Negative retributivism is the view that though the primary justifying aim of legal punishment is the reduction of crime, the state's efforts to do so are subject to side-constraints that forbid punishment of the innocent and disproportionate punishment of the guilty. I contend that insufficient attention has been paid to what the side-constraints commit us to in constructing a theory of legal punishment, even one primarily oriented toward reducing crime. Specifically, I argue that the side-constraints limit the kinds (...) of actions that are appropriately criminalised, the kinds of beings who are appropriately liable to legal punishment, and the absolute and comparative severity of sanctions. I also argue that a third retributive constraint is needed, one which I term a ‘non-degradation constraint’. According to this third constraint, in our efforts to reduce crime, we must avoid treating offenders as non-moral beings and ensure that punishment does not atrophy or erode the complex capacity for moral responsibility. When this third constraint is combined with the persuasive instrumental case for promoting the moral responsiveness of offenders, the result is an approach to crime reduction that is quite different from ones which emphasise general deterrence and incapacitation. In the closing section, I broach the question whether negative retributivism has been appropriately characterised in the literature on legal punishment. (shrink)

A traditional overall distinction between the various versions of retributive theories of punishment is that between positive and negative retributivism. This article addresses the question of what positive retributivism – and thus the obligation to punish perpetrators – implies for a society in which the state has many other types of obligation. Several approaches to this question are considered. It is argued that the resource priority question constitutes a genuine and widely ignored challenge for positive retributivist theories (...) of punishment.Send article to KindleTo send this article to your Kindle, first ensure [email protected] is added to your Approved Personal Document E-mail List under your Personal Document Settings on the Manage Your Content and Devices page of your Amazon account. Then enter the ‘name’ part of your Kindle email address below. Find out more about sending to your Kindle. Find out more about sending to your Kindle. Note you can select to send to either the @free.kindle.com or @kindle.com variations. ‘@free.kindle.com’ emails are free but can only be sent to your device when it is connected to wi-fi. ‘@kindle.com’ emails can be delivered even when you are not connected to wi-fi, but note that service fees apply. Find out more about the Kindle Personal Document Service.Retributivism and ResourcesVolume 25, Issue 1JESPER RYBERG DOI: https://doi.org/10.1017/S0953820812000271Your Kindle email address Please provide your Kindle [email protected]@kindle.com Available formats PDF Please select a format to send. By using this service, you agree that you will only keep articles for personal use, and will not openly distribute them via Dropbox, Google Drive or other file sharing services. Please confirm that you accept the terms of use. Cancel Send ×Send article to Dropbox To send this article to your Dropbox account, please select one or more formats and confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about sending content to Dropbox. Retributivism and ResourcesVolume 25, Issue 1JESPER RYBERG DOI: https://doi.org/10.1017/S0953820812000271Available formats PDF Please select a format to send. By using this service, you agree that you will only keep articles for personal use, and will not openly distribute them via Dropbox, Google Drive or other file sharing services. Please confirm that you accept the terms of use. Cancel Send ×Send article to Google Drive To send this article to your Google Drive account, please select one or more formats and confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about sending content to Google Drive. Retributivism and ResourcesVolume 25, Issue 1JESPER RYBERG DOI: https://doi.org/10.1017/S0953820812000271Available formats PDF Please select a format to send. By using this service, you agree that you will only keep articles for personal use, and will not openly distribute them via Dropbox, Google Drive or other file sharing services. Please confirm that you accept the terms of use. Cancel Send ×Export citation Request permission. (shrink)

According to axiological retributivism, people can deserve what is bad for them and an outcome in which someone gets what she deserves, even if it is bad for her, can thereby have intrinsic positive value. A question seldom asked is how axiological retributivism should deal with comparisons of outcomes that differ with respect to the number and identities of deserving agents. Attempting to answer this question exposes a problem for axiological retributivism that parallels a well-known problem in (...) population axiology introduced by John Broome. The problem for axiological retributivism is that it supports the existence of a range of negative wellbeing levels such that if a deserving person comes into existence at any of these levels, the resulting outcome is neither better nor worse with respect to desert. However, the existence of such a range is inconsistent with a set of very plausible axiological claims. I call this the desert neutrality paradox. After introducing the paradox, I consider several possible responses to it. I suggest that one reasonable response, though perhaps not the only one, is to reject axiological retributivism. (shrink)

In Punishment and the Moral Emotions, Jeffrie Murphy rejects his earlier, strong endorsements of retributivism. Questioning both our motivations for embracing retributivism and our views about the basis of desert, he now describes himself as a “reluctant retributivist.” In this essay, I argue that Murphy should reject retributivism altogether. Even if we grant that criminals have negative desert, why should we suppose that it is desert of suffering? I argue that it is possible to defend desert-based (...) theories of punishment that reject this view of the object of desert. I consider, but reject, expressivist versions of such a theory. (shrink)

I am very grateful to the contributors for this symposium for their essays on my Punishment book. Each focuses with different elements of my work. Antony Duff examines the definition of punishment in my first few pages. Michelle Madden Dempsey analyses the importance given to coherence in my account and critique of expressivist theories of punishment. Richard Lippke considers my statements about negative retributivism in an important new defence of that approach. I examine each of these in turn (...) below. While I do not change my position, they draw attention to certain features in my overall argument worth reflecting on at greater length. So I welcome this opportunity to address and clarify these now and grateful for their helping me to rethink my original arguments. (shrink)

Professor William Lane Craig argues that a particular set of concerns about the Christian doctrine of penal substitution (namely, that Jesus of Nazareth was sacrificed for the sins of humanity) can be satisfied. This article provides rebuttals to said replies in an attempt to render plausible the claim that God exists to the extent that God is perfectly just, and that divine justice requires, among other things, that God never engage in the harming of innocents, consistent with any doctrine of (...) retributivism worthy of the name. The doctrine of God, then, must remain consistent with unqualified negative retributivism. Any theism which might suggest otherwise violates such vital considerations of justice and fairness and must be rejected. (shrink)

Penal substitution in a theological context is the doctrine that God inflicted upon Christ the suffering which we deserved as the punishment for our sins, as a result of which we no longer deserve punishment. Ever since the time of Faustus Socinus, the doctrine has faced formidable, and some would say insuperable, philosophical challenges. Critics of penal substitution frequently assert that God’s punishing Christ in our place would be an injustice on God’s part. For it is an axiom of retributive (...) justice that it is unjust to punish an innocent person. But Christ was an innocent person. Since God is perfectly just, He cannot therefore have punished Christ. Virtually every premiss in this argument is challengeable. Not all penal substitution theories affirm that Christ was punished for our sins. The argument makes unwarranted assumptions about the ontological foundations of moral duty independent of God’s commands. It presupposes without warrant that God is by nature an unqualified negative retributivist. It overlooks the possibility that the prima facie demands of negative retributive justice might be overridden in Christ’s case by weightier moral considerations. And it takes it for granted that Christ was legally innocent, which is denied by the classic doctrine of imputation. It thus fails to show any injustice in God’s punishing Christ in our place. (shrink)

Thom Brooks criticizes utilitarian and retributive theories of punishment but argues that utilitarian and retributive goals can be incorporated into a coherent and unified theory of punitive restoration, according to which punishment is a means of reintegrating criminals into society and restoring rights. I point to some difficulties with Brooks’ criticisms of retributive and utilitarian theories, and argue that his theory of punitive restoration is not unified or coherent. I argue further that a theory attempting to capture the complex set (...) of rules and behaviors that constitute the practice of legal punishment cannot persuasively be unified and coherent: legitimate features of the practice advance goals and promote values that in some cases conflict. (shrink)

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 argue 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. (For access to this paper: http://www.tandfonline.com/eprint/sJ2JBVXkztyFMGmxS7tS/full ) . (shrink)

As philosophical and scientific arguments for free will skepticism continue to gain traction, we are likely to see a fundamental shift in the way people think about free will and moral responsibility. Such shifts raise important practical and existential concerns: What if we came to disbelieve in free will? What would this mean for our interpersonal relationships, society, morality, meaning, and the law? What would it do to our standing as human beings? Would it cause nihilism and despair as some (...) maintain or would it rather have a humanizing effect on our practices and policies, freeing us from the negative effects of belief in free will? In this chapter we consider the practical implications of free will skepticism and argue that life without free will and basic desert moral responsibility would not be as destructive as many people believe. We argue that prospects of finding meaning in life or of sustaining good interpersonal relationships, for example, would not be threatened. On treatment of criminals, we argue that although retributivism and severe punishment, such as the death penalty, would be ruled out, preventive detention and rehabilitation programs would still be justified. While we will touch on all these issues below, our focus will be primarily on this last issue. -/- We begin in section I by considering two different routes to free will skepticism. The first denies the causal efficacy of the types of willing required for free will and receives its contemporary impetus from pioneering work in neuroscience by Benjamin Libet, Daniel Wegner, and John-Dylan Haynes. The second, which is more common in the philosophical literature, does not deny the causal efficacy of the will but instead claims that whether this causal efficacy is deterministic or indeterministic, it does not achieve the level of control to count as free will by the standards of the historical debate. We argue that while there are compelling objections to the first route—e.g., Al Mele (2009), Eddy Nahmias (2002, 2011), and Neil Levy (2005)—the second route to free will skepticism remains intact. In section II we argue that free will skepticism allows for a workable morality, and, rather than negatively impacting our personal relationships and meaning in life, may well improve our well-being and our relationships to others since it would tend to eradicate an often destructive form of moral anger. In section III we argue that free will skepticism allows for adequate ways of responding to criminal behavior—in particular, incapacitation, rehabilitation, and alternation of relevant social conditions—and that these methods are both morally justified and sufficient for good social policy. We present and defend our own preferred model for dealing with dangerous criminals, an incapacitation account built on the right to self-protection analogous to the justification for quarantine (see Pereboom 2001, 2013, 2014a; Caruso 2016a), and we respond to recent objections to it by Michael Corrado and John Lemos. (shrink)

The retributive duty is both held by and owed to the victim of a culpable wrongdoing. This reflexive account fits nicely with a Kantian emphasis on autonomy because the Kantian account allows us to explain how a person can have a duty to oneself. The reflexive account also fits nicely with, and is in part supported by, the notion that a culpable wrongdoer forfeits some of his rights . The waivability of the retributive duty in part explains why it is (...) intuitively permissible for the victim not to punish the wrongdoer, but why the same is not true with regard to the state. The reflexive duty also fits into a consent-based account of state authority and the notion that natural duties are mostly negative. Das Opfer einer schuldhaften Verletzung seiner Rechte hat nicht nur Recht, sondern auch die Pflicht Vergeltung zu üben. Diese reflexive Erwägung paßt sehr gut zu einer Betonung des Autonomiegedankens nach der Weise Kants, da die Auffassung Kants zu erklären vermag, wie eine Person eine Pflicht gegen sich selbst haben kann. Ebenso gut paßt die reflexive Erwägung zu - und sie wird zum Teil auch gestützt von - der Erkenntnis, daß jemand, der schuldhaft Unrecht tut, einige seiner Rechte verwirkt. Freilich kann auf die Vergeltung verzichtet werden, und das erklärt teilweise, warum es unseren Intuitionen entspricht, daß es dem Opfer erlaubt ist, den Täter nicht zu strafen, während das für den Staat gerade nicht gilt. Die reflexive Pflicht paßt schließlich auch zu einer auf Einverständnis gegründeten Sichtweise staatlicher Autorität, und sie läßt sich gut vereinbaren mit der Erkenntnis, daß natürliche Pflichten zumeist negativ formuliert sind. (shrink)

Methadone maintenance therapy is a cost-effective, evidence-based treatment for heroin dependence. In the USA, a majority of heroin-dependent offenders are forced to detox from methadone when incarcerated. Recent research published in The Lancet has demonstrated the negative health and economic outcomes associated with such policies. Methadone Continuation Versus Forced Withdrawal on Incarceration in a Combined US Prison and Jail: A Randomised, Open Label Trial. The Lancet, 386, 350–359). This novel evidence raises questions as to the justification for current policies (...) of forced detox in American prisons. Opponents of methadone provision in prisons might offer arguments from retributivism, resource allocation and curative effectiveness to justify their position. This article contends that these arguments do not stand up to ethical scrutiny. In light of this, we hold that American policymakers should reform criminal justice policies to allow the initiation and continuation of methadone treatment in correctional settings. This would be consistent with both international recommendations and the example set by a number of other Western countries. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Reviewed by:Autonomy and Community: Readings in Contemporary Kantian Social Philosophy ed. by Jane Kneller and Sidney AxinnJeanine GrenbergJane Kneller and Sidney Axinn, editors, Autonomy and Community: Readings in Contemporary Kantian Social Philosophy. Albany: State University of New York Press, 1998. Pp. xi + 334. Paper, $21.95.The intent of this volume is not narrow textual exegesis but the application of Kantian themes to “problems of contemporary society,” (xi). The editors (...) thus advise their readers that “[t]he present collection is … ‘Kantian’ in a broad sense,” and that the opinions put forward by the contributors may “diverge rather widely” (viii) from Kant’s own. In an introductory essay, Jane Kneller notes further that the book distinguishes between “political” philosophy in a narrow sense, and “social” philosophy, which is concerned with “the behaviour of human beings” more broadly construed. Kant, Kneller argues, does have such a “social philosophy,” and this volume will reveal it.The book is largely successful in its stated goal. The essays run the gamut of careful, if controversial, textual analyses (e.g., Allen Wood’s and Robert Paul Wolff’s essays) to those which take Kant simply as a launching pad for an analysis of a variety of social issues. At times, this relation to Kant is a positive one (e.g., Harry van der Linden’s claim that Kant provides the basis for enterprise democracy), and at times negative (e.g., Charles Mills’ claim that Kantian respect for persons masks a “dark ontology” which supports structural racism).A careful reader can find among these varied essays interestingly opposed approaches to similar topics. Wolff and Sharon Anderson-Gold [End Page 538] end up at loggerheads over the relation of Kant’s ethical and social philosophies. Wolff makes Kant’s justification of morality derivative of the establishment of the social contract. But Anderson-Gold argues for a reversed relationship; for her, Kant’s “principle of humanity” grounds a basic human right of persons in any society to be free from certain types of state interference.Another interesting juxtaposition is found between Nelson Potter and Thomas Auxter, both of whom tackle Kant’s views on retributivism. Potter seeks to humanize retributivism by showing its basis in equality and respect for persons. Auxter takes a diametrically opposed approach, arguing that Kant’s moral theory can stand unscathed if we eliminate his now outdated retributivist commitments.A meta-issue looms in all these discussions: what does and doesn’t count as “Kantian”? This book, wisely, provides no hard and fast definition; rather, by presenting a broad variety of at times seriously divergent points of view, it constitutes a refreshingly pluralistic response to what counts as Kantian: Kantian is as Kantian does. It is rare to find such diversity of interpretation in a single volume, and this book is to be commended for achieving it.There are, however, prices to pay for the achievement of diversity, the largest being a certain disconnectedness of thought. The sectioning of the book into two parts—“Kantian Social Theory” and “Kant and Contemporary Social Issues” —instead of helping to guide the reader, ends up encouraging an ultimately strained distinction. Why does Robin Schott’s essay on feminism belong with “social theory” instead of “contemporary social issues”? Why don’t Anderson-Gold’s reflections on the relationship between moral and social issues qualify as “social theory”? It might have been better, organizationally, to highlight more specific themes by distinguishing sections on “Retributivism,” “International Law,” and the like.The individual essays vary in their success in defending their stated theses. Allen Wood is insightful and even-handed in convincing this initially skeptical reader of what seems, at first blush, a rather implausible view of Kant as an historical materialist. Though some may not find his own position to be very “liberal,” Gerald Gaus’ assessment of the current state of Kantian liberalist approaches to environmental values and his proposed alternative are cogent, enlightening and challenging. Sidney Axinn’s acceptance, without argument, of a simple analogy between individual persons and individual nation states to argue for the need for a world government makes his account ultimately dissatisfying. Charles Mills rightly takes note of an editor’s concern that... (shrink)

A particular amount of punishment is justified if and only if that amount of punishment is deserved and the desert claim is not overridden. In the case of some multiple murderers or people who perform serious violent acts in addition to murder, the deserved punishment must involve torture. I argue that this legitimate desert claim is not overridden by objections based on notions of brutality and inhumanity, the Kantian concern that persons be treated as ends, the intuitive distaste that many (...) persons have for torture, the negative consequences of institutionalized torture, the concern for bias in the imposition of punishment, and the need for accuracy in measuring harms. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Reviewed by:Autonomy and Community: Readings in Contemporary Kantian Social Philosophy ed. by Jane Kneller and Sidney AxinnJeanine GrenbergJane Kneller and Sidney Axinn, editors, Autonomy and Community: Readings in Contemporary Kantian Social Philosophy. Albany: State University of New York Press, 1998. Pp. xi + 334. Paper, $21.95.The intent of this volume is not narrow textual exegesis but the application of Kantian themes to “problems of contemporary society,” (xi). The editors (...) thus advise their readers that “[t]he present collection is … ‘Kantian’ in a broad sense,” and that the opinions put forward by the contributors may “diverge rather widely” (viii) from Kant’s own. In an introductory essay, Jane Kneller notes further that the book distinguishes between “political” philosophy in a narrow sense, and “social” philosophy, which is concerned with “the behaviour of human beings” more broadly construed. Kant, Kneller argues, does have such a “social philosophy,” and this volume will reveal it.The book is largely successful in its stated goal. The essays run the gamut of careful, if controversial, textual analyses (e.g., Allen Wood’s and Robert Paul Wolff’s essays) to those which take Kant simply as a launching pad for an analysis of a variety of social issues. At times, this relation to Kant is a positive one (e.g., Harry van der Linden’s claim that Kant provides the basis for enterprise democracy), and at times negative (e.g., Charles Mills’ claim that Kantian respect for persons masks a “dark ontology” which supports structural racism).A careful reader can find among these varied essays interestingly opposed approaches to similar topics. Wolff and Sharon Anderson-Gold [End Page 538] end up at loggerheads over the relation of Kant’s ethical and social philosophies. Wolff makes Kant’s justification of morality derivative of the establishment of the social contract. But Anderson-Gold argues for a reversed relationship; for her, Kant’s “principle of humanity” grounds a basic human right of persons in any society to be free from certain types of state interference.Another interesting juxtaposition is found between Nelson Potter and Thomas Auxter, both of whom tackle Kant’s views on retributivism. Potter seeks to humanize retributivism by showing its basis in equality and respect for persons. Auxter takes a diametrically opposed approach, arguing that Kant’s moral theory can stand unscathed if we eliminate his now outdated retributivist commitments.A meta-issue looms in all these discussions: what does and doesn’t count as “Kantian”? This book, wisely, provides no hard and fast definition; rather, by presenting a broad variety of at times seriously divergent points of view, it constitutes a refreshingly pluralistic response to what counts as Kantian: Kantian is as Kantian does. It is rare to find such diversity of interpretation in a single volume, and this book is to be commended for achieving it.There are, however, prices to pay for the achievement of diversity, the largest being a certain disconnectedness of thought. The sectioning of the book into two parts—“Kantian Social Theory” and “Kant and Contemporary Social Issues” —instead of helping to guide the reader, ends up encouraging an ultimately strained distinction. Why does Robin Schott’s essay on feminism belong with “social theory” instead of “contemporary social issues”? Why don’t Anderson-Gold’s reflections on the relationship between moral and social issues qualify as “social theory”? It might have been better, organizationally, to highlight more specific themes by distinguishing sections on “Retributivism,” “International Law,” and the like.The individual essays vary in their success in defending their stated theses. Allen Wood is insightful and even-handed in convincing this initially skeptical reader of what seems, at first blush, a rather implausible view of Kant as an historical materialist. Though some may not find his own position to be very “liberal,” Gerald Gaus’ assessment of the current state of Kantian liberalist approaches to environmental values and his proposed alternative are cogent, enlightening and challenging. Sidney Axinn’s acceptance, without argument, of a simple analogy between individual persons and individual nation states to argue for the need for a world government makes his account ultimately dissatisfying. Charles Mills rightly takes note of an editor’s concern that... (shrink)

Within the criminal justice system, one of the most prominent justifications for legal punishment is retributivism. The retributive justification of legal punishment maintains that wrongdoers are morally responsible for their actions and deserve to be punished in proportion to their wrongdoing. This book argues against retributivism and develops a viable alternative that is both ethically defensible and practical. Introducing six distinct reasons for rejecting retributivism, Gregg D. Caruso contends that it is unclear that agents possess the kind (...) of free will and moral responsibility needed to justify this view of punishment. While a number of alternatives to retributivism exist - including consequentialist deterrence, educational, and communicative theories - they have ethical problems of their own. Moving beyond existing theories, Caruso presents a new non-retributive approach called the public health-quarantine model. In stark contrast to retributivism, the public health-quarantine model provides a more human, holistic, and effective approach to dealing with criminal behavior. (shrink)

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. (shrink)

This article examines whether a retributivist conception of punishment implies legal moralism and asks what liberalism implies about retributivism and moralism. It makes a case for accepting the weak retributivist thesis that culpable wrongdoing creates a pro tanto case for blame and punishment and the weak moralist claim that moral wrongdoing creates a pro tanto case for legal regulation. This weak moralist claim is compatible with the liberal claim that the legal enforcement of morality is rarely all‐thing‐considered desirable. Though (...) weak moralism has some plausibility, it does not follow from weak retributivism if legitimate state functions are limited in certain ways. (shrink)

This chapter outlines six distinct reasons for rejecting retributivism, not the least of which is that it’s unclear that agents possess the kind of free will and moral responsibility needed to justify it. It then sketches a novel non-retributive alternative called the public health-quarantine model. The core idea of the model is that the right to harm in self-defense and defense of others justifies incapacitating the criminally dangerous with the minimum harm required for adequate protection. The model also draws (...) on the public health framework and prioritizes prevention and social justice. It is argued that not only does the public health-quarantine model offer a stark contrast to retributivism, it also provides a more humane, holistic, and effective approach to dealing with criminal behavior, one that is superior to both retributivism and other leading non-retributive alternatives. (shrink)

Retributivism is generally thought to forbid the punishment of the innocent, even if such punishment would produce otherwise good results, such as deterrence. It has recently been argued that because capital punishment always entails the risk of executing an innocent person, instituting capital punishment is tantamount to intentionally taking innocent lives and therefore cannot be justified on retributive grounds. I argue that there are several versions of retributivism, only one of which might categorically forbid risking punishing innocent persons. (...) I also argue that our moral practices reveal either that we do not hold this particular version of retributivism, or that we reject equating risking punishing the innocent with intentionally doing so. *** DIRECT SUPPORT *** A9102008 00005. (shrink)

Imprisonment is often said to be the ultimate back-up sanction for offenders who do not abide by their non-custodial sentence. From a standard consequentialist perspective this is morally justified, if it is a cost-effective means to crime prevention. In contrast, the use of imprisonment as a back-up is much harder to justify from retributivist perspectives, with their emphasis on just desert or deserved censure. The crux is this: if the reason for a non-custodial sentence is that a prison sentence risks (...) being a disproportionate or inappropriate sanction, retributivists need to explain how a prison term can be warranted as the backup sanction for those who breach the requirements of their non-custodial sentence, even though their original crime wasn’t serious enough to warrant imprisonment in the first place. The aim in this paper is to critically assess the extent to which retributivists can justify the use of imprisonment as the ultimate back-up sanction. In doing so, I first examine two broad strategies that are discussed in the literature, and which retributivists could employ in order to respond to this problem. The first strategy stresses how desert has only a limited role in sentencing such that it demarcates a range of deserved punishment. On this view, associated with limiting retributivism, one could initially opt for a less harsh yet deserved punishment, leaving room for the imposition of back-up sanctions when needed. The second strategy focuses on how the act of breach is a reprehensible act that can allow for a penalty increase, and thereby lead to imprisonment. Although it is argued that both strategies fail, the paper proposes an alternative solution to this problem. (shrink)

I’ll raise a problem for Retributivism, the view that legal punishment is justified on the basis of desert. I’ll focus primarily on Mitchell Berman’s recent defense of the view. He gives one of the most sophisticated and careful statements of it. And his argument is representative, so the problem I’ll raise for it will apply to other versions of Retributivism. His insights about justification also help to make the problem particularly obvious. I’ll also show how the problem extends (...) to non-retributive justifications of punishment. I’ll argue that Berman’s argument makes a questionable assumption about the standard of justification that justifications of punishment must meet to be successful. If we think about what it takes to justify punishment and reflect on the intuitions that retributivists appeal to, it turns out that the intuitions aren’t obviously up to the task. (shrink)

This chapter outlines six distinct reasons for rejecting retributivism, not the least of which is that it is unclear that agents possess the kind of free will and moral responsibility needed to justify it. It then sketches a novel non-retributive alternative called the public health-quarantine model. The core idea of the model is that the right to harm in self-defense and defense of others justifies incapacitating the criminally dangerous with the minimum harm required for adequate protection. The model also (...) draws on the public health framework and prioritizes prevention and social justice. It is argued that not only does the public health-quarantine model offer a stark contrast to retributivism, but it also provides a more humane, holistic, and effective approach to dealing with criminal behavior, one that is superior to both retributivism and other leading non-retributive alternatives. (shrink)

Harming other people is prima facie wrong. Unless we can be very certain that doing so is justified under the circumstances, we ought not to do it. In this paper, I argue that we ought to dismantle harsh retributivist criminal justice systems for this reason; we cannot be sufficiently certain that the harm is justified. Gregg Caruso, Ben Vilhauer and others have previously argued for the same conclusion; however, my own version sidesteps certain controversial premises of theirs. Harsh retributivist criminal (...) justice can only be morally right if the following three propositions are true: Moral responsibility exists, retributivism is right, and we can find out how much punishment offenders deserve for their crimes. Suppose that we initially assign a high credence to each of the three propositions; I assume for the sake of argument that there are good arguments in support of each. Nevertheless, these arguments ultimately depend on intuitions. Since we have philosophical peers whose intuitions differ from ours, we ought to downgrade our credence in each. However, even slightly less credence in each proposition means far less credence in a conjunction of all three. Since the stakes are high and there are morally safer options for a criminal justice system, we ought to dismantle harsh retributivist ones. (shrink)

This paper develops a retributivist argument for leniency in punishment. It argues that even retributivists who defend desert-based punishment have a reason, internal to their view, to prefer more lenient over more severe punishments when there are doubts concerning how much punishment an offender deserves. This is because retributivists should take an asymmetrical view to underpunishment and overpunishment, and because the likelihood of overpunishment goes up with the severity of punishment. The radicalness of the ensuing leniency depends on the strength (...) of the asymmetry in value between underpunishment and overpunishment. (shrink)

In this paper we explore whether or not the use of risk assessment tools in criminal sentencing can be made compatible with a retributivist justification of punishment. While there has been considerable discussion of the accuracy and fairness of these tools, such discussion assumes that one’s recidivism risk is relevant to the severity of punishment that one should receive. But this assumption only holds on certain accounts of punishment, and seems to conflict with retributivist justifications of punishment. Drawing on the (...) broader desert literature, we explain the source of this conflict, and suggest that a retributivist approach on which the severity of punishment partly depends on one’s character in addition to their acts offers some hope of reconciling retributivism with the use of risk assessment tools in considerations of sentencing reduction in particular. Ultimately, however, even this limited attempt at reconciliation fails, so long as risk assessment tools fail to distinguish between risk that one is responsible for, and risk that one is not responsible for. (shrink)

Retributivism is commonly taken as an alternative to a consequentialist justification of punishment. It has recently been suggested, however, that retributivism can be recast as a consequentialist theory. This suggestion is shown to be untenable. The temptation to advance it is traced to an “intrinsic good” claim prominent in retributive thinking. This claim is examined, and is argued to be of little help in coping with the difficulties besetting the retributive theory, as well as clashing with a “desert” (...) claim equally central to that theory. (shrink)

Retributivism is often explicitly or implicitly assumed to be compatible with the harm principle, since the harm principle (in some guises) concerns the content of the criminal law, while retributivism concerns the punishment of those that break the law. In this essay I show that retributivism should not be endorsed alongside any version of the harm principle. In fact, retributivists should reject all attempts to see the criminal law only through (other) person-affecting concepts or “grievance” morality, since (...) they should endorse the criminalization of conduct that is either purely self-harming or good for somebody and bad for nobody (i.e., Pareto improvements). (shrink)

Retributivist accounts of punishment maintain that it is right to punish wrongdoers, even if the punishment has no future benefits. Research in experimental economics indicates that people are willing to pay to punish defectors. A complementary line of work in social psychology suggests that people think that it is right to punish wrongdoers. This work suggests that people are retributivists about punishment. However, all of the extant work contains an important potential confound. The target of the punishment is expected to (...) be aware of the punitive act. Thus, it's possible that people punish because they want to communicate something to the wrongdoer, e.g. disapproval, the presence of a norm, etc. In three studies, we examine whether people will punish even when the punishee will be ignorant. We find that people are no less likely to punish when the punishee will be ignorant. This finding emerges both in a survey study and in a monetized behavioural decision study. (shrink)

Lately it has become a commonplace to complain about the injustice of mass incarceration. I share the sentiment that this phenomenon has been an injustice. But it also has become orthodoxy to allege that the acceptance of a retributive penal philosophy has been one of the chief factors that has brought about mass incarceration in the first place. As a self-proclaimed retributivist, I find these allegations to be troubling and unwarranted. The point of this paper is to take steps to (...) rebut them. I begin by making four conceptual points about retributivism. If I am correct, retributivism comes in countless flavors, and the particular variety to which I am most attracted can be applied to show why some punishments should be less severe than those presently imposed. Next I argue that many persons deserve less punishment than our legal system currently inflicts. Reflection about whether perpetrators should be afforded a complete or partial defense reveals retributivism to be less punitive than conventional wisdom would suggest. (shrink)

Despite the bad press that retributivism often receives, the basic assumptions on which this theory of punishment rests are generally regarded as being attractive and compelling. First of these is the assumption that persons are morally responsible agents and that social practices, such as criminal punishment, must acknowledge that fact. Additionally, retributivism is committed to the claim that punishment must be proportionate to the crime, and not determined by such utilitarian concerns as the welfare of society, or the (...) hope of deterring other criminals. Because the most commonly discussed version of retributivism is developed from Kant's moral and legal theory, I will refer to it as Kantian Retributivism. Despite its appeal, Kantian Retributivism cannot provide a satisfactory response to a kind of case that is receiving increasingly serious consideration in philosophical literature. The case is this: Many crimes are committed by individuals profoundly disadvantaged by unjust social institutions, such as racism, classism, and/or sexism. If such individuals commit crimes, the retributivist is placed in a very difficult position: Either she must claim that the individual has willfully committed a crime and for that reason deserves punishment, seeming to ignore entirely the social background of the individual, or she can claim that the individual—in virtue of being disadvantaged by social injustices(s)—does not deserve punishment because such punishment would be unfair. I have argued elsewhere that neither strategy is tenable. (shrink)

Many philosophers think that, when someone deserves something, it’s intrinsically good that she get it or there’s a non-instrumental reason to give it to her. Retributivists who try to justify punishment by appealing to claims about what people deserve typically assume this view or views that entail it. In this paper, I present evidence that many people have intuitions that are inconsistent with this view. And I argue that this poses a serious challenge to retributivist arguments that appeal to desert.

a criminal, C, inflicts an injustice upon their Victim. thus C deserves to suffer an injustice: an excessive punishment.

It has been argued that a retributivist criminal justice system treats offenders with a respect lacking in alternative criminal justice systems; retributivism presumably recognizes that offenders are fellow members of the moral community who can be held responsible for their actions. One version of the respect argument builds on P.F. Strawson’s moral responsibility theory. According to Strawson, we may take either a participant or objective attitude toward other people. The former is the default attitude when interacting with other adults, (...) whereas the latter is fit for children and the mentally disabled or ill, whom we merely try to manage and handle as best we can. The participant attitude also involves holding people responsible when they do wrong. Supposedly, a retributivist criminal justice system functions as a natural continuation of our everyday, participant, and responsibility-holding practices, unlike alternative systems that adopt an objective attitude toward offenders. I argue that this is wrong. The participant attitude requires reciprocity and, usually, some level of equality too. Even an idealized retributivist system has little room for this, not to mention the flawed versions of this system we see in reality. (shrink)

‘Retributivism’ covers a wide range of theories which, even though they differ in various ways, all give some room for proportionality considerations with regard to the question of how severely offenders should be punished. This article addresses the question—well‐known from traditional ethical theory—as to whether proportionality constraints should be given an absolutist or a non‐absolutist interpretation. It is argued that both absolutist and some non‐absolutist accounts of proportionality constraints have counter‐intuitive implications and, more generally, that the non‐absolutist interpretation, to (...) which most retributivists seem to subscribe, faces serious challenges with regard to how the thresholds of such constraints should be determined. It is concluded that, given the aspiration of providing genuine action guidance for penal practice, the retributivist faces a dilemma that is not easily resolved. (shrink)

Retributivism may seem wholly uninterested in the fit between penal policy and public opinion, but on one rendition of the theory, here called ‘popular retributivism,’ deserved punishments are constituted by the penal conventions of the community. This paper makes two claims against this view. First, the intuitive appeal of popular retributivism is undermined once we distinguish between context sensitivity and convention sensitivity about desert. Retributivism in general can freely accept context sensitivity without being committed to the (...) stronger notion of convention sensitivity. Second, it is not obviously a merit of popular retributivism that it admits a gradual lowering of punishments by softening public opinion. Retributivists have reason to be skeptical of softening public opinion if it comes at the price of undermining the extent to which offenders are thought to deserve censure. In sum, in this paper, I argue that there are ways of making retributivism sensitive to public opinion without arriving at the conclusion that popular penal conventions should govern retributive justice itself. (shrink)

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. (shrink)