2012-08-24 14:38:27

Retribution—literally ‘‘pay back’’—persists as punishment’s essential measure, justification, and limit. Naturally grateful, we reward those who bring us pleasure. Instinctively resentful, we punish those who cause us pain. Retributively, society intentionally inflicts pain and suffering on criminals because and to the extent they deserve it. But only to the extent they deserve it.

The basic retributive measure—like for like—‘‘as he has done, so shall it be done to him’’ (Leviticus 24); ‘‘giving a person a taste of her own medicine’’; ‘‘fighting fire with fire’’—primally satisfies. Critics have commonly equated retribution with revenge—disparaging ‘‘an eye for an eye’’ as barbaric. But retribution is not simply revenge. Revenge may be limitless and misdirected at the undeserving, as with collective punishment. Retribution, however, must be limited and in its more mature measurement, proportional—no more (or less) than what’s deserved. The Biblical ‘‘eye for an eye,’’ originally understood as no more than an eye for an eye, exemplifies retribution as a restriction as much as justification of punishment.

Retributivists disagree among themselves about the calculus of desert. Immanuel Kant would count only the actor’s intent. Most retributivists, however, also factor in the actual harm willingly caused. Accordingly, all other things equal, murder is worse than attempted murder, and thus deserves greater punishment. In common, retributivists disregard punishment’s future costs or benefits, resting justice— limited, proportional punishment—exclusively on a criminal’s past moral culpability. Thus retributivists reject Hobbes’s classic utilitarian claim that ‘‘the aym of punishment is not revenge but terror.’’ They dismiss contemporary utilitarians who declare it ‘‘irrational’’ to cry over spilt blood, and rebut the challenge that certain punishments are pointless—‘‘what good will it do to inflict more pain’’—as itself beside the point. Justice, a moral imperative in itself, requires deserved punishment.

According to Kant’s classic retributivism, we impose punishment as an abstract duty without any emotion. By punishing, we dignify the transgressor, acknowledging the free will that produced the crime. The murderer must die, Kant insists, but ‘‘his death must be kept free from all maltreatment.’’ Kant rejects giving the condemned the option to submit to dangerous medical experiments on condition that his life be spared if he survived, insisting that we always treat human beings as ends in themselves, and never as a means to our ends. Following Kant’s lead, contemporary retributivists reject general deterrence as a sufficient justification for punishment—for then we would be making an example of a person, in order to change others’ future behavior.

More persistent and popular than Kant’s abstract retributivism, emotive/intuitive retributivism has deeper roots. ‘‘The voice of your brother’s blood cries out to me from the ground,’’ Genesis proclaims. In other words, ‘‘Blood pollutes the land.’’ Like the ancient Greeks and ancient Hebrews, contemporary emotive retributivists feel polluted if vicious murderers walk free, or fail to get their just deserts.

Retributivists’ urge to punish stems from a projected empathy with the victim’s suffering. ‘‘Our heart adopts and beats time to his grief,’’ declared Adam Smith inA Theory ofMoral Sentiments (1759). ‘‘Sois it likewise animated with that spirit ... to drive away and destroy the cause of it.’’ Retributive death penalty supporters, haunted by the victim’s suffering, cannot forget or forgive: ‘‘We feel that resentment which we imagine he ought to feel and which he would feel, if in his cold and lifeless body there remained any consciousness of what passes upon earth,’’ Smith explained in the first great work of modern retributive psychology. ‘‘His blood, we think, calls aloud for vengeance.’’

Unlike Kantian retributivists, emotive retributivists insist that every moral question is ultimately an emotional one. The humane capacity to punish justly, this great moral faculty, requires us to apply our informed emotions, sympathy, pity, righteous indignation. Fitzjames Stephen, the nineteenth-century English judge and great historian of the Criminal Law detested heinous criminals and declared it ‘‘highly desirable’’ to design punishments ‘‘to give expression to that hatred.’’

Embracing human dignity as their primary value, emotive retributivists like Adam Smith emphasize ‘‘a humanity that is more generous and comprehensive,’’ ‘‘oppos[ing] to the emotions of compassion which they feel for a particular person, a more enlarged compassion which they feel for mankind.’’ Thus, unwarranted ‘‘mercy to the guilty is cruelty to the innocent.’’

While U.S. Supreme Court justices have personally rejected retribution, especially emotive retributivism as an affirmative justification for punishment, a majority has consistently acknowledged each state’s right to punish retributively. And often without labeling it, Justices have embraced retribution as the essential constitutional limit to punishment. Thus, U.S. Supreme Court majorities categorically outlawed the death penalty as ‘‘morally’’ disproportionate to ‘‘culpability’’ of rapists (of adult women) (Coker [1977]); getaway car drivers who had no intention or expectation that their robbery victims would be killed (Enmund [1982]) (Ford [1986]); mentally retarded killers (Atkins [2002]); all killers under eighteen (Roper [2005]).

Long scorned by the scholars but embraced by the people, retribution has made a twenty-first-century comeback. The proposed new Model Penal Code now explicitly incorporates retribution as punishment’s primary justification: ‘‘Under the new scheme, no utilitarian or restorative purpose of Sentencing may justify a punishment more or less severe than that deserved by an offender in light of the gravity of the offense, the harm to the crime victim, and the blameworthiness of the offender’’ (emphasis added). Legislatures are to ‘‘consult their own moral judgment’’ and apply their own ‘‘intuitions of desert’’ to design punishments within ‘‘the retributive range.’’

Ideally satisfying, popular and persistent, retribution fundamentally fails in the actual administration of punishment. Every department of corrections in the United States officially rejects retribution, declaring public safety and rehabilitation as their primary missions. Typically, prison guards proclaim that ‘‘what a man did out there is none of my business. How he acts inside determines how he’ll be treated here.’’ And while the more heinous crimes generally do carry longer prison sentences, in fact the most vicious criminals serving life sentences often have the best jobs, best hustles, and easiest lifestyles, while they prey on the younger, weaker, less vicious offenders. In short, largely unnoted even by retributivists themselves, inside prisons, daily life mocks retribution: Those who deserve it most suffer least. Thus, prison administration today across the United States largely severs the connection between crime and punishment on which retribution essentially rests.


References and Further Reading

  • Acker, James R., ed. America’s Experiment with Capital Punishment. Durham, NC: Carolina Academic Press, 2003.
  • Beccaria, C. An Essay on Crimes and Punishments. Boston: [1769] 1992.
  • Blecker, R., Haven or Hell? Inside Lorton Prison: Experiences of Punishment Justified, Stanford Law Review, 49 (1990): 1149.
  • Hegel, G.F. Philosophy of Right. Trans. T.M. Knox. New York: Oxford University Press, 1967.
  • Henberg, M. Retribution: Evil for Evil in Ethics, Law, and Literature. Philadelphia: Temple University Press, 1990.
  • Kant, I. Groundwork of the Metaphysics of Morals. Trans. Paton. New York: 1964.
  • ———. The Metaphysical Elements of Justice. Trans. J. Ladd. Indianapolis: 1965.
  • Smith, Adam. The Theory of Moral Sentiments. New York: Oxford University Press.
  • Mackie, J.L., Morality and the Retributive Emotions, Criminal Justice Ethics 1 (1982): 310.
  • Pillsbury, Samuel H., Emotional Justice: Moralizing the Passions of Criminal Punishment, Cornell Law Review 74 (1989): 655.
  • Stephen, Fitzjames, II. A History of the Criminal Law of England. 1883.
  • Westermarck, E. Ethical Relativity. Paterson: [1932] 1960.

Cases and Statutes Cited

  • Atkins v. Virginia, 536 U.S. 304 (2002)
  • Coker v. Georgia, 433 U.S. 584 (1977)
  • Enmund v. Florida, 458 U.S. 782 (1982)
  • Ford v. Wainwright, 477 U.S. 399 (1986)
  • Roper v. Simmons, 543 U.S. 551 (2005)