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.     

Death as a Penalty and the Fantasy of Instant Death

In this essay I take up the question of how death can be a penalty, given that each of us will eventually die. I argue that capital punishment in the United States rests on contradictory demands for painless death delivered humanely through pharmaceuticals and yet denies the accused the possibility of natural death. The death penalty must be at once humane and punishing. Analyzing what we mean by ‘botched’ executions, along with the language of the Supreme Court in upholding lethal injection as a humane application of the death penalty, I argue that the fantasy of instant death is at the heart of the tension between death as painless and death as penalty. In the end, I turn to Derrida’s Death Penalty Seminar Volume One, particularly his discussion of Kant’s defence of the capital punishment, and the pivotal role of time in his discussion. Finally, I suggest that the fantasies of instantaneous death and our technological mastery of it result in the fantasy of the ‘good’ punishing death.     

Innocence Lost: A Problem for Punishment as Duty

Constrained instrumentalist theories of punishment – those that seek to justify punishment by its good effects, but limit its scope – are an attractive alternative to pure retributivism or utilitarianism. One way in which we may be able to limit the scope of instrumental punishment is by justifying punishment through the concept of duty. This strategy is most clearly pursued in Victor Tadros’ influential ‘Duty View’ of punishment. In this paper, I show that the Duty View as it stands cannot find any moral distinction between the permissible punishment of the guilty and the permissible punishment of the innocent in extreme circumstances, therefore undermining one the key pillars of its intuitive appeal. I canvass several ways to respond to this problem, arguing that a rights (or claims) forfeiture theory which employs the distinction between rights forfeiture and rights infringement (or claims forfeiture and infringement) is the best solution.     

The Innocent in the Just War Thinking of Vitoria and Suárez: A Challenge Even for Secular Just War Theorists and International Law

Vitoria and Suárez defend the categorical immunity of the innocent not to be intentionally killed. But they allow for inflicting collective punishment on the innocent and the noninnocent alike during and after a just war. So they allow for deliberately harming them. Inflicting harm on the innocent can often result in their death. Hence, holding both claims seems incoherent. First, the objections against using the term “innocent” are explained. Second, their views on just war are explored. And third, by appealing to Aquinas' double‐effect reasoning, it is shown how they try to avoid the above‐mentioned incoherence. Still, their appeal might be insufficient to palliate the tension between the above‐mentioned claims. If just wars are possible, the deliberate harming of the innocent is reasonably unavoidable for defeating and punishing those who wage them. Hence, defenders of just wars, whether from a religious or a secular perspective, must live with such a tension.     

Fallibility and Retribution

The fact that human fallibility virtually ensures that punishment will sometimes befall the innocent presents a theoretical puzzle to all forms of retributivism. Retributivists usually say that desert is a necessary condition for justified punishment. It remains unclear, following this view, how retributivists can support punishment in (imperfect) practice. The paper investigates a number of possible replies available to the retributivist. It concludes that one reply in particular can overcome the problem posed by fallibility, but it is not obvious that this reply is convincing.     

Community Risk Management of High-Risk Sex Offenders in Canada: Findings From a Quasi-Experimental Study

Although considerable controversy surrounds capital punishment, there is no disagreement about the injustice of executing innocent persons. While critics of the death penalty have cited the risk of executing the innocent as a reason for its abolition, adherents have dismissed the risk of error as negligible, if not inevitable, and insufficient reason to halt capital punishment. Still others have proposed or enacted reforms designed to minimize the risk of erroneous capital convictions and sentences and, hence, allow executions to go forward in deserving cases in which doubts about guilt have largely been eradicated. In this article, we examine the principled tensions that accompany attempts simultaneously to safeguard the innocent from execution while promoting the objectives of capital punishment. We focus, in particular, on reforms recently incorporated into Maryland’s death penalty law. We suggest that the existing tensions between protecting the innocent from execution and promoting the objectives of capital punishment are so pronounced that attempted reconciliation of the competing interests is difficult to defend, either in principle or in practice.     

Retributivism In Extremis

I defend two objections to Tadros’s views on punishment. First, I allege that his criticisms of retributivism are persuasive only against extreme versions that provide no justificatory place for instrumentalist objectives. His attack fails against a version of retributivism that recognizes a chasm between what offenders deserve and the allthings-considered permissibility of treating offenders as they deserve. Second, I critique Tadros’s duty view – his alternative theory of punishment. Inter alia, I object that he derives principles from highly unusual examples of self-defense he subsequently tries to apply to ordinary cases of punishment.     

Moral Concerns About Responsibility Denial and the Quarantine of Violent Criminals

Some contemporary philosophers maintain we lack the kind of free will that makes us morally responsible for our actions. Some of these philosophers, such as Derk Pereboom, Gregg Caruso, and Bruce Waller, also argue that such a view supports the case for significant reform of the penal system. Pereboom and Caruso explicitly endorse a quarantine model for dealing with dangerous criminals, arguing that while not responsible for their crimes such criminals should be detained in non-harsh conditions and offered the opportunity for rehabilitation. Waller does not explicitly endorse the quarantine model, but his view is similar in significant respects. I argue that such views can too easily lead to the endorsement of legal policies which would result in more frequent punishment of innocent persons for crimes they have not committed. Thus, we should have deep moral reservations about such views.     

Criminalizing the State

In this article, I ask whether the state, as opposed to its individual members, can intelligibly and legitimately be criminalized, with a focus on the possibility of its domestic criminalization. I proceed by identifying what I take to be the core objections to such criminalization, and then investigate ways in which they can be challenged. First, I address the claim that the state is not a kind of entity that can intelligibly perpetrate domestic criminal wrongs. I argue against it by building upon an account of the modern state as a moral agent proper, capable of both culpable moral and legal wrongdoing. I then consider objections to the intelligibility and legitimacy of subjecting states to domestic criminal processes, which primarily find their source in the assumption that such subjection would necessarily involve the state prosecuting, judging, and punishing itself. I argue that whether this (questionable) assumption is sound or not, it does not create the kinds of unsolvable quandaries its exponents think it does. I then move on to reject the distinct, yet related, objection that, at least in aspiring liberal jurisdictions, treating the state as a criminal objectionably involves extending to it various substantive and procedural guarantees that, given its nature and raison d’être, it should not have. Finally, I discuss three central objections to punishing the state. First, that organizations like states do not have the phenomenal consciousness required to suffer punishment. Second, that the constant possibility of dispersion of state punishment amongst individual members stands in the way of its justification. Lastly, that whatever justification there may be for making things harder for the state in response to its culpable wrongdoing, such treatment need not be understood as punishment. While partially conceding the strength of these objections, I strive to loosen their grip in ways that show that justified punishment of the state, meaningfully understood as such, remains a distinct possibility. I conclude by contrasting supposed alternatives to the criminalization of states, and by contending that my analysis leaves us with enough to keep the possibility of state criminalization on the table as a justifiable response to state wrongdoing.     

康德的惩罚观:公正优先兼顾功利——读《法的形而上学原理》

学界通常认为康德是一个极端报应论者,但实际上康德并不否认惩罚的功利价值,只是主张公正是惩罚正当性的首要根据,认为惩罚是国家的完全义务,与罪行相适应的惩罚是比例惩罚,被惩罚的主体应是责任主体。康德对赦免权利、死刑、善良违法和比例惩罚等问题的认识有自相矛盾之嫌。鉴于经验的复杂性,康德没有构建一个惩罚理论。马克思对康德的惩罚思想进行了批判,康德报应论的症结在于片面追求惩罚的形式正义,忽视了实质正义。     

Could the Presumption of Innocence Protect the Guilty?

At criminal trial, we demand that those accused of criminal wrongdoing be presumed innocent until proven guilty beyond any reasonable doubt. What are the moral and/or political grounds of this demand? One popular and natural answer to this question focuses on the moral badness or wrongness of convicting and punishing innocent persons, which I call the direct moral grounding. In this essay, I suggest that this direct moral grounding, if accepted, may well have important ramifications for other areas of the criminal justice process, and in particular those parts in which we (through our legislatures and judges) decide how much punishment to distribute to guilty persons. If, as the direct moral grounding suggests, we should prefer under-punishment to over-punishment under conditions of uncertainty, due to the moral seriousness of errors which inappropriately punish persons, then we should also prefer erring on the side of under-punishment when considering how much to punish those who may justly be punished. Some objections to this line of thinking are considered.     

Rehabilitating Retributivism

This review essay of Victor Tadros’s new book, “The Ends of Harm: The Moral Foundations of Criminal Law,” responds to Tadros’s energetic and sophisticated attacks on retributivist justifications for criminal punishment. I argue, in a nutshell, that those attacks fail. In defending retributivism, however, I also sketch original views on two questions that retributivism must address but that many or most retributivists have skated past. First, what do wrongdoers deserve – to suffer? to be punished? something else? Second, what does it mean for them to deserve it? That is, what is the normative force or significance of valid desert claims, either with respect to retributivist desert in particular or with respect to all forms of desert? Because the answers that this essay offers are preliminary, the essay also serves as a partial blueprint for further work by criminal law theorists with retributivist sympathies.     

Time and Retribution

Retributivists believe that punishment can be deserved, and that deserved punishment is intrinsically good or important. They also believe that certain crimes deserve certain quantities of punishment. On the plausible assumption that the overall amount of any given punishment is a function of its severity and duration, we might think that retributivists (qua retributivists) would be indifferent as to whether a punishment were long and light or short and sharp, provided the offender gets the overall amount of punishment he deserves. In this paper I argue against this, showing that retributivists should actually prefer shorter and more severe punishments to longer, gentler options. I show this by focusing on, and developing a series of interpretations of, the retributivist claim that not punishing the guilty is bad, focusing on the relationship between that badness and time. I then show that each interpretation leads to a preference for shorter over longer punishment.     

How To Reconcile Liberal Politics with Retributive Punishment

There is a deep tension between liberalism and retributivism.On the face of it, one cannot coherently believe liberalismabout the fundamental purpose of the state and retributivismabout the basic end of legal punishment, given widely held andwell-motivated or what I call ‘standard’ conceptionsof these views. My aims in this article are to differentiatethe types of conflict between liberalism and retributivism,to identify the strongest and most problematic type of conflictbetween them, to demonstrate that existing strategies in theliterature that might be invoked to resolve this conflict fail,and to present a new, conclusive way to resolve it. The solutionlies in changing the standard conception of liberalism, whichchange, I argue, is warranted on independent grounds. Liberalism,up to now, has been conceived in a way that fails to best captureliberal intuitions. Upon improving our understanding of whatliberal purposes essentially are, it becomes clear that retributivepunishment is not merely logically consistent with them, butalso partially constitutive of them.     

论认罪认罚从宽的报应刑根据——化解从宽与罪责刑相适应原则的张力

罪责刑相适应原则要求量刑时要尊重报应刑相对于预防刑的主导地位。主流观点认为认罪认罚从宽的主要根据在于预防,这与罪责刑相适应原则形成张力。对从宽根据的预防式理解仅允许较为轻微的从宽,无法为当下全面深入的制度改革提供正当性基础。将仁慈与社会和解等新因素引入从宽根据同样无法化解从宽与罪责刑相适应原则之间的冲突。将认罪认罚定位为报应刑层面的从宽情节能够支持较大的从宽幅度,但这将冲击经典报应理念。一种不同于行为报应主义和品格报应主义的生活报应主义能够在尊重现实制度和报应理念的基础上将罪犯的真诚悔罪纳入报应刑的量刑情节,化解从宽与罪责刑相适应原则的张力。这既实现了对实在法的最佳解释,又能为须认之"罪"的内涵和从宽限度等实践问题提供指引。     

Punishment Drift: The Spread of Penal Harm and What We Should Do About It

It is well documented that the effects of legal punishment tend to drift to the family members, friends, and larger communities of convicted offenders. Instead of conceiving of punishment drift as incidental to legal punishment, or as merely foreseen but not intended by state authorities and thus permissible, I argue that efforts ought to be undertaken to limit or ameliorate it. Failure to confine punishment drift comes perilously close to punishment of the innocent and is at odds with other legal doctrines and broader penal practices that hold offenders, and offenders alone, responsible for their crimes. Numerous arguments urging tolerance of punishment drift, or more assertively defending it, are examined and found wanting.     

A Kantian Critique of Kant's Theory of Punishment

In contrast to the traditional view of Kant as apure retributivist, the recent interpretations ofKant's theory of punishment (for instance Byrd's)propose a mixed theory of retributivism and generalprevention. Although both elements are literallyright, I try to show the shortcomings of each. I thenargue that Kant's theory of punishment is notconsistent with his own concept of law. Thus I proposeanother justification for punishment: specialdeterrence and rehabilitation. Kant's critique ofutilitarianism does not affect this alternative, whichmoreover has textual support in Kant and is fullyconsistent with his concept of law.     

Contractualism and Punishment

T. M. Scanlon's contractualism is a meta-ethical theory that explains moral motivation and also provides a conception of how to carry out moral deliberation. It supports non-consequentialism––the theory that both consequences and deontological considerations are morally significant in moral deliberation. Regarding the issue of punishment, non-consequentialism allows us to take account of the need for deterrence as well as principles of fairness, justice, and even desert. Moreover, Scanlonian contractualism accounts for permissibility in terms of justifiability: an act is permissible if and only if it can be justified to everyone affected by it. This contractualist thesis explains why it is always impermissible to frame an innocent person, why vicarious punishment is impermissible, and why there has to be a cap on sentences. Contractualism therefore allows us to take deterrence as a goal of punishment without the excess of utilitarianism. This paper further argues that the resulting view is superior to pure retributivism. Finally, it shows why legal excuses and mitigation can be justified in terms of the notion of negative desert.     

Retributivism: The Right and the Good

Victor Tadros claims that punishment must be justified either instrumentally or on the grounds that deserved punishment is intrinisically good. However, if we have deontic reasons to punish wrongdoers then these reasons could justify punishment non-instrumentally. Morever, even if the punishment of wrongdoers is intrinsically good this fact cannot contribute to the justication of punishment because goodness is not a reason-giving property. It follows that retributivism is both true and important only if we have deontic reasons to punish. Tadros also claims that the constitutive aim of punishment is to inflict harm or suffering on offenders. On the contrary, the constitutive aim of retributive punishment is to inflict (justified) wrongs on offenders that are proportionate to the (unjustified) wrongs they commit. Indeed, punishment should involve the least harmful wrong that is proportionate to the wrongfulness of the offense, adequate to facilitate recognition, and (perhaps) conducive to deterrence.     

Does Fault Matter?

In this article, I try to go beyond the traditional objections to strict liability public welfare offenses and confront other possible justifications for punishing non-culpable conduct. Specifically, I consider the following arguments:

• Penalties for public welfare offenses are punishment by name only, thus traditional justifications for punishment are not needed;
• Even if those penalties are punishment, punishing those who produce or threaten significant harm to others is not necessarily unjust; and
• Even if such punishment is not entirely just, it is consistent with other widely accepted criminal law doctrines.