‘Retributivism’ covers a wide range of theories which, even though they differ in various ways, all give some room for proportionality considerations with regard to the question of how severely offenders should be punished. This article addresses the question—well‐known from traditional ethical theory—as to whether proportionality constraints should be given an absolutist or a non‐absolutist interpretation. It is argued that both absolutist and some non‐absolutist accounts of proportionality constraints have counter‐intuitive implications and, more generally, that the non‐absolutist interpretation, to (...) which most retributivists seem to subscribe, faces serious challenges with regard to how the thresholds of such constraints should be determined. It is concluded that, given the aspiration of providing genuine action guidance for penal practice, the retributivist faces a dilemma that is not easily resolved. (shrink)

This article advances a censure-based case against sentences of life imprisonment without the possibility of parole. Our argument justifies a retributive “second look” assessment of long-term prison sentences. The article focuses on the censuring element of long-term prison sentences while reconceptualizing penal censure as a dynamic and responsive concept. By doing so, the article explores the significance of the prisoner’s life after sentencing (largely ignored by retributivists) and promotes a more nuanced approach to censure-based proportionality. Policy-makers may welcome this approach (...) as a way to control excessive prison sentences while remaining within a retributive penal framework. Although we are making a general argument about the need for responsive censure within a retributive sentencing regime, the case for this approach is particularly compelling at the present time. Almost all Western nations, and particularly the US, impose very lengthy, often life sentences of imprisonment for a wide range of offences, thereby affecting large numbers of prisoners. (shrink)

Within the criminal justice system, one of the most prominent justifications for legal punishment is retributivism. The retributive justification of legal punishment maintains that wrongdoers are morally responsible for their actions and deserve to be punished in proportion to their wrongdoing. This book argues against retributivism and develops a viable alternative that is both ethically defensible and practical. Introducing six distinct reasons for rejecting retributivism, Gregg D. Caruso contends that it is unclear that agents possess the kind (...) of free will and moral responsibility needed to justify this view of punishment. While a number of alternatives to retributivism exist - including consequentialist deterrence, educational, and communicative theories - they have ethical problems of their own. Moving beyond existing theories, Caruso presents a new non-retributive approach called the public health-quarantine model. In stark contrast to retributivism, the public health-quarantine model provides a more human, holistic, and effective approach to dealing with criminal behavior. (shrink)

Harming other people is prima facie wrong. Unless we can be very certain that doing so is justified under the circumstances, we ought not to do it. In this paper, I argue that we ought to dismantle harsh retributivist criminal justice systems for this reason; we cannot be sufficiently certain that the harm is justified. Gregg Caruso, Ben Vilhauer and others have previously argued for the same conclusion; however, my own version sidesteps certain controversial premises of theirs. Harsh retributivist criminal (...) justice can only be morally right if the following three propositions are true: Moral responsibility exists, retributivism is right, and we can find out how much punishment offenders deserve for their crimes. Suppose that we initially assign a high credence to each of the three propositions; I assume for the sake of argument that there are good arguments in support of each. Nevertheless, these arguments ultimately depend on intuitions. Since we have philosophical peers whose intuitions differ from ours, we ought to downgrade our credence in each. However, even slightly less credence in each proposition means far less credence in a conjunction of all three. Since the stakes are high and there are morally safer options for a criminal justice system, we ought to dismantle harsh retributivist ones. (shrink)

In this paper we explore whether or not the use of risk assessment tools in criminal sentencing can be made compatible with a retributivist justification of punishment. While there has been considerable discussion of the accuracy and fairness of these tools, such discussion assumes that one’s recidivism risk is relevant to the severity of punishment that one should receive. But this assumption only holds on certain accounts of punishment, and seems to conflict with retributivist justifications of punishment. Drawing on the (...) broader desert literature, we explain the source of this conflict, and suggest that a retributivist approach on which the severity of punishment partly depends on one’s character in addition to their acts offers some hope of reconciling retributivism with the use of risk assessment tools in considerations of sentencing reduction in particular. Ultimately, however, even this limited attempt at reconciliation fails, so long as risk assessment tools fail to distinguish between risk that one is responsible for, and risk that one is not responsible for. (shrink)

Retributivist accounts of punishment maintain that it is right to punish wrongdoers, even if the punishment has no future benefits. Research in experimental economics indicates that people are willing to pay to punish defectors. A complementary line of work in social psychology suggests that people think that it is right to punish wrongdoers. This work suggests that people are retributivists about punishment. However, all of the extant work contains an important potential confound. The target of the punishment is expected to (...) be aware of the punitive act. Thus, it's possible that people punish because they want to communicate something to the wrongdoer, e.g. disapproval, the presence of a norm, etc. In three studies, we examine whether people will punish even when the punishee will be ignorant. We find that people are no less likely to punish when the punishee will be ignorant. This finding emerges both in a survey study and in a monetized behavioural decision study. (shrink)

Retributivism may seem wholly uninterested in the fit between penal policy and public opinion, but on one rendition of the theory, here called ‘popular retributivism,’ deserved punishments are constituted by the penal conventions of the community. This paper makes two claims against this view. First, the intuitive appeal of popular retributivism is undermined once we distinguish between context sensitivity and convention sensitivity about desert. Retributivism in general can freely accept context sensitivity without being committed to the (...) stronger notion of convention sensitivity. Second, it is not obviously a merit of popular retributivism that it admits a gradual lowering of punishments by softening public opinion. Retributivists have reason to be skeptical of softening public opinion if it comes at the price of undermining the extent to which offenders are thought to deserve censure. In sum, in this paper, I argue that there are ways of making retributivism sensitive to public opinion without arriving at the conclusion that popular penal conventions should govern retributive justice itself. (shrink)

Retributivism is often explicitly or implicitly assumed to be compatible with the harm principle, since the harm principle (in some guises) concerns the content of the criminal law, while retributivism concerns the punishment of those that break the law. In this essay I show that retributivism should not be endorsed alongside any version of the harm principle. In fact, retributivists should reject all attempts to see the criminal law only through (other) person-affecting concepts or “grievance” morality, since (...) they should endorse the criminalization of conduct that is either purely self-harming or good for somebody and bad for nobody (i.e., Pareto improvements). (shrink)

Retributivism is commonly taken as an alternative to a consequentialist justification of punishment. It has recently been suggested, however, that retributivism can be recast as a consequentialist theory. This suggestion is shown to be untenable. The temptation to advance it is traced to an “intrinsic good” claim prominent in retributive thinking. This claim is examined, and is argued to be of little help in coping with the difficulties besetting the retributive theory, as well as clashing with a “desert” (...) claim equally central to that theory. (shrink)

A traditional assumption in retributivist thinking is the view that an offender's desert is determined exclusively on the basis of the gravity of the crime committed. However, this assumption has r...

Through the criminal justice system so-called dangerous offenders are, besides the offence that they are being convicted of and sentenced to, also punished for acts that they have not done but that they are believe to be likely to commit in the future. The aim of this paper is to critically discuss whether some adherents of retributivism give a plausible rationale for punishing offenders more harshly if they, all else being equal, by means of predictions are believed to be (...) more dangerous than other offenders. While consequentialism has no problem, at least in principle, with this use of predictions most retributivists have been opponents of punishing offenders on the basis of predictions. How can an offender deserve to be punished for something that he has not done? But some retributivists like Anthony Duff and Stephen Morse have argued in favor of punishing offenders who are considered to be dangerous in the future more harshly than non-dangerous offenders. After having reconstructed their arguments in detail, it will be argued that both Duff’s and Morse’s attempts to give a retributivistic justification have several shortcomings. (shrink)

This paper makes the counterintuitive argument that apologetic offenders in both criminal and noncriminal contexts deserve reductions in punishment even according to retributive theories of justice. I argue here that accounting for post-offense apologetic meanings can make retributivism more fair and consistent much in the same way that considering pre-offense behavior such as culpable mental states like premeditation provide a more holistic and accurate view of the badness of the offense at issue. On my view, retributivists should endorse the (...) general principle that categorically apologetic offenders deserve less punishment because certain kinds of contrition can revise the very nature of the offense and thereby make it less bad and deserving of less punishment. This claim is symmetrical with the popular view that unapologetic or remorseless offenders deserve more punishment. (shrink)

This paper develops a retributivist argument for leniency in punishment. It argues that even retributivists who defend desert-based punishment have a reason, internal to their view, to prefer more lenient over more severe punishments when there are doubts concerning how much punishment an offender deserves. This is because retributivists should take an asymmetrical view to underpunishment and overpunishment, and because the likelihood of overpunishment goes up with the severity of punishment. The radicalness of the ensuing leniency depends on the strength (...) of the asymmetry in value between underpunishment and overpunishment. (shrink)

Retributivism Has a Past: Has It a Future? is the first volume of a series to be published by Oxford University Press: Studies in Penal Theory and Philosophy. Clearly the series is off to a fine st...

It has been argued that a retributivist criminal justice system treats offenders with a respect lacking in alternative criminal justice systems; retributivism presumably recognizes that offenders are fellow members of the moral community who can be held responsible for their actions. One version of the respect argument builds on P.F. Strawson’s moral responsibility theory. According to Strawson, we may take either a participant or objective attitude toward other people. The former is the default attitude when interacting with other adults, (...) whereas the latter is fit for children and the mentally disabled or ill, whom we merely try to manage and handle as best we can. The participant attitude also involves holding people responsible when they do wrong. Supposedly, a retributivist criminal justice system functions as a natural continuation of our everyday, participant, and responsibility-holding practices, unlike alternative systems that adopt an objective attitude toward offenders. I argue that this is wrong. The participant attitude requires reciprocity and, usually, some level of equality too. Even an idealized retributivist system has little room for this, not to mention the flawed versions of this system we see in reality. (shrink)

This article addresses the question of how multiple offenders – that is, offenders who have committed more than one crime before they are apprehended – should be punished from a retributivist point of view. Two theories are evaluated, both defending the view that there should be a bulk discount for multiple offending. According to the first theory, a bulk discount follows from the idea of a punishment ceiling for types of crimes and the principle of parsimony in punishing. According to (...) the second, the discount follows from a certain view on mercy. However, it is argued that both theories suffer from theoretical flaws and that they are also insufficient in practical terms. That is, they fail to provide a basis for the making of decisions about how multiple -offence cases should be dealt with by the criminal justice system. (shrink)

This chapter outlines six distinct reasons for rejecting retributivism, not the least of which is that it’s unclear that agents possess the kind of free will and moral responsibility needed to justify it. It then sketches a novel non-retributive alternative called the public health-quarantine model. The core idea of the model is that the right to harm in self-defense and defense of others justifies incapacitating the criminally dangerous with the minimum harm required for adequate protection. The model also draws (...) on the public health framework and prioritizes prevention and social justice. It is argued that not only does the public health-quarantine model offer a stark contrast to retributivism, it also provides a more humane, holistic, and effective approach to dealing with criminal behavior, one that is superior to both retributivism and other leading non-retributive alternatives. (shrink)

This review essay of Victor Tadros’s new book, “The Ends of Harm: The Moral Foundations of Criminal Law,” responds to Tadros’s energetic and sophisticated attacks on retributivist justifications for criminal punishment. I argue, in a nutshell, that those attacks fail. In defending retributivism, however, I also sketch original views on two questions that retributivism must address but that many or most retributivists have skated past. First, what do wrongdoers deserve – to suffer? to be punished? something else? Second, (...) what does it mean for them to deserve it? That is, what is the normative force or significance of valid desert claims, either with respect to retributivist desert in particular or with respect to all forms of desert? Because the answers that this essay offers are preliminary, the essay also serves as a partial blueprint for further work by criminal law theorists with retributivist sympathies. (shrink)

The paper examines one objection to the suggestion that, rather than being subjected to extended prison sentences on the one hand, or simply released on the other, dangerous offenders should be in principle liable to some form of civil detention on completion of their normal sentences. This objection raises the spectre of a, pursuing various reductivist means outside the criminal justice system. The objection also threatens to undermine dualist theories of punishment, theories which combine reductivist and retributivist considerations. The paper (...) attempts to refute the objection by holding that a wedge can be driven between incapacitation and other reductivist measures, and hints at a possibly new version of dualism in the process. (shrink)

The principle of proportionality has gained widespread adherence in the modern retributively-dominated era of penal theory. It has often been held that, if one subscribes to a retributivist theory, then one is also committed to proportionality in punishment. In the present article, this assumption is challenged. It is shown that the inference from the fact that one offender has committed a more serious crime than another offender, to the conclusion that this offender should be punished more severely than the other, (...) presupposes the satisfaction of two conditions: The Necessity Requirement and the Sufficiency Requirement. It is argued that modern expressionist accounts of retributivism fail to satisfy these requirements. Moreover, it is suggested that the satisfaction of these requirements constitutes a challenge for other retributivist theories. In so far as this is the case, the inference from retributivism to proportionality will be blocked. (shrink)

The purpose of this paper is to direct attention to a challenge—referred to as the threshold challenge —facing a non-absolutist retributivist view on international criminal justice. It is argued, on the one hand, that this challenge constitutes a practically pertinent problem for the retributivist approach to the punishment of mass crimes and, on the other, that it is very hard to imagine any principled way of meeting this challenge.

I’ll raise a problem for Retributivism, the view that legal punishment is justified on the basis of desert. I’ll focus primarily on Mitchell Berman’s recent defense of the view. He gives one of the most sophisticated and careful statements of it. And his argument is representative, so the problem I’ll raise for it will apply to other versions of Retributivism. His insights about justification also help to make the problem particularly obvious. I’ll also show how the problem extends (...) to non-retributive justifications of punishment. I’ll argue that Berman’s argument makes a questionable assumption about the standard of justification that justifications of punishment must meet to be successful. If we think about what it takes to justify punishment and reflect on the intuitions that retributivists appeal to, it turns out that the intuitions aren’t obviously up to the task. (shrink)

Imprisonment is often said to be the ultimate back-up sanction for offenders who do not abide by their non-custodial sentence. From a standard consequentialist perspective this is morally justified, if it is a cost-effective means to crime prevention. In contrast, the use of imprisonment as a back-up is much harder to justify from retributivist perspectives, with their emphasis on just desert or deserved censure. The crux is this: if the reason for a non-custodial sentence is that a prison sentence risks (...) being a disproportionate or inappropriate sanction, retributivists need to explain how a prison term can be warranted as the backup sanction for those who breach the requirements of their non-custodial sentence, even though their original crime wasn’t serious enough to warrant imprisonment in the first place. The aim in this paper is to critically assess the extent to which retributivists can justify the use of imprisonment as the ultimate back-up sanction. In doing so, I first examine two broad strategies that are discussed in the literature, and which retributivists could employ in order to respond to this problem. The first strategy stresses how desert has only a limited role in sentencing such that it demarcates a range of deserved punishment. On this view, associated with limiting retributivism, one could initially opt for a less harsh yet deserved punishment, leaving room for the imposition of back-up sanctions when needed. The second strategy focuses on how the act of breach is a reprehensible act that can allow for a penalty increase, and thereby lead to imprisonment. Although it is argued that both strategies fail, the paper proposes an alternative solution to this problem. (shrink)

State agents’ misconduct (SAM), such as the violations carried out by the police or prosecution, may harm an offender’s rights during the criminal process in various ways. What, if anything, can retributivism, as an offense-focused theory that looks to the past, offer in response to SAM? The goal of this essay is to advance a retribution-based framework for responding to SAM within the criminal process. Two retribution-based arguments are provided. First, a retribution-based response to SAM aims to protect the (...) legitimacy of the criminal process. Such an argument is based on how the crime and punishment connect to the moral standing of the state and that connection’s meaning for the legitimacy of the trial (legitimacy-based argument). Second, a retribution-based response to SAM aims to consider the offender’s side of the penal dialogue and promote a more accurate calibration of the penal suffering (compensation-based argument). Based on these arguments, the essay theorizes the legal response for SAM in US and non-US traditions through the retributive lens. The essay concludes with a call for expanding the multiple roles for retributive logic to include the actions of law-enforcement actors and addresses what that expansion means for the justice of the criminal process. (shrink)

Lately it has become a commonplace to complain about the injustice of mass incarceration. I share the sentiment that this phenomenon has been an injustice. But it also has become orthodoxy to allege that the acceptance of a retributive penal philosophy has been one of the chief factors that has brought about mass incarceration in the first place. As a self-proclaimed retributivist, I find these allegations to be troubling and unwarranted. The point of this paper is to take steps to (...) rebut them. I begin by making four conceptual points about retributivism. If I am correct, retributivism comes in countless flavors, and the particular variety to which I am most attracted can be applied to show why some punishments should be less severe than those presently imposed. Next I argue that many persons deserve less punishment than our legal system currently inflicts. Reflection about whether perpetrators should be afforded a complete or partial defense reveals retributivism to be less punitive than conventional wisdom would suggest. (shrink)

Some philosophers believe that we can, in theory, justifiably prepunish people—that is, punish them for a crime before they have committed that crime. In particular, it has been claimed that retributivists ought to accept prepunishment. The question of whether prepunishment can be justified has sparked an interesting and growing philosophical debate. In this paper I look at a slightly different question: whether retributivists who accept that prepunishment can be justified should prefer postpunishment or prepunishment, or see them as on a (...) par. The answer is complex: asking this question brings to light unrecognized distinctions within both retributivism and prepunishment, giving us four different answers to the question, depending on what kind of retributivism and what kind of prepunishment are combined. Surprisingly, given that it is usually presented as a second best, to be pursued only when postpunishment is unavailable, some combinations will find prepunishment preferable. (shrink)

In this paper I explore some of the moral pros and cons of pardoning or granting amnesty to people who have committed or participated in serious crimes. I believe that we are pulled in two directions when faced with questions of clemency, pardoning, amnesty, especially when it comes to war criminals or people who are guilty of flagrant violations of human rights. Our everyday morality provides us with fairly strong intuitions when the culprits are "remorseless villains". Remorseless villains don't deserve (...) to be released from punishment. But pardoning or granting amnesty, especially to soldiers or people who acted under the laws of another regime, may be pragmatically vindicated, for prudential reasons and for the sake of making peace. Whether one regards it as justified may depend on the role one is in. The perspective of a judge will differ from that of a victim or the latter's representative, and both may be at odds with the point of view of a political leader.Retributivism is a theory of what justifies punishment. I summarize Kantian and recent formulations and consider the Wittgensteinian challenge that no theory is needed at all, or can be effective in countering competing intuitions. Wittgensteinian insistence on looking at particular cases and avoiding generalized doctrines inspires the discussion of a concrete example of amnesty granted to SS soldiers guilty of the destruction of the village of Oradour-sur-Glane. Der Beitrag untersucht einige der moralischen Argumente, die dafür bzw. dagegen sprechen, Menschen, die schwerwiegende Verbrechen begangen oder an ihnen teilgenommen haben, zu begnadigen oder ihnen eine Amnestie zu gewähren. Wer mit der Frage von Begnadigung, Amnestie oder Straferlaß konfrontiert wird, fühlt sich nicht selten hin- und hergerissen, insbesondere wenn es um Kriegsverbrecher geht oder um Personen, die sich schwerster Menschenrechtsverletzungen schuldig gemacht haben. Unsere Alltagsmoral liefert uns eine ziemlich deutliche Vorstellung davon, bei welchen Tätern es sich um "gewissenlose Schurken" handelt, die es nicht verdienen, von Strafe verschont zu bleiben. Andererseits läßt sich eine Begnadigung oder die Gewährung von Amnestie - gerade in Fällen von Soldaten oder von Menschen, die nach den Gesetzen eines anderen Regimes gehandelt haben - mit pragmatischen Überlegungen rechtfertigen, und zwar durchaus mit rationalen Argumenten oder mit dem Ziel, eine Befriedung zu erreichen. Ob man solche Überlegungen als begründet ansieht, kann von der jeweiligen Rolle abhängen, in der man sich befindet. Die Sichtweise eines Richters wird abweichen von der eines Opfers oder dessen Vertretern, während der Standpunkt eines führenden Politikers wiederum ein gänzlich anderer sein kann.Die Vergeltungstheorie ist eine Theorie, der es um die Rechtfertigung von Strafe geht. Der Beitrag faßt Kantische und jüngere Formulierungen der Theorie zusammen und erwägt darüber hinaus Wittgensteins kritische These, daß eine Straftheorie überflüssig oder zumindest nicht imstande ist, zwischen sich widersprechenden moralischen Intuitionen zu entscheiden. Besteht man in Anlehnung an Wittgenstein, unter Vermeidung von verallgemeinernden Grundsätzen, auf der Untersuchung von Einzelfällen, dann führt das zur Diskussion von Beispielen, etwa des Falles der SS-Soldaten, die der Zerstörung des Dorfes Oradour-sur-Glane schuldig waren und denen gleichwohl Straferlaß gewährt worden ist. (shrink)

This paper defends a minimal desert thesis, according to which someone who is blameworthy for something deserves to feel guilty, to the right extent, at the right time, because of her culpability. The sentiment or emotion of guilt includes a thought that one is blameworthy for something as well as an unpleasant affect. Feeling guilty is not a matter of inflicting suffering on oneself, and it need not involve any thought that one deserves to suffer. The desert of a feeling (...) of guilt is a kind of moral propriety of that response, and it is a matter of justice. If the minimal desert thesis is correct, then it is in some respect good that one who is blameworthy feel guilty—there is some justice in that state of affairs. But if retributivism concerns the justification of punishment, the minimal desert thesis is not retributivist. Its plausibility nevertheless raises doubt about whether, as some have argued, there are senses of moral responsibility that are not desert-entailing. (shrink)

Retributivism is generally thought to forbid the punishment of the innocent, even if such punishment would produce otherwise good results, such as deterrence. It has recently been argued that because capital punishment always entails the risk of executing an innocent person, instituting capital punishment is tantamount to intentionally taking innocent lives and therefore cannot be justified on retributive grounds. I argue that there are several versions of retributivism, only one of which might categorically forbid risking punishing innocent persons. (...) I also argue that our moral practices reveal either that we do not hold this particular version of retributivism, or that we reject equating risking punishing the innocent with intentionally doing so. *** DIRECT SUPPORT *** A9102008 00005. (shrink)

I defend two objections to Tadros’s views on punishment. First, I allege that his criticisms of retributivism are persuasive only against extreme versions that provide no justificatory place for instrumentalist objectives. His attack fails against a version of retributivism that recognizes a chasm between what offenders deserve and the allthings-considered permissibility of treating offenders as they deserve. Second, I critique Tadros’s duty view – his alternative theory of punishment. Inter alia, I object that he derives principles from highly (...) unusual examples of self-defense he subsequently tries to apply to ordinary cases of punishment. (shrink)

Pessimistic empirical evidence about the reformatory and deterrent effects of punitive treatment poses a challenge for all justificatory theories of punishment. Yet, the dominant progressive view remains that punishment is required for the most serious crimes. This paper outlines an empirically sensitive prospectus for justifying punitive treatment through understanding the importance of reintegration. On this view, punishment can be viewed as a preferred alternative to the rigours of social ostracism, a common way of dealing with offenders in lieu of formal (...) criminal justice. Adopting reintegration as a primary aim encourages taking a longer view which focuses on desistance from criminality rather than only on reform at the point of release from formal punishment. The view outlined in this paper enables a vindication of reintegrative punishment even when it is not the most immediately efficient means of reforming offenders. In making this argument, I develop the modern retributive platform in criminal justice theory, identify various overlooked yet key nuances in the relationship between reintegration and reform, and argue for greater theoretical and practical attention to how the state can make the communities they serve more receptive to reintegrating offenders. (shrink)

Published on Daily Philosophy 2021-10-18 Why do we have a criminal justice system? What could possibly justify the state punishing its citizens? Philosophers, scholars of law, politicians and others have proposed different justifications, one of them being retributivism: the view that we ought to give offenders the suffering that they deserve for harming others. However, intentionally harming other people and making them suffer is serious business. If we are to do this in the name of what’s right and good, (...) we better be very certain that what we do really is right and good. The so-called Epistemic Argument Against Retributivism calls this certainty into question. (shrink)

This chapter will focus on the biomedical moral enhancement of offenders – the idea that we could modify offenders’ brains in order to reduce the likelihood that they would engage in immoral, criminal behaviour. Discussions of the permissibility of using biomedical means to address criminal behaviour typically analyse the issues from the perspective of medical ethics, rather than penal theory. However, recently certain theorists have discussed whether brain interventions could be legitimately used for punitive (as opposed to purely therapeutic) purposes. (...) For instance, Jesper Ryberg argues (although he himself is not a retributivist) that there is nothing to prevent retributivists from endorsing brain interventions as a legitimate form of retributive punishment. Legal academics have not yet paid sufficient attention to whether this proposal would be compatible with international human rights law, nor have retributivist philosophers discussed whether their favoured penal theories have the conceptual resources to explain why brain interventions would not be an appropriate method of punishment. This chapter considers whether there is any indication that these interventions are being used at present for punitive purposes and whether this would violate the European Convention on Human Rights. It examines different versions of retributivism and considers which theory is in the best position to challenge the use of brain interventions as a form of punishment. Finally, it considers whether offering these interventions as an alternative to punishment would violate principles of proportionality. (shrink)

Wimpy retributivism finds reasons to refrain from giving the blameworthy and culpable what they deserve, even if it comes to very little. These reasons have to do with the moral hazards of being mistaken about when harsh treatment is justified. A moral influence theory can help supplement retributivist reasons with further consequentialist considerations and thereby keep these skeptical worries in check.

This paper discusses differences between two major schools in philosophy of criminal law, retributivism and consequentialism, with regard to the risk of punishing the innocent. As it is argued, the main point of departure between these two camps in this respect lies in their attitude towards the high evidentiary threshold in a criminal trial: while retributivism seems to strongly support setting this standard high, consequentialists may find it desirable to relax it in some cases. This discussion is set (...) in the context of proxy criminalization, i.e. a situation, in which some suspicious behaviour is criminalized. Since proxy criminalization may be understood as an effective lowering of the evidentiary threshold, its employment is justifiable from the consequentialist perspective, while being highly problematic for the retributivists. (shrink)

This article argues that even if we grant that murderers may deserve death in principle, retributivists should still oppose capital punishment. The reason? Our inability to know with certainty whether or not individuals possess the necessary level of desert. In large part due to advances in science, we can only be sure that no matter how well the trial is administered or how many appeals are allowed or how many years we let elapse, we will continue to execute innocent persons (...) for as long as we legalize capital punishment. Thus, on grounds of desert, this article argues that retributivists should oppose capital punishment. (shrink)

Many philosophers think that, when someone deserves something, it’s intrinsically good that she get it or there’s a non-instrumental reason to give it to her. Retributivists who try to justify punishment by appealing to claims about what people deserve typically assume this view or views that entail it. In this paper, I present evidence that many people have intuitions that are inconsistent with this view. And I argue that this poses a serious challenge to retributivist arguments that appeal to desert.

In this article, I argue that Michael Moore’s (1997), and other similar formulations of desert retributivism – viz., the theory that holds punishment to be justified because of the deserved suffering it imposes on guilty offenders – are epistemically problematic. The argument draws on John Dewey’s inchoate critique of retribution, and on Dewey’s more general contention that the justification of ethical judgments and principles proceeds ex post – viz., that it depends on the experiences elicited by acting on those (...) judgments and principles. Based on Dewey’s ex post take on justification, I more specifically argue that, given its commitment to moral naturalism and to coherentism, Moore’s version of desert retributivism is epistemically unwarranted. This is because we have evidentially grounded reasons to think that many of the retributive judgments that underlie the principle of retributive justice are not clearly supported ex post in the relevant, desert retributivist sense. (shrink)

Abstract I argue for the following, which I dub the ?fallibility syllogism?: (1) All systems of criminal punishment that inflict suffering on the innocent are unjust from a desert-based, retributivist point of view. (2) All past or present human systems of criminal punishment inflict suffering on the innocent. (3) Therefore, all such human systems of criminal punishment are unjust from a desert-based, retributivist point of view. My argument for the first premise is organized in the following way. I define what (...) a human system of punishment is. I offer a distinction between retributive and utilitarian approaches to punishment. I distinguish between weak retributivism embodied in the second premise and strong retributivism, which I argue is the basis for the weak version. I argue that on retributivist grounds, each case of punishment is just when it matches the seriousness of the wrongdoing of the offender and that systems of punishment are just from a retributivist point of view when there are no exceptions to this match-up. In making my case, I will use Kant's retributivism as the version of my choice, so I will spend some time showing that recent reinterpretations of Kant (arguing that he was not a thoroughgoing retributivist), even if they are correct, are consistent with my view. Ultimately, however, I argue that the better view is that Kant was a thoroughgoing retributivist. (shrink)

This essay begins with a brief critical outline of the retributivist view of interpersonal justice, specifically focusing on the tendency of retributivism to leave victims with neither healing nor closure, but rather with a negative emotional remainder. It is argued that this phenomenon is indicative in part of a certain form of violence, what I identify as the perpetual retribution that extends from fixation of the identity of the offender as offender. In response to this issue, I draw on (...) the categories developed by Søren Kierkegaard in his Works of Love. More specifically, Kierkegaard’s reflection “Love Hides a Multitude of Sins” serves as a powerful critique of the retributivist position, and the reflection “The Victory of the Conciliatory Spirit in Love” provides an insightful account of the requirements of interpersonal justice if it is to avoid violence. In the end, it is argued that Kierkegaard’s account of love and edification represents a promising alternative to retributivism. (shrink)

One dark and rainy night, Yuso sexually assaults and tortures Zelan. In escaping from the scene of his crime, he falls heavily and becomes an impotent paraplegic. Instead of treating his fate as divine retribution for his wicked acts, Yuso sees it as sheer bad luck. He shows no remorse for what he has done, and vainly hopes that he will recover his powers, which he now treats as involuntarily hoarded resources to be used on less rainy days. In the (...) presence of others, he pretends that he has turned over a new leaf. He asks for religious and educational books, hoping to make up for his poor education and deprived social background. But he immediately discards them when he is alone in favor of the pornographic magazines which he has bribed a nurse to smuggle in for him. His deception and various obscene acts committed in the hospital are exposed; by the time he comes up for trial, everyone knows that he is still a lustful, sadistic, and unrepentant man. Most retributivists have a sufficient justification for punishing Yuso independently of the social consequences of his punishment. Two features of the case might cause some difficulties. First, Yuso has already experienced considerable suffering and deprivation both before and after his crime, and retributivists might disagree about the relevance of the suffering to his punishment. Secondly, Yuso is unrepentant, and it is unlikely that punishment will change him. This might, as we shall see, create a problem for those who think that the justifying aim of punishment is the moral reform of the offender. (shrink)

A traditional overall distinction between the various versions of retributive theories of punishment is that between positive and negative retributivism. This article addresses the question of what positive retributivism – and thus the obligation to punish perpetrators – implies for a society in which the state has many other types of obligation. Several approaches to this question are considered. It is argued that the resource priority question constitutes a genuine and widely ignored challenge for positive retributivist theories of (...) punishment.Send article to KindleTo send this article to your Kindle, first ensure [email protected] is added to your Approved Personal Document E-mail List under your Personal Document Settings on the Manage Your Content and Devices page of your Amazon account. Then enter the ‘name’ part of your Kindle email address below. Find out more about sending to your Kindle. Find out more about sending to your Kindle. Note you can select to send to either the @free.kindle.com or @kindle.com variations. ‘@free.kindle.com’ emails are free but can only be sent to your device when it is connected to wi-fi. ‘@kindle.com’ emails can be delivered even when you are not connected to wi-fi, but note that service fees apply. Find out more about the Kindle Personal Document Service.Retributivism and ResourcesVolume 25, Issue 1JESPER RYBERG DOI: https://doi.org/10.1017/S0953820812000271Your Kindle email address Please provide your Kindle [email protected]@kindle.com Available formats PDF Please select a format to send. By using this service, you agree that you will only keep articles for personal use, and will not openly distribute them via Dropbox, Google Drive or other file sharing services. Please confirm that you accept the terms of use. Cancel Send ×Send article to Dropbox To send this article to your Dropbox account, please select one or more formats and confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about sending content to Dropbox. Retributivism and ResourcesVolume 25, Issue 1JESPER RYBERG DOI: https://doi.org/10.1017/S0953820812000271Available formats PDF Please select a format to send. By using this service, you agree that you will only keep articles for personal use, and will not openly distribute them via Dropbox, Google Drive or other file sharing services. Please confirm that you accept the terms of use. Cancel Send ×Send article to Google Drive To send this article to your Google Drive account, please select one or more formats and confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about sending content to Google Drive. Retributivism and ResourcesVolume 25, Issue 1JESPER RYBERG DOI: https://doi.org/10.1017/S0953820812000271Available formats PDF Please select a format to send. By using this service, you agree that you will only keep articles for personal use, and will not openly distribute them via Dropbox, Google Drive or other file sharing services. Please confirm that you accept the terms of use. Cancel Send ×Export citation Request permission. (shrink)

Consider the reaction of Trayvon Martin’s family to the jury verdict. They were devastated that George Zimmerman, the defendant, was found not guilty of manslaughter or murder. Whatever the merits of this outcome, what does the Martin family’s emotional reaction mean? What does it say about criminal punishment – especially the reasons why we punish? Why did the Martin family want to see George Zimmerman go to jail? And why were – and are – they so upset that he didn’t? (...) -/- This Article will argue for three points. First, what fuels this kind of outrage is vengeance: the desire to see defendants like George Zimmerman be forced to “pay” for the harms that they needlessly and culpably inflict on others. While this point may seem obvious, it isn’t. Most people repudiate revenge and therefore the notion that it plays any role in the criminal justice system. -/- Second, this attitude toward revenge is misguided and needs to change. We need to recognize that vengeance not only does but should play a significant role in motivating criminal punishment. Our vengeful reactions to harmful crimes are not ugly or shameful; on the contrary, they manifest a deep valuation of victims and a bitter denunciation of individuals who actively renounce this valuation through their criminal behavior. -/- Third, these two points have significant implications for the two main theories of criminal punishment: “retributivism,” which says that criminals should be punished in order to give them their “just deserts,” and “consequentialism,” which says that criminals should be punished in order to bring about such good consequences as deterrence, incapacitation, and rehabilitation. Traditionally, these two theories have been at war with one another. But I will show how recognizing revenge as a motivation and justification for punishment can help to end this war and bring these two theories together. (shrink)