.50his ambiguity n Hampton's
position
s
ultimately
f
little ignificance,
owever,because her version
of retributivisms defective n either nterpretation.
Recall that the general problem
withbold retributivisms its failure
to explain why tshould be so important or the state to give criminals,
but not otherpeople,theirjust deserts."Hampton'stheory,
f
nterpreted
as
a
form of bold
retributivism,
aises this
problem
in
an acute form.
Read as a bold retributivist, ampton is claiming
that the rational us-
tification
f
punishment,
ts
verypoint,
s
to
nullify he false moral claim
implicit
n the
act
of
wrongdoing-the wrongdoer's
claim
to
greater
worth r
value than
the victim.51
ut
why
hould we
care about nullifying
precisely hose claims? Why, ndeed, shouldwe care about it so strongly
and so deeply as to establisha complex and costlysocial mechanism
devoted
to
nullifying
uch claims-and
nullifying
hem
by doing
to the
claimants
hings
which we
would otherwise
egard
as violations f their
rights?After ll, we certainly o
not believe
that
t s somehow mperative
to
set up a social or governmentalmechanism
to seek out
and
correct
false moral claims
n
general,
nor even all false claims
by
one
person
to
possess greater
worth
or
value than another.
If
someone
publishes a
book
asserting
hat
men
are
superior
to
women,
or
Jews
to
Gentiles,
r
blacks to Latinos, or a book asserting hat ts author is an Uebermensch
greater
n
moral value than any
other human being
on the
face
of the
earth,
we do not
regard
it
as
obligatory
n the
government
o see to it
that a
reply
is
published
forthwith.
till less would we think that the
government ught
to
clap
the author
in
ail
or in
some other fashion
symbolicallynullify,"hrough unishment,
he
false
message
of
superiority
that
the author has
quite clearly
communicated.
Curiously, Hampton
seems to have made
the
very
error that
she
ascribes
to
Morris-failure
to link
punishment
f the
wrongdoer
o that
47.
Ibid., p. 128.
48. Ibid.,
p.
131. Her reason
for endorsing
this view
s that failure
to
punish
would
constitute
acquiescing
in themessage
[the
crime]sent about
the victim's
nferiority."
49.
"Reason as
well as
instinct
irectsus
to harm wrongdoers
n order to
deter
future
crimes"
ibid., p. 139).
50. Ibid.,
p. 127.
51.
"The
retributive
otivefor nflicting
uffering
s to
annul or counter
he
appearance
of the wrongdoer's
superiority
nd
thus
affirm he
victim's
real value" (ibid.,
p.
130).
Punishment
"can annul
the
alse evidence
eemingly
rovided
y
he
wrongdoing
f
the
relative
worth fthevictimnd wrongdoer"p. 131).
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Dolinko
Thoughts
boutRetributivism
553
her hands negatesthat vidence."53
As
she later ums t
up, "punishment
undercuts he
probative
forceof the evidence of his
superiority rovided
by
the
wrongdoer's
ction."54
But how, precisely, oes thestate's defeating" he wrongdoer onvey
the
message
that
the victimhas value
equal
to that
of the
wrongdoer-
convey,
s
Hampton puts it,
"the
experience
of
defeatat thehandsofthe
victim"?55
ow does
it
get
across that the victimhas
evened the score
and can
now claim
whatever
mastery
he
wrongdoer
an? It would
seem,
rather, hat while the wrongdoerclaimed
"superiority" y defeating he
victim
himself,
whole
gang
of
partisans
of the victim
has
now
banded
together nd defeated the
hopelessly
utnumbered
wrongdoer Perhaps
thisconveysthemessage thatsociety s a whole is theequal (or perhaps
the master)
f
the wrongdoer, ut
t
hardly
eems an
apt way
of
expressing
the
message
that the
victim,
ndividually,
s
the
wrongdoer's qual.
One mightargue
that
byactingas the victim's hampion and "de-
feating"
the
wrongdoer
in
the victim's
name,
the
community
t
large
demonstrates
r affirmsts
belief
hat he victim s the
wrongdoer's qual.
But thismove underminesHampton'scontention hat
punishment orrects
or nullifies he
wrongdoer'sclaim,
because
it
depicts punishment
s af-
firming proposition quite different rom
that
which
the wrongdoer
denied. In Hampton's view,the wrongdoer, n committing is crime,
denies that the victim s
his
equal.
To assert that others believe
in
the
victim's
quality
is not to controvert he
wrongdoer. Hampton wants
punishment
to
proclaim
that the
criminal
s
mistaken,
not
merely
that
the
community
t
large
does not
agree
withhim.
Connected with
his
difficulty
n
understanding
"defeat" t
society's
hands
as evidenceof thevictim's
quality
s a
third roblemwithHampton's
pictureof punishment. That
picture presents punishment as a com-
municative nterprise-as a matter fsending messagesto "correct" r
"nullify"
he
messages implicit
n
criminal acts.
Thus
the criminal act
conveys
a "false moral claim" which
it
is
the
point
of
punishment
to
deny;56victimization
counts
as evidence"
of
the victim's nferiority,57
and
punishment negates
the
evidence"
by "send[ing]
n
annulling
mes-
sage."58
But
to whom does
Hampton
suppose
that these various claims
and
messages
are
being
sent-who is the audience for he various
pieces
of evidence
she describes?
Consider,
for
example, Hampton's
argument
that no
alternative o
punishment
could
equally
well vindicatethe victim's
worth,
not even
a
ticker-tape arade
for the
victim,
because "the fact that he had
been
53.
Ibid., p. 128.
54. Ibid., p. 129,
n.
25.
55. Ibid., p. 126 (emphasis added).
56.
Ibid., pp. 125-26.
57. Ibid., p. 128.
58. Ibid.,
pp.
129, 131.
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554 Ethics April
1991
masteredby the
wrongdoer
would stand. He would have lost to her, and
no matterhow
much the community
might ontend thathe was not her
inferior, he loss counts as evidence
that he
is."59
But for
whom is the
wrongdoer'sdeed "evidence" of the victim's nferior tatus? Evidently
not for he community,
hich
s contending hat he victims not nferior.
Is the victim upposed
to regardhis victimization
s evidence f nferiority?
Why should he?
If
you
find
your
home burglarized,you
may experience
anger,
or
a
sense
of
defilement,
r fear that
t will
happen again,
or all
of
these-but
will
you
feel that the
burglar
has demonstrated hat his
moral value is greater han yours?
urelynot 60
s
it,
hen,
hewrongdoer
himself or whom
the crime "counts
as evidence" ofhis superiorworth?
If so, the problem
previouslydescribedrecurs: how
will the state's "de-
feating"
hewrongdoerundercutforthewrongdoer theprobative orce
of the evidence
of his
superiority"
o
the
victimwhichwe are
supposing
his crime affordshim?6'
Surprisingly,
ampton appears
to deal with his
roblem
f "audience"
by denying hather analysis equires
ny audience
at
all
for he "evidence"
and the
"messages"
t
nvokes.
n
distinguishing
etributivismrom
arious
consequentialist
easons
for
punishing,
he asserts hat retributivist
ill
insiston inflicting unishment
"even
in a
situation
where neither the
wrongdoernor societywill either istento or believethemessage about
the
victim's
worth
which he
punitive
defeat' s meanttocarry,nd where
the victim oesn't
need
to hear
(or
will not
believe)
that
message."62
But
this eems to undermine
Hampton's
theory ompletely.
We have
already
seen
that the
theorymisrepresents
rime
as
wrongfulmerely
because it
conveys
false moral
messages.
We then found that the
theory
fails to
explain why punishing
the criminal hould
be taken as
"correcting"
r
"nullifying"
hosemessages.
Now we discover that
Hampton
insists
on
imposing punishmenteven where it will not"correct"or "nullify" he
wrongdoer's
moral falsehood.63
conclude that
Hampton's
account fails
to
give
us
a
plausible
formof
eitherbold or modest retributivism.
59.
Ibid.,
p.
128.
60. You may
feel
that
the
crime
ndicates that
the
burglar believes
e is worth more
than you, but that s a different
matter nd not what Hampton is claiming.
She wants to
defend a version of retributivism,ot
a
rehabilitativeustification
hatmakes punishment
a way of curing the
wrongdoer of his false beliefs. (Morally educating
the
criminal
s
explicitly abeled a nonretributivemotiveforpunishment p. 129].)
61. Ibid., p. 129,
n.
25.
62. Ibid., p. 130.
63. To
be
sure, Hampton
does
suggest
hat
punishment hould
be
imposed only
where
it may possibly be
taken as "correcting" r "nullifying"
he
message
conveyed by the
crime-"only
if
people
are at least able to understand
the
symbolic
ignificance
f the
punishment,
lbeit
perhaps
unwilling
o
do
so"
(ibid., p. 132).
But
merely cknowledging
that some audience is required seems
far from
nswering
the
question
of precisely
what
audience Hampton has in mind
and
does nothing
o
resolve
the
problem
sketched
bove:
Hampton's theory nsists hat a
criminal ct is
"evidence"
of
the victim's
nferiority
ven
where neitherthe victimnor society o interpretst.
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Dolinko Thoughts
boutRetributivism
555
Previously argued that George Sher fails
in his effort o make
plausible Morris'spicture
of retributivisms a matter f fairness r dis-
tributivejustice.have
now
argued
that
qual
failure
esetsJean
Hampton's
efforto construct coherent ccount of retributivismut of the Hegelian
vision
of
punishment
as
"annulling"
the crime.
A
thirdrecent defense
of retributivism-Michael Moore's
article "The
Moral
Worthof Retri-
bution"-follows a strikinglyifferent ath, avoiding
the common re-
tributivist etaphors ltogether ather
han
seeking
o unpack and develop
them.64Moore proposes
to support retributivismhrougha coherence
strategy-that s, "byshowing
that t best
accounts for
hose of
our
more
particular udgments
that we also believe to be true."65
Strangely, owever,Moore does very
ittle
o
carry
ut his
proposal.
Although he does supplya fewexamples of "particularudgments" that
certaincriminalsdeserve punishment,he devotes the
bulk of his essay
to refuting arious objectionsto retributivismather
han presenting n
affirmativergument
thatretributivismxplains our intuitions nd does
so
better than rival theories.66And to the extent that he does follow
through
on his coherence strategy,Moore produces
a deeply flawed
argument.
In Moore's version
of retributivism,hefactthat offenders eserve
punishment ot only gives ociety.. a right opunish ulpableoffenders"
(i.e., morally ustifies punishment)but also "gives
society the duty o
punish."67Desert
thus answers the
question,
"What
reason
do we have
for
adopting
the
practice
of
punishingwrongdoers?"
The reason
is that
we are morally bligated
o nstitutehis
practice.
Moore's theory, herefore,
comprises
both "bold"
and "modest" retributivism-it
purports
to tell
us both what reason we have to punish wrongdoers
and
why
we are
morallypermitted
o do so.
In
its
"bold"
aspect,
we should expect
it to
encounterdifficultynexplainingwhy t sonlycriminal ffenderswhose
'just
deserts"
t is crucial for the state
to mete out. The
way
in
which
this
general problem
of bold retributivism
rises for
Moore,
we shall now
see,
is that
his
strategy
annot establish
"duty"
to
punish
more than a
small
subset
of
criminals-yet
would
rationallyustify
heir
punishment
even
if
theirconduct
were not criminal t all.
Moore
asserts
hat
t s
obligatory
o
punish
offenders ho are
morally
culpable,68
n