KeywordsCriminal Justice System Fellow Citizen Hybrid Theory Enforcement Cost Public Justice
A theory of punishment that maintains that wrongdoers deserve to be punished, in proportion to their crimes, as a matter of justice or right.
Retributivism is a theory or philosophy of criminal punishment that maintains that wrongdoers deserve punishment as a matter of justice or right. It is often contrasted with deterrence, which justifies punishment on the basis on the future harms it prevents. (On theories of punishment, see the papers in Acton (1969), Duff and Garland (1994), and Simmons et al. (1995); for concise syntheses, see Tunick (1992) and Brooks (2012).)
Drawing on the terminology of moral philosophy, retributivism is often characterized as deontological in nature, being based on qualitative concepts of justice and the right, while deterrence is consequentialist, focused on minimizing the negative outcomes from crime. This is, admittedly, an overgeneralization: for instance, Moore (1993), Cahill (2011), and Berman (2013) have suggested that retributivism can be regarded as a consequentialist or instrumentalist theory in which punishment or justice are goods to be maximized (see Dolinko (1997) for a counterargument). Nonetheless, it remains that retributivism is linked to justice rather than welfare or utility, and this leads to more specific and useful ways to distinguish it from alternative theories of punishment.
Before we can fully appreciate retributivism, we must briefly discuss deterrence. The formal basis for deterrence can be traced to classical utilitarianism, particularly the policy recommendations of Jeremy Bentham (1781) and the criminology of Cesare Beccaria (1764). As punishment by its nature is harmful, it is justified only insofar as it prevents greater harm: “All punishment in itself is evil. Upon the principle of utility, if it ought at all to be admitted, it ought only to be admitted in as far as it promises to exclude some greater evil” (Bentham 1781, p. 170). One way punishment “excludes some greater evil” is through deterring future crime by incapacitating the guilty and creating an incentive for others to abstain from criminal activity, both of which lessen the incidence of crime going forward.
Deterrence is not focused on lessening crime itself but rather on minimizing the overall costs of crime, including not only the harms done by criminals but also the costs of punishment, prosecution, and apprehension. This inclusive definition of the costs of crime implies that some crimes will be unworthy of punishment because it is “groundless: where there is no mischief for it to prevent… inefficacious: where it cannot act so as to prevent the mischief… unprofitable, or too expensive: where the mischief it would produce would be greater than what it prevented…[or] needless: where the mischief may be prevented, or cease of itself, without it: that is, at a cheaper rate” (Bentham 1781, p. 171). It is no surprise that this general framework of deterrence was adopted by Becker (1968) and other economists as they began to study crime and developed theories of efficient punishment that refined and expanded on the early insights of Bentham and Beccaria.
Retributivism is not concerned with the effects of punishment on future behavior or costs but instead solely addresses the crime for which the perpetrator is to be punished. For this reason, retributivism is often referred to as “backward-looking,” focusing on the crime which was committed in the past, while deterrence is characterized as “forward-looking,” taking the past crime as given and exacting a punishment designed to minimize the future costs of crime. While deterrence sees no inherent value in punishment itself, but instead sees it as a tool to maximize utility or minimize harm, retributivism maintains that the state has a moral, political, or legal duty to punish wrongdoers.
While embedded in discussions of justice going back to Plato and Aristotle, the modern roots of retributivism are usually traced back to Immanuel Kant, for whom retributivism stemmed from his belief in the respect owed to persons due to their inherent dignity as autonomous beings. While his position on punishment is more complex then often acknowledged (as pointed out by Murphy 1987), several statements he made exemplify the basic tenets of retributivism. For instance, Kant held that punishment must be imposed only in response to the crime committed and “can never be inflicted merely as means to promote some other good for the criminal himself or for civil society. It must always be inflicted upon him only because he has committed a crime. For a human being can never be treated merely as a means to the purposes of another” (1797, p. 331). Kant addressed the danger of punishing the innocent and the other goals of punishment when he wrote a person “must previously have been found punishable before any thought can be given to drawing from his punishment something of use for himself or his fellow citizens” (1797, p. 331). Along with Hegel (1821), Morris (1968), and Murphy (1973), Kant emphasized that retributivism is grounded in respect for the individual, giving the guilty what they are owed by virtue of what they did, as a matter of impersonal justice rather than the base emotions of revenge or vengeance (a distinction explored by Nozick (1981, pp. 366–368)).
Retributivism can be classified as either negative or positive. Negative retributivism places limits on the subject and severity of punishment: the innocent should never be punished, and the guilty should not be punished more than is proportionate to their crimes. Positive retributivism goes further, endorsing the upper limits on punishment imposed by negative retribution while also maintaining that the guilty must be punished and not less than is proportionate to their crimes (thereby imposing a duty of overall proportionality). (This distinction is usually attributed to Mackie (1985) and has since become standard in the literature on punishment.)
Negative retributivism is often seen as a side constraint on the pursuit of deterrence that prevents it from considering the punishment of innocents or imposing disproportionately severe punishments on the guilty. Deterrence constrained by negative retributivism is a common hybrid theory of punishment as suggested most famously by Hart (1968); some, such as Byrd (1989), argue that this was Kant’s complete view as well. While the intentional punishment of the innocent may be more of a theoretical possibility than a practical threat in most modern democracies, the practice of disproportionately severe punishments is a logical implication of efficient deterrence. For instance, Becker (1968) showed that, in many cases, enforcement costs can be lowered while achieving the same level of deterrence if the probability of punishment is lowered – reducing enforcement costs – while the severity of punishment is raised, most likely above a level proportionate to the crime. (One example is littering, which in the United States carries an extremely low chance of apprehension and posted fines much higher than any measure of the resulting harm.) While this may be efficient from a cost-minimization point of view, the negative retributivist would object that it subjects the guilty person to a greater punishment than he or she deserves in light of the crime committed.
Positive retributivism adds the imperative of punishing the guilty and ensuring that the punishment not be disproportionately mild; as Kant wrote, “woe to him who crawls through the windings of eudaemonism in order to discover something that releases the criminal from punishment or even reduces its amount by the advantage it promises” (1797, p. 331). Since negative retributivism does not mandate punishment at all, some doubt whether it counts as retributivism (Cottingham 1979). But positive retributivism is “complete,” mandating that all wrongdoers be punished and in proportion to their crimes, with the punishment neither too harsh or too light in comparison to the crime.
However, the stricter nature of positive retributivism presents a number of problems both theoretical and practical. For one, while it is easy to argue that the innocent must not be punished, it is more difficult to argue why the guilty must be punished (without recourse to preventing future harm). Perhaps the simplest justification – if we can even call it that – is to invoke the ancient code of the lex talionis, “an eye for an eye and a tooth for a tooth.” Kant cites this approvingly when he asks “what kind and what amount of punishment is it that public justice makes its principle and measure? None other than the principle of equality… Accordingly, whatever undeserved evil you inflict upon another within the people, that you inflict upon yourself…. But only the law of retribution (ius talionis)… can specify definitely the quality and the quantity of punishment” (1797, p. 332). The lex talionis certainly prescribes a strict proportionality which would be impossible in most cases, and it is seen by most retributivists as simplistic, harsh, and inhumane; some doubt its relevance to retributivism at all (Davis 1986).
Most modern retributivists justify due punishment on other grounds. Intrinsic retributivists maintain that punishment of the guilty is an intrinsic good that does not derive its value from anymore basic precept. (See Davis (1972) for one example, arguing against Honderich (1984), who coined the term and criticized the concept.) But others find a justification for retributivist punishment in a broader political theory, often based on a version of reciprocity that maintains that the guilty “owe a debt” to society or their fellow citizens and punishment restores this balance (famous from Plato’s Crito (360 BCE); for surveys of such theories, see Tunick (1992, ch. 3), and Duff (2001, ch. 1)). For example, many retributivists, such as Morris (1968), argue that while innocent citizens bear the costs of compliance with the law, the guilty “free ride” on these efforts, gaining unfair advantage that must be repaid to restore balance (Kant was sympathetic to this view as well, according to Murphy 1972). Similarly, some retributivists maintain that the purpose of punishment is, in the words of Hegel (1821, p. 69), “to annul the crime, which otherwise would have been held valid, and to restore the right.”
Finally, there are justifications for positive retributivism that are not based on reciprocity, such as denunciation or expression of condemnation (Feinberg 1965; von Hirsch 1985; Markel 2011) and moral education and communication (Hampton 1984; Duff 2001). Note that these justifications are goal oriented in nature, focused on an end result of punishment, albeit one that is more specific than deterrence or harm reduction and also tied closely to the crime committed. Nozick (1981, p. 371) calls such theories of punishment teleological retributivism because they focus on an end other than the suffering of the guilty; Berman (2013) argues that most modern retributivist theories are teleological or instrumental in nature.
Another problem facing positive retributivism (and even negative retributivism to a degree) is how to determine a type and degree of punishment that is proportionate to – or “fits” – a given crime. The lex talionis demands literal proportionality, the spirit of which survives today in jurisdictions which prescribe the death penalty for murderers despite questionable deterrent effect (Ehrlich and Liu 2006), but is impractical or unthinkable in cases like battery, rape, or attempted murder. Even Kant, who supported the lex talionis, appreciated its limitations, asking “but what is to be done in the case of crimes that cannot be punished by a return for them because this would be either impossible or itself a punishable crime against humanity as such?” and recommending that “what is done to [the wrongdoer] in accordance with penal law is what he has perpetrated on others, if not in terms of its letter at least in terms of its spirit” (1797, p. 363).
While equivalence is not possible, it is widely agreed that, at the very least, more serious crimes should be punished more severely. But even this determination is not as easy as it may seem: while various degrees of one crime, such as murder or theft, can be ranked and punished appropriately, determining proportionate punishment for two different crimes is more difficult. Card (1975), von Hirsch (1976), and Davis (1983) are seminal works in this area, but some (such as Wertheimer 1975) remain skeptical that a consistent, proportional system of punishment is possible at all. More fundamentally, retributivists disagree on what determines the severity of a crime: whether the harm done or intended, the degree of wrongdoing, or the culpability of the criminal. (See Davis (1986) on harm versus wrong and Alexander et al. (2009) on culpability.) Given the controversy over what determines the severity of crimes themselves, the difficulty of ranking them in order to assign proportionate penalties becomes even more difficult.
A final problem with retributivist punishment on which economics is particularly well suited to comment is its resource cost. Economists and economics-minded legal scholars have paid very little attention to retributivism; as Posner (1980, p. 92) wrote, it is “widely viewed as immoral and irrational, at least as primitive and nonrational.” (For similar views, see also Kaplow and Shavell (2002) and Sunstein (2005); a notable exception to the antipathy among economists to retributivism is Wittman (1974)). At the same time, legal philosophers have not paid much attention to the economic ramifications of retributivism, although Avio (1990, 1993), Cahill (2007), and White (2009) have started to look at this issue. The problem with implementing a retributivist system of punishment in the real world is that its perfectionist nature (“the guilty must be punished in proportion to their crimes”) does not easily allow for the compromises required in a world of scarcity. If governments tried to punish all wrongdoers according to their just deserts – including making every possible attempt to apprehend and prosecute them – the criminal justice would end up absorbing all of the society’s resources (White 2009; see Braithwaite and Pettit (1990) on system-wide considerations of retributivism). For this reason, some recommend a hybrid theory of punishment with negative retributivism as a limited factor (Avio 1993), a consequentialist retributivism that seeks to maximize some measure of justice (Cahill 2007, 2011), or a “pro tanto retributivism” that considers necessary compromises to result from a balancing of competing principles (White 2011a).
Retributivism remains a vital area of interest and research, with contemporary scholars attempting to refine its principles in the context of a constantly evolving political world (White 2011b) and exploring the implications of new developments in neuroscience and psychology (Nadelhoffer 2013). Although it does not sit well with the utilitarian foundations of the economic approach to law, economists should take note of the extent to which retributivism lies at the root of much of criminal law doctrine and how it steers the criminal justice system away from textbook models of efficiency, affecting resource allocation throughout the criminal justice system and society as a whole. This knowledge is also integral to the way that legal scholars and philosophers understand how retributivism works in the real world.
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