The Expressivist Account of Punishment, Retribution, and the Emotions

This paper provides a discussion of the role that emotions may play in the justification of punishment. On the expressivist account of punishment, punishment has the purpose of expressing appropriate emotional reactions to wrongdoing, such as indignation, resentment or guilt. I will argue that this expressivist approach fails as these emotions can be expressed other than through the infliction of punishment. Another argument for hard treatment put forward by expressivists states that punitive sanctions are necessary in order for the law to be valid. But this justification of punishment, too, is unconvincing. There are no good reasons to assume that we have to resort to punitive measures in order to vindicate the law. I will then raise the more general worry whether there is any intelligible link at all between moral emotions such as indignation, resentment or guilt and retributive behaviour. I will finally conclude with some sceptical remarks on the moral worth of retribution.     

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.     

PUNISHMENT AS DETERRENCE: REPLY TO SPRAGUE

In my 'A Deterrence Theory of Punishment', I argued that a deterrence system of punishment can avoid the charge that it illegitimately uses offenders if its punishments are carried out 'quasi-automatically': threats are issued by a legislature for deterrent purposes, but those who carry out the punishments have no authority to take deterrent considerations into account. Sprague has objected that under such a system, those who carry out punishments will be unable to justify their actions. I reply that if it is justifiable to set up the system in this way in the first place, then this justification will transmit to all actions carried out under it; and that it is justifiable to set up an institution of punishment in this way.     

War Crimes and Expressive Theories of Punishment: Communication or Denunciation?

In a paper published in 2006, I argued that the best way of defending something like our current practices of punishing war criminals would be to base the justification of this practice on an expressive theory of punishment. I considered two forms that such a justification could take—a ‘denunciatory’ account, on which the purpose of punishment is supposed to communicate a commitment to certain kinds of standard to individuals other than the criminal and a ‘communicative’ account, on which the purpose of the punishment is to communicate with the perpetrator, and argued for a denunciatory account which I developed at some length. In this paper I would like to reconsider the plausibility of a communicative account. One difficulty that such accounts face is that the punishment of war criminals often involves the inflicting of harsh treatment on them by individuals who are members of states other than their own. On a communicative account this is problematic: on such an account—or at least on the version of it proposed by Duff (2000)—it is essential that those who are punish and those who punish them belong to a single community. When this requirement is not satisfied harsh treatment does not constitute punishment. Duff has argued that the problem can be solved by regarding all human beings as members of a single moral community: here I argue that this suggestion is unsatisfactory and propose an alternative. One consequence of my account is that if it is correct there may limitations on the range of kinds of war criminal that can legitimately be punished by international tribunals.     

Continuous punishment of free-operant avoidance in the rat

Three groups of albino rats were trained under a free-operant avoidance (Sidman) procedure with equal shock-shock and response-shock intervals. After stable performance was achieved, the animals were concurrently exposed to a brief electric shock after each response. The procedures were as follows: Punishment Schedule I: punishment shock was introduced at an intensity approximately one quarter that of avoidance shock; increments of nearly this same size were made as stable performance was achieved at succeeding punishment shock intensities. Punishment Schedule II: punishment shock was introduced at approximately one-half the intensity of avoidance shock; after stable performance, punishment shock was increased to the same intensity as avoidance shock. Punishment Schedule III: punishment shock was introduced and maintained at the same intensity as avoidance shock. Punishment was continued for all groups until one of two suppression criteria was attained. All animals made fewer responses and received more avoidance shocks as a function of increasing punishment shock. Half of the animals under Punishment Schedule I required punishment shock higher than avoidance shock to meet their assigned suppression criterion. A comparison of all procedures showed that suppression was greater when punishment shock was initially at high intensity.     

Retributive Parsimony

Retributive approaches to the justification of legal punishment are often thought to place exacting and unattractive demands on state officials, requiring them to expend scarce public resources on apprehending and punishing all offenders strictly in accordance with their criminal ill deserts. Against this caricature of the theory, I argue that retributivists can urge parsimony in the use of punishment. After clarifying what parsimony consists in, I show how retributivists can urge reductions in the use of punishment in order to conserve scarce resources for other valuable social purposes, minimize the foreseeable and adverse effects of legal punishment on the innocent, and accommodate the fact that existing societies fail in numerous ways to satisfy the conditions that make retributive punishment fully justified.     

Punishment,Forgiveness and Reconciliation

It is sometimes thought that the normative justification for responding to large-scale violations of human rights via the judicial appararatus of trial and punishment is undermined by the desirability of reconciliation between conflicting parties as part of the process of conflict resolution. I take there to be philosophical, as well as practical and psychological issues involved here: on some conceptions of punishment and reconciliation, the attitudes that they involve conflict with one another on rational grounds. But I shall argue that there is a conception of political reconciliation available which does not involve forgiveness and this forms of reconciliation may be the best we can hope for in many conflicts. Reconciliation is nevertheless likely to require the expression of what Darrell Moellendorf has called ‘political regret’ and the denunciatory role aspect of punishment makes it particularly well-suited to this role.     

In the lab and the field: punishment is rare in equilibrium

I argue that field (experimental) studies on (costly) peer punishment in social dilemmas face the problem that in equilibrium punishment will be rare and therefore may be hard to observe in the field. I also argue that the behavioral logic uncovered by lab experiments is not fundamentally different from the behavioral logic of cooperation in the field.     

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.     

Reaction to punishment in extraverts and psychopaths: Implications for the impulsive behavior of disinhibited individuals

To explore the factors mediating impulsivity in the syndromes of disinhibition, we investigated the ability of extraverts and psychopaths to use signals for punishment to withhold maladaptive approach behavior under various incentive conditions. The results provide evidence that (a) in comparison to controls, extraverts and psychopaths fail to use cues for punishment to inhibit incorrect approach responses; (b) the deficient response inhibition of disinhibited subjects is specific to approach-avoidance situations; (c) under conditions involving monetary rewards and punishments, disinhibited subjects are less likely to slow down, and may even respond more quickly, following punishment; and (d) the tendency to speed up rather than slow down following punishment is associated with failure to learn from punishment. The results suggest that once focused on obtaining reward, extraverts and psychopaths display an active (disinhibited) as opposed to a passive (reflective) reaction to punishment and frustrative nonreward. This reaction to punishment appears to interfere with learning cues for punishment and may underlie the poor passive avoidance learning and impulsive behavior that characterize the syndromes of disinhibition.     

Divine retribution: A defence

The concept of divine justice has been the subject of considerable scrutiny in recent philosophical theology, as it bears upon the notion of punishment with respect to the doctrine of eternal damnation. In this essay, I set out a version of the traditional retributive view of divine punishment and defend it against one of the most important and influential contemporary detractors from this position, Thomas Talbott. I will show that, contrary to Talbott’s argument, punishment may satisfy divine justice, and that perfect justice is commensurate with retribution, rather than, as he suggests, reconciliation and restoration.     

Reciprocity: weak or strong? What punishment experiments do (and do not) demonstrate

Economists and biologists have proposed a distinction between two mechanisms--"strong" and "weak" reciprocity--that may explain the evolution of human sociality. Weak reciprocity theorists emphasize the benefits of long-term cooperation and the use of low-cost strategies to deter free-riders. Strong reciprocity theorists, in contrast, claim that cooperation in social dilemma games can be sustained by costly punishment mechanisms, even in one-shot and finitely repeated games. To support this claim, they have generated a large body of evidence concerning the willingness of experimental subjects to punish uncooperative free-riders at a cost to themselves. In this article, I distinguish between a "narrow" and a "wide" reading of the experimental evidence. Under the narrow reading, punishment experiments are just useful devices to measure psychological propensities in controlled laboratory conditions. Under the wide reading, they replicate a mechanism that supports cooperation also in "real-world" situations outside the laboratory. I argue that the wide interpretation must be tested using a combination of laboratory data and evidence about cooperation "in the wild." In spite of some often-repeated claims, there is no evidence that cooperation in the small egalitarian societies studied by anthropologists is enforced by means of costly punishment. Moreover, studies by economic and social historians show that social dilemmas in the wild are typically solved by institutions that coordinate punishment, reduce its cost, and extend the horizon of cooperation. The lack of field evidence for costly punishment suggests important constraints about what forms of cooperation can or cannot be sustained by means of decentralised policing.     

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.     

Drugs and punished responding II: d-amphetamine-induced increases in punished responding

The effects of d-amphetamine on punished responding were studied in two experiments. In Experiment I, pigeons responded under a multiple fixed-ratio 30 response fixed-interval 5-min schedule of food presentation with 60-sec limited holds in both components. Each response was punished with electric shock, the intensity of which was varied systematically. In Experiment II, another group of pigeons responded under a multiple fixed-interval 5-min fixed-interval 5-min schedule of food presentation with 40-sec limited holds. Each response was punished with shock during one component, and every thirtieth response was punished in the other component. d-Amphetamine increased overall rates of punished responding only rarely under any of the punishment conditions; however, response rates within the fixed-interval when rates were low were increased by d-amphetamine when the shock intensity was low (Experiment I), or when responses produced shock intermittently (Experiment II). The data suggest that the effects of d-amphetamine on punished responding depend on the control rate of responding, the punishment intensity, the punishment frequency, and the schedule of food presentation.     

Punishment of an extinguishing shock-avoidance response by time-out from positive reinforcement

Two experiments were conducted to determine the effects of punishment by time-out from positive reinforcement on the extinction of discriminated shock-avoidance responding. Subjects were trained initially to bar press for food on an intermittent schedule of reinforcement and, concurrently, to avoid shock at the onset of a warning signal. Experiment I compared avoidance extinction performance under no punishment and when avoidance responding resulted in a 30-sec TO from reinforced appetitive responding. In Exp II, the contingent use of TO punishment was compared with its random, or noncontingent use. The results of both experiments showed that in the absence of punishment, avoidance extinction was characterized by short latencies and nearly 100% avoidance responding. Avoidance responding in extinction was little affected by noncontingent TO punishment. When TO was made contingent upon avoidance responding, however, avoidance latencies immediately increased and the frequency of avoidance responses subsequently decreased to zero.     

THE PASSIONS OF PUNISHMENT

I criticize an increasingly popular set of arguments for the justifiability of punishment. Some philosophers try to justify punishment by appealing to what Peter Strawson calls the reactive attitudes – emotions like resentment, indignation, remorse and guilt. These arguments fail. The view that these emotions commit us to punishment rests on unsophisticated views of punishment and of these emotions and their associated behaviors. I offer more sophisticated accounts of punishment, of these emotions and of their associated behaviors that are consistent with Abolitionism, the view that punishment is unjustified.     

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.     

Costs and benefits in hunter-gatherer punishment

Hunter-gatherer punishment involves costs and benefits to individuals and groups, but the costs do not necessarily fit with the assumptions made in models that consider punishment to be altruistic--which brings in the free-rider problem and the problem of second-order free-riders. In this commentary, I present foragers' capital punishment patterns ethnographically, in the interest of establishing whether such punishment is likely to be costly; and I suggest that in many cases abstentions from punishment that might be taken as defections by free-riders are actually caused by social-structural considerations rather than being an effect of free-rider genes. This presentation of data supplements the ethnographic analysis provided by Guala.     

Criminal Quarantine and the Burden of Proof

In the recent literature a number of free will skeptics, skeptics who believe (as I do) that punishment is justified only if deserved, have argued for these two points: first, that the free will realist who would justify punishment has the burden of establishing to a high level of certainty - perhaps beyond a reasonable doubt, but certainly at least by clear and convincing evidence - that any person to be punished acted freely in breaking the law; and, second, that that level of evidence is simply not there. In this paper I make two parallel points against a quarantine theory of criminal justice. First, the free will skeptic who would justify universal criminal quarantine is also faced with a burden of proof, the burden to establish to a similarly high level that no human being ever acts freely. Second, there is not sufficient evidence for that conclusion either. I believe that the quandary that this creates for criminal justice can be resolved by distinguishing the methods associated with a particular approach from the approach itself: if our choice is between the methods of punishment and the methods of quarantine, the methods that constitute punishment are, I would argue, morally preferable to those that constitute quarantine.

     

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.