Is Retribution Illegitimate?

Or is it actually foundational to the very idea of criminal justice?

Fake bible verses spouted by gangsters is no basis for a system of justice

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Eric Levitz has a piece in New York Magazine that amounts to one cheer for prison and police abolition. He spends the bulk of the piece pointing out what abolition activists get wrong—a robust police presence actually does quite a bit to deter crime; a lot of crime has deep roots in human nature that will not be eliminated by the erection of a socialist utopia (even if such a utopia were itself more likely to be erected than it actually is); etc. But while he thinks the advocates of abolition have not adequately reckoned with how society would actually get along without police and prisons, he thinks they are right about a central philosophical matter: that retribution is an illegitimate basis for a justice system.

Here’s the key quote:

Abolitionists insist that this third purpose [retribution] is illegitimate. In their view, systems of justice should seek to reduce harm, not to reallocate it to those who supposedly deserve it. And yet America’s penal system is at least as focused on retribution as it is on deterrence or incapacitation.

They’re right about this.

My own opposition to retribution is rooted in skepticism of free will and a commitment to the minimization of suffering. To no small degree, our thoughts and actions are products of forces outside the control of our conscious selves. People generally understand that accidents of birth can increase a person’s likelihood of ending up involved in crime. There is a reason why individuals born into impoverished communities where violence is commonplace offend at higher rates than those born into prosperous and peaceful neighborhoods. But even beyond these overt sociological factors, the very structure of our personalities — our capacity to manage anger and control impulses — is influenced by genetic and environmental factors we did not author.

This doesn’t mean that we can’t hold people morally culpable for their actions. But it does mean that punishment can be justified only on pragmatic grounds. If imposing consequences on criminal offenders causes them and others to perpetuate less harm, then those consequences are justified. But if a conscious subject has no fundamental agency over their actions, since those actions are at bottom determined by forces outside their control, then there is no justice in imposing suffering on that subject for its own sake.

To be sure, you don’t need to reject free will to arrive at this conclusion. You could simply believe that suffering is bad and should be minimized. If so, then subjecting an individual to the suffering of incarceration can be justified only if doing so reduces the sum total of all suffering (say, by preventing that individual from harming others).

From this perspective, deterrence and incapacitation are legitimate functions of a criminal-justice system, but retribution is not. Yet America’s approach to incarceration is more draconian than necessary for deterring and incapacitating victimizers.

This is a common point of view expressed by people operating in the modern liberal tradition with its paired heritage from utilitarianism and deontology. And there’s measure of truth to it. Punishing a malefactor can’t actually undo the harm they did, after all, so isn’t the important thing to look to the future, and construct a justice system that prevents similar harms? Moreover, alternatives to incarceration when implemented well can be far more efficacious than jail sentences in preventing recidivism. I’m very on board with alternatives to incarceration that have empirical evidence behind them; places like Avenues for Justice are doing good work, and I sincerely hope that work can be scaled up.

Nonetheless, I bristle at the contention that retribution is in principle illegitimate as a basis for a justice system. And I’m not at all convinced that such a contention (or the rejection of free will) leads inevitably to liberal outcomes. What if preventing future harms required a more draconian system than even America currently employs, for example? Would that justify a more brutal or intrusive regime?

Consider, in this regard, a sub-category of criminals: pedophiles. The general consensus is that many of the individuals who victimize small children are on some level incorrigible: far from being free choosers of evil, they are in the grip of powerful compulsions and the deep psychological delusions that accompany them. But the same facts that would seem to limit their culpability on the one hand also limit their prospects for rehabilitation, and limit the effectiveness of deterrence. So what is the “just” punishment for pedophiles? If the only legitimate justifications for punishment are rehabilitation, deterrence and incapacitation, and rehabilitation are deterrence are unlikely to work in a particular case because of their lack of self-control, then there would seem to be a utilitarian case for permanent incapacitation, whether through incarceration or other means. There’s a logic to that view, and it’s one that America’s regime of social control for sex offenders increasingly follows: once you are in, you really never do get out. But is that just?

Or consider an exogenous factor like the age of the perpetrator in considering the appropriate punishment for a crime. In our system, juveniles are presumptively treated differently from adults (though that presumption is often unjustly tossed aside), and the logic of that difference has to do with culpability: juveniles are presumed to be less capable of fully comprehending the consequences of their actions than adults are, so it seems unjust to punish them similarly. But this is the logic of retribution—we’re talking about what punishment they deserve based on what they did, and culpability is part of that calculation. The logic of utilitarianism, by contrast, partially inverts this calculus. On the one hand, the juvenile does have more to lose by a long incarceration, and is presumed to have more prospect for rehabilitation, both of which militate against extremely harsh sentences and toward alternatives. But for a great many categories of crime—robbery, assault, etc.—criminals tend to age out naturally from their most crime-prone years. So society has more to lose, potentially, by allowing a young criminal the opportunity to go free and commit a crime again. Weighing both factors in the balance, perhaps it would be more efficacious to punish younger criminals with longer sentences, so that they could be incapacitated for a larger percentage of their most criminal years. That would at least reflect a legitimate aim in sentencing by utilitarian lights. But would anyone call it just?

Finally, it’s not hard to identify cases where an alternative to incarceration strikes most liberals as manifestly unjust in ways that are hard to explain without reference to the logic of retribution. Consider, for example, the infamous case of Brock Turner. Turner, a Stanford undergraduate, was arrested, tried, and convicted of raping an unconscious woman. He received what many observers considered an unconscionably light sentence, and it’s pretty clear from the record that one reason he did was that the judge saw Turner as someone who could readily be rehabilitated and shouldn’t have his life ruined. The contrast with how most poor defendants would be treated in a similar situation was outrageous—I hasten to add that I agree that it was outrageous—but that doesn’t mean the judge was wrong in his judgment of whether Turner could be reformed, and at what cost. It’s plausible to me that, for someone like Turner, going through the ordeal of the justice system and being forced to register as a sex offender would be sufficiently life-changing to prevent him from reoffending, even while for someone who had been in trouble with the law many times before that might not be the case at all. That’s a reflection of Turner’s privilege, which is why the verdict was seen as unjust: because it was rewarding someone privileged for their privilege. But if we’re not in the business of reallocating harm, then why is that a problem? I contend that it’s a problem, and feels unjust, because it’s a calculus that entirely ignores the seriousness of the crime. In other words: it offends our sense of retributive justice.

I think Levitz errs in suggesting that retribution is about causing harm to someone on behalf of the victims. That suggests that the state is acting as the avenger for private wrongs, and I think that’s a badly mistaken understanding of what the state’s monopoly of violence is about. If the state fails to provide you, personally, with vengeance adequate to the wrong you suffered, you have no legitimate recourse—and no legitimate beef with the state either, provided it applied fair rules with honesty. That’s because the state’s monopoly of violence doesn’t entitle you to state-sponsored vengeance; rather, in accepting the authority of a neutral state rather than the authority of a feudal lord, you replace the idea of vengeance with the idea of impartial justice. That distinction is the whole point of the opening scene of The Godfather.

But that concept of justice is still sees the crime itself as something to be addressed and redressed. The state does punish a criminal because of what they did to the victim, but not on behalf of the victim specifically. Rather, the criminal is punished on behalf of society as a whole and the moral order that undergirds it and binds it together, which has been breached by the crime. That’s why we talk about a criminal paying a debt to society. Nor is the criminal merely the object of the proceedings; they play a vital, active role, which is why we talk about them paying the debt. Finally, once the debt is paid, society is obliged to readmit the criminal as a member in good standing—another moral obligation that we, as a society, fail at miserably, but that is actually built into the retributive model of justice.

If you think of retribution this way, then, retributive justice emerges—surprisingly—as a sub-category of restorative justice, it’s apparent opposite. The objective of restorative justice is healing: to bring the perpetrator to admit their crime and accept their responsibility for repairing the harm they did, and to get the rest of the community to accept them back on the basis of fulfilling that commitment. On a deep level, though, that’s also the purpose of retribution. It imposes consequences precisely so that the breach created by the crime may be healed. Not privately—the individual victim may never heal (if they have been murdered, they cannot)—but publicly, in terms of society as a whole. The role of society, in fact, is the key to what both retributive and restorative conceptions of justice have in common, philosophically, and what utilitarian conceptions elide.

Retribution is a rough-and-ready system, designed for a world primarily concerned with protecting the interests of property, and far too willing to ignore its costs by laying them at the criminal’s feet. It lays out a path to repair, but provides little or no assistance in walking that path. We can surely do better in many cases than relying exclusively on harsh punishments—and I support efforts to do better. But I see no contradiction between believing that we can do so and also believing that the crime itself matters in any conception of justice. The core concept behind retributive justice is that a crime creates a breach in society, one that must be repaired by the state. I don’t see how you can abandon this idea without either reverting to the logic of vengeance—I, the victim, must personally be satisfied or justice has not been done—or abandoning our instinctive sense of what just justice is in favor of something far less readily discernible to the naked eye. I really don’t think we should be too quick to do the latter, not only because what we actually might get is the former (a return to vengeance), but because schemes for social betterment that willfully ignore society’s fundamental moral instincts don’t exactly have a wonderful track record of achieving their own lofty goals, to say nothing of the collateral damage they can do along the way.

I’m going to make one last point before closing. I am congenitally skeptical of the professed motives of those who deny common sense ideas about justice, fairness etc. as legitimate. I suspect that, under the surface, what’s going on is an unwillingness to accept the inescapability of human authority. Because it is in part based on the idea of retribution, the criminal justice system arrogates to itself the ability to determine what justice is, and to impose it. That’s an awesome responsibility, and a lot of people aren’t comfortable assuming it, or having it assumed by the state on their behalf. But the real alternative to just authority isn’t the chimera of justice without authority, but the inequities of the selfish and the tyranny of evil men.

You don’t have reject the moral basis of retribution to embrace the goal of a more humane and fair criminal justice system. So in the interests of building the largest possible constituency for humanity and fairness, let’s not do so.