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Justice without Retribution: An Epistemic Argument against Retributive Criminal Punishment

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Abstract

Within the United States, the most prominent justification for criminal punishment is retributivism. This retributivist justification for punishment maintains that punishment of a wrongdoer is justified for the reason that she deserves something bad to happen to her just because she has knowingly done wrong—this could include pain, deprivation, or death. For the retributivist, it is the basic desert attached to the criminal’s immoral action alone that provides the justification for punishment. This means that the retributivist position is not reducible to consequentialist considerations nor in justifying punishment does it appeal to wider goods such as the safety of society or the moral improvement of those being punished. A number of sentencing guidelines in the U.S. have adopted desert as their distributive principle, and it is increasingly given deference in the “purposes” section of state criminal codes, where it can be the guiding principle in the interpretation and application of the code’s provisions. Indeed, the American Law Institute recently revised the Model Penal Code so as to set desert as the official dominate principle for sentencing. And courts have identified desert as the guiding principle in a variety of contexts, as with the Supreme Court’s enthroning retributivism as the “primary justification for the death penalty.” While retributivism provides one of the main sources of justification for punishment within the criminal justice system, there are good philosophical and practical reasons for rejecting it. One such reason is that it is unclear that agents truly deserve to suffer for the wrongs they have done in the sense required by retributivism. In the first section, I explore the retributivist justification of punishment and explain why it is inconsistent with free will skepticism. In the second section, I then argue that even if one is not convinced by the arguments for free will skepticism, there remains a strong epistemic argument against causing harm on retributivist grounds that undermines both libertarian and compatibilist attempts to justify it. I maintain that this argument provides sufficient reason for rejecting the retributive justification of criminal punishment. I conclude in the third section by briefly sketching my public health-quarantine model, a non-retributive alternative for addressing criminal behavior that draws on the public health framework and prioritizes prevention and social justice. I argue that the model is not only consistent with free will skepticism and the epistemic argument against retributivism, it also provides the most justified, humane, and effective way of dealing with criminal behavior.

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Notes

  1. See [11, ch.7] for more references and details.

  2. Immanuel Kant, for example, famous maintained that the death penalty was not only deserved but also obligatory in cases of murder: “[W]hoever has committed murder, must die. There is, in this case, no juridical substitute or surrogate, that can be given or take for the satisfaction of justice. There is no Likeness or proportion between Life, however painful, and Death; and therefore there is no Equality between the crime of Murder and the retaliation of it but what is judicially accomplished by the execution of the Criminal. Even if a civil society resolved to dissolve itself with the consent of all its members—as might be supposed in the case of a people inhabiting an island resolving to separate and scatter themselves throughout the whole world—the last murderer lying in prison ought to be executed before the resolution was carried out. This ought to be done in order that every one may realize the desert of his deeds, and that blood-guiltiness may not remain upon the people; for otherwise they might all be regarded as participators in the murder as a public violation of justice” [20: Part II: 6].

  3. David Boonin, for example, defines retributivism as follows: “It claims that committing an offense in the past is sufficient to justify punishment now, whether or not this will produce any beneficial consequences in the future” [29: 85 (emphasis added)].

  4. I will also henceforth drop the distinction between moderate and strong retributivism. Strong retributivists defend two distinct claims: that we are justified in punishing offenders and that we have a duty to do so. Moderate retributivists seek only to defend the first claim. Since I am simply concerned with the question, “Does the desert of offenders sometimes provide sufficient grounds for punishment?” we can set this distinction aside here.

  5. I should note that Double limits his argument to libertarianism (see below) and Vilhaeur stops short of extending his concerns to legal punishment. While Corrado’s argument is similar to the one I develop here, we both arrived at our arguments independently. I first sketched the basic structure of the epistemic argument back in 2015 when working on my book manuscript Unjust Deserts: Free Will, Moral Responsibility, and Legal Punishment (still unpublished) and briefly referenced it in Caruso [44]. Pereboom [24, 25, 40] also runs a similar argument but does not develop it in detail.

  6. In the book, Alexander, Ferzan, and Morse set out to explain what the criminal law would look like if structured by moderate retributivism: “What we intend to do in this book is to explore what the doctrines of the criminal law would look like if they were structured (primarily) by the concern that criminal defendants receive the punishment they deserve, and particularly that they receive no more punishment than they deserve…In our view, it is the defendant’s decision to violate society’s norms regarding the proper concern due to the interests of others than establishes the negative desert that in turn can both justify and limit the imposition of punishment” [27: 6–7].

  7. See Wikipedia entry for “precautionary principle”: https://en.wikipedia.org/wiki/Precautionary_principle

  8. Although there are many different formulations of the consequence argument, van Inwagen summarizes the basic idea as follows: “If determinism is true, then our acts are the consequences of the laws of nature and events in the remote past. But it is not up to us what went on before we were born; and neither is it up to us what the laws of nature are. Therefore, the consequence of these things (including our present acts) are not up to us” [53: 16].

  9. Material in this section has been drawn from Caruso [12,13,14,15].

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Caruso, G.D. Justice without Retribution: An Epistemic Argument against Retributive Criminal Punishment. Neuroethics 13, 13–28 (2020). https://doi.org/10.1007/s12152-018-9357-8

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