Retribution, morality, and the soul

One of my favorite left-of-center bloggers, Mark Kleiman, has an excellent post on one of my favorite topics: the value of retribution as an aspect of punishment, and the fact that “retribution not be dismissed as somehow “primitive” and unworthy of serious consideration.” The occasion is the arrest of 90-year-old former dictator Augusto Pinochet on tax fraud charges. Writes Kleiman:

Note, however, that if putting Pinochet away is justified, it must be on some basis other than deterrence or incapacitation. Perhaps it’s time to rethink the place of retribution as a legitimate goal of criminal justice policy. Making what remains of Pinochet’s life as miserable as possible is something owed to his victims. It proclaims that what he did was wrong, that the victims did not deserve their victimization, and that they were important enough to be worth revenging.

Why should it be so hard to see that, and to apply it to more ordinary cases?

(Kleiman then corrects himself to note that he mant “miserable to the appropriate extent.”)

Kleiman’s co-blogger Steven Teles agrees.

One common argument against the death penalty is that it represents “state-sanctioned retribution.” I think there are other good arguments against the death penalty — most important, the danger of executing an innocent man. But retribution is present in other forms of punishment as well. As I wrote in a column earlier this year:

Former Nazi concentration camp guards and other war criminals leading ordinary lives in our midst arguably pose no threat; yet we still want them brought to justice. Conservative defenders of the death penalty, such as political scholar Walter Berns, have a point when they argue that one goal of punishment is to restore the moral balance violated by the crime.

One liberal dissenter from the standard antiretribution rhetoric is writer Susan Jacoby, whose thought-provoking 1983 book, “Wild Justice: The Evolution of Revenge,” remains relevant today. Jacoby argues that while the death penalty is beneath a civilized society, retribution the desire to make offenders “pay” for their crimes, to express our moral outrage at their acts is an important purpose of the justice system. The death penalty is not the only way, and perhaps not even the best way, to achieve this goal.

Jacoby treats revenge and retribution as synonymous, but there is a subtle difference. Vengeance is primarily concerned with the avenger’s grievance: It may target a wrongdoer’s loved ones, or a person who has caused an accidental death but is faultless or at worst negligent.

Retribution, on the other hand, addresses moral culpability (one reason the execution of people with diminished mental capacity is generally seen as especially barbaric).

See also this 2001 Reason column on issues of revenge, retribution, and morality.

Of course, one issue that often comes up in discussions of retribution is to what extent the person is responsible for his or her actions, particularly in light of discoveries in neuroscience. In June, the American Enterprise Institute had a fascinating conference on this topic, which I wrote up in another Reason column. One of the speakers, Princeton philosopher and neuroscientist Joshua Greene, proposed focusing on deterrence only and giving up on the idea that punishment is not only effective but morally just:

“What we’re saying,” he said, “is no one’s really guilty in their souls because, secret: No one has a soul.”

Greene also wryly noted that Americans aren’t ready for this idea yet. No kidding. In fact, both Greene and keynote speaker Stephen Pinker acknowledged that the idea of punishment as “just deserts” and a restoration of moral balance may be inherent in human nature — which means that a legal system that does not satisfy this need may never command enough respect to be effective. Greene noted that in a host of studies, people evaluating hypothetical crimes assess punishment based on their notions of just deserts, not deterrence.

Greene was strongly challenged by Stephen Morse, a professor of law and psychology at the University of Pennsylvania.

Even while declaring himself a thoroughgoing materialist, Morse insisted that “responsibility is about persons, not brains” (precisely the kind of distinction Greene had earlier mocked as dualistic) and defended the old-fashioned approach to justice. “We give people what they deserve,” he said, “not because it produces good consequences, but because it’s right.” … That there is no immaterial soul, he argued, doesn’t mean that “we are not the kind of creatures we think we are—conscious, rational, intentional beings”; science or no science, the physicalist model must be resisted for the sake of human dignity and “the good life we can live together.”

I’m with Morse (and with Kleiman). Far from being primitive, barbaric, or degrading, the belief in retribution is, in fact, inextricably linked to our belief in human dignity and agency.

10 Comments

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10 responses to “Retribution, morality, and the soul

  1. reader_iam

    Back in college, I had a history professor who was fond of saying about the justice system that its primary purpose was “to punish the guilty and both warn and reward the innocent,” or something along those lines (don’t remember the exact quote, but it was that pithy).

    At the time, I thought he was hopelessly retro, simplistic, and insensitive to the “root causes of crime.” A quarter of a century later, I’ve come to believe that he was onto something.

    Amazing, how much smarter great teachers (like parents) seem as one gets older!

  2. Revenant

    The human desire for retribution and revenge is, itself, a powerful deterrent effect. Every one of us knows that if we get caught doing something other people don’t like, those people are going to try to harm us in some way. We know that if we get caught, even if there’s no apparent point in punishing us, we’re going to get punished.

    Revenge and retribution are important parts of the criminal justice system because they publically reaffirm what we’ve all evolved to know instinctively — i.e., “you’ll never get away with it”. Our need for religion probably serves the same purpose, actually, since it tells us that even if other *humans* don’t get revenge on us, there’s someone out there who will.

  3. vbspurs

    I’m with Morse (and with Kleiman). Far from being primitive, barbaric, or degrading, the belief in retribution is, in fact, inextricably linked to our belief in human dignity and agency.

    I arrive, in a roundabout type of way, to the same conclusion as you and Professor Morse (& Kleinman).

    Perhaps quoting the old Stuart motto which later became Scotland’s “Nemo me impune lacesit” (No one attacks me with impunity”), might sum up my feelings in the topic.

    Cheers,
    Victoria

  4. anniesmom03

    Cathy,
    Wow, great post. And thanks for the Kleinman link.

    I tend to believe, you could say as a matter of faith, that the mind, brain and soul are the same thing, but since we lack the scientific language to talk about what that thing is, we use separate words to describe different aspects of the thing. This means that I disagree with Greene, and probably many other intellectuals, that we don’t have a soul. The soul is one part of human consciousness (also an imprecise term) that we don’t understand at the biological level. Sherwin Nuland (sorry, I’m new at this and haven’t figured out how to write links) talks about the Biology of the Spirit in a way I find rather satisfying. While it is essentially a materialist viewpoint, Nuland acknowledges that the terms “soul” and “spirit” are legitimate concepts that probably describe a biological reality that is currently poorly understood.

    On retribution, I wholeheartedly agree with the notion that retribution is distinct from revenge, and that retribution is worthy of consideration as a component of punishment. Unlike deterrence, retribution can serve as positive statement of what we as a society value. I think most people understand this at the gut level, even anti-capital punishment lefties like me. In fact, incorporation of retribution into criminal justice policy requires some assurances that punishment will be dealt fairly and appropriately. While in practice this may be very difficult to do-thorny issues such as addressing moral culpability won’t be easily resolved-it should be the goal.

  5. XWL

    It seems that Steven Spielberg might disagree with you, if some of the press accounts of the plot of his new film, Munich, are accurate.

    The press for this picture has been all over the place with some calling anti-Palestinian and others calling it anti-Israeli.

    From the director’s comments and the fact that Tony Kushner wrote the script the likelihood is that this picture looks down upon the Mossad’s methodical elimination of the terrorists responsible for killing the Israeli athletes and will depict the process of the lead agent questioning the correctness of his actions.

    (and of course this will earn this picture plenty of positive buzz, cause killing terrorist is a bad thing, in Hollywood.)

    I view the acts by the Mossad as retributive and therefore justified, others might consider them vengeful and therefore immoral, if the film falls on the side of retribution then great, if it depicts the Israeli actions as spiteful, petty revenge then shame on Mr. Spielberg.

    But at least it will forefront a discussion about the difference between the two whichever position Spielberg attempts to lead the audience into having.

  6. DavidAWW

    There’s a chapter on retributive punishment in the late Robert Nozick’s Philosophical Explanations:

    http://www.hup.harvard.edu/contents/NOZPHI_toc.html

  7. bearblue

    retribution and mercy go hand in hand. There are times for retribution and times for mercy. The law does not always make allowances for mercy, except in a wise judge’s case. But the law – if kept simple enough – does provide a basic framework for civil behavior (or at least should, if not under the the terrible hold of unworthy rule). And, to work, law must have consequences, natural or otherwise.

  8. Revenant

    The law does not always make allowances for mercy, except in a wise judge’s case.

    If the victim wants to show mercy, the legal system does take that into account — the victim can testify during the sentencing phase of the trial, and the court will usually give serious weight to such testimony. In many cases, the victim can opt not to press charges at all.

    If the victim does not feel merciful, however, it strikes me as arrogant and unethical — not “wise” — for the judge to be. It isn’t his job to be merciful OR vengeful; it is his job to apply the law.

  9. DavidAWW

    There’s also a short essay by George Orwell to consider:

    http://orwell.ru/library/articles/revenge/english/e_revso

  10. colagirl

    one issue that often comes up in discussions of retribution is to what extent the person is responsible for his or her actions, particularly in light of discoveries in neuroscience.

    A very interesting point. I’ve recently been doing some reading on forensic psychology, and one of the books I’ve read (Inside the Criminal Mind) deals with this issue to some extent. There, the author asserts that even if we were at some future point to discover that there is some biological / genetic basis for criminal behavior, that in no way absolves the criminal of responsibility for his or her actions. Instead, it is then incumbent on someone with those predispositions to be vigilant and avoid situations that might lead to criminal behavior.

    The author draws an explicit parallel with alcoholism (which does have a biological component): the fact that someone is an alcoholic does not mean that they are absolved of responsibility for the effects of their drinking. Instead it is then incumbent on the alcoholic to recognize this weakness and to abstain from drinking so as not to trigger the weakness (*and,* notably, incumbent on those *around* the alcoholic to ensure that s/he faces the consequences of any slips, instead of covering up and making excuses for him or her.)

    (This is kind of a personal issue for me, since substance abuse problems do seem to run in my family, as a result of which, I don’t drink.)

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