Retributivism and Fallible Systems of Punishment

Criminal Justice Ethics 30 (3):240-266 (2011)
Abstract
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.
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