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How Is Retributivism To Be Justified?, The Institutional Implications Of Retributivism, Bibliography

Retributivism is first and foremost a theory of punishment. It answers the question, Why do we have punishment institutions? The answer it gives is very simple: for the retributivist, we are justified in punishing persons when and only when they deserve to be punished. To avoid question-begging circularity, "deserve to be punished" in the above definition cannot simply mean "ought to be punished." Rather, to deserve punishment means to be morally blameworthy. The retributivist thus believes that the sole just end of punishment is to make the morally blameworthy suffer the sanctions we call punishment.

Contasting theories of punishment are the utilitarian and the rehabilitative theories of punishment. Typically, the utilitarian regards punishment as an evil but justifies it by the achievement of the greater good of crime prevention; punishment achieves this greater good through deterrence or incapacitation of would-be criminals (Bentham). Rehabilitationists are often merely utilitarians with a kinder, gentler crime prevention program, reform and education substituting for deterrence and incapacitation; as a truly distinct theory, however, the rehabilitationist regards crime as a disease that is not the fault of the criminal and punishment becomes a cure justified by duties of distributive justice to those unfortunate enough to suffer this disease (Menninger).

In addition to these three dominant theories justifying punishment institutions, there are also "mixed theories" that combine two of these three theories (Moore, 1984). The most widely embraced mixed theory holds that punishment must achieve both the utilitarian goal of crime prevention and the retributive goal of punishing those who deserve it in order to be justified (von Hirsch). Because the desert of the offender is a necessary condition of a just punishment under the mixed theory, this theory is sometimes called "weak" or "negative" retributivism (Mackie). These are misnomers because what is essential to retributivism is that the desert of the offender to be a sufficient reason to punish; a theory that regards such desert as only necessary leaves out what is so distinctive (and so troubling to many) about retributivism.

As a "theory of punishment," retributivism is said to answer the question, Why punish anyone? The question is best interpreted to be a very general one, asking after the justification for the entire criminal law and the institutions that serve it. Retributivism is thus, first and foremost, a theory about the legitimate end served by penal institutions. Retributivism, like other theories of punishment, is a theory about why we should have the criminal law (Moore, 1997). As such, retributivism also purports to answer more discrete questions about criminal law, such as questions about the correct doctrinal triggers for liability and questions about how much offenders should be punished for certain crimes when done with certain levels of culpability. Retributivism also has strong implications for the question of what should be prohibited by penal law; with certain suitable assumptions, a retributivist theory of punishment yields the legal moralist theory of criminal legislation according to which all and only morally wrongful behavior should be forbidden by the criminal law (Moore, 1997). On this latter theory, if a certain sort of behavior is morally wrong, that is a prima facie reason to criminalize it (although other factors may ultimately bar criminalization); if behavior is not morally wrong that is a very good reason not to criminalize it (for no retributive justice is achieved by the punishment of those who do good or at least do no wrong).

There have been famous attempts to restrict the range of questions properly answerable by a retributivist theory. John Rawls (1955) and H. L. A. Hart (1968) urged that retributivism answered the judge's question, Why should this offender be punished? but that the more general questions of why we punish anyone or what should be made criminal were to be answered on the basis of another theory, utilitarianism. The problem for this view was that no good reason can be given for restricting the range of properly answerable questions for either theory. If utilitarianism is a good theory of why and what we should punish, why is it not similarly a good theory of how punishment should be distributed in particular cases? If retributivism is a good theory for why some judge should punish poor old Jones, why is it not an equally good theory for why we should punish anyone like Jones in the relevant respects (namely, equally deserving of punishment)? The fact is that the questions answered by a theory of punishment like retributivism refuse to be cabined in this artificial way. Retributivism is both a general theory of punishment and also a theory about all the more discrete questions about the criminal law, right down to the question of whether and how much each particular offender should be punished.

For a variety of reasons retributivism has probably been the least understood of the various theories of punishment. Part of the bafflement about retributivism stems from its stark simplicity: it essentially asserts that we should punish because and only because culpable wrongdoers deserve it. This simplicity has lead many to seek to divine some other good that giving just deserts causes, inasmuch as this seems to make the theory more satisfyingly complex. For example, it is said that if the state punishes those who deserve it, that prevents vengeful citizens from taking the law into their own hands. This prevention of vigilante justice is then presented as the real good of the retributivism (Marshall). Alternatively, it is urged that if the state punishes those who deserve it, this will satisfy citizens' need for feeling that they are not dupes in restraining themselves from criminal actions. Such punishment thus serves the goods of satisfying a widespread preference that the guilty be punished and it keeps down dissatisfactions (about unpunished free riders) arising among the lawabiding (Stephens).

Retributivism is inconsistent with all of these theories. Essential to retributivism is the thesis that punishing those who deserve it is an intrinsic good, that is, something good in itself and not good because it causes something else. All of these theories make punishment of the guilty merely instrumentally good, that is, good only because it causes: the diminishment of vigilante violence; the satisfaction of citizen preferences for punishment; the maintenance of a sense of social cohesion; or the prevention of crime by those not angered at the sight of others breaking the social contract with impunity. One cannot hold that punishing the guilty is good only because doing so produces these other goods, and still remain a retributivist. Retributivism is a much simpler theory: punishment is justified by the simple moral fact that culpable wrongdoers deserve it.

Retributivism is also sometimes confused with a family of theories that urge that punishment of the guilty is justified because it expresses society's moral outrage at what was done, because it denounces the crime and the criminal or because it communicates to the criminal society's disapproval (Feinberg; Hampton in Murphy and Hampton). On their face, these theories are doubly puzzling: first, why is it plausible to hold that expressing, denouncing, or communicating is much of a good, indeed, so good that the catharsis achieved could justify something as harmful as punishment administered to the offenders? Second, if these are plausible goods, their justification remains unclear since we could as easily undertake dramatic shaming ceremonies where the message is given but the harsh treatment and suffering of offenders is not (Feinberg). In any case, to the extent that these implausible theories reduce the punishment of the guilty to a mere instrumental good in the service of social expression, they are not to be equated with retributivism.

Closer to retributivism are theories that turn punishment into an instrument of victim revenge. Such theories urge that the desert of offenders gives the state the right to punish them, but it is only the desire of the victims for revenge that justifies the state in doing what it has a right to do, namely, punish the guilty. Often adherents of these theories urge that it takes very little to justify the state in punishing those who deserve it, and the slightest satisfaction provided the victim of a crime by punishment of her wrongdoer is reason enough (Murphy, 1990).

Such a view of punishment as an engine for victim-directed vengeance is not utilitarian, but neither is it retributive. A retributivist believes that justice is served by punishing the guilty and thus, the desert of an offender not only gives the state the right to punish him but also the duty to do so. Making victims feel good is no part of retributive justice, although the retributivist may regard it as a welcome side effect of punishment along with crime prevention. Retributive justice is achieved by punishing the guilty even if the victims of such guilty offenders all wish forgiveness and mercy upon their offenders.


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Law Library - American Law and Legal InformationCrime and Criminal Law