2. Retributive Justifications of Legal Punishment
There is a great deal of confusion about precisely what it is to be a retributivist. One of today's leading retributivists himself does not think "retribution" is a helpful term: Andrew von Hirsch notes that the O.E.D. definition of "retribution" as "return of evil" and the declaration in the 1972 Model Sentencing Act that "sentencing should not be based upon revenge and retribution" illustrate how, retribution is often confused with vindictiveness.[62] The report of the Royal Commission on Capital Punishment clarifies how retribution can be understood differently:
Discussion of the principle of retribution is apt to be confused because the word is not always used in the same
[62] Andrew von Hirsch, Doing Justice (Westford, Mass.: Northeastern University Press, 1986), pp. 45–46.
sense. Sometimes it is intended to mean vengeance, sometimes reprobation. In the first sense the idea is that of satisfaction by the State of a wronged individual's desire to be avenged; in the second it is that of the State's marking its disapproval of the breaking of its laws by a punishment, proportionate to the gravity of the offense.[63]
Ambiguity exists not only in the meaning of "retribution" but in the burdens of a retributive justification of punishment. Some think that the amount of punishment need not be a just amount for the punishment to be justified on retributive grounds.[64] Others argue that any deviation from the just amount of punishment is unjust and therefore state punishment which can never hope to mete out punishment with such precision, cannot be justified by an appeal to the principle of retribution.[65] From our previous discussion we know of other possible criteria for being a retributivist. To be a retributivist, must I hold that we must punish all wrongs (positive principle), or merely that we must never punish an innocent person (negative principle)? To be a retributivist, must I hold that we punish only morally blameworthy conduct? Our task in this section is to answer these questions by examining various accounts of punishment commonly regarded as retributive.
We shall consider four sorts of retributive accounts, which I shall refer to as (1) revenge (associated by some with the lex talionis ); (2) condemnation; (3) deontological theories; and (4) just deserts.
[63] Report of the Royal Commission on Capital Punishment (London: H.M.S.O., 1953), pp. 17–18, cited in Joel Feinberg, "The Expressive Function of Punishment," in his Doing and Deserving: Essays in the Theory of Responsibility (Princeton: Princeton University Press, 1970), p. 101.
[64] C. W. K. Mundle, "Punishment and Desert," in Grupp, ed., Theories of Punishment , p. 66.
[65] A. C. Ewing, The Morality of Punishment (London: Kegan Paul, 1929), cited in Mundle, "Punishment and Desert," pp. 66–67.
2.1 Revenge
Oliver Wendell Holmes wrote that retribution is "only vengeance in disguise."[66] Most of us, when we hear someone declare that we ought to punish for the sake of retribution, associate retribution with revenge or retaliation (which we wrongly conflate).[67] We think of the biblical expression of the lex talionis :
And if any mischief follow, then thou shalt give life for life, eye for eye, tooth for tooth.[68]
Breach for breach, eye for eye, tooth for tooth: as he hath caused a blemish in a man, so shall it be done to him again.[69]
We have been taught to resist the urge to retaliate:
Ye have heard that it hath been said, An eye for an eye, and a tooth for a tooth: But I say unto you, That ye resist not evil: but whosoever shall smite thee on thy right cheek, turn to him the other also.[70]
Christianity has denounced retaliation, and, consequently, in the minds of many, retributive accounts of punishment. Of course, many of us do not easily heed Christ's words. We hardly need the survey research of social scientists (though
[66] Oliver Wendell Holmes, The Common Law (Boston: Little, Brown, 1923), p. 45.
[67] The justice of retaliation, or lex talionis , was deeply entrenched in the moral sensibilities of the Greeks and other archaic societies: see Gregory Vlastos, "Socrates' Contribution to the Greek Sense of Justice," Archaiognosia , vol. 1, no. 2 (1980), pp. 304ff. It was thought of as repayment, and the metaphor of paying back a debt was often used to characterize this sense of justice. Revenge is different, measuring punishment by the feelings of the victim.
[68] Exodus 21:24.
[69] Leviticus 25:20.
[70] Matthew 5:38–39.
the data are available) to tell us that revenge is an urge deeply seated in us.[71]
The law of the talio , or of retaliation, is not necessarily connected to the idea of revenge. To see punishment as revenge is to focus on the motivations of the punisher, whereas the lex talionis is a law of equivalence that dictates what punishment is commensurate with the crime; it is not a theory of motivation. Both the talio and the view that we punish to avenge have been discredited by most modern retributivists.
Retributivists needn't commit to the lex talionis . One of the most famous and important retributivists, Hegel, is sharply critical of the lex talionis , using Blackstone's example to make his point: "an eye for an eye, a tooth for a tooth—and then you can go on to suppose that the criminal has only one eye or no teeth."[72] In any case, what amount of punishment we inflict is one question; why we punish is another. No retributivist of repute takes the lex talionis as the justification for punishing at all. One modern retributivist, Joel Feinberg, calls "incoherent" the version of retributive theory that insists "that the ultimate justifying purpose of punishment is to match off moral gravity and pain, to give each offender exactly that amount of pain the evil of his offense calls for, on the alleged principle of justice that the wicked should suffer pain in exact proportion to their turpitude."[73]
Nor need retributivists commit to the idea that we punish to avenge. The most persuasive retributivists distinguish their
[71] See, for example, the very dated but still interesting study by F. C. Sharp and M. C. Otto, "A Study of the Popular Attitude Towards Retributive Punishment," International Journal of Ethics , vol. 20, no. 3 (April 1910). The authors conclude that revenge is deeply built into the values of those surveyed, "contrary to traditional Christian ethics."
[72] G. W. F. Hegel, Philosophy of Right , trans. T. M. Knox (1821; London: Oxford University Press, 1952), par. 101, Remark, p. 72. Hegel opposes, not the idea that the severity of the punishment we inflict should be equivalent in value to the severity of the crime, but only the strict equivalence established by the lex talionis .
[73] Feinberg, Doing and Deserving , p. 116.
view from revenge theories of punishment. For Hegel, the judge who oversees legal punishment is not an avenger. Whereas revenge can be arbitrary and further the wrong, the judge of a rational modern state must be "cold, heartless, and have only the interests of the law," and this presupposes the education or cultivation (Bildung ) of a modern state.[74] says that the word Gerechtigkeit (justice) comes from the word Rache (revenge) and that in uncivilized (ungebildeten ) states justice is revenge,[75] but in rational modern states revenge is too contingent and arbitrary and subjective to serve justice or right.[76] In an earlier work Hegel explains that if we rely on the sufferer or his next of kin to punish, then right is mixed with arbitrariness; legal punishment depends, rather, on a third party.[77]
Revenge, as Hegel describes it, is subjective; it derives from feelings of anger and resentment within an individual. Not all retributivists, however, take anger to be a subjective measure residing only within individuals. Walter Berns defends punishment as an expression of anger, but the anger he means resides not merely within the hurt victim but within society. The anger Berns thinks punishment expresses is a righteous anger, an anger "somehow connected with justice." For Berns, this anger is not "a selfish indulgence," but "may more accurately be called a profound caring for others."[78]
[74] G. W. F. Hegel, Vorlesungen über Rechtsphilosophie (1818–1831), 4 vols., ed. Karl-Heinz Ilting (Suttgart-Bad Cansatt: Friedrich Fromman, 1973), vol. 4, p. 556.
[75] Ibid., vol. 4, p. 294.
[76] G. W. F. Hegel, Grundlinien der Philosophie des Rechts , in Hegel, Werke in zwanzig Bänden , ed. Eva Moldenhauer and Karl Michel (Frankfurt am Main: Suhrkamp, 1970), vol. 7, par. 102.
[77] G. W. F. Hegel, Philosophische Propaedeutik , in Hegel, Werke , vol. 4, part 1, par. 21.
[78] Walter Berns, "The Morality of Anger," in Hugo Bedau, ed., The Death Penalty in America (Oxford: Oxford University Press, 1982), pp. 334–35. See also Stanley Brubaker, "Can Liberals Punish?" American Political Science Review , vol. 82, no. 3 (September 1988): "[P]unishment expresses and satisfies righteous anger" (p. 825).
Anger is expressed or manifested on those occasions when someone has acted in a manner that is thought to be unjust, and one of its origins is the opinion that men are responsible, and should be responsible…. We can become angry with an inanimate object (the door we run into and then kick in return) only by foolishly attributing responsibility to it, and we cannot do that for long, which is why we do not think of returning later to revenge ourselves on the door…. Anger recognizes that only men have the capacity to be moral beings and, in so doing, acknowledges the dignity of human being.[79]
By punishing to vent our anger,
we demonstrate that there are laws that bind men across generations as well as across (and within) nations, that we are not simply isolated individuals, each pursuing his selfish interests and connected with others by a mere contract to live and let live.[80]
Berns tends to speak of punishment as justified "revenge." But rather than see his retributivism as a revenge theory, I think we should invoke a distinction Hegel suggests, between revenge, which is subjective and appeals to an individual's feelings of hurt; and righteous anger, which reflects a social judgment. We can then understand Berns's retributivism as advocating, not the vindictive satisfaction of personal desires to avenge, desires of the sort that fuel violently destructive blood feuds, but, rather, the satisfaction of the demands of justice and right. Berns's retributivism, then, more properly belongs to the next variety of retributive theories we shall consider.
Some may think our lust for revenge explains why we punish. But few retributivists of repute take revenge to be the principle we use to guide us in our practice, and most reject the view that the purpose of punishment in a modern state is
[79] Ibid., p. 334.
[80] Ibid.
to satisfy the desire to avenge. Retribution as revenge is not a compelling account of legal punishment, and it is not the version of retributivism I shall defend.
2.2 Condemnation
According to a second version of retributivism, we do not punish to deter, incapacitate, reform, or satisfy a private desire for vengeance; rather, punishment is justified as an expression of society's condemnation of the offensive act.
Henry Hart emphasizes the condemnatory or reprobative function of punishment in answering the question he poses of what is the distinctive function of criminal (as opposed to other) law. Some utilitarians argue that there is no essential difference in purpose between criminal and tort law; to Richard Posner, for example, the only time there is a justification for invoking criminal rather than civil remedies is when the latter "bump up against a solvency limitation."[81] Hart claims there is an essential difference; in his view, criminal law, unlike other law, reflects "the judgment of community condemnation which accompanies and justifies its imposition."[82] Whereas a tort is an injury to a private person, a violation only of private law, a crime is an affront to the social morality articulated in criminal or public law. Crime is
conduct which, if duly shown to have taken place, will incur a formal and solemn pronouncement of the moral condemnation of the community.[83]
Hart concurs with the view that
The essence of punishment for moral delinquency lies in the criminal conviction itself. One may lose more money on the stock market than in a court-room; a prisoner of war camp may well provide a harsher environment
[81] Posner, "An Economic Theory of the Criminal Law," p. 1204.
[82] Henry M. Hart, Jr., "The Aims of the Criminal Law," Law and Contemporary Problems , vol. 23 (Summer 1958), p. 404.
[83] Ibid., p. 405.
than a state prison…. It is the expression of the community's hatred, fear, or contempt for the convict which alone characterizes physical hardship as punisment.[84]
Hart takes issue with humanitarian theories that see treatment as the aim of punishment, for such theories fail to see that the essential aim of punishment is to express condemnation:
Today "treatment" has become a fashionable euphemism for the older, ugly word ["punishment"]. This bowlderizing of the Constitution and of conventional speech may serve a useful purpose in discouraging unduly harsh sentences and emphasizing that punishment is not an end in itself. But to the extent that it dissociates the treatment of criminals from the social condemnation of their conduct which is implicit in their conviction, there is danger that it will confuse thought and do a disservice.[85]
Like all the utilitarians we considered, Hart uses his account of the essential aim of punishment to criticize the existing practice. He says his thesis is "that a sanction which ineradicably imparts blame, both traditionally and in most of its current applications, is misused when it is thus applied to conduct which is not blameworthy."[86]
Joel Feinberg also emphasizes the reprobative function of legal punishment. Feinberg contends that
[p]unishment is a conventional device for the expression of attitudes of resentment and indignation, and of judgments
[84] George K. Gardner, "Bailey v. Richardson and the Constitution of the United States," Boston University Law Review , vol. 33 (1953), p. 193, cited by Hart, "The Aims of the Criminal Law," p. 405. Neither Hart nor Feinberg, who also cites this passage, observes that contempt and fear are separate reasons for punishing. Fear may motivate the utilitarian more than contempt or hatred does. Punishing in order to condemn is similar in some ways, different in others, from punishing out of revenge, but the equation of condemnation with the expression of hatred or contempt tends to stress only the similarities.
[85] Hart, "The Aims of the Criminal Law," p. 405.
[86] Ibid., p. 405, note 13.
of disapproval and reprobation, on the part either of the punishing authority himself or of those "in whose name" the punishment is inflicted. Punishment, in short, has a symbolic significance largely missing from other kinds of penalties.[87]
But Feinberg distinguishes his view from Hart's. Hart suggests that condemnation alone may count as punishment, even absent the added consequences of unpleasant physical pain:
[O]therwise, it would be necessary to think of a convicted criminal as going unpunished if the imposition or execution of his sentence is suspended.[88]
For Feinberg, what makes something legal punishment is its reprobative force and its being "hard treatment."[89] Whereas Hart suggests that hard treatment is a distinct and nonessential feature of punishment—the convicted criminal whose sentence is suspended is still punished, still stigmatized—Feinberg points out that in some cases it is only the actual infliction of hard treatment that constitutes punishment: "it does not always happen that the convicted prisoner is first solemnly condemned and then subjected to unpleasant physical treatment."[90] Hard treatment itself brings shame and ignominy and stigma: "[C]ertain forms of hard treatment have become the conventional symbols of public reprobation."[91]
The condemnation theory of punishment might seem to be nothing but a theory of public vengeance. Feinberg suggests that punishment is in part "a symbolic way of getting back the criminal, of expressing a kind of vindictive resentment."[92] But in the condemnation theory, punishment also expresses judgments of community disapproval, which needn't be motivated by resentment or even by anger. The condemnation
[87] Feinberg, "The Expressive Function of Punishment," p. 98.
[88] Hart, "The Aims of the Criminal Law," p. 405.
[89] Feinberg, "The Expressive Function of Punishment," p. 98.
[90] Ibid., p. 99.
[91] Ibid., p. 100.
[92] Ibid.
theory is not merely a theory of public vengeance, though it is that as well. It understands legal punishment to serve other purposes besides the venting of public anger, purposes which are distinct also from those declared by the utilitarian. One purpose of punishment, in Feinberg's view, that presupposes its expressive function is the authoritative disavowal of what was done. Another is the vindication of the law:
A statute honored mainly in the breach begins to lose its character as law, unless, as we say, it is vindicated (emphatically reaffirmed); and clearly the way to do this (indeed the only way) is to punish those who violate it.[93]
The retributivist notes that only by punishing do we affirm right. Unless we punish a wrong, it will be held to be valid.[94] Hegel suggests that to have a law the violation of which is to be called a "wrong" or "crime" logically requires punishing those who violate it:
[P]unishment, as we have seen, is only crime made manifest; i.e. is the second half which necessarily presupposes the first. Prima facie, the objection to retribution is that it looks like something immoral, i.e. like revenge, and that thus it may pass for something personal. Yet it is not something personal, but the concept itself, which carries out retribution.[95]
[I]t would be impossible for society to leave a crime unpunished, since that would be to posit it as right.[96]
A third function of punishment noted by Feinberg is the absolution of others: "Quite often the absolution of an accused hangs as much in the balance at a criminal trial as the inculpation of the accused." Of course, the state could do this job
[93] Ibid., p. 104.
[94] Hegel, Philosophy of Right , par. 99.
[95] Ibid., par. 101 addition.
[96] Ibid., par. 218 addition.
without punishing, "but when it speaks by punishing, its message is loud and sure of getting across."[97]
All of these functions are nonutilitarian reasons for punishing. They are forward-looking or consequential in some sense, in that they appeal to some future good, be it the vindication of right, absolution of someone wrongly accused, or whatever good we associate with the venting of righteous anger; but it is not on the basis of a calculation of utilities, pleasures and pains, or effects on economic efficiency that they are regarded as good reasons. They are moral or ethical reasons for punishing that presuppose that the purpose of legal punishment is to express public condemnation of certain actions we call crimes.[98]
2.3 Deontological Retributive Theories
It might be surprising to hear a retributive theory characterized as forward-looking or consequential, for retributivism is usually characterized as nonconsequential, as "deontic." According to one commentator, "[r]etributivism is a deontological theory, different in its logical behaviour from its teleological counterpart."[99]
A teleological theory would consider the punishment as the means to some good, either general or individual. But the obligation laid upon us by "This is a just punishment" asserts the independent moral value of the punishment itself, considered apart from, and even to the frustration of, some prudential value to be derived from its effects…. In teleological theory we may ask of each action in a sequence "why?" until we reach an answer that is considered prudentially sufficient…. In a deontological
[97] Feinberg, "The Expressive Function of Punishment," p. 105.
[98] In chapter 4, section 4, I shall defend a consequentialist retributivism. The sense in which this retributivism is con sequentialist is rather weak; but it is nevertheless forward-looking enough to be distinguished from the deontic theory we shall consider in the next section.
[99] Mary MacKenzie, Plato on Punishment (Berkeley: University of California Press, 1981), p. 29.
theory, on the other hand, "why?" questions terminate in a judgment which is considered to be morally sufficient—maybe from an intuitionist point of view.[100]
In this view, where retributivism is seen as a deontological theory that is mutually exclusive of teleological theories, the retributivist insists that we punish, not for any consequences, such as to deter future crimes, or to reform or incapacitate the criminal, but, rather, for the sake of punishing, because punishing is in itself just or right—regardless of the good it may yield.
Does anyone hold such a view? If anyone does, it is Kant,[101] and it is to his views about legal punishment that we now turn.
The conventional understanding of Kant is that he is a retributivist who opposes all utilitarian justifications of punishment, instead holding that we punish only because justice demands this.[102] I shall argue that this understanding gets Kant wrong. Kant, it is true, rejects consequentialism in thinking about moral actions, but Kant also thinks law and morality are separate spheres: the justification for a moral action has a different character from the justification for a legal action. Kant's theory of legal punishment is not deontological.
In his Lectures on Ethics , Kant distinguishes moral from pragmatic laws; the latter comprise statute and common law.[103] Pragmatic laws constrain actions related to other people;
[100] Ibid.
[101] MacKenzie, who makes the claim that retributivism is a deontological, not a teleological, theory, thinks Kant's is the paradigm of a deontological theory of punishment (ibid., p. 29, note 39).
[102] For example, Mitchell Franklin says that in Kant's view it is not justified to punish in order to deter ("The Contribution of Hegel, Beccaria, Holbach and Livingston to General Theory of Criminal Responsibility," in Philosophical Perspectives on Punishment , ed. Edward H. Madden, Rollo Handy, and Marvin Farber (Springfield: Charles C. Thomas, 1968), p. 102. See also Brubaker, "Can Liberals Punish?" p. 826.
[103] Immanuel Kant, Lectures on Ethics , trans. Louis Infield (New York: Harper Torchbooks, 1963).
unlike moral laws, they demand compliance regardless of one's moral disposition.[104] Whereas pragmatic laws are made by governments, moral laws have no author.[105] Kant then makes the following distinction, which seems so often ignored: the punishment imposed, by a being who is guided by moral standards is retributive,[106] but punishment for the violation of (pragmatic) law is imposed to deter or reform:
AII punishments imposed by sovereigns and governments are pragmatic. They are designed either to correct or to make an example.[107]
Ruling authorities do not punish because a crime has been committed, but in order that crimes should not be committed.[108]
Kant thinks that the risk of punishment should not be our ground for avoiding evil deeds. We use rewards and punishment in order to make up for our lack of morality,[109] not to inspire moral action. Kant thinks it is wrong to use the threat of punishment to inspire moral action, but that through punishment man acquires the habit of doing good deeds.[110]
In his often neglected essay On the Old Saw: That May Be Right in Theory But It Won't Work in Practice , Kant gives a hypothetical example in which he appeals implicitly to deterrence as the justification for legal (but not moral) punishment.[111] Kant supposes that one man on a life raft pushes the other off to save his own life. Kant says the man does not have a duty to save his own life; rather, he has an unconditional
[104] Ibid., p. 48.
[105] Ibid., pp. 51–52.
[106] Ibid., p. 55.
[107] Ibid.
[108] Ibid., p. 56.
[109] Ibid.
[110] Ibid., p. 57.
[111] Immanuel Kant, On the Old Saw: That May Be Right in Theory But It Won't Work in Practice , trans. E. B. Ashton (Philadelphia: University of Pennsylvania Press, 1974).
duty not to take the life of someone else who is not causing the danger threatening his life. (Kant does not consider the objection that the other man, by consuming what food and drink are available, is indirectly causing a danger to the life of the first.) But, in a footnote, Kant defends "law professors" as
quite consistent in making legal allowance for such emergency acts. For the authorities can't attach any punishment to this injunction, because that punishment would have to be death, and it would be an absurd law that threatened death to one who refuses to die voluntarily in a dangerous situation.[112]
Kant's reasoning is that state laws, by threatening us with sanctions, are intended to prevent us from acting in certain ways. The point of these laws is to deter. Consequently, a law that imposes a punishment that could not deter the action the law proscribes is absurd. In his Metaphysics of Ethics Kant repeats the lifeboat example and makes the further distinction that the rescued person's killing is not inculpable (unsträflich ) but is impunible (unstrafbar ).[113] here it is clear how important is Kant's separation of law (Legalität —whether an action accords with a law without further consideration of motivations) and morality (Moralität ). Legal duty is external duty, whereas ethical or moral duty is internal duty.[114] Legal duty binds by force or coercion (Zwang ).[115] In the lifeboat example there is a moral, not a legal, duty not to kill the other person. The rescued
[112] Ibid., p. 68, note.
[113] Immanuel Kant, Metaphysik der Sitten , in Kant, Werke in Sechs Bänden , vol. 4, ed. Wilhelm Weischedel (1798; reprinted Darmstadt: Wissenschaftliche Buchgesellschaft, 1963), AB41–42.
[114] Ibid., AB15.
[115] Ibid., AB16. Kant also makes the distinction between recht and gerecht (right and justice). He says that legal action is either gerecht or ungerecht ; moral action is either recht or unrecht (AB23). Kant's distinction is not unlike Hobbes's distinction between injustice and iniquity: Hobbes writes in Leviathan that the sovereign can do no injustice, but he may commit iniquity (ch. 18).
person is to be morally condemned but not legally punished.
Kant's theory of legal punishment does not rule out utilitarian considerations, but does it make sense to call his a retributive theory? If so, it is not because Kant thinks we punish to avenge: "[T]o insist on one's right beyond what is necessary for its defence is to become revengeful … such desire for vengeance is vicious."[116] There are other reasons why we call Kant a retributivist. Kant holds to the principle of equality in punishing. In the Metaphysics of Ethics Kant writes: "[W]hatever undeserved evil you inflict on someone, you do to yourself…. [I]f you strike him, you strike yourself; if you kill him, you kill yourself."[117] Kant draws the conclusion that my action should literally be turned back on me—if I kill another, I should be killed.[118] Kant thus adopts a version of the lex talionis , though he carefully distinguishes this view from one of private revenge.[119] He also allows that the principle of equality can be valid, if not in the letter, then in its effect; for example, justice can require a nobleman to apologize publicly if he insults someone, of lower class, since a fine would have no impact on him.[120]
Another reason we call Kant a retributivist is that he insists that a person may be punished only because he has committed a crime, and not for any other purpose:
The criminal must be found to be worthy of punishment [strafbar ], before it is to be thought that from his punishment some use for himself or his fellow citizens can be drawn.[121]
Kant argues that we cannot punish someone merely to achieve some further good; he opposes, for example, a proposal to
[116] Kant, Lectures on Ethics , p. 214.
[117] Kant, Metaphysik der Sitten , A197–98, B227–28.
[118] Ibid., A199, B229.
[119] Ibid.
[120] Ibid., A198, B228.
[121] Ibid., A196–97; B226–27.
have a person on death row participate in dangerous experiments that could yield beneficial results.[122] Underlying Kant's position is the view that human beings should not be treated only as a means to some end:
Now I say that man, and in general every rational being, exists as an end in himself, not merely as a means for arbitrary use by this or that will: he must in all his actions, whether they are directed to himself or to other rational beings, always be viewed at the same time as an end.[123]
This aspect of Kant's theory has been emphasized by other retributivists who oppose what are called humanitarian theories of punishment. A humanitarian theory is a variation of utilitarian theory that advocates therapy and treatment, not punishment.[124] Karl Menninger, whose views we considered in chapter two, gives such a theory. For Menninger, punishment is nothing but the infliction of pain and suffering; punishment is inhumane and does no good, and our resources would be better spent reforming the criminal who has done "so human a thing."[125]
The retributivist objection to this seemingly benign position is best expressed by Hegel. In his early Propaedeutik Hegel opposes those who think the state should help people by treating or reforming them even though the person being helped
[122] Ibid. We might ask Kant why he thinks it is wrong to conduct medical experiments on a prisoner, so long as her imprisonment is deserved. In that case she is not being treated merely as a means.
[123] Immanuel Kant, Groundwork of the Metaphysic of Morals , trans. H. J. Paton (New York: Harper Torchbooks, 1964), p. 95; see in general pp. 95–103.
[124] MacKenzie, Plato on Punishment , prefers to distinguish humanitarian from utilitarian theories. For her, both are teleological theories, but for utilitarians the end for which punishment is the means is a general good, whereas for humanitarians it is an individual good.
[125] Another example of a humanitarian theory is that of Norval Morris and Donald Buckle, "The Humanitarian Theory of Punishment: A Reply to C. S. Lewis," in Grupp, ed., Theories of Punishment , pp. 309–16.
does not consent: "To help someone in need, that person must will that I help him, that I still will regard and treat him as equal."[126] Why? Hegel, drawing on Kant's idea of human beings as ends in themselves, explains in his later Philosophy of Right :
Punishment is regarded as containing the criminal's right and hence by being punished he is honoured as a rational being. He does not receive this due of honour unless the concept and measure of his punishment are derived from his own act. Still less does he receive it if he is treated either as a harmful animal who has to be made harmless, or with a view to deterring and reforming him.[127]
Kant's theory of legal punishment is not deontological, since for him a legal punishment is not justified that could not deter wrongs. But the theory is retributive, inasmuch as Kant holds to the negative retributive principle that we must punish for no other reason than that a wrong was committed. (However, we've seen that Bentham, a classic utilitarian, also holds to this principle.) Kant gives another hypothetical example, one that appeals to the stronger, positive retributive principle: on an island where all the people were to depart the next day, forever dissolving and dispersing the community, the last murderer in jail would have to have his execution carried out before the diaspora, because justice demands this. Kant is a retributivist because he holds that justice must prevail, "else a people is doomed."[128] The utilitarians we have discussed would contend that in such cases, where punishment could not possibly be justified by the principle of utility, we should refrain from punishing. On this point Kant and the utilitarians disagree.
At this point we might be puzzled by Kant's views, for the diaspora example is difficult to reconcile with Kant's other
[126] Hegel, Philosophische Propaedeutik , part 2, par. 66.
[127] Hegel, Philosophy of Right , par. 100, Remark.
[128] Kant, Metaphysik der Sitten , A196–97, B226–27. Note how Kant's formulation is consequentialist but not utilitarian.
hypothetical example, that of the lifeboat, whose point is that legal punishment must deter. With the diaspora example Kant claims that desert is a necessary and sufficient condition for punishment. Kant chose the diaspora example precisely because it presents a case in which we must punish even though there is no conceivable basis in utility for doing so. How could Kant claim both that the person on the lifeboat who kills the other need not be punished, because doing so would not provide any deterrent benefit, and that a murderer who could pose no possible future threat to his society must nevertheless be punished? I think a plausible answer is that in the lifeboat example Kant is saying, not that we should not punish a wrong where doing so would be ineffective, but, rather, that the killing should not be regarded as a criminal action, or wrong. Kant can with consistency hold both that we should not call a crime any action that could not be deterred by the threat of legal punishment, and that we must punish crimes even when doing so would not augment social utility.
A deontological theory that insisted we punish even though such punishing would lead to society's destruction would not be very attractive. Retributivists are typically characterized, rather unflatteringly, as nonconsequentialists, as only backward-looking. It is true that for the retributivist the fact that a crime occurred in the past is a compelling reason for punishing. But, as our discussion in this chapter should make clear, one can be a retributivist and still take consequences into account. Both the revenge and the condemnation version of retribution make reference to a future good: the satisfaction of personal desires, or the vindication of right. Utilitarianism is not the only theory that is forward-looking in any degree.[129]
[129] Justice Thurgood Marshall wrote in Gregg v. Georgia , 428 U.S. 153 (1976): "The … contentions that society's expression of moral outrage through the imposition of the death penalty pre-empts the citizens from taking the law into its own hands and reinforces moral values—are not retributive in the purest sense. They are essentially utilitarian in that they portray the death penalty as valuable because of its beneficial results." Marshall, apparently of the understanding that retributivism means being oblivious to consequences and that arguing for something on the basis of its good consequences means one is utilitarian, winds up labeling as utilitarian what clearly is a retributive position. Marshall could have avoided stretching utilitarianism so far had he seen that to be a utilitarian one must justify an action or practice by appealing to a calculation of net utilities. On the rejection of the simple dichotomy of "deontological" and "consequentialist" (that is, that one must be either one or the other), see Charles Larmore, Patterns of Moral Complexity (Cambridge: Cambridge University Press, 1987), esp. p. xi.
The retributivist position I shall defend is not strictly deontological; it recognizes the importance of justice and right, but is unwilling to insist on justice "though the world perish."
2.4 Just Deserts
A final version of retributivism follows in the footsteps of Kant, up to a point. In this version, desert is a necessary but not sufficient condition for legal punishment. A leading advocate of this view is Andrew von Hirsch, who chaired the Committee for the Study of Incarceration, which clarified the conception of punishment as just deserts.
Von Hirsch argues that utilitarianism alone cannot justify a person's punishment—desert is needed: "While deterrence accounts for why punishment is socially useful, desert is necessary to explain why that utility may justly be pursued at the offender's expense."[130] In the just deserts theory, desert and deterrence are both essential features of punishment. That someone deserves punishment does not imply that we must punish him, only that we have reason to do so. Because there are moral reasons not to punish, deterrence is needed to "tip the scales back in favor of penal sanction."[131] The argument, then, is that: (1) committing a criminal act deserves punishment, and desert is a prima facie justification; (2) there is a moral obligation not to add deliberately to the amount of human suffering, which punishment does, and this overrides the case for punishment in (1). Deterrence disposes of the countervailing
[130] Von Hirsch, Doing Justice , p. 51.
[131] Ibid., p. 54.
argument in (2), and so (1) stands.[132] Since we may safely assume that in some situations (3) will not outweigh (2), von Hirsch's version of retributivism as just deserts holds to the weaker negative retributive principle that demands merely that we punish only for an offense, not to the positive retributive principle that we punish all offenses.
Von Hirsch overlooks an important point, one that is central to the retributive position I shall defend: we can be committed always to punishing for an offense, for retributive reasons, without being committed to inflicting punishment in a certain way. In his argument above, von Hirsch acknowledges a moral demand to express condemnation (to punish), but also recognizes a moral objection against the infliction of pain or suffering (punishment). But not all legal punishment inflicts pain or suffering. The retributivism I shall defend insists that we punish when punishment is deserved, but recognizes that how (or how much) we punish is a separate matter. This is the position Hegel takes: "[T]he only interest present is that something actually done [i.e., that we punish] … no matter how."[133] Von Hirsch fails to take into account that we can with consistency insist always on punishing, for retributive reasons, and insist that the way we punish be justified on utilitarian grounds.
In the theory of retribution as just deserts the idea of desert is used to account for why it is morally permissible to punish certain individuals, but in itself it does not account sufficiently for why we are justified in having a practice that punishes those who deserve punishment.[134] But not everyone accepts even
[132] Ibid.
[133] Hegel, Philosophy of Right , par. 214, Remark; cf. par. 214, Z.
[134] David Dolinko has recently distinguished the "moral justification" of punishment—an account of why it is morally legitimate to punish, or of by what right we may punish—from the "rational justification" of punishment—an account of for what reason we punish at all. Dolinko notes that we can agree that there are reasons for punishing without agreeing that it's morally legitimate to punish, and vice versa ("Some Thoughts About Retributivism," Ethics , vol. 101, no. 3 [April 1991], pp. 539–40).
the idea that because a person has committed a crime, it is, on the theory of just deserts, morally permissible to punish him. Consider the (true) story of Leroy Strachan. Mr. Strachan was recently arrested in New York City by two Miami police officers. He was wanted for the murder of a police officer in Miami forty-three years previously. In the intervening years Mr. Strachan, now a sixty-one-year-old Harlem resident, married, raised three children, and operated an elevator in SoHo for twenty-one years. The manager of the building where Mr. Strachan worked describes Mr. Strachan as "a very good worker who never had a problem." Since the incident forty-three years previously, Mr. Strachan had not been arrested for any offense. When the Miami police officers confronted him with the crime, Mr. Strachan confessed. If extradited to Florida and convicted, he could face the death penalty.[135] According to the theory of just deserts, should Mr. Strachan be punished?
Some retributivists would insist, for various reasons, that Mr. Strachan, if convicted, does deserve punishment. Von Hirsch, however, on the basis of the theory he lays out, would probably be committed to opposing his punishment, since in this case punishment is unlikely to have much of either a general or a specific deterrent effect.[136] So, too, would another theorist who offers a more sophisticated version of the theory of just deserts. In James Griffin's view, retribution as just desert is premised on the idea that desert is a reason for action, but not one that necessarily trumps other reasons. Griffin argues that merit (or desert) is not a moral reason for action or a criterion for moral right and wrong, but it is a reason for action: "The element of appropriateness itself constitutes a reason."[137] Griffin means that it is appropriate to express admiration for one who merits it—to admire only on utilitarian
[135] New York Times , February 17, 1990.
[136] General deterrence refers to the effect on members of society in general; specific deterrence, to the effect punishment would have on Mr. Strachan.
[137] James Griffin, Well-Being: Its Meaning, Measurement, and Moral Importance (Oxford: Clarendon Press, 1986), p. 259.
grounds would not really be to admire; but your merit does not give you a right to receive, nor impose a duty on me to express, my admiration. Griffin then takes the case of punishment—a case of demerit rather than merit—and comes to somewhat different conclusions. Griffin argues that your demerit is a moral reason for punishing you, but only under what he calls the "repentance view."[138] What you did was morally wrong, so I have a moral reason to punish you, but "my response to your wrongdoing is appropriate only when, and to the extent that, it contributes to your going through the … process: perception, guilt, and repentance."[139]
Griffin distinguishes the repentance view from what he calls the atonement view, which he dismisses. In the atonement view, my act of demerit needs to be punished; but the problem with this view is that "if I change, I should want [people] to respond now to the person I am now."[140] If I have changed, neither deterrence nor retaliation seems appropriate.[141] Griffin identifies Kant with the atonement view and suggests that Kant, who does not want to deny to a person the dignity of being morally accountable, fails to see that
the atonement view is not the only way to show respect for persons…. If anything, it is the repentance view, in which a person is given more weight than an act, that shows respect for persons.[142]
In Griffin's view, then, the only desert-based moral reason for punishing me is, not to atone for the wrong I've done, but to
[138] Ibid., p. 270.
[139] Ibid., p. 272. Griffin's argument, then, seems to be: if you commit a wrong, then you deserve to be punished—we have a moral reason to punish you. But it's appropriate to give you what you deserve only if doing so will get you to repent. In other words, the moral reason for punishment is weighed against the criterion of appropriateness. In this argument is the same sort of utilitarian weighing we find in von Hirsch's argument. The Kantian would question Griffin's invocation of the criterion of appropriateness.
[140] Ibid., p. 268.
[141] Ibid., p. 269.
[142] Ibid.
make me repent.[143] And "if the wrongdoer is an exceptional moral agent who spontaneously repents and reforms, there is virtually no place for punishment."[144] On the other hand,
if he is an adult who still needs to learn but resists the lesson, then maybe punishment would teach the seriousness of wrongdoing where words alone would fail. If he is someone who cannot learn no matter what the lesson, then punishment has no place as a response to the person that we are dealing with.[145]
Griffin, then, suggests a reason not to punish Mr. Strachan.[146]
Although Griffin speaks of desert as a moral reason for punishing, in his view it amounts only to a necessary but not sufficient condition for punishing. Griffin comes to a conclusion similar to von Hirsch's, although some would call his view humanitarian and von Hirsch's utilitarian, since for Griffin the sufficient condition for punishment is moral improvement of the individual, whereas for von Hirsch it is the improvement of society that results from deterrence.
The retributivists who focus on just deserts seem to give in to utilitarianism, and we might ask whether there is any essential difference between the two sorts of justifications. Retributivism in the version of just deserts holds only to the weaker, negative retributive principle, that we punish only those who are guilty of a crime. Neither von Hirsch nor Griffin expresses Kant's demand that we must punish when we have reason to punish. None of the utilitarians we discussed denies that desert is a necessary condition for punishment. In the theory of punishment as just desert, utilitarianism and retributivism blur.[147]
[143] Ibid., pp. 270, 272.
[144] Ibid., pp. 270–71.
[145] Ibid., p. 271.
[146] It's unclear whether Griffin himself would apply his argument in this way. He clearly states that his argument applies to moral punishment. Other considerations may enter for him when thinking about legal punishment.
[147] Cf. Dolinko, "Some Thoughts About Retributivism," p. 543.