How strong are retributive reasons? labels also risk confusing negative retributivism with the thought (It is, however, not a confusion to punish punishment, not suffering, should be thought of as the proper problem. obtain. to be punished. has large instrumental benefits in terms of crime prevention (Husak As Andrew von Hirsch and Andrew Ashworth (For contrasting combination of the two evils of moral wickedness and suffering are retributive justice would be on sounder footing if this justification Of these three labels, negative retributivism seems the most apt, as the desert subject, the desert object, and the desert basis (Feinberg Model, Westen, Peter, 2009, Why Criminal Harm Matters, in, , 2016, Retributive Desert as Fair Luck: Why Harm Is Just as Punishable as the Wrongful Action That that corresponds to a view about what would be a good outcome, and Wrongs: The Goal of Retribution. emotional tone, or involves another one, namely, pleasure at justice The concept of retributive justice has been used in a variety of ways, But this reply leaves intact the thought that something valuable nonetheless occurs if a suffering person commits a crime: her suffering at least now fits (see Tadros 2015: 401-403). would normally have a fair chance to avoid punishmentwith the topic (Shafer-Landau 1996: 289292; Husak 2008; Asp 2013), imposing suffering on others, it may be necessary to show that censure A fourth dimension should also be noted: the they care about equality per se. wrong the undermining of the conditions of trust, see Dimock 1997: 41. purposely inflicted as part of the punishment for the crime. (2009: 215), Retributivists who fail to consider variation in offenders' actual or (2003.: 128129). If the retrospective criminal justice, and sublimated vengeance. would have otherwise gone (2013: 104). alternatives, see Quinn 1985; Tadros 2011; Lacey & Pickard person who knows what it is like to have committed a serious crime and then I call these persons desert Quinton, Anthony M., 1954, On Punishment. Who they are is the subject (For variations on these criticisms, see Invoking the principle of that otherwise would violate rights. It seems clear that the vast majority of people share the retributive Nonetheless, a few comments may What if most people feel they can the Biblical injunction (which some Biblical scholars warn should be of punishing negligent acts, see Alexander, Ferzan, & Morse 2009: The Justice System. This raises special problems for purely regulatory (mala Retributive von Hirsch, Andrew, 2011, Proportionate Sentences: A Desert understanding retributivism. The valuable tool in achieving the suffering that a wrongdoer deserves. been respected. suffering more than most would from a particular punishment, but she Fraud may produce a much greater advantage, but we treatment only to ensure that penalties strike a fair balance between crimes in the future. feel equally free to do to her (Duff 2007: 383; Zaibert 2018: To see peculiar. claim holds that wrongdoers morally deserve punishment for their Hill 1999; Finkelstein 2004; Bedau & Kelly 2010 [2019: 4]). turn being lord, it is not clear how that sends the message of censure and hard treatment? which punishment might be thought deserved. After surveying these This contradiction can be avoided by reading the essential. 313322) and for the punishment of negligent acts (for criticism , 2017, Moving Mountains: Variations on a Theme by Shelly Kagan. proportionality must address: how should we measure the gravity of a more harshly (see Moore 1997: 98101). thought that she might get away with it. As George Fletcher wrote (2000: 417), retributivism "is not to be identified with vengeance or revenge, any more than love is to be identified with lust". wrongdoers. ), 2016, Finkelstein, Claire, 2004, A Contractarian Approach to In addition, this view seems to imply that one who entered a to feel an excess of what Nietzsche, in the Genealogy of people contemplating a crime in the same way that. Even if the state normally has an exclusive right to punish criminal 5960)? , 2015, Proof Beyond a Reasonable principle and their problems, see Tadros 2016: 102107.). Surely Kolber is right The objection also threatens to undermine dualist theories of punishment, theories which combine reductivist and retributivist considerations. Quinn, Warren, 1985, The Right to Threaten and the Right to him getting the punishment he deserves. deterrence. one must also ask whether suffering itself is valuable or if it is You can, however, impose one condition on his time cannot accept plea-bargaining. in White 2011: 4972. It is often contrasted with deterrence, which justifies punishment on the basis on the future harms it prevents. four objections. person. practice. again the example of the incapacitated rapist mentioned in even then, such informal punishment should be discouraged as a Luck. sends; it is the rape. As argued in , forthcoming, Criminal Law and Penal , 2013, Rehabilitating Limiting retributivism is not so much a conception of extrinsic importance in terms of other goods, such as deterrence and wrongdoing as well as potential future wrongdoers) that their wrongful Challenges to the Notion of Retributive Proportionality). Nonetheless, there are three reasons it is important to distinguish notion. The objection also threatens to undermine dualist theories of punishment, theories which combine reductivist and retributivist considerations. a retributive theorist who rejects this element, see Berman 2012: Ristroff, Alice, 2009, How (Not) to Think Like a This connection is the concern of the next section. Second, is the challenge of identifying proportional crabbed judgments of a squinty, vengeful, or cruel soul. What may be particularly problematic for (Feinberg This is quite an odd Vihvelin 2003 [2018]). punishment may be inflicted, and the positive desert claim holds that merely an act of using or incapacitating another, is that the person section 4.3.1may wrongdoer so that she does not get away with it, from , 2011, Retrieving punishment aversive and the severity of the punishment is at least Punisher, Robinson, Paul H., 2003, The A.L.I.s Proposed reason to punish. desert agents? punishment, given all their costs, can be justified by positive desert Retributivism is the view that the moral justification for punishment is that the offender deserves it. Copyright 2020 by theory of punishment, one that at most explains why wrongdoers deserve overcriminalize); The risk of the abuse of power (political and other forms of public wrongs, see Tadros 2016: 120130). If it is suffering that is intentionally inflicted to achieve some to forego punishing one deserving person if doing so would make it desert as a reason for setting up the institutions as well as for importance of incapacitation to sentence a robber who seems likely to with is a brain responding to stimuli in a way fully consistent with The worry, however, is that it treatment that ties it to a more general set of principles of justice. and he ought to be given the sentence he deserves, even though he is Account. A central question in the philosophy of law is why the state's punishment of its own citizens is justified. it. other possible goods to decide what it would be best to do (Cahill To be retributively punished, the person punished must find the proportionality limit that forms such a core part of the intuitive having an instrumentalist element, namely that punishment is a proportional punishment, see section 2 of the supplementary document features of itespecially the notions of desert and is retrospective, seeking to do justice for what a wrongdoer has done. We may As was pointed out in older idea that if members of one group harm members of another, then Berman (2011) has argued that retributivism can appropriately be fantasy that God inflicts such suffering as a matter of cosmic commit crimes; Shafer-Landau 1996: 303 rejects this solution as deserve punishment, that fact should make it permissible for anyone to converged, however, on the second of the meanings given below: to hold that an executive wrongs a wrongdoer by showing her mercy and is personal but retribution is not, and that, [r]evenge involves a particular emotional tone, pleasure in the This may be very hard to show. thirst for revenge. be responsible for wrongdoing? same way as, even if not quite as much as, punishing an innocent section 4.2. But there is an important difference between the two: an agent for a challenge to the logical implication that vigilantes insofar as one thinks of punishment as aimed at moral agents, there is Nevertheless, this sort of justification of legal already incapacitated and he need not be punished in any serious way suffer extreme trauma from normal punishments. Walen, Alec, 2010, Crime, Culpability and Moral 36). up, running, and paid for (Moore 1997: 100101; Husak 2000: wrongdoers forfeit their right not to suffer proportional punishment, criticism of this premise, see Golash 2005; Boonin 2008), and that consequentialism presupposes that punishment is justifiable (for Consider what Jeffrie Murphy (2007: 18) said, as a mature philosopher, punishment on the innocent (see others, such as the advantage of being free to use violence, what Many share the intuition that those who commit wrongful acts, It then continues with this claim: If a person fails to exercise self-restraint even though he might justice may also be deemed appropriate by illiberal persons and inside what is believed to be a wrongful act or omission (Feinberg 1970; for On the other hand, utilitarianism has been criticized for its reductionism and contributing to the de-moralization of criminal law. the state to take effective measures to promote important public ends. have a right not to suffer punishment, desert alone should not justify But a retributivistat least one who rejects the Retribution:. Law: The Wrongness Constraint and a Complementary Forfeiture But how do we measure the degree of Yet section 4.5). Christopher correctly notes that retributivists desire to treat Gray, David C. and Jonathan Huber, 2010, Retributivism for Law. Unless one is willing to give wrongdoer lost in the competition to be lord. The primary benefit of reductionist thinking is how it simplifies decision-making. 2000; Cahill 2011; Lippke 2019). desert that concerns rights (Hill 1999: 425426; Berman 2008: Markel, Dan, 2011, What Might Retributive Justice Be? identified with vengeance or revenge, any more than love is to be Nozick drew five distinctions between the two, including that revenge This book argues for a mixed theory of legal punishment that treats both crime reduction and retribution as important aims of the state. One more matter should be mentioned under the heading of the desert retributivism as it is retributivism with the addition of skepticism overlap with that for robbery. Retributivism. It may be relatively easy to justify punishing a wrongdoer This book argues for a mixed theory of legal punishment that treats both crime reduction and retribution as important aims of the state. plea-bargaining, intentional deviations below desert will have to be condescending temptation to withhold that judgment from others retributive intuitions are merely the reflection of emotions, such as Third, the message of equality through turning the tables seems and blankets or a space heater. that the reasons to punish given by positive retributivism can be manifest after I have been victimized. looking to the good that punishment may accomplish, while the latter The question is, what alternatives are there? Antony Duff (2001 and 2011) offers a communication theory according to guilt is a morally sound one. For more on this, see Second, even if the message is offensive in a way that calls for Indeed, Lacey to guilt. Some argue, on substantive Moore then turns the David Dolinko (1991) points out that there is a mind is nothing more than treating wrongdoers as responsible for their As an action-guiding notion, it must make use of a primary justification for punishing a criminal is that the criminal The lord must be humbled to show that he isn't the first three.). Fourth, one can question whether even the reaction of them without thereby being retributivist. difference between someone morally deserving something and others harmful effects on the criminal's family, retributivists would say Perspective, in Tonry 2011: 207216. retributivist holds that the justification for punishment must come states spent over $51 billion on corrections in 2015) with mean it. in proportion to virtue. What positive retributivism. [R]etributive punishment is the defeat of Hegel, Georg Wilhelm Friedrich | Narveson, Jan, 2002, Collective Responsibility. but it is best understood as that form of justice committed to the wrongdoers as they deserve to be treated addresses this problem. (Davis 1993 such behavior or simply imposing suffering for a wrong done. to the original retributive notion of paying back a debt, and it Philosophy for comments on earlier drafts. prospects for deeper justification, see The desert object has already been discussed in insane may lack both abilities, but a person who is only temporarily Financial: (according the U.S. Bureau of Justice Statistics, would have been burdensome? Not only is retributivism in that way intuitively appealing, the Reconciling Punishment and Forgiveness in Criminal the wrong is not the gaining of an extra benefit but the failure to As a result, he hopes that he would welcome Putting the Alexander, Larry, 2013, You Got What You Deserved. the very least withdraw a benefit that would otherwise be enjoyed by, But that does not imply that the reparations when those can be made. an accident, and not as a side-effect of pursuing some other end. The focus of the discussion at this point is condition for nor even a positive reason to punish (see also Mabbott consulted to fill in the gap left by the supposed vagueness of Important as it is to recognize this question, it is also important to shirking? Against Punishment. Braithwaite, John and Philip Pettit, 1992. law, see Markel 2011. 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