The Moral Permissibility of Punishment nevertheless, we can identify a number of features that are commonly
cited as elements of punishment.
The legal institution of punishment presents a distinctive moral
challenge because it involves a state’s infliction of intentionally harsh,
or burdensome, treatment on some of its members—treatment that
typically would be considered morally impermissible. Most of us
would agree, for instance, that it is typically impermissible to imprison
people, to force them to pay monetary sanctions or engage in
community service, or to execute them. The moral challenge of
punishment, then, is to establish what (if anything) makes it
permissible to subject those who have been convicted of crimes to
such treatment.
Traditionally, justifications of punishment have been either
consequentialist or retributivist. Consequentialist accounts contend
that punishment is justified as a means to securing some valuable
end—typically crime reduction, by deterring, incapacitating, or
reforming offenders. Retributivism, by contrast, holds that
punishment is an intrinsically appropriate (because deserved)
response to criminal wrongdoing. Each type of account has been
roundly criticized, on a variety of grounds, by theorists in the other
camp. In an effort to break this impasse, scholars have attempted to
find alternative strategies that incorporate certain consequentialist or
retributivist elements but avoid the standard objections directed at
each. Each of these accounts has, in turn, met with criticism. Finally,
abolitionists argue that none of these defenses of punishment is
satisfactory, and that the practice is morally impermissible; the salient
question for abolitionists, then, is how else (if at all) society should
respond to those forms of wrongdoing that we now punish.
This article first looks more closely at what punishment is; in
particular, it examines the distinctive features of punishment in virtue
of which it stands in need of justification. It then highlights various
questions that a full justification of punishment would need to answer.
With these questions in mind, the article considers the most
prominent consequentialist, retributivist, and hybrid attempts at
establishing punishment’s moral permissibility. Finally, it considers
the abolitionist alternative.
1. What is Punishment?
When we consider whether punishment is morally permissible, it is
important first to be clear about what it is that we are evaluating.
Theorists disagree about a precise definition of punishment;
First, it is generally accepted that punishment involves the infliction of
a burden. The state confines people in jails and prisons, where
liberties such as their freedom of movement and association, and their
privacy, are heavily restricted. It imposes often heavy monetary
sanctions or forces people to take part in community service work. It
subjects people to periods of probation during which their movements
and activities are closely supervised. In the most extreme cases, it
executes people. Theorists disagree on precisely how to characterize
this feature of punishment. Some describe punishment as essentially
painful, or as involving the infliction of suffering, harsh treatment, or
harm. Others instead write of punishment as involving the restriction
of liberties. However we characterize the specific nature of the burden,
it is relatively uncontroversial that punishment in its various forms is
burdensome.
One might object that some prisoners could become accustomed to
incarceration and so not see it as a burden, or that the masochist
might even enjoy his corporal punishment. In response to supposed
counterexamples such as these, a defender of the “burdensomeness”
feature of punishment might argue that the comfortable prisoner and
the masochist are still punished insofar as they are treated in ways
that are typically regarded as burdensome by those on whom they are
inflicted. Alternatively, one might argue that a particular case of
incarceration, corporal punishment, and so forth, indeed does not
count as punishment if the prisoner does not find it burdensome
(Boonin, 2008: 8-10). Whatever one makes of these attempted
counterexamples, it remains the case that punishment theorists by
and large agree that burdensomeness is an essential feature of
punishment.
But punishment is not merely burdensome. A second widely accepted
feature of punishment is that it is intended to be burdensome. This
feature distinguishes punishment from other forms of treatment that
may be burdensome but are not intentionally so. Many people
undoubtedly regard it as burdensome to pay their taxes, for instance,
but presumably most do not regard this as a form of punishment. This
is because although taxes may be foreseeably burdensome, they are
not intentionally so. That is, the state does not levy taxes intending for
them to be burdensome; rather, the intention is to pay for roads, an
education system, and other public goods. That paying for these goods
is burdensome to many taxpayers is incidental, and if there were a way
to collect sufficient revenue to pay for needed public goods without
this being a burden to taxpayers, then so much the better.
Punishment, however, is different. Punishment is intended to be
burdensome. If it were not burdensome, then it would not be doing its
job. For instance, as we will see below, some theorists contend that the
aim of punishment is to reduce crime by deterring potential criminals.
But for the threat of punishment to be the sort of thing likely to deter
criminals, the punishment itself must be burdensome. Other theorists
(retributivists) contend that wrongdoers deserve to suffer, and that
punishment is justified as the infliction of this deserved suffering.
Here again, the burdensomeness of punishment is not merely
incidental, it is intended.
Of course, not all impositions of intended burdens count as
punishment. A third commonly accepted feature of punishment is that
it is imposed on someone guilty of an offense, as a response to that
offense. Actually, there is some disagreement about this point. To
count as punishment, must it be imposed on someone who is actually
guilty of a crime? Or would it make sense to talk of punishing an
innocent person (either mistakenly or intentionally)? Some scholars
contend that punishment must be of a guilty person. Susan Dimock
writes, “The innocent may be ‘victimized’ by the penal system, but
they cannot be ‘punished’” (Dimock, 1997: 42). By contrast, H. L. A.
Hart contends that we should acknowledge not only punishment of
actual offenders, but also cases (which he calls “sub-standard or
secondary”) of punishment “of persons…who neither are in fact nor
supposed to be offenders” (see Hart, 1968: 5).
A fourth feature of punishment, widely acknowledged at least since
the publication of Joel Feinberg’s seminal 1970 article “The Expressive
Function of Punishment” is that it serves to express condemnation, or
censure, of the offender for her offense. As Feinberg discusses, it is
this condemning element that distinguishes punishment from what he
calls “nonpunitive penalties” such as parking tickets, demotions,
flunkings, and so forth. (Feinberg, 1965: 398-401). As we will see
below, some scholars have taken this expression of censure to be
central to the justification of punishment. But whether or not it plays a
role in the justification of the practice, this expressive function is
typically accepted as a distinctive feature of punishment.
Finally, it is worth highlighting that this article focuses on the legal
institution of punishment—rather than, say, parents’ punishment of
their children or other interpersonal cases of punishment (but see
Zaibert, 2006). Legal theorists often assert as one of punishment’s
features that it must be imposed by a properly constituted legal
authority (typically, the state). They thereby aim to differentiate legal
punishment from private vengeance or vigilantism. This does not
mean we must accept uncritically that the state is the proper authority
to impose punishment. Ideally, a full account of punishment should
provide a plausible answer to why (or if) the state has an exclusive
right to impose punishment.
These, then, are the most commonly cited features of punishment:
punishment involves the state’s imposition of intended burdens—
burdens that express social condemnation—on people (believed to be)
guilty of crimes, in response to those crimes. This is not intended as a
precise definition or a set of necessary and sufficient conditions for
punishment. Theorists may disagree about particular elements, or
especially about how exactly to flesh out the various elements. But this
description is sufficient to give us a sense of why punishment stands in
need of justification: It involves the state’s treating some of its
members (imposing intentionally burdensome, censuring sanctions)
in ways that typically would be morally impermissible.
2. Various Questions
When theorists ask whether punishment is justified, they typically
assume a backdrop in which the legal system administering
punishment is legitimate, and the criminal laws themselves are
reasonably just. This is not to say that they assume that all legal
systems are legitimate and all criminal laws are reasonably just in the
actual world. Indeed, questions of political legitimacy and
criminalization are important topics that have received a great deal of
attention in their own right. But even in societies in which the legal
system is legitimate and the laws are reasonably just, a general
question arises of whether (and if so, why) it is permissible for the
state to impose intended, censuring burdens on those who violate the
laws.
This general question of punishment’s moral permissibility actually
comprises a number of particular questions. A full normative account
of punishment should provide answers to each of these questions.
First, there is the question of punishment’s function, or purpose. Put
simply, what reason is there to want an institution of punishment? H.
L. A. Hart referred to this as punishment’s “general justifying aim,”
although this term may be misleading in two ways: on one hand, to
say that the aim is justifying implies that it is sufficient, by itself, to
establish punishment’s permissibility. As we will see, some scholars
point out that more is needed to justify punishment than merely citing
its function, no matter how valuable. On the other hand, talk of a
justifying aim seems to privilege consequentialist accounts, according
to which punishment is justified as a means to some socially valuable
goal. But even for retributivist accounts, according to which
punishment is justified not as a means to some end but rather as an
intrinsically appropriate response to wrongdoing, we still need an
explanation of why such a response is important enough to warrant
the state’s institution of punishment. A first question, then, is what
sufficiently important function punishment serves.
Even if we establish some sufficiently valuable function of
punishment, this may not be enough to justify the practice. Some
scholars contend that a crucial question is whether punishment
violates the moral rights of those punished. If punishing offenders
violates their rights, then it may be morally impermissible even if it
serves some important function (Simmons, 1991; Wellman, 2009).
What we need, according to this view, is an account of why, in
principle, the practice of imposing intended burdens on people in the
ways characteristic of punishment does not violate their moral rights.
In addition to justifying the practice of punishment in general, a
complete account of punishment should also provide guidance in
determining how to punish in particular cases. Even if the institution
of punishment is morally permissible, a particular sentence may be
impermissible if it is excessively harsh (or on some accounts, if it is
too lenient). What principles and considerations should guide
assessments of how severely to punish?
Relatedly, although this point has received less attention, we should
ask not only about the appropriate severity of punishment but also
about the proper mode of punishment. We may critique certain
sentences not in virtue of their severity but because we believe the
form of punishment (incarceration, capital punishment, and so forth)
is in some sense inappropriate (Reiman, 1985; Moskos, 2011). What
considerations, then, should guide assessments of whether
imprisonment, fines, community service, probation, capital
punishment, or some other form of punishment is the appropriate
response to instances of criminal wrongdoing?
Finally, as mentioned, it is important to ask about the state’s role as
the agent of punishment. Why is it the state’s right to impose
punishment (if indeed it is)? Furthermore, what gives the state
the exclusive right to punish (Wellman, 2009)? Why may victims not
inflict punishment on their assailants (or hire someone to inflict the
punishment)? Another question related to the proper agent of
punishment—a question that has become increasingly salient in the
decades following the Nuremberg trials—is when (if ever) the
international community, rather than a particular state, can be the
proper agent of punishment. What sorts of crime, and which
criminals, are properly accountable to the institutions of international
criminal law rather than (or perhaps in addition) to the domestic legal
systems of particular states?
As we will see, various accounts of punishment focus on different
questions. Also, some accounts seek to answer each of these questions
by appealing to the same moral principles or considerations, whereas
others appeal to different considerations in answering the different
questions.
3. Consequentialist Accounts
Consequentialism holds that the rightness or wrongness of actions—or
rules for action, or (relevant to our context) institutions—is
determined solely by their consequences. Thus consequentialist
accounts of punishment defend the practice as instrumentally
valuable: the consequences of maintaining an institution of legal
punishment, according to this view, are better than the consequences
of not having such an institution. For many consequentialists, the
burden of punishment itself is seen as a negative consequence—an
“evil,” as Jeremy Bentham called it (Bentham, 1789: 158). Thus for
punishment to be justified, it must be the case that it brings about
other, sufficiently valuable consequences to outweigh its onerousness
for the person on whom it is inflicted. Typically, punishment is
defended as a necessary means to the socially valuable end of crime
reduction, through deterrence, incapacitation, or offender reform.
a. Deterrence
Deterrence accounts contend that the threat of punishment serves as a
disincentive for potential criminals. On such accounts, for the threat
of punishment to be effective as a deterrent, it must be credible—it
must have teeth, so to speak—and thus the legal system must follow
through on the threat and impose punishment on those who violate
laws. Theorists have distinguished two potential audiences for the
deterrent threat: first, the threat of punishment might serve to
dissuade members of the public generally from committing crimes
that they might otherwise have committed. This is
called general deterrence. Second, for those who do commit crimes
and are subjected to punishment, the threat of future punishment
(namely, the prospect of having to experience prison again, or pay
further fines, and so forth) might provide a disincentive to
reoffending. This is typically referred to as specific (or special)
deterrence.
b. Incapacitation
Punishment might also help to reduce crime by incapacitating
criminals. Unlike deterrence, incapacitation does not operate by
dissuading potential offenders. Incapacitation instead aims to remove
dangerous people from situations in which they could commit crimes.
Imprisoning someone in a solitary confinement unit, for instance, may
or may not convince her not to commit crimes in the future; but while
she is locked up, she will be unable to commit (most) crimes.
c. Offender Reform
A third way in which punishment might help to reduce crime is by
encouraging or facilitating offender reform. The aim of reform is like
that of specific deterrence in one respect: both seek to induce a change
in the offender’s behavior. That is, the aim for both is that she should
choose not to reoffend. In this respect, both reform and specific
deterrence differ from incapacitation, which is concerned with
restricting rather than influencing offenders’ choices. But reform
differs from specific deterrence in terms of the ways in which each
seeks to induce different choices. Punishment aimed at specific
deterrence provides prudential reasons: we impose onerous treatment
on an offender in hopes that her aversion to undergoing such
treatment again will convince her not to reoffend. Punishment with
the aim of offender reform, by contrast, aims to reshape offenders’
moral motives and dispositions.
d. Sentencing
Each of these aims—deterrence, incapacitation, and reform—will have
distinct implications with respect to sentencing. Punishment aimed at
reducing crime through deterrence would in general need to be severe
enough to provide members of the public with a significant incentive
not to offend, or to provide offenders with an incentive not to
reoffend. Also, as Bentham explained, the severity of sentences should
reflect the relative seriousness of the crimes punished (Bentham,
1789: 168). More serious crimes should receive more severe
punishments than do less serious crimes, so that prospective
offenders, if they are going to commit one crime or the other, will have
an incentive to choose the less serious crime.
For punishment aimed at reducing crime through incapacitation,
sentences should be restrictive enough that dangerous offenders will
be unable to victimize others (so, for instance, prison appears
generally preferable to fines as a form of incapacitative punishment).
In terms of duration, incapacitative sentences should last as long as
the offender poses a genuine threat. Similarly, sentences aimed at
reducing crime through offender reform should be tailored, in terms
of the form, severity, and duration of punishment, in whatever ways
are determined to be most conducive to this aim.
Finally, insofar as punishment itself is considered to be, in Bentham’s
words, an “evil,” the consequentialist is committed to the view that
sentences should be no more severe than is necessary to accomplish
their aim. Thus whether she endorses deterrence, incapacitation,
reform, or some other aim (or a combination of these), the
consequentialist should also endorse a parsimony constraint on
sentence severity (Tonry, 2011). After all, to impose sentences that are
more severe than is necessary to accomplish punishment’s aim(s)
would appear to be an infliction of gratuitous suffering—and so, from
a consequentialist perspective, unjustified.
e. Objections and Responses
Typical consequentialist accounts of punishment contend that the
practice is justified because it produces, on balance, positive
consequences by helping to reduce crime, either through deterrence,
incapacitation, or offender reform. Critics have objected to such
consequentialist accounts on a number of grounds.
First, some have objected to deterrence accounts on grounds that
punishment does not actually deter potential offenders. A key worry is
that often (perhaps typically) those who commit crimes act
impulsively or irrationally, rather than as efficient calculators of
expected utility, and so they are not responsive to the threat of
punishment. The question of whether punishment deters is an
empirical one, and criminological studies on this question have come
to different conclusions. In general, evidence seems to indicate that
punishment does have some deterrent effect, but that the certainty of
apprehension plays a greater deterrent role than does the severity of
punishment (Nagin, 2013).
A similar line of objection has been raised against reform-based
accounts of punishment. Criminological research in the 1970s led
many scholars and practitioners to conclude that punishment did not,
indeed could not, promote offender reform (the mantra “nothing
works” was for many years ubiquitous in these discussions). More
recent criminological work, however, has generated somewhat more
optimism about the prospects for offender reform (Cullen, 2013).
Whereas critics have questioned whether punishment deters or
facilitates offender reform, there is little doubt that punishment—
especially incarceration—incapacitates (prisoners may still have
opportunities to commit crimes, but their opportunities are at least
significantly limited.) Critics have raised questions, however, about
the link between incapacitation and crime reduction. For punishment
to be justified on incapacitative grounds, after all, it would need to be
the case not only that punishment in fact incapacitates, but that in so
doing it helps to reduce crime. At least in some cases, there is reason
to doubt whether the link between incapacitation and crime reduction
holds. Most notably, locking up drug dealers or gang members does
not appear to decrease drug- or gang-related crimes, because the
incapacitated person is quickly and easily replaced by someone else
(Tonry, 2006: 31-32).
Even if we accept, for argument’s sake, that punishment contributes to
crime reduction, it still may not be justified on consequentialist
grounds if it also generates costs that outweigh its benefits. The costs
of punishment are not limited to the suffering or other burdens
inflicted on offenders, although these burdens do matter from a
consequentialist perspective. Scholars have also highlighted burdens
associated with certain forms of punishment—in particular,
incarceration—for offenders’ families and communities (Mauer and
Chesney-Lind, 2002). These costs matter in consequentialist
calculations. In addition, we must consider the financial costs of
maintaining an institution of criminal punishment. In 2012, the Vera
Institute of Justice released a study of 40 U.S. states that found that
the total taxpayer cost of prisons in these states was $39 billion. Thus
defenders of punishment on consequentialist grounds must show not
only that punishment is beneficial, but also that its benefits are
significant enough to outweigh its costs to offenders and to society
generally.
Furthermore, even if punishment’s benefits outweigh its costs,
consequentialists must make the case that these benefits cannot be
achieved through some other, less burdensome response to crime. If
there are alternatives to punishment that are equally effective in
reducing crime but are less costly overall, then from a consequentialist
perspective, these alternatives would be preferable (Boonin, 2008: 53,
264-67).
Suppose, however, that the benefits of punishment outweigh its harms
and also that there are no alternatives to punishment that generate, on
balance, better overall consequences. In this case, punishment would
be justified from a consequentialist perspective. Many theorists,
however, do not endorse consequentialism. Indeed, the most
prominent philosophical objections to consequentialist accounts of
punishment take aim specifically at supposed deficiencies of
consequentialism itself.
Perhaps the most common objection to consequentialist accounts is
that they are unable to provide principled grounds for ruling out
punishment of the innocent. If there were ever a situation in which
punishing an innocent person would promote the best consequences,
then consequentialism appears committed to doing so. H. J.
McCloskey imagines a case in which, in the wake of a heinous crime, a
small-town sheriff must decide whether to frame and punish a person
whom the townspeople believe to be guilty but the sheriff knows is
innocent if doing so is the only way to prevent rioting by the
townspeople (McCloskey, 1957: 468-69). If punishing the innocent
person defuses the residents’ hostilities and prevents the riots—and
thereby produces better overall consequences than continuing to
search for the actual criminal—then it appears that the
consequentialist is committed to punishing the innocent person. But
knowingly punishing an innocent person strikes most of us as deeply
unjust.
Consequentialists have responded to this objection in various ways.
Some contend that what McCloskey describes is not actually
punishment, because punishment, by definition, is a response to those
guilty of crimes (or at least believed to be guilty, whereas in
McCloskey’s example, the sheriff knows the person to be innocent). H.
L. A. Hart refers to this response as the “definitional stop” and he
suggests it is unhelpful because it seeks to define away the interesting
normative questions. Setting terminology aside, the relevant questions
are whether and why it is permissible to impose intended,
condemnatory burdens on those (believed to be) guilty of crimes. The
consequentialist’s response is that doing so produces the best
consequences, but then it seems that the consequentialist should be
committed to imposing such burdens on those not (believed to be)
guilty of crimes when doing so produces the best consequences. Such
a practice would strike many as morally wrong, however. Thus the
objection arises for consequentialists regardless of definitions.
Others have responded to the objection that consequentialism would
allow for punishing the innocent by suggesting that scenarios such as
McCloskey suggests are so far-fetched that they are unlikely to occur
in the real world. In actual cases, punishing the innocent will rarely, if
ever, produce the best consequences. For instance, some contend that
the sheriff in the example would likely be found out, and as a result
the public would lose its trust in law enforcement officials; the long-
term consequences, therefore, would be worse than if the sheriff had
not punished the innocent person. As critics have pointed out,
however, this response only shows that punishing the innocent will
usually be ruled out by consequentialism. There might still be cases,
albeit rare, in which punishing the innocent would generate the best
consequences (maybe the sheriff is adept at covering up his act). At
best, then, consequentialism seems only able to ground a contingent
prohibition on punishing the innocent. Some consequentialists have
accepted this implication, albeit reluctantly (see Smart, 1973: 69-73).
A similar objection to consequentialist accounts is that they cannot
provide a principled basis for the widely held intuition that
punishment should be no more severe than an offender deserves
(where desert is the product of the seriousness of the offense and the
offender’s culpability). On this view, it is morally wrong to subject
those guilty of relatively minor crimes to harsh punishment; such
punishment would be excessive. For consequentialist accounts,
though, it appears that excessively harsh sentences would be
permitted (indeed, required) if they produced the best overall
consequences.
Jeremy Bentham contended that consequentialism does have the
resources to ground relative proportionality in sentencing—that is,
lesser offenses should receive less severe sentences than more serious
offenses receive. His reasoning was that if sentences for minor
offenses were as harsh as for more serious offenses, potential
offenders would have no incentive to commit the lesser offense rather
than the more serious one (Bentham, 1789: 168). If Bentham is right,
then there is a consequentialist basis for punishing shoplifters, for
instance, less harshly than armed robbers. But this does not rule out
punishing shoplifters harshly (more harshly than most of us would
think justified) and punishing armed robbers even more harshly;
again, a consequentialist would seem committed to such a sentencing
scheme if it promoted the best overall consequences.
Defenders of consequentialist sentencing have another response
available, namely that excessively harsh sentences do not, in practice,
produce the best consequences. For instance, criminological research
suggests a) that stiffer sentences do not produce significant deterrent
effects (it is primarily the certainty of punishment rather than its
severity that deters); b) that extremely long prison terms are not
justified on incapacitative grounds (for one reason, most offenders
“age out” of criminal behavior anyway by their 30s or 40s); and c) that
extremely harsh sentences may, on balance, have criminogenic effects
(that is, they may make people more likely to reoffend). This sort of
response, of course, makes the prohibition of disproportionate
punishment a contingent matter; in other words, if extremely harsh
sentences did help to reduce crime and this produced, on balance, the
best overall consequences, then consequentialism would appear to
endorse such sentences. Critics thus charge that consequentialist
accounts are unappealing insofar as they are unable to ground more
than a contingent prohibition on disproportionately harsh
punishment.
Even if we prohibit punishment of the innocent or disproportionate
punishment of the guilty, a third, Kantian objection holds that
consequentialist punishment is not properly responsive to the person
being punished. According to this objection, to punish offenders as a
means to securing some valuable social end (namely, crime reduction)
is to use them as mere means, rather than respecting them as ends in
themselves (Kant, 1797: 473; Murphy, 1973).
In response to this objection, some scholars have contended that
although consequentialists regard punishment as a means to an end,
punishment does not treat offenders as mere means to this end. If we
limit punishment to those who have been found guilty of crimes, then
this treatment is arguably responsive to their choices and does not use
them as mere means. Kant himself suggested that as long as we
reserve punishment only for those found guilty of crimes, then it is
permissible to punish with an eye toward potential benefits (Kant,
1797: 473).
A more recent objection to consequentialist systems of punishment,
developed by R. A. Duff (1986, 2001), charges that consequentialist
systems of punishment, with their focus on crime reduction, treat
offenders as dangerous “outsiders”—as the “they” whom “we,” the law-
abiding members of society, must threaten, incapacitate, or remold to
ensure our safety. Such a conception of the criminal law is
inappropriately exclusionary, Duff claims. The criminal law, and the
institution of punishment, in a liberal polity should treat offenders
inclusively, as (still) members of the community who despite having
violated its values could, and should, nevertheless (re)commit to these
values.
In response, one might object that systems of punishment aimed at
crime reduction need not be exclusionary in the way Duff suggests. In
particular, punishment that aims to deter crime might be said to treat
all community members equally, namely as potential offenders. For
those who have not committed crimes, deterrent punishment regards
them as potential offenders and aims to provide an incentive not to
offend (that is, general deterrence). For those who have committed
crimes, deterrent punishment similarly regards them as potential
(re)offenders and aims to provide an incentive not to (re)offend (that
is, specific deterrence). In this way, punishment with a deterrent aim
might be said to speak to all community members in the same terms,
and thus not to be objectionably exclusionary.
4. Retributivist Accounts
As we have seen, consequentialist accounts of punishment are
essentially forward-looking—punishment is said to be justified in
virtue of the consequences it helps to produce. A different sort of
account regards punishment as justified not because of what it brings
about, but instead because it is an intrinsically appropriate response
to crime. Accounts of the second sort have traditionally been
described as retributivist. In general, we can say that retributivism
views punishment as justified because it is deserved, although
particular accounts differ about what exactly this means.
Theorists have distinguished two varieties of retributivism: positive
retributivism and negative retributivism. Positive retributivism is
typically characterized as the view that an offender’s desert provides a
positive justifying reason for punishment; in other words, the state
should punish those who are found guilty of criminal wrongdoing
because they deserve it. Negative retributivism, by contrast, provides a
constraint on punishment: punishment is justified only of those who
deserve it. Because negative retributivism provides only a constraint
on punishment, not a positive reason to punish, the negative
retributive constraint has featured prominently in attempts at mixed
accounts of punishment; such accounts allow punishment for
consequentialist aims as long as the punishment is only of those who
deserve it. On the other hand, because negative retributivism does not
provide a positive justifying reason to punish, some scholars argue
that it does not properly count as retributivism at all.
The distinction between retributivism and consequentialism is not
always a neat one. Notice that one might endorse the claim that
punishment is a deserved response to wrongdoing and then further
assert that it is a valuable state of affairs when wrongdoers get the
punishment they deserve—a state of affairs that therefore should be
promoted. On this type of account, retribution itself essentially
becomes the consequentialist aim of punishment (Moore, 1903;
Zaibert, 2006). Nevertheless, in keeping with general practice, this
article will treat retributivism as distinct from, and in competition
with, consequentialist accounts.
a. Deserved Suffering
One common version of retributivism contends simply that
wrongdoers deserve to suffer in proportion to their wrongdoing. Often
this claim is made by way of appeal to intuitions about particular,
usually heinous crimes: surely the unrepentant war criminal, for
example, who has tortured and murdered many innocent people,
deserves to suffer for what he has done. Proponents argue that
retributivism is justified because it best accounts for our intuitions
about particular cases such as these (Moore, 1987; Kleinig, 1973).
Justifying retributivism requires more, of course, than merely
appealing to common intuitions about such cases. After all, even if
many (even most) people do feel, in hearing reports of terrible crimes,
that the perpetrators deserve to suffer, not everyone feels this way.
And even those who do have such intuitions may not feel entirely
comfortable with them. What we would like to know is whether the
intuitions themselves are justified, or whether, for instance, they
amount to an unhealthy desire for vengeance. Critics contend that
those who rely on our intuitions about particular cases as evidence
that retributivism is justified fail to provide the needed explanation of
why the intuitions are justified.
There are other questions for such a view: does any sort of moral
wrongdoing deserve to be met with suffering, or only some cases of
wrongdoing? Which ones? And why is meting out deserved suffering
for wrongdoing properly the concern of the state?
b. Fair Play
Another prominent type of retributivist account begins with a
conception of society as a cooperative venture in which each member
benefits when there is general compliance with the rules governing the
venture. Because each of us benefits when everyone else plays by the
rules, fairness dictates that we each have an obligation to reciprocate
by playing by the rules, too. A criminal, like other members of society,
benefits from general compliance with laws, but she fails to
reciprocate by complying with the laws herself. She essentially
becomes a free rider, because she counts on others to play by the rules
that she violates. By failing to restrain herself appropriately, she gains
an unfair advantage over others in society. The justification of
punishment is that it corrects this unfair advantage by inflicting
burdens on the offender proportionate to the benefit she gained by
committing her crime (Morris, 1968).
On the fair play view, then, punishment is justified as a deserved
response to an unfair advantage taken against members of society
generally. Such an account offers a relatively straightforward answer
to the question of why punishment is the state’s business. The state
has an interest in assuring those who accept the burdens of
compliance with the law that they will not be at a disadvantage to
those who would free-ride on the system.
Critics of the fair play view have argued that it provides a
counterintuitive conception of the crime to which punishment
responds. It seems strange, for instance, to think of the wrong
perpetrated by, say, a rapist as a sort of free-riding wrong against
society in general, rather than an egregious wrong perpetrated against
the victim in particular. In response to this charge, Dagger (1993)
argues that crimes may be wrong in both senses: they may wrong
particular victims in various ways, but they are also in every case
wrongs in the sense of free riding on society generally.
c. Censure
Another influential version of retributivism begins with the claim,
discussed earlier, that one of punishment’s distinctive features is that
it communicates censure, or condemnation, of the offender for her
offense. This retributivist account, developed most notably by R. A.
Duff (1986, 2001), takes the censuring feature as the key to
establishing punishment’s moral permissibility. Offenders deserve to
be censured for what they have done, and punishment is justified
because it delivers this censuring message.
Duff understands crimes as public wrongs, as violations of important
public values. It follows on this account that the state is the
appropriate agent of punishment; the state properly calls offenders to
account for their violations of the political community’s shared values.
Censuring involves, in part, urging an offender to think about the
wrong she has done, to repent and (re)commit herself to the values
that she has violated. Thus it follows from censure accounts such as
Duff’s that offender self-reform is an aim of punishment. But notice
the crucial distinction between this sort of account and the variety of
consequentialist account that aims at offender reform. Although
offender reform is an aim of punishment on the censure account, it is
not a justifying aim. In other words, on the censure view, punishment
is not justified insofar as it tends to promote offender reform. Rather,
punishment is justified because it communicates deserved censure.
Part of what it means to censure, however, is to urge wrongdoers to
repent and reform.
A common critique of the censure view asks why punishment—that is,
the imposition of intended burdens—is the proper way to censure
wrongdoers. It seems that the polity could communicate messages of
censure to offenders without imposing intended burdens; for example,
it could issue a public proclamation condemning the crime and
blaming the offender. Why, then, is the hard treatment characteristic
of punishment an appropriate vehicle for conveying such messages?
One type of response, offered by Duff and others (see also Falls, 1987),
holds that hard treatment is needed to convey adequately the polity’s
condemnation of crimes. Nonpunitive censure—blaming without
imposing intended hard treatment—would fail to communicate the
seriousness of the wrongdoing.
Also, on Duff’s account, hard treatment can function to induce in
offenders the sort of moral reflection that may lead to repentance,
reform, and reconciliation (with their victims and the community
more generally). Some have objected, however, that such an account
implies too intrusive a role for the state. It is not a proper function of
the state, critics charge, to seek to induce repentance and moral
reform in offenders. Thus even some scholars who agree that
punishment is justified as a form of censure nevertheless disagree
about the role of the hard treatment element. For Andrew von Hirsch
(1993), for instance, the intended burdens characteristic of
punishment act as a sort of prudential supplement: punishment, as
censure, serves to remind offenders (and community members) of the
moral reasons to comply with the law. Punishment, as hard treatment,
also provides a prudential threat as a sort of supplement for those of
us for whom the moral message is not sufficient. One worry with such
an account, however, is whether the prudential threat will tend to
drown out the moral message.
d. Other Versions
Alternative versions of retributivism have been offered. Some
scholars, for instance, argue that those who commit crimes violate the
trust of their fellow community members. Trust, on this account, is an
essential feature of a healthy community. Offenders undermine this
trust when they victimize others. In such cases, punishment is a
deserved response to such violations and an appropriate way to help
maintain (or restore) the conditions of trust among community
members (see Dimock, 1997). Advocates of this trust-based variety of
retributivism must explain which violations of trust rise to the level
that warrants criminalization, so that violators should be subject to
punishment. Also, we might question whether such accounts are
purely retributivist after all: if punishment is justified at least in part
as a means of helping to maintain conditions of trust in a community,
then this appears to be a consequentialist rationale. On the other
hand, if punishment is justified not for what it helps to bring about
but rather as an intrinsically appropriate (because deserved) response
to violations of trust, then we need an explanation of why such
violations deserve punishment, perhaps as opposed to some other
form of response.
Another form of retributivism holds that offenders incur a moral debt
to their victims, and so they deserve punishment as a way to repay this
debt (McDermott, 2001). This moral debt is distinct from the material
debt that an offender may incur. In other words, a person who robs
from another person incurs a material debt equal to the value of
whatever was stolen, but she also incurs a moral debt for violating the
victim’s rights. The offender takes not only a material good from the
victim but also a moral good. Repayment of material goods does not
settle this moral debt, and so punishment is needed to fill this role. As
Daniel McDermott characterizes it, punishment serves to deny the ill-
gotten moral good to the perpetrator (McDermott, 2001: 424).
Such an account raises a host of questions: what precisely is the nature of the
moral good that has been taken from the victim? How can a moral good be
taken away from someone? In what sense (if at all) has the perpetrator gained
this good? How does punishment deny this good to the offender, and how
does this thereby make things right for the victim?
e. Sentencing
Because retributivism claims that punishment is justified as a
deserved response to wrongdoing, retributivist accounts should
provide some guidance about what sentences are deserved in
particular cases. Typically, retributivists hold that sentences should be
no more severe than is deserved. This negative retributivist constraint
on sentencing corresponds with the negative retributivist constraint
on punishment itself (namely, that punishment is justified only of
those who deserve it). By contrast, positive retributivism holds that
offenders’ sentences should be no less severe than they deserve. Some
scholars find this positive retributivism unappealing because it seems
to preclude the state from taking into account mercy or other
considerations that might count in favor of lenient sentences. In other
words, some are more comfortable with retributivism’s setting a
ceiling but not a floor on sentence severity. One question, though, is
whether (and if so, why) retributivists are justified in endorsing the
negative retributivist constraint on sentencing without also endorsing
the positive retributivist constraint.
Retributivists often discuss sentencing in terms of proportionality,
where a proportionate sentence is understood as one that is deserved
(or at least, on some accounts, not clearly undeserved). Sentences may
be proportionate in two senses: first, they may be proportionate (or
disproportionate) relative to each other. This sense of proportionality,
called ordinal proportionality, holds that similarly serious offenses
should receive similarly severe punishments (like cases should be
treated alike); that more serious offenses should be punished more
harshly than less serious offenses (murder should be punished more
harshly than shoplifting, for instance); and that differences in
sentence severity should reflect differences in relative seriousness of
offenses (because murder is much more serious than shoplifting,
murder should carry a much more severe sentence).
Some scholars have challenged the notion of ordinal proportionality
constraints in sentencing, both because offenders cannot neatly be
distinguished into a manageable number of desert-based groups—
Michael Tonry calls this the “illusion of ‘like-situated offenders’”
(Tonry, 2011)—and because individual offenders’ subjective
experiences of the same sentence may vary greatly. For example,
someone who is young, physically imposing, or has no children may
have a much different experience of a 10-year prison term from
someone who is much older, physically frail, or must leave behind her
children to serve the sentence. Considerations such as these do not in
themselves demonstrate that the tenets of ordinal proportionality are
false (that like cases should not be treated alike, for instance, or that
more serious violations should not receive harsher sentences). Rather,
these considerations raise challenges to our ability in practice to
implement a just sentencing scheme that reflects ordinal
proportionality.
Even if sentences can be devised that satisfy ordinal proportionality,
however—in other words, even if a sentencing scheme itself is
internally proportionate—particular sentences may fail to be
proportionate if the entire sentencing scheme is too severe (or
lenient). For instance, a sentencing scheme in which even the least
offenses were punished with prison terms would appear
disproportionate even if sentences in the scheme were proportionate
relative to each other. Thus theorists note a second sense of
proportionality: cardinal, or nonrelative, proportionality. Cardinal
proportionality considers whether sentences are commensurate with
the crimes they punish. A prison term for jaywalking would appear to
violate cardinal proportionality, because such a sentence strikes us as
too severe given the offense, even if this sentence were proportionate
with other sentences in a sentencing scheme—that is, even if it
satisfied ordinal proportionality. Thus cardinal proportionality
concerns not the relation of sentences to one another, but instead the
relation of a sentence to the crime to which it is a response. Put
another way, even if an entire sentencing scheme is internally
(ordinally) proportionate, we need guidance in how to anchor the
sentencing scheme to the crimes themselves so that offenders in
particular cases receive the sentences they deserve.
In addition to addressing questions of deserved sentence severity, we
would like retributivism to provide some guidance about how to
determine what mode, or form, of punishment is appropriate in
response to a given crime. Is prison time, community service, capital
punishment, probation, or something else the deserved form of
response, and why?
The implications of retributivism for sentencing will depend on the
specific account’s explanation of why punishment is said to be the
deserved response to offending.
Those who appeal to intuitions that the guilty deserve to suffer, for
instance, can similarly appeal to intuitions that those who are guilty of
more serious offenses deserve to suffer more than those who are guilty
of less serious offenses. As discussed, however, we would like to know
how much punishment is deserved in particular cases in nonrelative
terms, and also what form the suffering should take. One well-known
account of sentencing is provided by lex talionis (that is, an eye for an
eye, a tooth for a tooth). Immanuel Kant famously endorsed this
principle: “Accordingly, whatever undeserved evil you inflict upon
another within the people, that you inflict upon yourself” (Kant, 1797:
473). As critics have noted, though, not every crime appears to have an
obvious like-for-like response—what would lex talionis demand for
the childless kidnapper, for instance (Shafer-Landau, 2000: 193)? And
even when a like-for-like response is clearly indicated, it will not
always be palatable (torturing the torturer, for example).
We might assert instead that the sentence and the offense need not be
alike in kind, but that the sentence should impose an amount of
suffering equal to the harm done by the offender. Still, questions arise
of how to make interpersonal comparisons of suffering. And again, for
the most heinous crimes, a principle of inflicting equal amounts of
suffering may recommend sentences that we would find troubling.
The fair play view holds that punishment functions to remove an
unfair advantage gained by an offender relative to members of society
generally. Critics of this view often object, however, that it provides
insufficient or counterintuitive guidance about sentencing. Put simply,
there does not seem to be any advantage that an offender gains, in
proportion with the seriousness of her crime, relative to community
members generally. On one version of the view, the offender gains
freedom from the burden of self-constraint that others accept in
complying with the particular law that the offender violates. If so, then
the sentence severity should be proportionate to the burden others
feel in complying with that law. But compliance with laws is often not
a burden for most citizens. Indeed, it is often less burdensome to
comply with prohibitions on serious offenses (murder, assault, and so
forth) than it is to comply with prohibitions on lesser crimes (tax
evasion, jaywalking, and so forth), given that we are more often
tempted to commit the lesser crimes. But if the unfair advantage that
punishment aims to remove is freedom from the burden of self-
constraint, and if self-constraint is often more burdensome with lesser
crimes, then these less serious crimes will often appear to merit
relatively more severe punishments. This is a violation of ordinal
proportionality.
Similar problems arise for other versions of the fair play view.
Suppose, for instance, that the unfair advantage a criminal gains is not
freedom from the burden of complying with the particular law she
violates, but rather freedom from complying with the rule of law in
general. This general compliance, Richard Dagger writes, is a genuine
burden: “there are times for almost all of us when we would like to
have the best of both worlds—that is, the freedom we enjoy under the
rule of law plus freedom from the burden of obeying laws” (Dagger,
1993: 483). Critics have objected, however, that on this conception of
the unfair advantage all offenses become, for the purposes of
punishment, the same offense. Both the murderer’s and the tax cheat’s
unfair advantage is freedom from compliance with the rule of law
generally. If the unfair advantage is the same, however, then removing
the advantage would seem to require equal sentences. Again, such
sentencing appears to violate ordinal proportionality.
For the censure view, questions arise about what form of punishment
and what severity will communicate the deserved message of
condemnation in particular cases. On such a view, the principles of
ordinal proportionality appear to follow straightforwardly: censure
should reflect the seriousness of the wrongdoing, and so if
punishment is the vehicle of communicating censure, then sentences
should reflect the appropriate relative degree of censure for each case.
The censure view should provide guidance not only about how
severely to punish crimes relative to each other, but also how severely
to punish in absolute terms, and also the appropriate mode of
punishment. To say that manslaughter should be censured more
severely than theft, for instance, does not actually tell us how severely
to censure manslaughter or theft, or with what form of punishment.
Again, the challenge is in determining how to anchor the sentencing
scale to actual offenses. Should the least serious offenses receive
censure in the form of a small fine, a day in jail, or a year in jail?
Should the most serious offenses receive capital punishment, life
imprisonment, or some less severe sentence?
Similar questions arise for accounts that characterize punishment as a
deserved response to violations of trust, or as a deserved response to
the incurrence of a moral debt. What form and severity of punishment
is appropriate to maintain conditions of community trust in response
to attempted kidnapping, or the theft of a valuable piece of art? How
severe must a sentence be to resolve the moral debt that is incurred
when one impersonates a police officer, or cheats on her taxes?
Indeed, questions about fixing deserved sentences in response to
particular offenses arise for retributivist accounts generally. Critics
have charged that retributivism is unable to provide adequate,
nonarbitrary guidance about either the deserved severity or deserved
form of punishment in particular cases (see Shafer-Landau, 2000).
Retributivists are, of course, aware of such objections and have sought
to meet them in various ways. Nonetheless, questions about
proportionate sentencing continue to be a central challenge for
retributivist accounts.
5. Alternative Accounts
In part as a response to objections commonly raised against
consequentialist or retributivist views, a number of theorists have
sought to develop alternative accounts of punishment.
a. Rights Forfeiture
At the outset, we said that the central question of punishment’s
permissibility is why (if at all) it is permissible to treat those who have
committed criminal offenses in ways that typically would be
impermissible. For some theorists, this question is best cast in terms
of rights: why are the sorts of intended burdens characteristic of
punishment, which would constitute rights violations if imposed on
those who have not been convicted of criminal wrongdoing, not
violations of the rights of those punished?
One way in which punishment would not violate the rights of
offenders is if, in committing the crime for which they are convicted,
they forfeit the relevant right(s). Because offenders forfeit their right
not to be punished, the state has no corresponding duty not to punish
them. As W. D. Ross writes, “the offender, by violating the life or
liberty or property of another, has lost his own right to have his life,
liberty, or property respected, so that the state has no prima
facie duty to spare him, as it has a prima facie duty to spare the
innocent” (1930: 60-61).
Notice that the forfeiture view itself does not imply any particular
positive justification of punishment; it merely purports to explain why
punishing offenders does not violate their rights. This is consistent
with maintaining that the positive justification of punishment is that it
helps reduce crime, or conversely, that wrongdoers deserve to be
punished. Thus the forfeiture view does not provide a complete
account of the justification of punishment. Proponents, however, take
this feature to be a virtue rather than a weakness of the view.
The forfeiture claim raises a number of key questions: first, why does
someone who violates the law thereby forfeit the right not to be
punished? For those who are gripped by the dilemma of why
punishing offenders does not violate their rights, the mere answer that
offenders forfeit their rights, without some deeper account of what
this forfeiture amounts to, may seem inadequate. Thus some theorists
attempt to ground their forfeiture claim in a more comprehensive
moral or political theory (see, for instance, Morris, 1991).
Second, what is the nature of the rights forfeited? Do offenders forfeit
the same rights they violate? If so, then this raises some of the same
challenges as we saw with certain forms of retributivism: what right is
forfeited by a childless kidnapper, for example? Alternatively, is the
forfeited right simply the right not to be punished? If every offender
forfeits this same, general right, then on what basis can we distinguish
what sentence is permissible for different offenders? For example, if
the burglar forfeits the same right as the murderer, then what
prevents us from imposing the same punishment in each case (could
two offenders forfeit the same right to different degrees, as some have
suggested)?
Third, how should we determine the duration of the forfeiture?
Fourth, if an offender forfeits her right against punishment, then why
does the state maintain an exclusive right to punish? Why are other
individuals not permitted to punish?
b. Consent
Rights forfeiture theorists argue that punishment does not violate
offenders’ rights because offenders forfeit the relevant rights. Another
way that punishment might be said not to violate offenders’ rights is if
offenders waive their rights. This is the central claim of the consent
view. Defended most notably by C. S. Nino (1983), the consent view
holds that when a person voluntarily commits a crime while knowing
the consequences of doing so, she effectively consents to these
consequences. In doing so, she waives her right not to be subject to
punishment. This is not to say that she explicitly consents to being
punished, but rather that by her voluntary action she tacitly consents
to be subject to what she knows are the consequences.
Like the forfeiture view, the consent view does not supply a positive
justification for punishment. To say that a person consents to some
treatment does not by itself provide us with a reason to treat her that
way. So the consent view, like the forfeiture view, is compatible with
consequentialist aims or with the claim that punishment is a deserved
response to offending.
One challenge for the consent view is that it does not seem to justify
punishment of offenders who do not know that their acts are subject
to punishment. For someone to have consented to be subject to
certain consequences of an act, she must know of these consequences.
What’s more, even if an offender knows she is committing a
punishable act, she might not know the extent of the punishment to
which she is subject. If so, then it is not clear how she can be said to
consent to her punishment. It is not clear, for example, that a robber
who knows that robbery is a punishable offense but does not realize
the severity of the punishment to which she will be subject thereby
consents to her sentence.
By contrast, other critics have charged that the consent view cannot
rule out sentences that most of us would find excessive. This is
because a person who voluntarily commits an action with knowledge
of the legal consequences, whatever these consequences happen to be,
has consented to be subject to the consequences. As Larry Alexander
has put it: “If the law imposes capital punishment for overparking,
then one who voluntarily overparks ‘consents’ to be executed”
(Alexander, 1986).
Another difficulty for the consent view is that tacit consent typically
can be overridden by explicit denials of consent. Thus it would seem to
follow that one who tacitly consents to be subject to punishment could
override this tacit consent by explicitly denying that she consents. But
of course, we do not think that an offender should be able to avoid
punishment by explicitly refusing to consent to it (Boonin, 2008).
c. Self-Defense
Another proposed justification of punishment conceives of
punishment as a form of societal self-defense. First consider self-
defense in the interpersonal context: When an assailant attacks me, he
culpably creates a situation in which harm will occur: either harm to
me if I do not effectively defend myself or harm to him if I do. In such
a circumstance, I am justified in acting so that the harm falls on my
attacker rather than on me. Similarly, when an offender creates a
situation in which either she or her victim will be harmed, the state is
permitted to use force to ensure that the harm falls on the perpetrator
rather than on the victim (Montague, 1995).
So far, this view appears to justify state intervention only to stop
ongoing crimes or ward off impending crimes. How does this view
justify punishment as a response to past crimes? Advocates of the view
claim that the state is not only justified in intervening to stop actual
offenses; it is also permitted to threaten the use of force to deter such
crimes. For the threat to be credible and thus effective as a deterrent,
however, the state will need to follow through on the threat in cases in
which offenders are not deterred. Thus punishment of offenders is
permissible.
Notice that although the self-defense account views punishment as a
deterrent threat, it is not a pure consequentialist account. Crucial to
punishment’s permissibility on the self-defense view is the claim that
an offender has culpably created the circumstance in which harm will
fall either on the perpetrator or the victim. This backward-looking
element is missing from pure consequentialist accounts that cite
punishment’s deterrent effects in defending the practice.
Critics object that the analogy between self-defense and punishment
breaks down in a number of respects. First, many self-defense
theorists argue that the logic of defensive force permits the use of such
force even against “innocent” threats. But we do not typically believe
that, by analogy, punishment of innocent people is permitted, even if
such punishment helped to maintain the credibility of a deterrent
threat. Second, the degree of force that is permitted to stop an actual
attack may far exceed what we intuitively believe would be permitted
as punishment of an offense that has already been committed.
Third, it is one thing to follow through on a threat in order to deter the
person who has just offended from offending again. It is another
thing—and one might argue, more difficult to justify—to punish one
person in order to maintain a credible deterrent threat against the
public generally. If we believe the primary deterrent effect of
punishment is as a general deterrent (rather than as a specific
deterrent), then the analogy with typical accounts of self-defense
seems strained. It would be as if, to deter the oncoming assailant from
following through with his attack, I grab someone nearby (who has
previously attacked me) and inflict the same degree of harm that I
would aim to inflict on the assailant to defend myself. This might, of
course, be permissible if my previous attacker had thereby acquired a
duty to protect me from future harm by allowing himself to be
punished as a means of maintaining a credible deterrent threat
(Tadros, 2011).
d. Moral Education
The moral education view shares certain features of consequentialist
accounts as well as retributivist accounts. On this view, punishment is
justified as a means of teaching a moral lesson to those who commit
crimes (and perhaps to community members more generally, as well).
Like standard consequentialist accounts, the education view
acknowledges that part of the story of punishment’s justification
involves its importance in reducing crime. But the education theorist
also takes seriously the worry expressed by many retributivists that
aiming to shape people’s behavior merely by issuing threats is, in G.
W. F. Hegel’s words, “much the same as when one raises a cane
against a dog; a man is not treated in accordance with his dignity and
honour, but as a dog” (Hegel, 1821: 36). By contrast, a central feature
of the moral education view is that those who commit crimes are
moral agents, capable of reflecting on and responding to moral
reasons. Thus moral education theorists view punishment not as a
means of conditioning people to behave in certain ways, but rather of
“teaching the wrongdoer that the action she did (or wants to do) is
forbidden because it is morally wrong and should not be done for that
reason” (Hampton, 1984).
Another way to express this difference between the education view
and standard consequentialist views is that consequentialist views
focus entirely on whether punishment promotes some goal. The
education view, however, holds that only certain means are
appropriate for pursuing this goal: namely, punishment aims to
engage with the offender as a moral agent, to teach her that (and why)
her behavior was morally wrong, so that she will reform herself. Thus
we can even distinguish the education view from consequentialist
accounts that aim at crime reduction through offender reform. For
such consequentialist accounts, punishment’s justification is solely a
matter of whether, on balance, it promotes these ends. The education
view sets offender reform as an end, but it also grounds certain
constraints on how we may appropriately pursue this end.
The education view, like the retributive censure view discussed earlier,
views punishment as a communicative enterprise. Punishment
communicates to offenders (indeed, to the community more
generally) that what they have done is wrong. Thus on both accounts,
punishment aims to encourage offenders to reform themselves. But
whereas the retributive censure theorists view the message conveyed
by punishment as justified insofar as it is deserved, education
theorists contend that punishment is justified in virtue of what it aims
to accomplish. In this respect, the education view sits more
comfortably with standard consequentialist accounts than with
retributivist views.
The education view conceives of punishment as aiming to confer a
benefit on the offender, the benefit of moral education. This is not to
say that punishment is not burdensome; as we have seen, its
burdensomeness is an essential feature of punishment. But the
burdens of punishment are intended to be ultimately beneficial. Thus
education theorists roundly reject accounts according to which it is
permissible (or even required) to inflict harm on those guilty of
wrongdoing. Instead, education theorists hold, following Plato, that
we should never do harm to anyone, even those who have wronged us.
Critics have raised various objections to the moral education view.
Some are skeptical about whether punishment is the most effective
means of moral education. Others point out that many (perhaps most)
offenders are not apparently in need of moral education: many
offenders realize they are doing something wrong but do so anyway.
Even those who do not realize this as they are acting may recognize it
soon afterward. Thus they do not seem to need moral education.
Finally, some object that the education view is inappropriately
paternalistic. According to the education view, after all, the state is
justified in coercively restricting offenders’ liberties as a means to
conferring a benefit (moral education) on them. Many liberal theorists
are uncomfortable, however, with the idea that the state may coerce a
person for her own benefit.
e. Hybrid Approaches
Finally, some theorists have responded to seemingly intractable
disputes between consequentialists and retributivists by contending
that the question of punishment’s permissibility is not actually a single
question at all. Instead, establishing punishment’s permissibility
involves answering a number of questions: questions about the aim of
the practice, about its limits, and so on. Once we distinguish different
questions that bear on punishment’s permissibility, we can then
recognize that these questions may be answered by appeal to different
moral considerations. What emerges is a hybrid account of
punishment’s permissibility.
The most famous articulation of a hybrid view comes from H. L. A.
Hart (1968), although there have been numerous attempts to develop
such accounts both before and after Hart. The specifics of these
accounts vary somewhat, but in general the point has been to
distinguish the question of punishment’s aim (Hart called this the
“general justifying aim”) from the question of how we must constrain
our pursuit of that aim. The first question, about punishment’s aim, is
usually answered according to consequentialist considerations,
whereas the second question, about appropriate constraints, is
typically answered by appeal to retributivist principles. In other
words, if we are asking what reason could justify society in
maintaining a system of punishment, the answer will appeal to
punishment’s role in reducing crime, and thereby protecting the safety
and security of community members. But if we ask how we may
punish in particular cases, the answer will appeal to retributivist
principles about proportionality and desert. Some have distinguished
these questions in terms of the proper (consequentialist) rationale of
legislators in criminalizing certain types of behaviors and the proper
(retributivist) rationale of judges in imposing sentences on those who
violate the criminal laws.
Although such views are sometimes described as “two-question” or
“two-level” views, with the focus on consequentialist aims and
retributivist constraints, there is no reason in principle why we should
distinguish only two questions. As we saw earlier, punishment actually
raises a host of specific normative questions, and so if we accept the
general strategy of distinguishing questions and answering them by
appeal to different considerations, then there is no reason in principle
to stop with only a two-level hybrid theory. A hybrid view might offer
distinct considerations in answer to a variety of questions: what is the
positive aim of punishment? Does punishment violate offenders’
rights? How severely may we punish in particular cases? What mode
of punishment is permissible in particular cases? And so on.
Also, although hybrid theories typically follow the pattern of aims and
constraints, so that consequentialism provides the reason to have an
institution of punishment and retributivism provides constraints on
how we punish, there is no reason in principle why this could not be
reversed. A hybrid theory might hold that suffering is an intrinsically
appropriate (deserved) response to wrongdoing, but then endorse as a
constraint, for example, that such retributive punishment should
never tend to undermine offender reform.
Critics have charged hybrid accounts with being ad hoc and unstable.
Although we can distinguish different questions related to
punishment’s permissibility, it is a mistake to think that the answers
to these questions are entirely independent of each other, so that we
can answer each by appeal to entirely distinct considerations. For
example, if we accept the consequentialist view that punishment’s
general justifying aim is that it helps to deter crime, then why would
considerations of deterrence not also play a role (even a decisive role)
in how severely we punish in particular cases? Why should
retributivist proportionality considerations govern in sentencing if
these conflict with the pursuit of crime reduction through deterrence?
Retributivists, for their part, often argue that hybrid theories such as
Hart’s, on which consequentialism supplies the justifying aim of
punishment, relegate retributivism to a peripheral role. Retributivists,
after all, tend to regard consequentialism as providing inappropriate
reasons to punish. Characterizing retributivism’s role as providing
constraints on the pursuit of consequentialist aims is thus unsatisfying
to many retributivists.
6. Abolitionism
Some scholars are unpersuaded by any of the standardly articulated
justifications of punishment. In fact, they conclude that punishment is
morally unjustified, and thus that the practice should be abolished. An
obvious question for abolitionists, of course, is what (if anything)
should take the place of punishment. That is, how should society
respond to those who behave in ways (committing tax fraud, burglary,
assault, and so on) that currently are subject to punishment?
One option would be to endorse a model of treatment rather than
punishment. On this model, an offender is viewed as manifesting
some form of disease or pathology, and the appropriate response is
thus to try to treat and cure the person rather than to punish her.
Treatment differs from punishment, first, because it need not be
burdensome. At least in principle, treatment could be pleasant. In
practice, of course, treatment may often be burdensome—indeed, it
may involve many of the same sorts of restrictions and burdens as we
find with punishment. But even though courses of treatment may be
burdensome, treatment does not typically convey the condemnation
that is characteristic of punishment. After all, we generally think of
those who are sick as warranting sympathy or concern, not
condemnation.
rather than as moral agents who are responsible, and should be held
responsible, for their actions (Morris, 1968).
Critics of the restitutive and restorative models may point out that
some crimes do not clearly lend themselves to restitution or
restoration: some crimes may seem so heinous that no victim
restitution or restoration of relationships is possible. Other crimes do
not have clearly specifiable victims. In addition, consequentialists may
worry that practices of restitution or restoration may be inadequate as
means of crime reduction if, for example, they are less effective than
punishment at deterring potential offenders. Retributivists also may
argue that something important is lost when we respond to
wrongdoing solely with restitutive or restorative practices. Particularly
for those who hold that an important function of punishment is to
convey societal censure, restitution or restoration may seem
inadequate as responses to crime insofar as they are not essentially
concerned with censuring offenders. Alternatively, some retributivists
argue that the restorative ideals can best be served by a system of
retributive punishment (Duff, 2001; Bennett, 2008).

Other options for abolitionists would be to endorse some model of

restitutive or restorative, rather than criminal, justice. We might
require that offenders make restitution to their victims, as defendants
in civil lawsuits are often required to make restitution to plaintiffs
(Boonin, 2008: 213-75). Or offenders might engage with victims in a
process of restorative justice, one in which both offenders and victims
play an active role, with aims of repairing the harms done and
restoring the relationships that have been damaged (Braithwaite,
1999). Neither the restitutive nor the restorative models are centrally
concerned with imposing intended, censuring burdens on offenders.

Not surprisingly, these alternative accounts are themselves subject to

various objections. Critics of the treatment model, for instance, charge
that it provides insufficient limits on what sort of treatment of
offenders is permissible. The aim of “curing” diseased individuals
might warrant quite severe treatment, both in scope and duration.
Similarly, scholars have argued that the treatment model fails
properly to respect offenders, as it treats them merely as patients