Retributivism revisited

I’ll raise a problem for Retributivism, the view that legal punishment is justified on the basis of desert. I’ll focus primarily on Mitchell Berman’s recent defense of the view. He gives one of the most sophisticated and careful statements of it. And his argument is representative, so the problem I’ll raise for it will apply to other versions of Retributivism. His insights about justification also help to make the problem particularly obvious. I’ll also show how the problem extends to non-retributive justifications of punishment. I’ll argue that Berman’s argument makes a questionable assumption about the standard of justification that justifications of punishment must meet to be successful. If we think about what it takes to justify punishment and reflect on the intuitions that retributivists appeal to, it turns out that the intuitions aren’t obviously up to the task.     

The social postulate of theoretical ethics

Conclusion Kant believed all and only the guilty should be punished. Other retributivists believed that only guilt should bring punishment down on a person. In neither way is the retributive theory sufficiently distinguished from utilitarianism for, on contingent grounds, the utilitarian may agree with either of these theses. The advantage of PRJ is that it brings out the difference between retributivism and utilitarianism more sharply while at the same time it manages to be a less stern and unyielding view than traditional retributivism. The retributivist need not deny the core of good sense in utilitarianism, and he certainly need not deny the connection between morality and happiness. His view is that punishment does not have to produce good consequences in order to be justified. It suffices that it be deserved and that it not produce a set of clearly bad consequences. If it is true that punishment generally does have bad consequences which more than outweigh its good consequences then retributivists and utilitarians should join hands in their condemnation of punishment. The heart of the difference between the retributivist and the utilitarian is that the latter counts punishment itself as an evil but believes that, generally speaking, it is an evil which is instrumental in the production of enough good to out-weigh its intrinsic demerit. The retributivist does not regard punishment as an evil. The pain of punishment is not by itself a reason for not punishing (so long as it is not excessive). Insofar as utilitarianism is the view that no considerations but those of utility should justify punishment, it is only one side of that counterfeit coin the other side of which is Kant's dictum: ...Woe to him who creeps through the serpent-windings of Utilitarianism to discover some advantage that may discharge him from the Justice of Punishment, or even from the due measure of it.... It is irrational for Kant to rule out concern for utility but it is also irrational for the utilitarian to rule out concern for retribution.I have tried to show in this paper that the two main aspects of a plausible theory of retribution - PRJ and that the punishment should fit the crime - can be vindicated in terms of acceptable beliefs one of which is incompatible with utilitarianism (PRJ), and one of which does not derive the respect we accord it from any connection with utilitarianism. I emphasize, however, what I previously stated, that the retributivist does not have to believe that retributive justice must prevail at all costs. What is asked for is the recognition that one purpose of punishment (and not the one purpose) can justifiably have nothing to do with utility. The sensible retributivist will concede, and gladly, that there are more things in heaven and earth than retribution.     

Victim-Centered Retributivism

Abstract: Critics charge that retributivists fail to show why the state should concern itself with ensuring that criminal offenders are punished in accordance with their ill deserts. Drawing on the notion that the state should attempt to equalize the realization of the interests designated by rights, it is argued that legal punishment restores the equality of condition, disrupted by criminal conduct, that all citizens are entitled to. While this equality of condition might be restored in various ways, it is argued that the imposition of punitive losses is the most appropriate way to restore it in most cases. An account of the ill deserts of offenders, as a function of the harms their crimes produce and the extent of their culpability for those harms, is briefly elaborated.     

PRE‐PUNISHMENT,COMMUNICATIVE THEORIES OF PUNISHMENT,AND COMPATIBILISM

Saul Smilansky holds that there is a widespread intuition to the effect that pre‐punishment – the practice of punishing individuals for crimes which they have not committed, but which we are in a position to know that they are going to commit – is morally objectionable. Smilanksy has argued that this intuition can be explained by our recognition of the importance of respecting the autonomy of potential criminals. ( Smilansky, 1994 ) More recently he has suggested that this account of the intuition only vindicates it if determinism is false, and argues that this presents a problem for compatibilists, who, he says, are committed to thinking that the truth of determinism makes no moral difference ( Smilansky, 2007 ). In this paper I argue that the intuitions Smilansky refers to can be explained and vindicated as consequences of the truth of a communicative conception of punishment. Since the viability of the communicative conception does not depend on the falsity of determinism, our intuitions about pre‐punishment do not clash with (what Smilanksy calls) compatibilism. And if the communicative theory of punishment is – as Duff (2001 ) suggests – a form of retributivism, the account also meets New's (1992 ) challenge to retributivists to explain what is wrong with pre‐punishment.     

Some Surprising Implications of Negative Retributivism

Negative retributivism is the view that though the primary justifying aim of legal punishment is the reduction of crime, the state's efforts to do so are subject to side‐constraints that forbid punishment of the innocent and disproportionate punishment of the guilty. I contend that insufficient attention has been paid to what the side‐constraints commit us to in constructing a theory of legal punishment, even one primarily oriented toward reducing crime. Specifically, I argue that the side‐constraints limit the kinds of actions that are appropriately criminalised, the kinds of beings who are appropriately liable to legal punishment, and the absolute and comparative severity of sanctions. I also argue that a third retributive constraint is needed, one which I term a ‘non‐degradation constraint’. According to this third constraint, in our efforts to reduce crime, we must avoid treating offenders as non‐moral beings and ensure that punishment does not atrophy or erode the complex capacity for moral responsibility. When this third constraint is combined with the persuasive instrumental case for promoting the moral responsiveness of offenders, the result is an approach to crime reduction that is quite different from ones which emphasise general deterrence and incapacitation. In the closing section, I broach the question whether negative retributivism has been appropriately characterised in the literature on legal punishment.     

Persons, punishment, and free will skepticism

The purpose of this paper is to provide a justification of punishment which can be endorsed by free will skeptics, and which can also be defended against the “using persons as mere means” objection. Free will skeptics must reject retributivism, that is, the view that punishment is just because criminals deserve to suffer based on their actions. Retributivists often claim that theirs is the only justification on which punishment is constrained by desert, and suppose that non-retributive justifications must therefore endorse treating the people punished as mere means to social ends. Retributivists typically presuppose a monolithic conception of desert: they assume that action-based desert is the only kind of desert. But there are also personhood-based desert claims, that is, desert claims which depend not on facts about our actions, but instead on the more abstract fact that we are persons. Since personhood-based desert claims do not depend on facts about our actions, they do not depend on moral responsibility, so free will skeptics can appeal to them just as well as retributivists. What people deserve based on the mere fact of their personhood is to be treated as they would rationally consent to be treated if all they had in view was the mere fact of their personhood. We can work out the implications of this view for punishment by developing a “hypothetical consent” justification in which we select principles of punishment in the Rawlsian original position, so long as we are careful not to smuggle in the retributivist assumption that it is under our control whether we end up as criminals or as law-abiding citizens once we raise the veil of ignorance.     

Sex and contextual effects on children's use of interference competition

Prior research with children and nonhuman animals suggests that females engage in interference competition, in which I individual reduces another's chances of gaining access to a resource, only when resources are scarce, whereas males use it more widely. This study was designed to compare males' and females' use of interference competition in games in which resources were scarce or plentiful. Forty groups of 4 same-sex children from kindergarten or Grade 4 played the 2 games on 2 days. Grade 4 girls used less interference competition when resources were plentiful than when they were scarce. Results are useful for generating a contextually based model of the development of sex differences in competitive behavior.     

Rescuing Fair-Play as a Justification for Punishment

The debate over whether ‘fair-play’ can serve as a justification for legal punishment has recently resumed with an exchange between Richard Dagger and Antony Duff. According to the fair-play theorist, criminals deserve punishment for breaking the law because in so doing the criminal upsets a fair distribution of benefits and burdens, and punishment rectifies this unfairness. Critics frequently level two charges against this idea. The first is that it often gives the wrong explanation of what makes crime deserving of punishment, since the wrongfulness of murder is not primarily about unfairness. The second is that it implies that all crimes deserve the same degree of punishment, because all crimes create the same degree of unfairness. These objections are viewed as revealing fatal flaws in the theory. Although Dagger attempts to meet these objections by drawing on political theory, Duff responds that this still draws upon the wrong kind of resources for meeting these objections. This paper argues that these two objections rest on a crucial mistake that has been overlooked by both the defenders and critics of fair-play. This mistake results from failing to distinguish between what justifies punishment as a response to crime (which requires a common element to all crime) and what justifies attaching particular penalties to crimes (which requires making distinctions in the severity of crime). The arguments presented will give reasons to consider fair-play as a viable justification for legal punishment.     

Cosmopolitanism Within Borders: On Behalf of Charter Cities

Economist Paul Romer proposes the establishment of charter cities. Charter cities would resemble special economic zones; that is, small regions that experiment with economic rules that differ from those governing their larger ‘host’ countries. Yet unlike a special economic zone, a charter city would also experiment with its own legal and political rules. The rules, in turn, can be enforced by a third‐party coalition of representatives of foreign countries that enforce these rules at home. Host countries that face problems of economic stagnation or political instability can thus leverage the experience and credibility of ‘guarantor’ countries to gradually reform their own institutions. I defend charter cities as an instrument of cosmopolitan justice in nonideal global conditions. Contributing to efforts to establish charter cities is, in many cases, a more efficient use of a country's scarce resources than foreign aid or attempts to facilitate institutional change abroad. I argue that countries also have a moral reason to contribute to charter cities: they can serve as compensation for the coercive harms due to those countries' border closures. I conclude that cosmopolitans and nationalists can find common ground in their reasons to support the establishment of charter cities.     

Atonement Retributivism

In this article I will illustrate how concepts such as wrongdoing, guilt, remorse, penance, atonement, reconciliation, forgiveness and punishment are interlinked in a pattern which is reminiscent of the way pieces in a jigsaw puzzle are interlinked with each other. I would like to label this conceptual “puzzle” atonement retributivism. Atonement retributivism should not be regarded as a theory, justifying punishment. Rather, it is an illustration of a vocabulary which illuminates how deeply rooted punishment is in our moral lives. This illustration shows that classical and modern theories on punishment have redefined punishment in a way which tears it apart from its conceptual roots. One practical consequence of this philosophical mistake is that the moral aspects of punishment are not recognized by our modern legal system. Hence, punishment no longer serves as penance and thus has lost its moral content.     

A Daily Diary Investigation of the Defective Self Model Among College Students With Recent Self-Injury

The Defective Self Model of self-injury (Hooley, Ho, Slater, & Lockshin, 2010) asserts that individuals choose to self-injure to gratify the desire for self-punishment associated with a self-critical cognitive style. Specifically, self-injury is used to regulate negative self-directed thoughts and emotions and is made accessible via the belief that the individual deserves punishment. This study sought to test primary assumptions of the Defective Self Model using a 2-week daily diary protocol. It was hypothesized that trait self-criticism would predict daily self-injury urge intensity and behaviors directly, as well as indirectly, through daily thoughts about deserving punishment. We also posited that guilt would predict self-injury urge intensity and behaviors beyond sadness, hostility, and fear. Support for primary hypotheses was mixed. Self-criticism did not directly predict self-injury outcomes, but did indirectly predict urge intensity through daily thoughts about punishment. Daily guilt predicted self-injury urge intensity beyond daily sadness, hostility and fear and was the only type of negative affect associated with self-injury behavior. Results are primarily contextualized through a social cognitive lens in which self-injury urge is precipitated by the activation of a self-critical schema in daily life. Alternatively, self-criticism may serve as a gateway to initial self-injury but lack the sensitivity to predict individual self-injury episodes. Treatments designed to reduce self-critical thoughts and bolster self-compassion may decrease self-injury urge intensity, thereby affecting the frequency of self-injury episodes.     

Resources,Rules, and Oppression

There is a large and growing literature on communal interpretive resources: the concepts, theories, narratives, and so on that a community draws on in interpreting its members and their world. (They’re also called “hermeneutical resources” in some places and “epistemic resources” in others.) Several recent contributions to this literature have concerned dominant and resistant interpretive resources and how they affect concrete lived interactions. In this article, I note that “using” interpretive resources—applying them to parts of the world in conversation with others—is “a rule‐governed activity”; and I propose that in oppressive systems, these rules are influenced by the rules of oppression. Section I clarifies some rules governing the use of resources. Section II draws on work by Gaile Pohlhaus, Jr. and others to suggest that according to the present rules of our oppressive system, it is permissible for dominantly situated speakers to dismiss interpretive resources developed in marginalized communities. Section III appeals to Charles Mills’s work on White ignorance to propose, further, that our system’s rules make it impermissible and deserving of punishment to use resistant resources. The conclusion enumerates several further points about such rules governing the use of interpretive resources, their social effects, and some philosophical literatures.     

A Deterrence Theory of Punishment

I start from the presupposition that the use of force against another is justified only in self-defence or in defence of others against aggression. If so, the main work of justifying punishment must rely on its deterrent effect, since most punishments have no other significant self-defensive effect. It has often been objected to the deterrent justification of punishment that it commits us to using offenders unacceptably, and that it is unable to deliver acceptable limits on punishment. I describe a sort of deterrent theory which can avoid both of these objections.     

(Neuro)predictions,Dangerousness, and Retributivism

Through the criminal justice system so-called dangerous offenders are, besides the offence that they are being convicted of and sentenced to, also punished for acts that they have not done but that they are believe to be likely to commit in the future. The aim of this paper is to critically discuss whether some adherents of retributivism give a plausible rationale for punishing offenders more harshly if they, all else being equal, by means of predictions are believed to be more dangerous than other offenders. While consequentialism has no problem, at least in principle, with this use of predictions most retributivists have been opponents of punishing offenders on the basis of predictions. How can an offender deserve to be punished for something that he has not done? But some retributivists like Anthony Duff and Stephen Morse have argued in favor of punishing offenders who are considered to be dangerous in the future more harshly than non-dangerous offenders. After having reconstructed their arguments in detail, it will be argued that both Duff’s and Morse’s attempts to give a retributivistic justification have several shortcomings.     

The Importance of Philosophy: Reflections on John Rawls

This paper tackles the question whet her we should punish a remorseful offender. Traditional retributive and consequentialist theories on punishment are struggling with the question of the justification of punishment, but I think a more basic question needs to be solved first; namely, how can we interpret the practice of punishment. I state that a theory of symbolic restoration can help us to understand the meaning of this practice. A theory of symbolic restoration depends on an expressivist account of punishment, like Joel Feinberg's. Expressivism gives us an insight into the importance of the feeling of moral condemnation and it is this feeling that gives rise to the longing for punishment and remorse. Because of moral condemnation after a crime we ask for punishment and expect some kind of remorse. The question is whether punishment can be exchanged for remorse and I argue that in certain cases it cannot. The punishment of a remorseful offender is, I argue, – in certain cases – justified.     

Punishing for your own good: the case of reputation-based cooperation

Contrary to Guala, I claim that several mechanisms can explain punishment in humans. Here I focus on reputation-based cooperation--and I explore how it can lead to punishment under situations that may or may not be perceived as being anonymous. Additionally, no particular mechanism stands out in predicting an excess of punishment under constrained lab conditions.     

From moral theory to penal attitudes and back: a theoretically integrated modeling approach

From a moral standpoint, we would expect the practice of punishment to reflect a solid and commonly shared legitimizing framework. Several moral legal theories explicitly aim to provide such frameworks. Based on the theories of Retributivism, Utilitarianism, and Restorative Justice, this article first sets out to develop a theoretically integrated model of penal attitudes and then explores the extent to which Dutch judges' attitudes to punishment fit the model. Results indicate that penal attitudes can be measured in a meaningful way that is consistent with an integrated approach to moral theory. The general structure of penal attitudes among Dutch judges suggests a streamlined and pragmatic approach to legal punishment that is identifiably founded on the separate concepts central to moral theories of punishment. While Restorative Justice is frequently presented as an alternative paradigm, results show it to be smoothly incorporated within the streamlined approach.     

The Behavioral Logic of Collective Action: Partisans Cooperate and Punish More Than Nonpartisans

Laboratory experiments indicate that many people willingly contribute to public goods and punish free riders at a personal cost. We hypothesize that these individuals, called strong reciprocators, allow political parties to overcome collective action problems, thereby allowing those organizations to compete for scarce resources and to produce public goods for like‐minded individuals. Using a series of laboratory games, we examine whether partisans contribute to public goods and punish free riders at a greater rate than nonpartisans. The results show that partisans are more likely than nonpartisans to contribute to public goods and to engage in costly punishment. Given the broad theoretical literature on altruistic punishment and group selection as well as our own formal evolutionary model, we hypothesize that it is being a partisan that makes an individual more likely to be a strong reciprocator and not vice versa.     

A participatory approach to healing and transformation in South Africa

In this article I describe my personal journey from working as private practitioner to participating in the wider South African society. Post-apartheid South African society struggles with overwhelming problems related to poverty, illness, violence, sexism, and racism. Moreover, in those communities where the trauma is most severe, professional resources are scarce. I propose a participatory approach which invites therapists to respond to these socio-economic and political challenges and the problems that arise from them by thinking and acting outside the constraints of their consultation rooms and of traditional therapeutic conversations, into active participation in ways that might support healing and social transformation. I use two examples to illustrate and discuss the participatory approach with which I have engaged for over 10 years. The illustrative examples show how a participatory approach can create ripples that impact communities in healing and transformative ways.