In Need of a Spanking


Retributive Justice

Punishment is the last and the least effective instrument in the hands of the legislator for the prevention of crime.

- John Ruskin

by Jim Holt

What Have I Done To Deserve This?

Explaining Retribution

In the United States, nearly two million people are kept in prison at any given time, and dozens are executed each year.  That adds up to quite a lot of suffering deliberately inflicted by the state.  How can we justify it?

Well, one way is by arguing that such punishment has good consequences: It deters potential criminals, it quarantines actual criminals from society, and - on rare occasions - it leads to the offender's rehabilitation.  This is the utilitarian rationale for punishment.  A quite different way is by insisting that a person who culpably does harm deserves to be made to suffer and that's all there is to it.  This is the rationale for punishment put forward by believers in retributive justice.

The idea of retributive justice may seem a little retardataire these days, a little morally backward.  We associate it with the vengeful God of the Old Testament, whereas the utilitarian conception of punishment comes out of the enlightened 18th-century reformism of Jeremy Bentham.  The retributionist's crude calculus for determining the severity of punishment - "an eye for an eye" - compares poorly with the utilitarian's dispassionate weighing of empirical probabilities in his effort to maximise deterrence and minimise total suffering.  The retributive notion of guilt appears increasingly quaint as modern science discovers the springs of criminality in genes and brain chemistry.

Finally, retribution tends to be lustily invoked by those backward types who favour the death penalty; they argue that the murderer's punishment must fit his crime whether or not that punishment provably deters other murderers.

Still, even the most morally progressive among us are not wholly free from retributive instincts.  In an article in The Journal of Philosophy titled "An Explanation of Retribution," Andrew Oldenquist of Ohio State writes: "The pursuit of Adolf Eichmann, Josef Mengele, and other Nazis in their dotage, tending their rose gardens in South America, makes no utilitarian sense whatever.  They will not do their crimes again, nor would their punishment deter others."  Yet in our most reflective moments, we still feel they deserve punishment.

This notion can find prominent backers in the philosophical tradition.  Immanuel Kant not only maintained that the suffering imposed on the guilty is good in itself; he opted for a Taliban-like schedule of penalties in which the nature of the punishment would be determined exclusively by the crime.  For example, slanderers would kiss the hand of their victim, rapists would be castrated, murderers hanged, and so forth.  Hegel's advocacy of retributive justice had a more abstract, dialectical flavour: A crime is a negation of the moral order, he claimed, so punishment is required to negate the negation and thus reaffirm the right.

Some contemporary philosophers have advanced arguments for retributive punishment that have a suspiciously consequentialist ring to them.  Robert Nozick, for example, has tried to justify retribution by its effect on the criminal: since values by themselves have no causal power, he submits, punishment is necessary to "reconnect" the wrongdoer to the moral norms of the community.

Oldenquist dissents from Nozick's slightly starry-eyed view, arguing that "a moral community exacts retribution for its own good and not primarily to inform, connect, cure, use, or send any kind of message to the criminal."  Oldenquist's case for retributive justice turns on what he sees as a social need for it: humans can flourish and achieve their full humanity only in a society whose members hold one another morally accountable and hence deserving of blame and punishment for harms committed - "the essence of retribution."  To deal with the objection that retribution stems from a barbarous desire to "get even," Oldenquist lays down conditions under which vengeance becomes "sanitised" into a form of justice: the punishment must be predictable; it must be decided after due deliberation and not in the heat of passion; it must be applied by officials who are not friends or relatives of the harmed party; and so on.

But even if we accept that punishment on retributive grounds is

  1. socially necessary and
  2. not a mere urge for revenge,
we still have not established the truth of the claim "Some people deserve to be punished."  Oldenquist admits as much, conceding that retributive judgments may have to be justified independently of their truth or falsity; indeed, we should regard them as part of a social ritual akin to marriage or bear dances.  A mistaken retributive judgment would thus, he says, be akin to "doing the bear dance incorrectly."

If the retributive case for punishment is philosophically shaky, the utilitarian case has grave defects of its own.  Deterrence would seem to sanction the punishment of innocent persons as long as they were widely believed to be guilty, not to mention the punishment of wives and children of criminals who are difficult to apprehend, such as terrorists.  Even the benign idea of quarantining criminals for social protection and rehabilitation - championed by Clarence Darrow, who opposed punishment per se on the grounds that humans never really act freely and hence cannot be held accountable for their actions - can lead to unwelcome consequences.  Why not quarantine and "treat" likely criminals before they commit their crimes?

Happily, there is at least one proposition about punishment that everyone seems to agree on these days, regardless of his or her philosophical orientation.  It is that torture - the deliberate infliction of physical pain - is not a morally permissible way of punishing a wrongdoer.  Unless, curiously, that wrongdoer is a child in need of a spanking.

Source: Lingua Franca Vol 10 No 7 - October 2000

Outrage at "Comparative Injustice"

by Peter Fowler

A family law specialist says society will be outraged at what he says is the comparative injustice of sentences given in New Zealand courts this week.  In Wellington, the leader of a gang that carried out a $940,000 robbery from two security guards [in which no one was injured] received a sentence of 11 years for his part in the crime.  Meanwhile in the High Court in Auckland, Sipea Leuta was sentenced to 6 years for beating her 5 year old son Liotta to death with a fan belt and an aerial wire.

The Dean of Law at Otago University and a specialist in family law, Mark Henaghan, said the situation was "utterly indefensible."  He said no society in the world can justify giving a higher sentence for robbery over the abhorrent death of a defenceless child.

Professor Henaghan said judges will need to listen and respond to society's outrage at such inconsistencies in the justice system.

Source: © NewsRoom 10 March 2001

See also:

bulletLawyer Has No Luck at All - for more on the idea of what constitutes "justice".

Boy Forced to Stitch Lip after Theft

Vietnam - A Vietnamese woman forced her 10-year-old stepson to stitch up his mouth as a punishment for stealing 200 dong (NZ3.3¢), police said today.

Phan Thi Hien, 31, handed the boy a needle and thread after beating him for stealing the money in Bac Ninh, east of Hanoi, an officer said.  She did not do it herself but she forced the boy to do it while she was watching," he said.

"It was just one stitch." - Reuters

Source: The Evening Post Wednesday 4 April 2001

This article does NOT say the police were there to arrest the step-mother.  As a matter of fact, the quote from the officer seems to minimise the step-mother's actions.  Perhaps police were there to take the 10-yar-old to jail?  (Perhaps "only one stitch" was insufficient punishment?)

For articles on white collar and petty crimes, injustice, capital punishment, race, executioners, freedom of the press, cheating, private prisons, punishment, retribution, prison labour, appeals, instant justice, electronic tags, lepers and second chances click the "Up" button below to take you to the Index for this Prisons section.

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