Retributivism

Retributivism is often associated in the minds of many people with particular institutional arrangements, like the principle of lex talionis (an eye for an eye and a tooth for a tooth), or even more particularly, with the death penalty. While there certainly have been famous retributivists who favored such institutions, nothing essential to retributivism requires them. A retributivist is committed to the idea that the punishment must "fit the crime" in the sense of being proportionate to the degree of wrong done and to the culpability with which it is done; but he need not interpret such principle of proportionate punishment to require that a harm be visited on the criminal just like the harm he visited onto his victim. In addition, a retributivist can easily believe that no one deserves to be put to death at the hands of the state and thus be an opponent, not a proponent, of the death penalty.

Despite this, retributivism does give rise to a distinctive mode of justifying particular institutions within the criminal law such as the death penalty. The retributivist will urge, for example, that the debate about whether the death penalty deters crime is simply irrelevant to the question of whether the death penalty is justified. The only relevant question, according to retributivism, is whether one person can be so morally reprehensible as to deserve to die. If that question is answered affirmatively, then prima facie the death penalty is justified (because the state has the duty to give offenders what they deserve, according to retributivism).

Retributivism has similar implications for other institutions within the criminal law. Indeed, on every doctrinal issue, whether going to liability or to sanction, the retributivist will urge that the relevant policy is retributive, asking in each instance what such a class of persons deserve. Should intentional but nondeliberative killers be punished less than those who premeditate and deliberate about their killings? The relevant question, according to retributivism, is whether this factor makes such a difference in moral blameworthiness that intentional killers should be segregated into two classes (or "degrees") of murderers by this factor alone. Should those who kill under threats of serious harm to themselves be either wholly or partially excused? The relevant question, according to the retributivist, is the degree of moral courage we can fairly expect from people in those coercive circumstances; if we should each die rather than kill an innocent, then those whose behavior fails to live up to that standard are morally blameworthy and deserve punishment in proportion to the degree of their blameworthiness.

Much more determinate institutional implications than these can of course be spun out of retributive theory, but what those implications are depends on the kind of theory of moral responsibility that is accepted by the retributivist. Retributivists differ considerably among themselves on this issue, which is usually termed the "desert-basis" issue. There are three leading views on the touchstone of moral blameworthiness. One view is that there are two ingredients determining our moral blameworthiness, the kind of wrong we do and the culpable mental state in which we do it. On this view, the worse the consequences we bring about by our actions and the less the justification for bringing about such consequences, the more wrongful our actions. The more wrongful the action we either intend, foresee, or risk doing, and the less excuse we have for choosing to act nonetheless, the more culpable we are. The two together—wrongdoing and culpability—jointly determine an offender's overall moral blameworthiness.

A second view restricts blameworthiness to culpability alone. On this view what determines our blameworthiness is the degree of wrong we think we are doing in our own mind, not whether we actually succeed in doing such a wrong in the real world. Those who without justification or excuse shoot at another, trying to kill him, are as morally blameworthy if they miss as if they hit and kill their victim.

A third view regards character as the ultimate touchstone of moral blameworthiness. Character consists of our long-term traits, like generosity, courage, compassion. On this view what makes us morally blameworthy is bad character. Wrongful actions and culpable intentions usually evidence bad character, so these items are not irrelevant on this view; such items are merely evidential, however, for what is constitutive of blameworthiness is character and character alone.

The actual institutional implications of retributivism depends heavily on which of these three views of moral responsibility the retributivist adopts. In the Anglo-American penal system the first view has by and large predominated, but in the academic literature it has been seriously challenged by the other two views, particularly the second. All such views can properly be fitted within the retributivist theory.