Punishment

A Critical Introduction

Thom Brooks

• Publisher: Routledge
• Year: 2021
• ISBN:
  9781315527758
• Edition: 2
• Topic: Law
• Subtopic: Criminal Procedure
• Index: Law

Punishment is a topic of increasing importance for citizens and policymakers. Why should we punish criminals? Which theory of punishment is most compelling? Is the death penalty ever justified? These questions and many more are examined in this highly engaging and accessible guide.

Punishment is a critical introduction to the philosophy of punishment, offering a new and refreshing approach that will benefit readers of all backgrounds and interests. The first comprehensive critical guide to examine all leading contemporary theories of punishments, this book explores – among others – retribution, the communicative theory of punishment, restorative justice and the unified theory of punishment. Thom Brooks applies these theories to several case studies in detail, including capital punishment, juvenile offending and domestic violence. Punishment highlights the problems and prospects of different approaches in order to argue for a more pluralistic and compelling perspective that is novel and ground-breaking.

This second edition has extensive revisions and updates to all chapters, including an all-new chapter on the unified theory substantively redrafted and new chapters on cyber-crimes and social media as well as corporate crimes. Punishment is essential reading for undergraduate and graduate students in philosophy, criminal justice, criminology, justice studies, law, political science and sociology.

Part I

General theories

There are at least two ways that we might think about theories of punishment. The first is to consider each theory as an individual theory with a core principle. Our focus then concerns identifying theoretical approaches and considering their acceptability in terms of factors such as coherence but not empirical findings. The alternative is to examine each theory of punishment by how well it speaks to practices in light of the evidence.

The first and second parts of this book contain seven chapters that consider each theory in terms of core principles and coherence. The third and final part of this book will take up four different case studies relating to practices. This division is important because some theories may be found highly coherent as a theory and yet impractical. When we critically analyze any theory of punishment, it is useful to be aware of these two different, although related, standpoints.

In this first part, we will examine more traditional theories of punishment. These theories will include retributivism, deterrence, rehabilitation, and restorative justice. Each theory will be discussed individually within its own chapter. While these theories may be understood in light of a single aim or principle, each is also perhaps surprisingly complex. This part will set the scene for Part 2, where we will consider various attempts to defend ‘mixed’ hybrid theories of punishment that bring together elements from different theories we will consider in Part 1.

1

Retributivism

Introduction

Retributivism is perhaps the most familiar and most misunderstood theory of punishment.¹ It is important to note that retributivism is not vengeance, nor is it any one single position. Retributivism is a rich, venerable tradition with a variety of supporters who each defend different retributivist variations. The aim of this chapter is to shed light on precisely what marks out a retributivist theory from other theories of punishment, as well as highlight the most important varieties of retributivism.

What is retributivism?

Defining retributivism is both simple and complex. It is a simple task as two interrelated concepts are at the heart of most retributivist theories. Yet, this task is complex because different theories understand these concepts in very different ways.

Desert and proportionality form the conceptual core of most retributivist theories. Retributivists claim that criminals deserve punishment in proportion to their crime. There are many senses in which persons may be said to deserve something. For example, a hardworking student may be thought to ‘deserve’ good marks or a criminal deserves to leave prison early due to good behaviour. In both these cases, someone deserves some result based upon a view of merit. However, we also use ‘desert’ in a negative sense. We might claim that someone deserves to lose his political office because of incompetence, or perhaps we say that a person deserves punishment because she committed a crime. In these cases, someone deserves some result based upon demerit.

Retributivists give desert a central place, but only to the latter sense of desert as demerit, or what we might call retributivist desert. Someone is thought to have desert not merely on account of his committing a wrongful act, but on account of his committing an illegal act. There are many actions that are wrong, but not punishable because they are not illegal. For example, lying or adultery may be wrong. Both actions betray the trust of others.

We may discourage or look down upon people who tell lies or cheat on their partners. However, unless either involves breaking the law, it may be wrong, but it is not illegal. Punishment is only justified as a response to crime in relation to desert.² Perhaps all crimes are wrongful acts. However, not all wrongful acts are crimes, as cases such as lying or adultery may illustrate. When we punish someone because he deserves to be punished, we are punishing him because he deserves punishment on account of his performing an illegal act.

We do not punish people simply by virtue of the fact they have committed a wrongful act. Retributivism punishes criminals for the wrongful acts they performed: retributivism is backwards-looking. We do not punish a criminal for what we think she might do tomorrow, but what she has done. We look backwards in time to a past action. It is what happened in the past that might justify punishment and not what might happen sometime in the future. Retributivists find consequences irrelevant. If we want to know what someone deserves, then we must look to his past action.

Retributivists endorse a conception of proportionality in addition to desert. The two concepts are interlinked. We punish criminals not only because they are deserving of punishment, but we punish them in proportion to what they deserve. Desert is clearly of central importance for retributivists as it not only indicates who we might punish, but it also informs us of how much we might punish. When we know no more than that someone deserves punishment, it does not tell us how much punishment is justified for this person. For example, if all we knew was that a person had broken a law, then we might find that person deserving of punishment but lack any clear idea of how much punishment is deserved. If we had more information – such as that the person had murdered someone – we gain a clearer sense of how much punishment might be deserved. So punishable desert is not only something that a criminal possesses, but something she possesses in degrees: the more desert, the greater the punishment.

We can now get a better sense of not only where retributivists agree, but also about where they might disagree. A retributivist theory will have a particular position on desert and proportionality whereby punishment is justified for persons who deserve it and the severity of punishment is in proportion to what these persons deserve. A murderer and a thief might both deserve punishment on account of their each being a criminal. However, the murderer may be deserving of a more punitive punishment on account of his having greater desert for his more wrongful crime.

Retributivism is not vengeance

Retributivist punishments are sometimes misunderstood as a form of vengeance. We punish criminals because they have committed an illegal action; the law is avenged when criminals are punished to the degree they deserve. This commonplace view is mistaken. An example may make this plain.

Perhaps the most classic version of retributivism is found in the Code of Hammurabi’s lex talionis, more commonly known as ‘an eye for an eye and a tooth for a tooth’. On this view, a criminal deserves punishment in strict proportion to the harm he causes others.

When we see statements such as ‘an eye for an eye’, it may look like vengeance. However, the lex talionis has two characteristic features that distinguish it and other retributivist theories from vengeance. First, punishment is an act of public justice. When we punish someone for taking an eye or a tooth, we do so because the criminal has broken a law. She is punished by her community as a just punishment for a violation of law. The lex talionis does not endorse private acts, such as my attacking others on a whim in the name of punishment. Instead, a wrong must be committed that demands redress from the criminal justice system. There must be a law broken and justice is dispensed in public.

Second, retributivist punishments have limits. On the one hand, if you take someone’s eye, then it is unjust to kill you – or ritually disembowel you. You are to be punished in proportion to the degree that you deserve. On the other hand, vengeance is something I seek against individuals who harm me personally. It is easy to lose all sense of proportion when carrying out punishment on someone who injured me or those I love. As a community, we might be appalled by the thought that a murderer should be executed. Nevertheless, we might also easily sympathize with the victim’s family and their support for the murderer’s death.³

These two features of retributivist punishment distinguish it from vengeance. Vengeance is an act of private justice without limits: I seek vengeance when I desire to injure another; I injure another to a degree I am satisfied with and not only to what he may deserve. Retributivist punishment is an act of public justice within limits: we seek retribution when we desire only to punish someone to the degree he deserves according to public laws and procedural justice. Punishment is only justified when it is deserved, not when it satisfies private anger or bloodlust. Retribution is clearly not vengeance.⁴

We might ask next if retributivism is the opposite of vengeance, namely, mercy. Many retributivists are opposed to mercy or pardons. For example, Michael Moore says:

But retributivism goes further. As a theory of a kind of justice, it obligates us to seek retribution through the punishment of the guilty. This means that officials have a duty to punish deserving offenders and that citizens have a duty to set up and support institutions that achieve such punishments.⁵

The retributivist argues that criminals deserve punishment on account of their wrongdoing. If they deserve punishment, then justice demands we punish. We do injustice if we fail to punish criminals, because they then do not receive what they deserve.

It is unsurprising to find some retributivists uncomfortable with mercy and pardons. Both are often an attempt to bring about the best consequences from a situation, a perspective most retributivists reject. For example, the South African Truth and Reconciliation Commission has been criticized by many retributivists because the Commission did not punish those who testified that they had broken laws, often performing quite serious offences. Simply saying sorry is insufficient: we should expect the criminal to make more of a sacrifice and suffer some kind of pain; otherwise, we may view his apology as insufficiently sincere.⁶ Some degree of mercy can be acceptable, but only within certain limits and as long as some degree of punishment is administered.

This view is certainly coherent. A retributivist theory (or retributivist) that argued against punishing deserving criminals might find itself in trouble. The problem is not consistency, but its relation to future public policy. There come times when greater good is achieved in pardoning a criminal than punishing him. Retributivists will respond that this may be so, but it does not justify failing to punish deserving persons. Retributivists are not consequentialists.

The question becomes how wedded retributivists are to the idea we must punish the deserving. If a situation arose where freeing a murderer would avoid a bloody revolution, should we make an exception? Kant famously tells us that ‘if justice goes, there is no longer any value in human beings living on the earth’.⁷ It is better for the revolution to take place because we meted out justice, than avoid it through injustice. Consequences are irrelevant, even in some troublesome cases. Of course, not all retributivists agree, but only because they believe consequences matter once their importance moves beyond a certain threshold.⁸ Nevertheless, retributivism is not vengeance nor easily compatible with mercy.

Moral responsibility and evil

What does it mean to say that a person deserves punishment? Thus far, this has been understood in the simplest of terms: a person deserves punishment on account of his performing a criminal act. This is true, although retributivist desert is more complicated than this, as I will now explain. We have seen that retributivists recognize that punishment is deserved if in proportion to what is deserved. Desert is something we possess in degrees and some criminals will be more deserving of punishment than others. The problem is ascertaining the amount of punishment a person deserves.

Retributivist desert relies upon a notion of moral responsibility. Whether or not we are deserving of retributivist punishment depends upon our degree of moral responsibility. We are morally responsible for our free choices. If a criminal intends to murder Alice and acts on his intentions, then the criminal is morally responsible for her death. He deserves punishment in proportion to his responsibility. Now take a second example. If a criminal intends to steal money from Brian and acts on her intentions, then she is morally responsible for this theft. The thief likewise deserves punishment precisely because of her moral responsibility for a criminal...