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.