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.     

The Evolution of Retribution: Intuitions Undermined

Recent empirical work suggests that emotions are responsible for anti‐consequentialist intuitions. For instance, anger places value on actions of revenge and retribution, value not derived from the consequences of these actions. As a result, it contributes to the development of retributive intuitions. I argue that if anger evolved to produce these retributive intuitions because of their biological consequences, then these intuitions are not a good indicator that punishment has value apart from its consequences. This severs the evidential connection between retributive intuitions and the retributive value of punishment. This argument may generalize to other deontological intuitions and theories.     

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.     

Can Jurors Free Themselves from Retributive Objectives?

We examined the hypothesis that the conscious self-correction process in the models of lay citizens’ determination of punishment could inhibit the retributive goal that was their instinctive default objective. In two experiments, we tested whether an instruction to ignore the retributive goal could eliminate the influence of information about the seriousness of the crime on the severity of the punishment. If the retributive goal can be inhibited, the instruction would eliminate the information’s influence on the punishment’s severity. However, the persistence of the information’s influence would mean that the retributive goal is not inhibited. The result showed that the instruction eliminated the influence of information that decreased the crime’s seriousness but could barely reduce the influence of information that increased the seriousness. We concluded that self-correction cannot inhibit the retributive goal when its inhibition would lead to a more lenient punishment.     

The Automatic Activation of Retributive Motive When Determining Punishment

This study sought to test the hypothesis that an individual’s retributive motive is activated automatically when he or she is presented with an opportunity to determine appropriate punishment. Fifty-one undergraduate students were subjected to one of two conditions: one in which an video clip of a brutal crime was presented (crime video condition) and another in which a sports documentary video clip was presented (sports video condition). Participants were asked to complete the Implicit Association Test before and after being presented with the video. It was predicted that the activation of retributive motive would strengthen the association with a balanced combination of these factors as compared to the association with an unbalanced combination of factors and increase the IAT effect accordingly. The IAT effect increased in the crime video condition but did not change in the sports video condition. This result supported the hypothesis, indicating that decision making regarding punishment is carried out automatically and outside of conscious awareness, as the IAT reflects automatic cognitive processes such as implicit attitudes.     

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.     

What stops revenge taking? Effects of observed emotional reactions on revenge seeking

What reaction stops revenge taking? Four experiments (total N = 191) examined this question where the victim of an interpersonal transgression could observe the offender's reaction (anger, sadness, pain, or calm) to a retributive noise punishment. We compared the punishment intensity selected by the participant before and after seeing the offender's reaction. Seeing the opponent in pain reduced subsequent punishment most strongly, while displays of sadness and verbal indications of suffering had no appeasing effect. Expression of anger about a retributive punishment did not increase revenge seeking relative to a calm reaction, even when the anger response was disambiguated as being angry with the punisher. It is concluded that the expression of pain is the most effective emotional display for the reduction of retaliatory aggression. The findings are discussed in light of recent research on reactive aggression and retributive justice.     

On the assignment of punishment: the impact of general-societal threat and the moderating role of severity

This article reports experiments assessing how general threats to social order and severity of a crime can influence punitiveness. Results consistently showed that when participants feel that the social order is threatened, they behave more punitively toward a crime perpetrator, but only when severity associated with a crime was relatively moderate. Evidence is presented to suggest that people can correct-at least to a degree-for the "biasing" influence of these inductions. Finally, threats to social order appear to increase punitiveness by arousing a retributive desire to see individuals pay for what they have done, as opposed to a purely utilitarian desire to deter future wrongdoing. The authors suggest that individuals sometimes act as intuitive prosecutors when ascribing punishment to an individual transgressor based on their perception of general societal control efficacy.     

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.     

Is penal substitution unjust?

Penal substitution in a theological context is the doctrine that God inflicted upon Christ the suffering which we deserved as the punishment for our sins, as a result of which we no longer deserve punishment. Ever since the time of Faustus Socinus, the doctrine has faced formidable, and some would say insuperable, philosophical challenges. Critics of penal substitution frequently assert that God’s punishing Christ in our place would be an injustice on God’s part. For it is an axiom of retributive justice that it is unjust to punish an innocent person. But Christ was an innocent person. Since God is perfectly just, He cannot therefore have punished Christ. Virtually every premiss in this argument is challengeable. Not all penal substitution theories affirm that Christ was punished for our sins. The argument makes unwarranted assumptions about the ontological foundations of moral duty independent of God’s commands. It presupposes without warrant that God is by nature an unqualified negative retributivist. It overlooks the possibility that the prima facie demands of negative retributive justice might be overridden in Christ’s case by weightier moral considerations. And it takes it for granted that Christ was legally innocent, which is denied by the classic doctrine of imputation. It thus fails to show any injustice in God’s punishing Christ in our place.     

The ethics of punishment: Correctional practice implications

Correctional practitioners work within a context that is heavily influenced and constrained by punishment policies and practices. The overlap between the normative frameworks of punishment and offender rehabilitation creates a unique set of ethical challenges for program developers and therapists. In this paper we set out to briefly outline three major punishment theories and draw out their implications for correctional practitioners. First, we discuss the nature of punishment and the problems it poses for practitioners and all citizens in liberal democracies. Second, consequential, retributive, and communicative justifications of punishment are succinctly described and their clinical implications analyzed and some limitations noted. Finally we conclude with some suggestions for ethical practice in correctional settings.     

Against Supermax

abstract Supermax prisons subject inmates to extreme isolation and sensory deprivation for extended periods of time. Crime reduction and retributive arguments in favour of supermax confinement are elaborated. Both types of arguments are shown to falter once the logic of the two approaches to the justification of legal punishment is made clear and evidence about the effects of supermax confinement on inmates is considered. It is also argued that many criminal offenders suffer from defects in their capacities for morally responsible action, lack sufficient opportunities to remain law‐abiding, or are understandably alienated from society and the prison regime. The implications of this more realistic picture of offenders for supermax confinement are then explored briefly.     

得失情境下第三方惩罚决策差异的神经机制：基于rTMS的研究

本研究应用低频rTMS技术,通过在第三方惩罚（研究1）及第三方惩罚和第三方补偿（恢复性惩罚）并存的情况下（研究2）,对个体双侧vmPFC功能进行抑制,探索vmPFC在得失情境下第三方惩罚决策中的作用。研究1结果表明,rTMS抑制右侧vmPFC功能将降低损失情境下的第三方惩罚,收益情境下未发生改变。研究2得到与研究1一致的结果,且第三方惩罚减少程度更大,第三方补偿并未发生改变。这些结果强调了vmPFC与第三方惩罚紧密相关,在第三方判断得失情境的影响时起关键作用。     

医务人员收取药品回扣的法律理性思考——兼谈《执业医师法》和《药品管理法》立法缺陷

医务人员收受药品回扣是违法行为,但是否适用以“受贿罪”刑事处罚存在司法争议。分析医务人员收受药品回扣的定性争议,提出以受贿罪论处存在的法律矛盾。认为医务人员收受药品回扣以批评教育为主,必要时给予行政处分,甚至吊销其职业医师(药师)资格而免除刑事处罚是妥当而合法的。对于医院管理者收受回扣,可以按受贿罪论处。     

The role of retributive justice and the use of international criminal tribunals in post‐conflict reconciliation

Four experiments examined people's responses to intergroup violence either committed or suffered by their own group. Experiment 1 demonstrated that Serbs who strongly glorified Serbia were more supportive of future violence against, and less willing to reconcile with, Bosniaks after reading about Serbian victimization by Bosniaks rather than Serbian transgressions against Bosniaks. Replicating these effects with Americans in the context of American–Iranian tensions, Experiment 2 further showed that demands for retributive justice explained why high glorifiers showed asymmetrical reactions to ingroup victimization vs. perpetration. Again in the Serb and the American context, respectively, Experiments 3 and 4 demonstrated that post‐conflict international criminal tribunals can help satisfy victim group members' desire for retributive justice, and thereby reduce their support for future violence and increase their willingness to reconcile with the perpetrator group. The role of retributive justice and the use of international criminal justice in intergroup conflict (reduction) are discussed.     

A Non-retributive Kantian Approach to Punishment

Traditionally Kant's theory of punishment has been seen as wholly retributive. Recent Kantian scholarship has interpreted the theory as more moderately retributive: punishment is deterrent in aim, and retributive only in so far as the amount and type of penalty is to be determined by retributive considerations (the ius talionis). But it is arguable that a more coherent Kantian theory of punishment can be developed which makes no appeal to retribution at all: hypothetical contractors would have no good reason to endorse punishment distributed retributively. This position is first sketched behind Rawls's neo‐Kantian ‘veil of ignorance’, and it is suggested that the same theory will emerge from Scanlon's more relaxed neo‐Kantian position.     

Sex Offenders—America’s New Witches? A Theoretical Analysis of the Emergence of Sex Crime Laws

During the 1990s, the United States enacted several punitive sex crime laws. Contemporary scholarship suggests this shift can be understood as a modern “witch hunt.” However, theoretical accounts have yet to examine systematically the emergence of such legislation. This study applies two theories—the first by Erikson and the second by Jensen—to assess whether they accord with known facts about the proliferation of these laws. Broad support for the theories as accounts for the punitive trend in sex crime legislation exists, but the inclusion of information dissemination as an additional factor would strengthen these accounts. Implications are discussed.     

The dark figure of sexual recidivism

Empirical studies of sexual offender recidivism have proliferated in recent decades. Virtually all of the studies define recidivism as a new legal charge or conviction for a sexual crime, and these studies tend to find recidivism rates of the order of 5–15% after 5 years and 10–25% after 10+ years. It is uncontroversial that such a definition of recidivism underestimates the true rate of sexual recidivism because most sexual crime is not reported to legal authorities, a principle known as the “dark figure of crime.” To estimate the magnitude of the dark figure of sexual recidivism, this paper uses a probabilistic simulation approach in conjunction with the following: (i) victim self‐report survey data about the rate of reporting sexual crime to legal authorities; (ii) offender self‐report data about the number of victims per offender; and (iii) different assumptions about the chances of being convicted of a new sexual offense given that it is reported. Under any configuration of assumptions, the dark figure is substantial, and as a consequence the disparity between recidivism defined as a new legal charge or conviction for a sex crime and recidivism defined as actually committing a new sexual crime is large. These findings call into question the utility of recidivism studies that rely exclusively on official crime statistics to define sexual recidivism, and highlight the need for additional, long‐term studies that use a variety of different measures to assess whether or not sexual recidivism has occurred.     

The concept of Lichnost’ in criminal law theory, 1860s–1900s

This essay discusses criminal law theories in late Imperial Russia. It argues that, although the political climate of Reform and Counter Reform effectively undermined attempts to implement new legislation premised on the idea of the ‘rights-enabled person’ (pravovaya lichnost’), paradoxically, it fostered the growth of juridical scholarship. Russian criminal law theorists engaged critically with Western juridical science, which, beginning in the 1870s, witnessed a shift away from absolutist theories inspired by the classics of philosophical idealism towards various strains of positivism arguing for the restoration of the person as a concrete, physiological being. However, while Russian scholars were drawn to these new trends of criminal anthropology and the sociology of crime, they were also obliged to take stock of an indigenous legal culture that scarcely differentiated between pravo and zakon, together with a long tradition of customary practices that equated crime and punishment with sin and redemption.     

An examination of the assumptions of specialization, mental disorder, and dangerousness in sex offenders

Sex offenders have been singled out for differential treatment by the legal and mental health systems. This article attempts to inform law reform efforts and criminal justice mental health policy by examining the assumptions underlying differential legal and mental health treatment of sex offenders. These assumptions include the theories that sex offenders are mentally disordered and in need of treatment, specialists in sex crimes, and more dangerous than other criminal offenders. Empirical findings demonstrate that sex offenders are not specialists in sex crimes and are not mentally disordered. Examination of past research suggests that sex offenders are not at more risk than other criminal offenders to commit future sex crimes. Implications of research findings for selective prosecution of sex crime cases, mental health policy, sex offender legislation, and predictions of future dangerousness are discussed. Proposals for future research needs and law reform are presented.