But if actual detention matters for proportionate sentencing in the pre-trial context, it must matter as well for the post-sentence context, and this would make it effectively impossible to pursue both proportionate punishment and post-sentence detention. This is a difficult problem for retributivists.
They might want to respond by saying that liberty deprivation that is not intended as punishment can be justified if and only if two conditions are met: 1 punishment is, all things considered, justified, and 2 these other deprivations can be avoided only at the cost of giving up punishment or causing even worse consequences or independent rights violations— see section 4. But if they respond to Kolber this way, retributivists cannot claim contra Husak that their commitment to proportionality requires them to give credit for pre-trial detention, as pre-trial detention is not meant to be punitive.
Perhaps they have other reasons for giving credit for pre-trial detention at sentencing, perhaps reasons of mercy or fairness. But it would be an odd sort of requirement of mercy, as mercy is usually taken to be discretionary. And if called for as a matter of fairness, it is unclear why fairness does not require the other accommodations that Kolber notes and that nonetheless seem counter-intuitive. This is not to say that retributivists could not come up with an adequate response to Kolber, but they have work to do.
How strong are retributive reasons? As was argued in section 3. It affects how one understands whether punishment respects the dignity of the punished wrongdoer. And it might affect how one understands the forfeiture of the right not to be punished. These issues concern whether the practice of punishment can be morally justified. It is a separate question, however, whether positive desert plays much of a role in establishing an all-things-considered reason to punish. If positive desert provides a strong reason for action, then there might be little to no need for non-retributive reasons to justify punishment; if positive desert provides a weak reason to punish, then punishment may often not be justified unless there are strong non-retributive reasons to punish.
To be more precise, there are actually two ways the strength or weakness of retributive reasons can be significant. It may a affect whether an individual wrongdoer should be punished, even if no instrumental good primarily deterrence and incapacitation would thereby be achieved, but it may also b affect whether institutions of punishment should be established, even if no instrumental goods would thereby be achieved.
It may be relatively easy to justify punishing a wrongdoer by appeal to positive desert, even if his punishment yields no instrumental benefits, if the institutions of punishment are already up, running, and paid for Moore —; Husak It is another matter to claim that the institutions of punishment, given all their costs, can be justified by positive desert alone. The point of saying this is not to suggest, in the spirit of Hart 9 that the justification of institutions of criminal justice should be purely consequentialist. The retributivist sees desert as a reason for setting up the institutions as well as for punishing the individual wrongdoer Moore The point is merely that one should be clear about just what one is assessing when weighing costs and benefits.
It is implausible that these costs can be justified simply by the importance of punishing wrongdoers as they deserve to be punished. The only plausible way to justify these costs is if criminal punishment has large instrumental benefits in terms of crime prevention Husak ; Cahill Importantly, this point is not lost even on those retributivists who are least inclined to cite instrumental benefits in support of punishment. For example, Michael Moore says:.
One obvious benefit punishment gives is crime prevention, through deterrence, education, and incapacitation. The interesting question, at the end of the day, then, is whether, given that institutions of punishment exist, there is a range of cases for which the instrumental costs of punishment exceed the benefits, but the intrinsic value of deserved punishment nonetheless justifies extending punishment to this range of wrongdoers. The point is not that punishment could be justified in such cases only if there is a retributive justification for doing so.
Institutional commitments to punish certain kinds of wrongdoers might justify doing so even if the costs outweigh the benefits.
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They might do so if the institutions cannot be more finely tailored to track the line between efficient and inefficient punishment. Nevertheless, those are the sorts of cases in which the strength of retributivist reasons to punish are mostly likely to make a difference.
Retributivism seems to contain both a deontological and a consequentialist element. Its negative desert element is deontological. It is a conceptual, not a deontological, point that one cannot punish another whom one believes to be innocent section 2. But it is a deontological point that an avenue of justification for harsh treatment is opened up if one believes that the person is guilty and therefore forfeits his right not to be so treated.
A negative retributivist would, at that point, recognize that a certain class of consequentialist goals, having to do with deterrence and incapacitation, can now be cited to justify punishing the wrongdoer. A retributivist would add the element of positive desert to the justificatory reasons that a negative retributivist would cite. Both are to be contrasted with consequentialists who reject both the restriction on using people merely as a means of deterring others, and the existence of a liberty right not to be incapacitated even if believed to be dangerous, and who therefore do not see the need to cite any rights forfeiture to justify harsh treatment as long as it is a lesser evil.
Insofar as retributivism holds that it is intrinsically good if a legitimate punisher punishes the guilty, it seems to have a consequentialist element. This good has to be weighed against other possible goods to decide what it would be best to do. Thus most retributivists would accept that it is justifiable to forego punishing one deserving person if doing so would make it possible to punish two equally deserving people, or one more deserving person—as happens on a regular basis in plea-bargaining Moore —; Berman — Moore entertains the idea that one could take an absolutist sort of deontological attitude towards the positive duty to punish.
In that spirit, one could assert that it is always wrong to make the sorts of tradeoffs made in plea-bargaining, or indeed in deciding to devote resources to anything other than punishing the guilty if those resources might help ensure that the guilty are punished. This, however, is an implausibly brittle form of deontology—absolutist until it snaps. A more plausible view of deontology is one in which deontological reasoning determines how and when consequences count Kumm and Walen For example, it is a deontological claim that it is harder to justify causing harm than allowing harm, but that does not mean that it is a violation of a deontological constraint to cause a small harm in the course of preventing a larger one.
Likewise, a retributivist can hold that there is a deontological reason to punish the guilty, while acknowledging that that reason should be weighed against other reasons when determining whether to devote resources to punishment or other valuable goals. Mitch Berman has argued that retributivism can appropriately be understood not just as having a consequentialist element, but as having an instrumentalist element, namely that punishment is a valuable tool in achieving the suffering that a wrongdoer deserves. But he argues that retributivism can also be understood as non-instrumentalist if the desert object is punishment, not suffering.
It would be non-instrumentalist because punishment would not be a means to achieving the good of suffering; it would be good in itself. As argued in section 4. The principal focus of concern with justifying retributivism is justifying its desert object. If censure and harsh treatment are deserved in the way discussed in section 4. The question is, can we justify the claim that wrongdoers deserve censure and harsh treatment? Censure is surely the easier of the two.
It respects the wrongdoer as a responsible agent to censure her, and it respects the victim if there is one to stand up for her as someone whose rights should have been respected. The core challenge for justifying retributivism, then, is justifying the claim that harsh treatment is equally deserved. These will be handled in reverse order. The argument here has two prongs. First, most people intuitively think that it is important to punish wrongdoers with proportional harsh treatment, even if no other good would thereby be brought about.
Second, there is no reason to doubt that these intuitions are reliable. It seems clear that the vast majority of people share the retributive intuition that makes up the first prong Moore The weakness of this strategy is in prong two. There is good reason to suspect that retributive intuitions are merely the reflection of emotions, such as a thirst for vengeance, that are morally dubious. They may be deeply grounded in our species as part of our evolutionary history, but that fact by itself is insufficient to consider them morally reliable—compare other deeply engrained emotional impulses, such as tribalism, that are clearly morally problematic Bloom Moreover, the label vengeance is not merely used as a pejorative; a retributive or vengeful response to wrongdoing has to confront moral arguments that it is a misplaced reaction.
Foremost among these is the argument that we do not really have free will— see section 4.
Respect for the dignity of wrongdoers as agents may call for censuring them when they do wrong, and with requiring them to make reparations when those can be made. It is unclear, however, why it calls, in addition, for harsh treatment. Rather, sympathy for wrongdoers as products of their brains and environment seems to call for mercy and forgiveness for a contrary view, see Levy forthcoming. Moore has an interesting response to this sort of criticism.
He turns to the first-person point of view.
Manual Criminal Justice: Retribution vs. Restoration: 23
As a result, he hopes that he would welcome punishment for having committed such a crime. This is a rhetorically powerful move, but at the end of the day, it is a question begging one. It presupposes that guilt and the desire to be punished is appropriate. Consider what Jeffrie Murphy 18 said, as a mature philosopher, looking back on his own efforts to justify retributivism:. If I had been a kinder person, a less angry person, a person of more generous spirit and greatness of soul, would robust retributivism have charmed me to the degree that it at one time did?
I suspect not. The point is not to say that this first justificatory strategy fails. It is to say that it does not succeed on its own. It needs to be supplemented by a theoretical justification for punitive harsh treatment that ties it to a more general set of principles of justice. Only in this way can one feel confident that retributive intuitions are a form of insight into retributive justice, rather than the crabbed judgments of a squinty soul. Arguably the most popular theoretical framework for justifying retributivism in the past fifty years or so has been Herbert Morris's appeal to fairness.
The idea is that it is to our mutual benefit to live in society, and that to be in society, we have to accept certain limits on our behavior. If a person fails to exercise self-restraint even though he might have… he renounces a burden which others have voluntarily assumed and thus gains an advantage which others, who have restrained themselves, do not possess. This is done with harsh treatment.
Though influential, the problems with this account are serious. First, it is unclear that criminals have advantages that others have forsaken. Suppose someone murders another in a moment of anger, triggered by a minor offense. What if most people feel they can express their anger sufficiently in such situations by expressing it in words?
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Then it seems that the only advantage he has is being able to express his anger violently. But if most people do not, at least not upon reflection, wish to do that sort of thing, then he is not renouncing a burden that others too wish to renounce. Even if there is some sense in which he gains an advantage over others, such as the advantage of being free to use violence, what would then be the proper measure of bringing him back in line? Fraud may produce a much greater advantage, but we normally think that violence is the greater crime.
Davis challenges this framing of the advantage gained, suggesting the right test is the value a crime would find at an auction of licenses to commit crimes; Shafer-Landau rejects this solution as equally implausible. More problematically yet, it seems to be fundamentally missing the point to say that the crime of, for example, murder is, at bottom, free riding rather than unjustly killing another.
An alternative interpretation of Morris's idea is that the relevant benefit is the opportunity to live in a relatively secure state, and the wrong is not the gaining of an extra benefit but the failure to accept the burdens that, collectively, make that benefit possible. Punishment then removes the benefit that the wrongdoer cannot fairly lay claim to, having shirked the burden that it was his due to carry see Westen forthcoming.
This interpretation avoids first of the problems outlined above. But it still has difficulty accounting for the thought that a crime such as murder is not fundamentally about free riding. Moreover, it has difficulty accounting for proportional punishment in a plausible way. Presumably, the measure of a proportional punishment would be something like this: the greater the shirking of one's duty to accept the burdens of self-restraint, the larger should be one's punishment. But how do we measure the degree of shirking? By the harm one causes or risks causing, by the benefit one receives, or by the degree to which respecting the burden shirked would have been burdensome?
Only the first corresponds with a normal retributive notion of punishment, but this alternative reading seems to point to one of the latter two meanings as the measure of unjust gain.