Should We Aim for a Unified and Coherent Theory of Punishment?

Thom Brooks criticizes utilitarian and retributive theories of punishment but argues that utilitarian and retributive goals can be incorporated into a coherent and unified theory of punitive restoration, according to which punishment is a means of reintegrating criminals into society and restoring rights. I point to some difficulties with Brooks’ criticisms of retributive and utilitarian theories, and argue that his theory of punitive restoration is not unified or coherent. I argue further that a theory attempting to capture the complex set of rules and behaviors that constitute the practice of legal punishment cannot persuasively be unified and coherent: legitimate features of the practice advance goals and promote values that in some cases conflict.     

Retributivism and Fallible Systems of Punishment

Abstract

I argue for the following, which I dub the “fallibility syllogism”: (1) All systems of criminal punishment that inflict suffering on the innocent are unjust from a desert-based, retributivist point of view. (2) All past or present human systems of criminal punishment inflict suffering on the innocent. (3) Therefore, all such human systems of criminal punishment are unjust from a desert-based, retributivist point of view. My argument for the first premise is organized in the following way. I define what a human system of punishment is. I offer a distinction between retributive and utilitarian approaches to punishment. I distinguish between weak retributivism embodied in the second premise and strong retributivism, which I argue is the basis for the weak version. I argue that on retributivist grounds, each case of punishment is just when it matches the seriousness of the wrongdoing of the offender and that systems of punishment are just from a retributivist point of view when there are no exceptions to this match-up. In making my case, I will use Kant's retributivism as the version of my choice, so I will spend some time showing that recent reinterpretations of Kant (arguing that he was not a thoroughgoing retributivist), even if they are correct, are consistent with my view. Ultimately, however, I argue that the better view is that Kant was a thoroughgoing retributivist.     

Kant's theory of punishment: Deterrence in its threat,retribution in its execution

Kant's theory of punishment is commonly regarded as purely retributive in nature, and indeed much of his discourse seems to support that interpretation. Still, it leaves one with certain misgivings regarding the internal consistency of his position. Perhaps the problem lies not in Kant's inconsistency nor in the senility sometimes claimed to be apparent in the Metaphysic of Morals, but rather in a superimposed, modern yet monistic view of punishment. Historical considerations tend to show that Kant was discussing not one, but rather two facets of punishment, each independent but nevertheless mutually restrictive. Punishment as a threat was intended to deter crime. It was a tool in the hands of civil society to counteract human drives toward violating another's rights. In its execution, however, the state was limited in its reaction by a retributive theory of justice demanding respect for the individual as an end and not as a means to some further social goal. This interpretation of Kant's theory of punishment maintains consistency from the earliest through the latest of his writings on moral, legal, and political philosophy. It provides a good reason for rejecting current economic analyses of crime and punishment. Most important of all, it credits Kant's theory in its clear recognition of the ideals intrinsic to libertarian government.     

On Justifying Punishment: The Discrepancy Between Words and Actions

This article reveals a discrepancy between the actual and stated motives for punishment. Two studies conducted with nationally representative samples reveal that people support laws designed on the utilitarian principle of deterrence in the abstract, yet reject the consequences of the same when they are applied. Study 1 (N = 133) found that participants assigned punishment to criminals in a manner consistent with a retributive theory of justice rather than deterrence. The verbal justifications for punishment given by these same respondents, however, failed to correlate with their actual retributive behavior. Study 2 (N = 125) again found that people have favorable attitudes towards utilitarian laws and rate them as “fair” in the abstract, but frequently reject them when they are instantiated in ways that support utilitarian theories. These studies reveal people’s inability to know their own motivations, and show that one consequence of this ignorance is to generate support for laws that they ultimately find unjust.

Desert,retribution, and corporate criminality

The role of commensurate deserts in the punishment of corporations and their agents has received little attention to date. Those who have written on desert and corporate crime dismiss it on the grounds that retributive rationales, which incorporate notions of desert, are not applicable to corporate offenses and because desert, with its focus on the moral opprobrium attached to criminal conduct, is not fitting for offenses which are regulatory and thus “morally neutral.” This essay argues that although retribution is a viable justification for corporate punishments, it need not be the only or even the primary justification for punishment for desert to be applicable in the distribution of corporate sanctions. It also questions the position of moral neutrality, citing empirical evidence of the public's perceptions of the seriousness of corporate criminal activity.     

A Retributive Argument Against Punishment

This paper proposes a retributive argument against punishment, where punishment is understood as going beyond condemnation or censure, and requiring hard treatment. The argument sets out to show that punishment cannot be justified. The argument does not target any particular attempts to justify punishment, retributive or otherwise. Clearly, however, if it succeeds, all such attempts fail. No argument for punishment is immune from the argument against punishment proposed here. The argument does not purport to be an argument only against retributive justifications of punishment, and so leave open the possibility of a sound non-retributive justification of punishment. Punishment cannot be justified, the paper argues, because it cannot be demonstrated that any punishment, no matter how minimal, is not a disproportionate retributive response to criminal wrongdoing. If we are to hold onto proportionality—that is, proportionality as setting a limit to morally permissible punishment—then punishment is morally impermissible. The argument is a retributive argument against punishment insofar as a just retributive response to wrongdoing must be proportionate to the wrongdoing. The argument, that is, is concerned with proportionality as a retributive requirement. The argument against punishment is set out on the basis of a familiar version of the ‘anchoring problem’, according to which it is the problem of determining the most severe punishment to anchor or ground the punishment scale. To meet the possible criticism that we have chosen a version of the anchoring problem particularly favourable to our argument, various alternative statements of the anchoring problem are considered. Considering such statements also provides a more rounded view of the anchoring problem. One such alternative holds that the punishment scale must be anchored not just in the most severe punishment, but in the least severe punishment as well. Other alternatives hold that it is necessary and sufficient to anchor the punishment scale in any two punishments, neither of which needs to be the most or least severe punishment. A further suggestion is that one anchoring point anywhere along the punishment scale is sufficient, because it is possible to ‘project’ from such a point, so as to determine the correlative punishments for all other crimes, and so derive a complete punishment scale. Finally, the suggestion is considered that one can approach the issue of a punishment scale ‘holistically’, denying any distinction between anchoring and derived (or ‘projected’) punishments.     

Toward a new theory of punishment

Criteria for a successful theory of punishment include first, that it specify a reasonable limit to punishments in particular cases, and second, that it allow benefits to outweigh costs in a penal institution.It is argued that traditional utilitarian and retributive theories fail to satisfy both criteria, and that they cannot be coherently combined so as to do so. Retributivism specifies a reasonable limit in its demand that punishment equal crime, but this limit fails to allow benefits to outweigh costs of punishing. Utilitarians demand the latter but cannot guarantee the former. Combinations continue to violate one requirement or the other.The most vulnerable element of the traditional theories is the retributive limit. An alternative is suggested according to a new but similar model of reciprocal social rights and obligations. The rights of a citizen in the moral community are considered as a package, which reverts temporarily to the community in trusteeship when the citizen seriously violates the rights of others. The community must exercise the least restraint necessary to protect others until the full package of rights can be restored to the individual.Problems for this new theory and advantages over alternative models are discussed in the final section.     

Thomas Hobbes and the philosophy of punishment

In this article I argue for a full appraisal of Hobbes's theory of punishment which takes account of its divergent and contradictory aspects. Examining his theory within the general context of his position in Leviathan, it is possible to see its centrality for the subsequent development of the modern philosophy of punishment. From this point of view, it is also possible to pinpoint the source of a central weakness in the retributive theory of punishment.     

The role of prior punishment in preventive detention decisions

ABSTRACT

Preventive detention legislation allows for ongoing detention or supervision following completion of an offender’s sentence. Consideration of public protection should drive the administration of preventive detention, however research has indicated retributive concerns also drive decision making. Two studies were conducted to examine the motives driving preventive detention decisions, and how contextual variables affected the balance between retributive and public protection motives. In Study 1, participants were presented with information about an offender’s remorse, prior punishment, and risk of re-offence. In Study 2, participants were presented with information about an offender’s prior punishment and offence type, and the relative strength of various potential mediators was tested, to determine factors driving effects of prior punishment information. Overall, results demonstrated participants were driven by both retributive and public protection motives, as well as personal characteristics (e.g. political orientation, prejudice against offenders) when making preventive detention decisions. Findings are discussed in terms of their implications for preventive detention legislation.     

Bureaucracy, “domesticated” elites, and the abolition of capital punishment. Processes of state-formation and the number of executions in England and Habsburg Austria between 1700 and 1914

The paper argues that the introduction of bureaucracy civilized death penalty and brutal punishment. The study bases on a quantitative analysis of the numbers of death sentences and executions in England and Habsburg Austria from 1700 to 1914 and on a qualitative analysis of historical literature about the death penalty in both countries. The paper shows that professional law enforcement specialists, bureaucrats, civil servants, and detached juridical stuff formed a new class of “domesticated middlemen elites”. In strong states, this new class becomes the dominating group. In weak states, however, old elites that combine economic and political power preserve their privileged positions. For them capital punishment is the most proper mean to deter criminals because old elites fear the alternative: the introduction of strong-state institutions. Beside obvious power struggles between central and local elites—which effects penal policy pro and con capital punishment—there is a civilizing process going beneath the surface of rationality and political interests. In strong states, the formation of a “habitus” averse to brutal punishment is initiated amongst “domesticated middlemen elites” who are acting in peaceful living- and working conditions.     

Can Self-Defense Justify Punishment?

This piece is a review essay on Victor Tadros’s The Ends of Harm. Tadros rejects retributive desert but believes punishment can be justified instrumentally without succumbing to the problems of thoroughgoing consequentialism and endorsing using people as means. He believes he can achieve these results through extension of the right of self-defense. I argue that Tadros fails in this endeavor: he has a defective account of the means principle; his rejection of desert leads to gross mismatches of punishment and culpability; and he cannot account for punishment of inchoate crimes.     

Rethinking the restorative–retributive dichotomy: is reconciliation possible?

While the use of restorative justice within Western criminal justice systems continues to grow, its philosophical foundations remain uncertain. This inconclusiveness impacts directly upon the theoretical discussion of restorative justice and its relationship with existing paradigms of punishment, precipitating debate regarding its ability to integrate within justice systems governed by retributive paradigms. Specifically, this ambiguity of definition renders debate regarding the extent to which restorative justice philosophy exists as an alternative punishment or an alternative to punishment, and its existence as complementary or axiomatic to retributive justice unresolved. The philosophy of restorative justice, identifying its central features and addressing those previous attempts of contrasting restorative justice with the prevailing paradigm of retribution is explored here. However, it is suggested that aspirations of reconciling restorative justice philosophy with the retributive paradigm will be ultimately unsuccessful, due to the persistent latent ambiguity regarding the central foundation upon which restorative justice philosophy is built. Such concerns are also present when seeking to affirm the continued opposition of retributive and restorative justice.     

FROM RETRIBUTION TO "DESERT"The Evolution of Criminal Punishment

Does current disenchantment with rehabilitation and the movement toward determinate sentencing signal a return to “retribution”? To the contrary, a close analysis of the program and philosophy of determinate sentencing reveals a fundamental break with the retributive tradition of punishment according to generic categories of conduct. In an evolutionary development that can be traced through the classical and positivist reform movements. punishment has gradually shifted from a focus upon vengeonce and expiation toward individualized consideration of factors relevant to fairness. The thrust of the new movement toward regularizing the assessment of factors in aggravation or mitigation, with particular emphasis on harm and culpability, must be viewed in an evolutionary perspective.     

Compassion can be cruel: Durkheim on sympathy and punishment

Emile Durkheim's perspective on punishment has been examined in considerable detail, but criminologists still neglect one dimension of his perspective: his account of the causal relationship between “sentiments of human sympathy” and the intensity of criminal punishment. Unlike conventional accounts, which propose a negative relationship between these variables, Durkheim argued that there are conditions under which the relationship is positive. According to Durkheim, increments in feelings of compassion for humans in general can heighten public outrage to acts of “human criminality” and, for this reason, can intensify the punitive response to such crimes. In this article, Durkheim's account of this relationship is abstracted from his theory of penal evolution and is revised to improve its plausibility and temper its problematic implications. It is concluded that his account represents another irony of his work which warrants attention, and which may further our understanding of the persistence of both imprisonment and punitive attitudes.     

Political Neutrality and Punishment

This paper is concerned with the tensions that arise when one juxtaposes one important liberal understanding of the nature and use of state power in circumstances of pluralism and (broadly) retributive accounts of punishment. The argument is that there are aspects of the liberal theory that seem to be in tension with aspects of retributive punishment, and that these tensions are difficult to avoid because of the attractiveness of precisely those features of each account. However, a proper understanding of both liberalism and retributive punishment allows us to dissolve some of the tensions whilst also bringing each position into sharper relief. The paper begins by introducing the liberal position and outlining the apparent tensions that may arise with retributive punishment. In so doing, there is also a brief discussion of how this debate relates to the more familiar dispute between legal moralists and their opponents. The paper then proceeds by considering each of the areas of tension in turn.     

The Instruments of Abolition, or Why Retributivism is the Only Real Justification of Punishment

Victor Tadros’ The Ends of Harm is the most recent systematic attempt to defend the good old utilitarian justification of punishment. The attempt fails for a variety of reasons, which are here explored. First, the attempt presupposes an implausible account of human’s psychology. Second, the attempt confuses an attack on retributivism with an attack on certain criminal justice systems. Finally, Tadros admits that his justification of punishment is best seen as a mere step along the road to full-blown abolitionism – and so he unwittingly admits the extraordinarily thin sense in which he could be said to be really attempting to justify punishment.     

Revisionism and Desert

Revisionists claim that the retributive intuitions informing our responsibility-attributing practices are unwarranted under determinism, not only because they are false, but because if we are all “victims of causal luck”, it is unfair to treat one another as if we are deserving of moral and legal sanctions. One (moderate) revisionist strategy recommends a deflationary concept of moral responsibility, and that we justify punishment in consequentialist rather than retributive terms. Another (strong) revisionist strategy recommends that we eliminate all concepts of guilt, blame and punishment, and treat dangerous criminals as we treat people with contagious diseases. I argue against both strong and moderate revisionism that (1) it is not unfair to hold persons desert-entailingly responsible (in a weaker sense of ‘desert’) insofar as they take an interest in being treated as appraisable, and (2) that it is unfair to persons not to treat them as desert-entailingly responsible (in this weaker sense) contrary to their interests in being treated as such. The interest-based argument, I conclude, give us a justification for communicating retributive attitudes, but may still require a weak revision of our retributive practices, in the direction of a communicative theory of punishment.     

身份犯及其相关概念辨析

身份犯是指刑法规定的以行为人所具有的特定身份作为犯罪构成要件或量刑情节的犯罪。身份犯不同于亲手犯和不作为犯,身份犯是以犯罪主体是否具有特定身份为标准对犯罪进行分类的结果,亲手犯是根据实行行为是否可以和主体相分离而对犯罪所作的一种分类,不作为犯则是以实行行为的表现形式为标准划分的一类犯罪,三者既有区别,又有联系。     

The Chimera of Proportionality: Institutionalising Limits on Punishment in Contemporary Social and Political Systems

The concept of proportionality has been central to the retributive revival in penal theory, and underlies desert theory's normative and practical commitment to limiting punishment. Theories of punishment combining desert‐based and consequentialist considerations also appeal to proportionality as a limiting condition. In this paper we argue that these claims are founded on an exaggerated idea of what proportionality can offer, and in particular fail properly to consider the institutional conditions needed to foster robust limits on the state's power to punish. The idea that appeals to proportionality as an abstract ideal can help to limit punishment is, we argue, a chimera: what has been thought of as proportionality is not a naturally existing relationship, but a product of political and social construction, cultural meaning‐making, and institution‐building. Drawing on evolutionary psychology and comparative political economy, we argue that philosophers and social scientists need to work together to understand how the appeal of the idea of proportionality can best be realised through substantive institutional frameworks under particular conditions.     

The justification of punishment and the justification of political authority

Philosophical accounts of punishment are primarily concerned with punishment by the (or: a) state. More specifically, they attempt to explain why the (a) state may justifiably penalize those who are judged to violate its laws and the conditions under which it is entitled to do so. But any full account of these matters must surely be grounded in an account of the nature and purpose of the state and the justification of state authority. Because they are not so grounded, deterrence and retributive theories are incomplete as they are typically formulated. The intuitions behind these theories can be satisfied in a variety of complete theories, i.e., theories that understand the justification of punishment in relation to the justification of state authority. A consequence of this is that at least some of the intuitions underlying deterrence and retributive theories can be satisfied at the same time by a given theory.