Abstract
In this chapter, Altman gives two separate arguments that, in conjunction, support a mixed theory of punishment. First, he shows that consequentialism is insufficient on its own because it cannot capture the condemnatory function of the law as an expression of the community’s resentment. Second, he shows that retributivism is insufficient on its own because any plausible legal arrangement must be committed to some non-retributivist values. He then argues that the institution of punishment is justified by its costs and benefits, and the distribution of punishment—who is punished and how much—is justified by what offenders deserve. This two-tiered model of punishment makes more sense than an alternative scheme, according to which retributivist reasoning informs criminal lawmaking and consequentialist reasoning informs criminal judgments and sentencing.
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Notes
- 1.
For a discussion of jury nullification as it functions in the two-tiered model, see Altman (2021, 199–200, 208–9).
- 2.
I have borrowed this example, including some specific phrases, from Vilhauer (2022).
- 3.
This is not to say that the expression of resentment must involve hard treatment. For my own defense of restorative practices, see Altman (2021, 238–53).
- 4.
Steven Swartzer (2019) claims that the criminal legal system in the U.S. expresses anti-Black racist sentiments through its policing and incarceration, and he uses that point to criticize communication theories of punishment, including expressivism. I agree with Swartzer’s concerns about desert claims being motivated by racial bias (see Altman and Coe 2022). However, on my view the feeling of resentment is a reactive attitude with cognitive content, so it is open to critique and correction. Thus we can judge whether our resentment is well-founded or biased, and, in the context of our legal institutions, whether it is conducive to justice or injustice. See Altman (2021, 59–61, 67–83, 204–5).
- 5.
- 6.
A real-world example of this is that, in the U.S., non-Native perpetrators of sexual assault against Native American women on tribal lands were for many years not prosecuted, leaving Native women with a sense that their own country had abandoned them. This was (partially) addressed only in 2013 with the extension of the Violence Against Women Act.
- 7.
In the United States in 2016, the cost of federal, state, and local corrections was about $88.5 billion for the year, an over fivefold increase in real dollars since 1980 ($17 billion). If police and court costs are also included, the direct cost was $295.6 billion (Hyland 2019, Table 1). The growth in spending on prisons has far outpaced the growth of spending in other areas, and it has led to “a diversion of public resources from social institutions providing education, child care, food, and housing for primarily inner-city poor women and children to penal institutions that confine primarily inner-city poor men” (Comfort 2007, 285). Ellwood and Guetzkow (2009) found that for every 1 percent of the state budget that was diverted to corrections, there was a corresponding decrease of about 1.7 percent spent on welfare.
- 8.
Other prominent retributivists who claim that desert gives us only a pro tanto reason to punish include Douglas Husak, who talks about “external constraints” on deserved punishments that are derived from political theory (2008, 120–32); and Leo Zaibert, who defends the “axiological” view that it is intrinsically good to punish the deserving but rejects the “deontic” view that we necessarily ought to punish them (2018, esp. 14–20).
- 9.
- 10.
See Altman (2021, 124n2) for a list of other authors who raise this objection.
- 11.
Many people object to the election of local prosecutors and judges because, when they are chosen by popular vote, they are more likely to reflect the community’s biases, including its sometimes arbitrary and illegitimate anger, rather than giving offenders what they deserve. In fact, trial judges are more likely to impose steeper sentences (Berry 2015) and state appeals court judges are more likely to affirm death sentences (Canes-Wrone et al. 2014) when they are up for re-election.
- 12.
Part of this paper was presented at the Northwest Philosophy Conference in November 2021. I would like to thank the conference organizers and participants, especially Amelia Wirts, for their notes and suggestions. I am also indebted to Cynthia Coe and Jason Byas for reading early drafts and suggesting promising directions for this chapter.
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Altman, M.C. (2023). In Defense of a Mixed Theory of Punishment. In: Altman, M.C. (eds) The Palgrave Handbook on the Philosophy of Punishment. Palgrave Handbooks in the Philosophy of Law. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-031-11874-6_9
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