dolinko. some thoughts about retributivism

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Some Thoughts About RetributivismAuthor(s): David DolinkoReviewed work(s):Source: Ethics, Vol. 101, No. 3 (Apr., 1991), pp. 537-559Published by: The University of Chicago Press

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Some Thoughts

about

Retributivism

David Dolinko

The great end of punishment s not the expiation

or atonementof

the offense ommitted,

ut

the prevention

f

future ffenses

f

the

same kind.

[Hopt

v. Utah, 110 U.S. 574, 579 (1884)]

"Retribution s

no longer the dominant objectiveof the criminal

law," but neither s it a forbidden objectivenor one inconsistent

with

ur respect

forthedignity

f

men. [Gregg

v.

Georgia, 428 U.S.

153, 184 (1976), plurality

p.,

cite

omitted]

The Legislature

inds nd declares hat he

purpose

of

mprisonment

is punishment.This purpose

is best served

by

termsproportionate

to

the seriousness

of the offense. Cal.

Penal Code sec. 1170(a)(1),

enacted by

Stats.

1976,

c.

1139,

sec.

273]

The quotations above illustrate dramatic hange intheregard nwhich

courts

and

legislators

hold the doctrine

of retributivism. hat

doctrine,

seeminglyrejected by

the

Supreme

Court

a

century

go,

is

today

the

official asis for penal policy

n

the nation's most

populous

stateand

an

acceptable

basis

on which to

send

convicts o theirdeaths. This shift

n

the

part

of official

egal

sentiment

parallels

a shift

n

the views of

phi-

losophers and legal

scholars. Fifty ears ago

a

defender

of

retributivism

acknowledged

the

general

belief "that the retributive iew is the

only

moral theory except perhaps psychologicalhedonismwhich has been

definitelyestroyed y

criticism."1

ontemporary

cholars

ssert,however,

thatretributivisms no

longer

"the

poor

relation

n the

family

f

theories

of

punishment"

but "seems to be

in

the

ascendant,"2

nd

in

particular

"has

replaced

rehabilitations the conventionalustification

or

he

amount

of

punishment."3

1.

J.

D.

Mabbott, "Punishment,"Mind 48 (1939):

152-67, p. 152.

2. Hugo Adam

Bedau,

"Retributivism nd the

Theory

of

Punishment," ournalof

Philosophy5 (1978): 601-20, p. 602. See also JamesQ. Wilson and RichardHerrnstein,

Crime nd Human

Nature

New

York: Simon &

Schuster, 1985), pp.

496-97

(retributivism

has regained favorwithcourts and legal scholars).

3. Michael

Tonry

and

Norval Morris,

SentencingReform

n

America,"

n

ThePursuit

of

Criminal

ustice,

d.

Gordon Hawkins

and Franklin

Zimring Chicago: University

f

Ethics101 (April 1991): 537-559

(?

1991 by

The

University

f Chicago.

All

rights

eserved.0014-1704/91/0103-0513$01.00

537







538

Ethics

April

1991

This born-again retributivism as had a substantial mpact on the

criminal ustice system, or example by fuelingthe recent trend toward

determinate entencing.4 erhaps its most visible mpacthas been as a

pillar of America's unique affection orthe death penalty.5 etributivism

has traditionally rovided the primarybasis of support for the death

penalty

n the

United States,6

nd data

from

ecent

polls strongly uggest

that the majority f those Americans

who

support capital punishment

today

do

so largely

n

retributive

rounds.7Likewise,

he death

penalty's

chief academic enthusiast,

Ernest Van Den

Haag,

has said that even if

execution

had no

extra

deterrent ffect

e would

support

t

"on

grounds

of

ustice alone."8

It

is precisely he prominence

nd

impact

f

modern-day etributivism

that should prompt

us to

investigate

ts credentialsmost

carefully.No-

toriously, roponents

of

retributivism ave

frequently

elied

heavily

on

Chicago

Press, 1984), p. 254.

Tonry

and Morris

trace the "renascence of retribution

s a

respectable

ustification

or punishment n

America" to the

1971 publication of Struggle

forJustice

New York:

Hill & Wang, 1971), a reporton U.S.

prisonsprepared by a

Working

Party for

the

American Friends Service Committee,

nd

the

appearance

five years ater

both of

Andrew von

Hirsch's book DoingJustice New

York: Hill

&

Wang,

1976) and

of

Fair and Certain unishmentNew York: McGraw-Hill, 1976), a report of the Twentieth

Century

Fund Task Force on

Criminal

Sentencing.

4. D. J. Galligan,

"The Return

to Retributivismn Penal

Theory,"

n Crime, roof, nd

Punishment,

d. C.

F.

H. Tepper

(London:

Butterworth, 981), p. 144.

5.

"Unique,"

at

least, among

what are called

the "Western emocracies."Capital

pun-

ishment

has been completely

bolished

n

France,

WestGermany,Austria,

he

Netherlands,

Sweden, Norway,Denmark,

and

Portugal Amnesty

nternational,

United tates

f

America:

The

Death

Penalty London:

Amnesty

nternational ublications, 987], p.

231). It

s retained

only

for

wartime

r

military

ffenses

n

Italy, pain,

and

Switzerland.

he United

Kingdom

retainsthe death penalty

only

for high treason in practice,

wartime ffense, or

which

the ast execution ccurred n 1946) and piracywithviolence.Belgiumand Greece, lthough

retaining

apital punishment

n theory,have

abandoned it n practice-the

last execution

in Greece took place

in

1972,

while

none

of the

thirty-seven

eath sentences

mposed

in

Belgium

between1962

and 1974 was carried ut.

See "European

ParliamentEP),

Strasbourg:

Resolutions

n

1981 concerning

Fundamental

Rights

and

Freedoms,"

Human Rights

aw

Journal

(1981): 427-28,

editors'note (*);

and

"Editor's Note,"

Human

Rights

aw

Journal

6

(1985):

80.

6. Lawrence Kohlberg

and Donald Elfenbein,

The

Development

of MoralJudgments

concerningCapital

Punishment,"

American ournal fOrthopsychiatry

5 (1975): 614-40.

7.

A

1985 Gallup

poll found that 71 percent

of those

favoring apital punishment

would continue to support teven if"new evidence showedthatthe death penalty . . does

not lower

the murder rate" Robert

Bohm,

"AmericanDeath Penalty

Attitudes:A

Critical

Examination of Recent Evidence,"

CriminalJustice

Behavior14

[1987]:

380-96, p.

388).

This confirmed

n earlier tudy

n

which,

f

273

respondents

who favored apitalpunishment

and believed it deterred would-becriminals,

6 percent

would stillfavor t even

if

t

were

proven no better

deterrent

han

life

mprisonment and

48 percent

even if t caused as

many

murders as it prevented )

(Phoebe

Ellsworth

nd Lee

Ross,

"Public Opinion

and

Capital

Punishment:

A Close Examination

of the Views

of Abolitionists

nd

Retentionists,"

Crime

&

Delinquency

9 [1983]:

116-69, p. 147).

8. Ernest

Van Den

Haag,

"The Death

Penalty

Once

More,"

U.C.

Davis Law Review18

(1985): 957-72, p. 965.







Dolinko ThoughtsboutRetributivism 539

metaphor and imagerywhose suggestivepower exceeds its clarity.We

are told, for example, thatthe crime must be nullified, hatthe criminal

must pay his debt to society or, alternatively,hat societymust pay him

back), thatthe wrongdoerhas in some sense willed his own punishment,

and other puzzling things.One

who

believes,as

I

do, that retributivism

has had significant nd pernicious effects n the criminal ustice system

will

naturally

wonder whether ts devotees have been able to transform

such enigmatic tterances

nto

rationally

efensible

heory

f

punishment.

I believe theyhave not,and are not likely o do so. In whatfollows,

shall sketch rieflyomegeneral

doubtsabout

thevalidity

f a

retributivist

view nd thenexamine

n

detail three

recent, houghtful

ffortso

replace

metaphor

and

imagery

with

coherent theory

f

punishment.

Doubts about the validity f retributivismresuppose some notion

of

what retributivism

s. This is

by

no means

clear, given the wide range

of

positions

to

which

the retributivistabel has been

applied.9 The "re-

tributivism"

f

nterest

ere

s

that

whichpurports

o

provide ustification

for the institution f criminal

punishment.

shall therefore

isregard

theories concerned exclusivelywith

how to

structure

he

schedule

of

penalties

for

different

ffenses,10

s well as the use of

"retributivism"

o

characterize views as

to who

may properly

be

punished."1 Moreover,

because justification"s itself protean oncept, t shelpful odistinguish

twoquestions

hat

rise

n

discussions bout

the

ustification

f

punishment.

One concerns

what

could

be called the "rational

ustification"

f

the

practice f punishment:why-for whatreason or reasons-do we punish

wrongdoers?'2

The second

question asks, rather,

for

the

"moral

ustifi-

cation" of

punishment: why

s

it

morallypermissible

o

engage

in

this

particular

practice?'3

The demand

for a

rational ustification sks what

9. Nine versions of retributivism,.g., are discussed inJohnCottingham, Varieties

of

Retributivism,"hilosophical uarterly9 (1979):

238-46.

10. Michael

Davis, e.g.,

in "How to Make the

Punishment

Fit the Crime," Ethics

3

(1983):

726-52,

sketches "retributive

rinciple

for setting tatutory enalties"

p.

727)

which,

he argues,

could be accepted even

by omeone

whojustifies

he nstitutionf criminal

punishmenton purely

utilitarian rounds.

11. For example,

Martin Golding describes

the "minimalist"

etributivistosition-

which

he believesmostmodern

retributivists

old- as demanding

"only hat

no one should

be punished

unlesshe is guilty

of a

crime and culpable"

(Philosophyf

Law [Englewood

Cliffs,

.J.: Prentice-Hall,

975], p. 85).

AnthonyQuinton similarly

akes he

"fundamental

thesis" f retributivismo be "thatonlytheguilty re to be punished,thatguilt sa necessary

condition of punishment"

"On Punishment,"

Analysis

4

[1954]:

133-42, p. 136).

This

"minimalist"

osition,

however, an be

endorsed even

by omeone who rejects

retributivist

justification f the

practice

of punishment.

12.

It is important

ot to beg thisquestion

n favor

f some form f consequentialism,

as would

be done by asking,

e.g., "What

good does punishment

do?" or,

"What function

does punishment

erve?"

13.

The

distinction

etween

the rational

nd the

moral ustification

f punishment

s

drawn,

though

n differentanguage, by

K. G.

Armstrong

n "The Retributivist

its Back,"

Mind 70 (1961):

471-90, p.

474. Armstrong peaks

of "point"

and "justification"

ather

than rational and moral ustification.Armstrong's erminologys apt to confuse precisely







540

Ethics

April1991

makes a particular ocial practice ensible, rvaluable, or worth ngaging

in, while the demand for moral ustification sks what makes t morally

legitimate.Loosely, the distinction s that

between, "For what reason?"

and, "Bywhatright?"

It could, of course, turn out thatthe answersto these two questions

are

interrelated.

erhaps,

for

example,

the

very ame considerations hat

establish

the moral

propriety

of

punishing

malefactors lso

give

us a

powerful, r even decisive,

reason to

punish

them

as might

be

true, .g.,

were

it

shown

that

punishing

offenders s

morallyobligatory).

But the

questions

themselves

re quite

distinct. ne

provides moraljustification

for

a

social

practice such

as

punishment)

by establishing

hat

we

may

institute r engage in thatpracticewithout ehaving mmorally r without

violating ny

moral

principles.

Whetherwe have

any adequate

reason or

doing

what we are

thus

morally

free to

do-instituting

or

engaging

in

the practice t issue-is a further uestion,whose answer may

but

need

not be furnished

by

the same considerations

hat

give

the

practice

ts

moral

ustification.

For example, the progressive ncome

tax is a social practice whose

rational ustification s partly hat

t

raises

revenue for

government p-

erationsand partly hat tpromotes egalitarianwealth redistribution.

moral ustification

for

this

practice might

take

the form of

a

political

theory

hat

explains why

the

state

may

use

coercive means to

fund its

legitimateoperations withoutviolating the moral rightsof its citizens,

and

why galitarian

wealthredistributions a

goal

that

he state s

morally

permitted

o

pursue.

The

rational and

the

moral

ustifications

f this

social

practice

are

obviously

distinct: follower

of Robert

Nozick can

acknowledge

that the rational

ustification

f the income tax

is

(partly)

to

redistribute

wealth while

insisting

hat the

practice

has no

moral

us-

tificationt all but is morally

llegitimate.14

Rational and moral ustificationmay

differ ven

for

social

practice

whose

rational

ustification unlike

thatof

the ncome

tax)

is

not

straight-

forwardly onsequentialist. magine

a

government

hat

adopts

a

policy

of

protecting ndangered species

from

xtinction

nd does

so

solely

out

of

a belief that

ensuring

continued

diversity

f life forms

s intrinsically

valuable.

The

rational

ustification

f

the

practice

s

simply

ts intrinsic

value,

but its moral

ustificationmight

well be more

complex, calling

for

an explanation of the circumstancesunder which a governmentmay

legitimately

evote

its

resources to

promoting

ntrinsically orthwhile

policies

that serve

no

instrumental

oals.

because "justification"s so frequently sed to mean what am calling rationaljustification"

(and what he wished to contrastwithhis sense of "justification")-the reason for ngaging

in a practice ratherthan the moral license for doing so.

14. Robert Nozick contests the legitimacy

f redistributive

axation

n

his Anarchy,

State, nd Utopia New York: Basic, 1974),

pp. 169-72.







Dolinko Thoughts

boutRetributivism 541

I

take it, then, that one may ask both

for the rational ustification

of the practice of punishment

and for its moral ustification, nd that

theseneed not although heymight) oincide.The importance f carefully

distinguishing he differentssues that are apt to get lumped together

in discussionsof punishmentreceived ts classic

formulation hirty ears

ago from H. L. A. Hart

in

his "Prolegomenon

to the Principlesof Pun-

ishment."'15

The distinction am employing,

however, s not the same

as

thatwhichHart

drew,

nd this s deliberate:Hart's taxonomy hreatens

toblur ust what needs to be kept separateand is confusedbesides. Hart

speaks of "thequestion why

and

in

what circumstance

punishment]

s

a

good

nstitution o maintain"as the

question

of

the "general ustifying

aim" ofpunishment, istinguishinghisboth from he questionof defining

punishment and from"the question 'To whom may punishment be

applied?'

"-the

question

of"distribution."'6 But to

speak

of a

'justifying

aim" risks

conflating

he issue of

why

we

punish

(the

"aim"

or rational

justification f

the

practice)

with hat

of

what ntitless

to punish morally

'justifying"

he

practice)-as, indeed,

Armstronghad already

noted.17

And

to split off, s

Hart

does,

the

question

of who may be punished

from

both definition

nd

"general ustifying

im" suggeststhat we can

decide what punishment s and whywe engage in itwithoutknowing

who

is

supposed to receive punishment-which

seems

preposterous.

(Imagine being asked

to

decide

either

why

t

makes sense to

inflict

ep-

rivations n some people, or why t is morally

proper to do so, without

being told

which

people are to suffer

hese

deprivations ) ndeed,

Hart

himself nconsistentlyuilds an answertothe "distribution" uestion

nto

his

supposedly separate

"definition" f

punishment,

by specifying hat

punishment,

n

its "standard" or "central" ase, "must

be

of an actual or

supposed offender or his

offense.'

8

Working, hen,withthe distinction etween rational nd moral us-

tification, e can characterizeretributivism

n a way thatcapturesthe

class of views that are mostprominent nd

influential

n

current

egal

discourse.

Let us

think

f a retributivists a

person

who

explains

either

the

rational

ustification

f

punishment,

r its

moraljustification,

r

both,

by appealing

to

the notion that

criminals

deserve punishment

rather

than

to the

consequentialist

laim that

punishing

offenders

ields

better

15. Delivered as the presidential ddress to the

Aristotelian

ociety

on October

19,

1959, H. L. A. Hart's "Prolegomenon to the Principlesof Punishment"was subsequently

reprinted n Hart's Punishmentnd ResponsibilityNew York:

Oxford University ress,

1968),

pp.

1-27.

16.

Ibid., pp. 4, 9.

17. Armstrong, . 474. Hart's

distinctioneaves

it

unclear

whetherhe actuallymerges

the

rational nd the moral ustificationsf punishment nder

the rubric f "general

ustifying

aim." He

may ntend"general

ustifying im" to ncludeonlywhat am calling he "rational

justification" f punishment,while

using the who-may-be-punisheduestion

"distribution")

as his

way of asking what morally ustifies he practiceof

punishment.

18.

Hart.

D.

5.







542

Ethics

April

1991

results han not punishing them. Retributivists,

o characterized, an be

classified s

"bold" or

"modest,"

withbold retributivistsnvokingdesert

to explain the rational ustification f punishment-the very point of

having such a practiceat all-and modest retributivistsnvokingdesert

only to explain why punishment

s

morally ustified.

believe that

both

views are highlyproblematic,

ecause the notion of desert s not strong

enough to account for either

the rational or the

moral ustification f

punishment.

The bold retributivistsserts oth hat

awbreakers eservepunishment

and that

this,

ll

by itself,

onstitutes good or

sufficient

eason for the

state

to

inflict

unishment

n them. Accepting,

for

rgument's ake, the

first ftheseassertions,wemaynevertheless

ind

he second one dubious.

After ll, the government, tate,or "society" oes not automatically ake

it upon itself o give people

what

they

deserve

n

other respects.People,

for xample,who do good deeds-people

who

are kind, haritable, aring,

who take care

of

ailing

relatives

r

help strangers

n

distress-might

be

thought

to

deserve reward, yet

the state does not routinely dminister

such a reward

system.

For that

matter,people

who

engage

in

behavior

that

might

be

thought

to deserve

or meritcensure or ill-treatment ut

which does not violate

a

criminal

aw

are

not

generally ubjected

to such

sanctionsbythe state.Why,then,should it be thought o important or

the

government,

he

state,

or

"society"

to

make sure that

people

who

violate

criminal aws receive their just deserts"?Why ingleoutprecisely

thisone category

f

persons

and insist hat

he

statemust

give

themwhat

they

deserve?

A

plausible

answer is

that

we believe

one

very mportant

task

of

government

s

to reduce or eliminate the incidence of those

harmful forms

of behavior that are

prohibited by

criminal

aws,

and

believe

further hat

government

an bestperform

hattask

by nflicting

punishment

n

those

who

breach

such laws.

But,

of

course,

this

s to

say

thatthe rational

ustification

f

punishing

offenders

s

actually

o reduce

crime

rather

than

simply

o

give people

"what

they

deserve"

for

ts

own

sake.

One

mightobject

that the

argument

ust presented

attacks straw

man-a

retributivistho believes hat

giving

awbreakers

heir

ust

deserts

is the only point or purpose

of

punishment

nd thus its entire rational

justification.

Real-life

retributivists,

he

objection runs,

need

not

adopt

so vulnerable

position

ut can

acknowledge

hat he

practice

f

punishing

offenderservesmultiple oals,ofwhich doingjustice"s one andreducing

the crime

rate

another.

Such a retributivistan concede

that an official

practice

whose

only point

would be

givingpeople

what

they

deserve

is

one we would

not

be

rationallyustified

n

adopting,

while

yetmaintaining

that

part

of our

reason

for

having

the

practice

of

punishment

s the

desire to

give

offenderswhat

they

deserve.'9

19. von Hirsch, for one, appears to adopt such a mixed position, sserting

hatboth

desert nd deterrence re needed to ustify riminalpunishment pp. 35-55). It is unclear,

however,whethervon Hirsch means that desert and deterrence re both relevant o the







Dolinko ThoughtsboutRetributivism

543

I

do not find hisobjection

persuasive. For one thing, view

actually

embraced byone of the most prominent

nd influential f retributivists,

Kant, cannot fairly e dismissed

as

a strawman.20

More important,

he

supposedly less vulnerable versionof retributivismhat the objection

envisions seems

to

me

to ascribe so feeble a role

to

"doing ustice"

as a

reason for punishing criminals hat wonder why t should be

thought

"retributivist"t all. That versionacknowledgesthatpart

of the rational

justification

f

punishment

s a desire

to deter crime-but

surelythat

goal is so important s to give us, all by itself, n excellent

reason to

adopt a social practice

that can

help

us achieve it? What need is

there,

in explaining he rationalustificationf punishment, o appeal in

addition

to a supposed general desire to give people their ust deserts-a

desire

whosefailure o set the machinery fgovernmentn motion nanyother

area suggests hat,by tself,

t

carries ittleweight?

The

only ground

that

I

can see for insisting hat

deterrence s not the whole story

nd that

"doing ustice" must

be

appealed to is

the belief

that, absent

such an

appeal,

the

deterrence

tory

would constitute

morallyunjustified

orm

of

"using people."

But this ortof

appeal

to

"giving

riminals heirdue"

uses thatnotion to explain

the

moral rather han

the

rationaljustification

of

punishment.

For these reasons, bold retributivisms an implausibletheory.And,

in

fact, great deal of

the

current

popularity f

retributivismeems to

focus

on

what have called modestretributivism,

he

claim

that, lthough

our

goal

in

punishing-our

rational

ustification-may

well be

the

de-

terrence

f

potential

awbreakers

r the

protection

f

law-abiding itizens,

what morally ustifies punishingwrongdoers

s that

they

deserve the

treatment

we mete out to

them.

But even

this

modest

form f retributivism

s

problematic.

he claim

is thatpunishment-which involvesdoingtowrongdoers hings hatwe

ordinarily

hink

of as

violatingpeople's rights,

ike

incarcerating

hem

against

their will

for

years-is

morally permissible

because

it

is

what

wrongdoers

deserve.

Yet

we do

not,

in

general,

believe that

treating

rational

ustification

f

punishment

r, nstead,

hat

esert

plays

role n the

moral

ustification

of

a

practice

whose rational

ustification

estson the need to deter potential

riminals.His

meaning s unclear because

he explicitly ses the

term justification"o nclude both

rational

and moral

ustification,

sserting

hat

'justification"

f

punishment

must not

only

dentify

the aimsofthe nstitutionfpunishment ut explain why hepursuit f thoseaimsthrough

punishment

s morallyustified"

p. 36, n.

*).

20.

Kant insists hat

punishment

can never be used merely s a means to promote

some other good for the

criminalhimself r

for civil society, ut

. .

. must

n

all

cases be

imposed on him only n the ground

thathe has

committed crime" Immanuel

Kant, The

Metaphysical

lements fJustice, rans.J. Ladd [Indianapolis:

Bobbs-Merrill,

965], p. 100

[emphasis added]).

That he believes

"doing ustice" must be the

rational ustification

f,

or reason for,

punishment emerges

clearlyfrom his rejection

of the idea that

we might

commute

the death sentence

of a condemned man who volunteers

to

allow dangerous

experiments

o

be performedon

him

and survives pp. 100-101).

Even

if

there s utility

to be gained by not punishing,we must punish.







544

Ethics April1991

person

in

a way

that

would

otherwiseviolatehis rights s automatically

permissible imply

because the

person

deserves thiskindof treatment.

Consider, for example, Lear,

a rich man

with

two

sons,Jeremy

nd

Howard.Jeremy ruly ovesLear and has always reatedhimwith ffection

and respect, ven caringfor

him

at greatpersonal sacrifice) uringLear's

final llness. Howard, on the otherhand, is a reprobate who has spent

his time drinking, ambling,

nd chasing women, neglectinghis father

(forwhom,

n

truth,

e feels ittle

egard)

almost

completely. erversely,

however,Lear has always felt sneaking

admirationfor Howard while

secretly espisingJeremy

s

a

priggish,

nimaginative, verly epressed

bore. (This

is

grossly naccurate,

nd

unfair

o Jeremy,

ut Lear at

some

level always wishedhe himself ould have boldly defied the constraints

of propriety

nd

convention,

as he believes Howard

has.)

Lear's

will

leavesJeremy comparativepittance nd bequeaths the bulk of the estate

to Howard. Surely we mightwell agree

thatJeremy eserved to inherit

the

estate while Howard

deserved

to

be

cut out of

the

will. Yet

the

state,

acting through

ts

udiciary,

will not on

that account

set

aside Lear's

will

and hand

over to

Jeremy

hat

which

he,

ratherthan

Howard,

deserves.

To do so would violate Howard's right

o the

estate, right

he

possesses

despite deserving

to inherit

nothing.21

As

Joel Feinberg

has

noted, "a

person's

desert

of X

is

always

reason

for

giving

X

to

him,

but

not

always

a conclusive

reason,"

because

"considerations rrelevant

o his

desertcan

have overriding ogency

n

establishinghow he ought

to

be treatedon

balance."22

One

very ikelyresponse

to the

point

that

t is

not

always morally

permissible

o

give people

what

they deserve,

where

doing

so involves

what

would

otherwiseviolate

theirrights, s that we

need to focus on

preciselywhywrongdoers eservepunishment.

he retributivist

an argue

thattheparticular asison whichthewrongdoer's esertrests s one that

morally ustifiespunishing him,even though

there

are

other

instances

of desert

n which

t

would be

wrong

to

give

an individual

the

treatment

he deserves.

21.

If

one

objects

that he

example presupposes

the moral

propriety

f

our institutions

of inheritance, uppose instead

that Lear

had,

during his lifetime,made

a

gift

f the bulk

of his estate to Howard. We would not consider

t morallypermissible o seize the

estate

and give it to Jeremy n

the ground that he, ratherthan Howard, deserved it.

22. Joel Feinberg, Justice nd PersonalDesert,"

n his

Doing

and

Deserving

Princeton,

N.J.: Princeton University

ress, 1970), p. 60. Another example of someone's

deserving

treatment hat t is neverthelesswrong to mete

out appears

in

Thomas Nagel's

discussion

of the moral limits

n

the

conductof war: althoughone may ustifiably

ill

enemy

soldiers

even if they are draftees

personally opposed to the

war, one is not morally ustified

n

killingnoncombatants-even

those who wholeheartedly

upport theirgovernment's vil,

aggressive policy.

Thus "in war we may often be justified

n killingpeople who do not

deserve to die, and unjustified n killingpeople

who do deserve to die,

if

anyone

does"

(Thomas Nagel, "War and Massacre," Philosophynd

Public

Affairs

[1972]: 123-44,

pp.

139-40).







Dolinko Thoughtsbout

Retributivism

545

What

is

probably

the

most nfluential

ontemporary

efenseof re-

tributivism,

temming

from Herbert Morris's

essay

"Persons and Pun-

ishment," akes

this pproach.23

For Morris, he basis

for he

wrongdoer's

desert is his possession of an unfairadvantage, and punishing him is

justified ecause

it

eliminates

hat dvantage.Criminal

aws are constraints

on behavior

whose

observance

benefits veryonebyassuring ach person

a "sphere"

of "noninterference y otherswithwhat

each

person

values,

such ...

as

continuance

of life and bodily security."24 person

who

violates these

constraints s a free rider

who

"has something

others

have-the benefits

f the system-but

[who] byrenouncingwhat

others

have assumed,

the burden of

self-restraint,.. has acquired an

unfair

advantage."25 unishing ucha personismorallyustified, hen,because

it "restores he equilibrium

of benefits

nd

burdens by taking

from

the

individualwhat

he owes"-the "unfair

dvantage"

he

gainedby

hiscrime.26

This account bridges

the

gap

between

"X

deserves punishment"

nd

"Punishing

X is morally ustified"

only to the extent hatwe understand

what "unfairadvantage"

criminals

derive from their crimes.

So

what,

precisely, s that

"advantage"?One might naturally

uppose,

as John

Finnis does, that

t consists

n the criminal's indulging (wrongful)

elf-

preference," permitting

imself n excessive

freedom n choosing,"or

"acting

ccording

to

[his]

tastes"

nstead

of

exercising

elf-restraint.27

ut

then

the

advantage

the criminal obtains

from his crime

ought

to

be

proportional o the burden

of self-restrainthat

otherscarry ut thathe

has thrown

off.And this

n

turn depends upon

how great a temptation

people generally

feel to commit

he

crime

n

question.

Thus

very

erious

crimes

which

mostpeople feel

ittle

nclination

o commit

e.g.,

murder)

yield

lesser

advantage-and

hence

deserve

a

lesserpunishment-than

those

(like speeding

or tax evasion) that

testmost

people's

self-restraint

23.

Herbert

Morris,

Persons

nd Punishment,"Monist 2 (1968): 475-501,

reprinted

in Herbert Morris,On

Guilt nd Innocence

Berkeley: University

f California

Press, 1976),

pp. 31-58.

24. Morris,

On Guilt nd Innocence, .

33.

25. Ibid., p.

34.

26. Ibid.

It should be noted that

Morrishimselfs not directly efending

he retributivist

account

of punishment.

Though he presents

the model of

punishment

ust sketched,his

concern

s not to argue for ts superiority

o alternative

moral ustifications

f punishment

butto argue

thatwrongdoers

ave a right o

be punishedrather han ubjected o "therapeutic

treatment."

Nonetheless,

Morris'smodel of

what ajust punishment

ystemwould look

like

has exerted

enormous

influenceover subsequent

proponents

of retributivism,

ho have

treated

t as the

paradigm

f

a

retributivist

oral ustification

f the nstitutionf punishment.

27. John Finnis,

The Restoration f

Retribution," nalysis

2

(1972):

131-35,

p. 132.

Jeffrie

Murphy endorsed

a similar view when

he described

punishment s a device

for

ensuringthat the criminal

does

not "gain an unfair advantage"

or "profit

rom his own

criminal

wrongdoing," nd characterized

he

"profit" ntrinsic o criminal

wrongdoing

s

"not bearing

the burden

of self-restraint"Jeffrie

Murphy,

Marxism nd Retribution,"

n

his Retribution,ustice,

nd Therapy

Dordrecht:Reidel, 1979],

p. 100).







546

Ethics

April

1991

more severely.28 his, of course, s a most unwelcomeresult,

whichmust

be avoided if Morris's pproach

is to be tenable.29We need some better

account

of

exactlywhat "unfair dvantage" criminalsderive

fromtheir

misdeeds.

Just such an account is

put forward

n

the first

f

the three

efforts

I shallexamineto cash out or

replacethemetaphors n which etributivism

relies:George Sher's recentbook Desert.30 ccording o Sher,

"the strength

of one's inclination o

transgress

annot be what determines

he

amount

of extra benefit

one receives

rom ransgressing.''31 ather,

the

magni-

tude

of the

criminal's

"benefit"from

his

crime is determinedby "the

strength

f the

moral

prohibition

he has violated."32

her

explainsthat

a personwho actswrongly oes gain a significantmeasureofextra

liberty: hat

he

gains

s freedom

rom

he demands

of

theprohibition

he violates.Because

others ake thatprohibition eriously,

hey ack

a similar

iberty.

And

as the

strength

f

the

prohibition

ncreases,

so too does

the freedom

from t which

ts violation entails.

Thus,

even if the murderer and the tax evader do succumb to equally

strong mpulses,

heir

gains

n freedom

re far

from

qual.

Because

the

murderer

evades a

prohibition

f

far

greater

force

. . his net

gain

in

freedomremainsgreater.

And for

thatreason,

the amount

of punishmenthe deserves seems greateras well.33

Has Sher explained the

criminal's unfair dvantage"

in a way that

makes

Morris's version of modest retributivism

lausible?

I think

not.

First,

Sher's discussion

assumes

that

a crime

necessarily

nvolves the

violation

of

a

"moral

prohibition,"

ut

this s

in one sense

false and

in

another

useless forSher's

purposes.

It is

false

f

taken

to

mean that

very

crime

nvolves

behavior

that

s

morally mproper

even

prior

to its

egal

proscription.

ax

evasion, a

crime

Sher

mentions,

llustrates

his

point,

sinceit nvolvesbehavior thatwould not be immoral t all absenta legal

requirement

o

pay

the

tax

in

question. Driving

on

the left-hand ide of

28. See Richard

Wasserstrom, Capital Punishment

s

Punishment:

ome

Theoretical

Issues

and

Objections," n

Midwest

tudiesn

Philosophy,d.

Peter

French,

Theodore

Uehling,

and

Howard

Wettstein

Minneapolis:

University

f Minnesota

Press,

1982), vol.

7, pp.

496-98.

29. Nor would it do

to

maintain that

casting

off

he burden of

self-restraint

ields a

"benefit"whose magnitude s the same regardlessof how much temptation nyone feels

to do the

prohibited

ct. For this

would

implythat

"all

lawbreakers

have

benefited

n

the

same

way

and

.

.

.

to the same

extent

by throwing ff the

restraints

f law" and

hence

should

"receive he

same

punishment"Jean

Hampton, The

Retributivedea," in

Forgiveness

and

Mercy,

yJeffrie urphy

nd

Jean

Hampton [Cambridge:

Cambridge

University

ress,

1988],

p. 115).

30. See esp.

George

Sher,

"Deserved

Punishment,"

n his

Desert

Princeton,

N.J.:

Princeton

University

ress, 1987), pp.

69-90.

31. Ibid., p.

81.

32.

Ibid.

33. Ibid., p. 82.








the road, similarly,

s in

itself morallyneutral"

conduct

which can be

thought mmoral in the UnitedStates, houghnot n the

UnitedKingdom )

only insofar as

it

violates a law.

Such

crimes,

to which the

traditional

epithetmalum rohibitumpplies, re distinguishedrommalumn e offenses,

which nvolve behavior that would be immoraleven

in

the absence of a

legal prohibition:murder,rape, and robbery re examples.

And Sher's

criterion

for the

magnitude

of

a criminal's "unfair

advantage"-"the

strength

f the

moral

prohibition

he

had violated"-breaks

down for

malum rohibitumffenses:we would be forced

to conclude that none of

these

offenses esults

n

"advantage"

o the

offender,

o

that

no

punishment

for

such offenses an

be deserved.

Sher

might try

o

salvage his

criterion

y arguing

that even malum

prohibitumffenses o involve hebreachofa moralprohibition-namely,

the

moral prohibition gainst breaking

the

law.34

Taken

in

this sense,

however, the claim that every crime necessarilynvolves violation of a

moral prohibition s useless

for

Sher, because

every malumprohibitum

offensewill turn out to involve violation of the very same moral

prohibition-"Do not break the law." Hence, Sher's

criterionwould tell

us

that

ll such offenses

ield

he same "unfair dvantage," nd all deserve

thesame

punishment-income

tax

evasion

nd

big-time

ocaine

muggling

just as much as speedingordestroying irds'nests na public cemetery.35

Sher's analysis

s

vitiatednot only by

the

questionable

assumption

that

crimemust nvolve

moral

violation

but

even more

fundamentally

by the

dubious

status of

its

central claim-that

one who

breaks a law

thereby gains ... freedom

from the

demands

of the

prohibition

he

violates."36

n

what

way

does the

awbreaker

gain"

thisfreedom?

n

one

sense,

he

awbreaker as perhaps

revealed hat

he

has a

kind

of "freedom"

byexercisingt-by demonstratinghat

he is able to violate he

prohibition.

In this sense, however,he musthave been "free" fromthe prohibition

even

before his

lawless act

(or

he could

not

have committed

t ),

and

presumably,many law-abiding itizens re equally "free" in this sense)

to

violate

the

prohibition.

n

another

sense,

we

may

ask whether the

criminal's

wrongful

act has released

him

from

a

constraint

upon

his

actions

which

the

prohibition mposes

on the

actions

of his fellows.

One

would think he

answer

should be

"no."

Though

the

criminalhas

in

fact

done what

s

prohibited,

his

n

no

way

dissolves r

abrogates

he

obligation

34. This, of course, assumes there is such a moral prohibition.The

existence and

scope

of a

moral obligationto

obey

the

law has been

hotly

debated.

See,

e.g., Joseph Raz,

"The Obligation to Obey the

Law," in his TheAuthorityfLaw (Oxford: Oxford

University

Press, 1979), pp. 233-49; Richard Wasserstrom,

The

Obligation to

Obey

the

Law,"

in

Essays

n

Legal Philosophy,

d.

Robert Summers (Berkeley: University f California

Press,

1968), pp. 274-304; and M. B. E.

Smith, Is

There a Prima

Facie Obligation to

Obey

the

Law?"

Yale Law Journal82

(1973): 950-76.

35. This last s a misdemeanor n California,unless the birds n

question

are

swallows

(California enal Code, sec. 598

[West]).

36. Sher, p. 82.







548 Ethics

April1991

he, like

everyoneelse, is under not to do thatact. (Indeed, there

would

be no basis for

deciding to punish thewrongdoer

f

hiscriminal ct

had

somehow

repealed

the

prohibition

t

is

alleged

to

violate.)

In

a third

sense,we mayassert thatby violating he prohibition, he criminalhas

manifested is

disregard r contempt orthatprohibition-has, we

might

say,

shown that

he regards himself s "free" from ts demands.

But it

seems

incorrect,

f we

are

using

"free"

n

this

manner,

to

claim thatthe

lawbreaker ains his

freedombybreakingthe law; rather,he

breaks the

law because he

already regards himself s "free" to do so. Indeed,

even

people

who in

fact

never

violate a given

prohibition-perhaps because

the occasion never

presents itself,

perhaps

because

they

fear

being

caught-could

inwardly eject

the

prohibition's

laim

of

authority

ver

them and thusregardthemselves s "free" to breach the prohibition.

It is hard to

assign any meaning

to

Sher's claim that the criminal

has

gained "freedomfromthe demands

of

the

prohibition

he

violates,"

unless t

simplymeans that

he

criminal as

in

fact

gnored

he

prohibition's

demands. To

make

Morris'sversionof

modest retributivism

ork, here

mustbe

something hat

criminal

necessarily gains"

from

awbreaking,

which we can claim

gives

him the "unfair

advantage"

that

punishment

removes. Confrontedwith

the difficulty

f specifyingwhat this "gain" is

in a way that willmake the theorycome out right,Sher has, I think,

simply

reified he criminal's ct of

law-violation,misleadingly

abeled it

"freedom,"

nd treated t as the "unfair

advantage"

to be

taken

away.

Once

we see thismove

clearly,

her's

analysis

becomes

virtuallyndistin-

guishable

from

Hegel's

obscure

claim that

punishment

omehow

"annuls"

the crime tself-a claim no more

convincing

n

its new

garb.

Nevertheless,

here does seem to be truth n

the

underlying

notion

that he

wrongdoer

njoys

"an unfair

dvantage"

as

compared

to his aw-

abiding

fellow

itizens.Unlike

them,

he

criminal

njoys

the

benefit

on-

ferred

by

the

self-restraint

f other

people (freedom

from

aggression

and

interference)

without

having paid

the

price everyone

else

pays

for

this enefit

restraining

is own

aggressive

mpulses).

But f

he

wrongdoer's

"unfair

advantage"

is

his

enjoying

a

benefit

he

has

not

paid for,

the

"advantage"

can be

removed

ust

as

readily by takingaway

the benefit

as

by exacting

the

unpaid "price."

Indeed, depriving

he

wrongdoer

of

his benefit s

perhaps

the

easier

and more

appealing solution,

because

it

spares

the rest of us the difficult

ask

of

calculating

what

kind

and

degree ofimposition n thecriminal ounts as theequivalentof theself-

restraint hat he

failed

to

"pay." Instead,we need only cease to

restrain

ourselves from

nterfering

with or

aggressing against

the

criminal.

He

thereby

oses

precisely

the

"sphere

of noninterference"

hat he had

wrongfully

ained,

rather

han

some

supposed

equivalent

f

thatbenefit.37

37. Perhaps,

hough, he criminal hould not ose his entire sphereof

noninterference."

After ll, one

might ay,the criminal resumablyhas obeyed some laws-i.e., has

displayed

some self-restraint-sowe should view himas having paid some but not all of the"price"







Dolinko

ThoughtsboutRetributivism

549

Unfortunately,

hatwe now seem

to have arrived at is the notion

thatthe morally

ustifiedpunishment

for

a

criminal

onsists n licensing

everyone lse

toengage

in

aggressive

onduct towardhim. This amounts

to a kind ofoutlawry-declaring the criminalfairgame foranyone who

wishes

to

harm

him or his interests-far

different rom the formsof

criminalpunishment

we

actually

employ

and

which

Morris'sapproach

was intended

to ustify

morally.

Morris's

"unfair advantage"

approach

seems to

have

led us into

a

blind

alley,

and we noted that

Sher's

attempt

o salvage

that approach

appears,

on

analysis, n

unwitting ersion

of

Hegel's

metaphor

of

"an-

nulling" the

crime. A consciouseffort o

develop that metaphor

seems

to underlie a second and

quite different ffort-Jean

Hampton's-to

explain whycriminalsdeserve punishment, nd to do so in a way that

shows that t

is

proper

to

give

them

whatthey

deserve.38

or

Hampton,

punishment

s "deserved"

if

it is "necessary

to humble

the wrongdoer

and

thereby

vindicate the victim'svalue."39

She

regards

retributions

resting n two

eparate deas,

each "mandatinghe harm of

thewrongdoer

as

a

means

to

an

end."40 wish to

focus on

what

seems to me the

more

important f

these

deas,

whichHampton abels punishment

s a defeat."'41

Hampton believes that

Morris'sversion

of retributivismoes astray

because it fails"to linkour condemnationof a wrongdoerto thatwhich

makes is

conductwrong.

42

Her

own

account,

accordingly,

uilds on her

forothers'forbearance.

The

problem

then

becomes deciding

ust

how much of his

"sphere

of noninterference"

he

criminalhas failed to

pay

for nd must forfeit. hould

we say that

other

citizens

are free to inflict

n the criminal

the same wrong

he inflicted n

others?

How many

citizens should

be able to

do

this

to

him?

What

if

his

crime was one without

identifiable

ictims?Morris's

metaphor

betrays

s at every

turn.

38. Hampton

acknowledges

he Hegelian

rootsof her

enterprise

t

p.

131 and

p.

142.

39. Ibid., p. 158. She actuallysays "perceiveds necessary" my emphasis)-but it

seems

odd to

suppose

that

incorrectperceptions

could

make someone

actually deserve

punishment.

assume,therefore,

hat

whatwas meant

was that

culprit

eserves

unishment

if

punishment

really

would be necessary

o

"vindicate he victim's

alue,"

not merely f

t

is

believed

(by whom?)

to be necessary

for that purpose.

40. Ibid., p.

123.

41.

Ibid., p.

124.

The

other

idea

that Hampton thinks

underlies retributivism-

"punishment

s vindicating

alue

through

protection" p.

138)-receives

considerably

ess

attention.

Moreover, t

s hard to

understand

ust

what

this

second

idea is

supposed

to

be.

Some

of

Hampton's

discussion

of this econd

idea makes

t sound like

deterrence;

t

other

places "vindicating alue throughprotection" eemshardtodistinguish rom punishment

as a defeat." Ultimately,

vindicating

alue

through

protection"

eems to

presuppose

that

a

practice

f

punishing

offenders

s

already

n

place

and to call

simply

or

venhandedness

in

deciding

which offenders

o punish

(or,

more accurately,

which

victims o "vindicate"):

"Because society's

unishment

protects

hose

who are valuable,

people

who long for

high

valuation

may come to

demand punishment

.. because

theywant

the

expression

of what

the egal protection

ymbolizes"

pp.

141-

42).

But this easoning

annot

how

thatpunishing

wrongdoers

s

morally permissible-only,

at most,

that if

it is

permissible,

hen

society

should

not limit

punishment

to

only

those wrongdoers

whose victims

re

regarded

as

sociallyprominent,

wealthy,

well connected,

etc.

42. Ibid., pp. 116-17.







550

Ethics

April

1991

notion

of what t s that

makes

thewrongdoer's

onduct

wrong-which,

she says,

s

that

t

"objectively

emeans"

thevictim.43

hat

is,thewrongdoer

fails

to treat

his victim

n a

manner

sufficiently

espectful

fthevictim's

value or worth,44hereby mplicitly laimingthathe is superiorto, or

higher

n value than,

his victim.45

unishment,

hen,

s ustified

or

ap-

propriate

because

it serves

to assert

or to

makemanifest

he

moral

truth

which

the wrongdoer's

ction

has denied:

thatwrongdoer

nd victim

re

of equal

value

and

entitled

to equal

respect.

The core

of Hampton's

analysis

s

set forth

n the followingpassage:

By victimizing

me,

the wrongdoer

has declared

himself

elevated

withrespect

tome,acting

as a

superior

who

is

permitted

o use me

forhispurposes.A falsemoralclaimhasbeen made.The

retributivist

demands

that

he

false

laim

be

corrected.

he lord mustbe humbled

to show that

he isn't

the ord of

the victim.

f I

cause

the

wrongdoer

to suffer

n

proportion

to mysuffering

t his hands,

his

elevation

over me

is denied, and

moral reality

s reaffirmed.

masterthe

purported

master,

howing

that

he is my peer.

So

I

am proposing

that

retributive unishment

s the defeat

of

thewrongdoer t

the hands

of the victim

either

irectly

r indirectly

through

n agent

of

the

victim's,

.g.,

the state)

that

ymbolizes

he

correctrelative

value

of

wrongdoer

and

victim. t

is

a

symbol

hat

is conceptuallyrequired to reaffirm victim's qual worth n the

face

of

a challenge

to it.46

Now,

it is not

entirely

learwhether

Hampton's

retributivism

s of

the

"bold" or

the "modest"

variety.

s

Hampton

suggesting

hat eaffirming

the

victim's

worth

n

the

manner

she describesrationallyustifiespun-

ishment?

r is her

analysis

meant

o tell

us

only

why

t s

morally ermissible

to

punish?

On the one hand,

she often

speaks

in

a

bold retributivist

manner,

as

when

(in

the

passage

ust

cited)

she asserts hat

punishment

is "conceptually equired,"and when she expands upon thisthoughtby

43. Of

course,

thispresupposes

that

we

are

dealing

with

crime hat

has an identifiable

"victim."

Many

crimes ack

this

feature, nd

it will

not do simply

o

suggest

as Hampton

does, p.

125,

n. 19) that

n such

cases all of

us somehow

countas victims.

When

somebody

violates

federal aw

by committing

he felony

of

unauthorized

possession

of

blank paper

of the sortused

to

print

dollar

bills

in

violation

f sec.

474 of Title

18 of

the United

States

Code),

I

simply

do

not see that

I

or

anyone

else

have

been "demeaned"

or

otherwise

victimized.

will gnore

this point

n

what

follows,

however,

because

Hampton

could

reply

thather analysisat least explains the propriety f punishingthe most serious typesof

crime-and

I want to show that

t breaks down

even

in those core

cases.

44.

Hampton,p. 124;

see also

pp.

44-45 (introducing

otion f

"demeaning"

reatment)

and pp.

52-53

(postulating

hat

wronging

person

entails

treating

him in an

objectively

demeaning way).

45.

Ibid., pp.

124-25.

Hampton

never

explains

why

treating

nother

person

in a

demeaning

fashion

necessarily

nvolves

claimingthat

one

is of superiorvalue, worth,

r

status

o

that person.

Couldn't

a

wrongdoer

be

acting

out

of

a belief hat

no one-neither

others

nor

himself- has any

inherent value

that requires respect?

I

think

quite

a

few

wrongdoers

re

in

fact people

who loathe

themselves

s much

as others.

46. Ibid., pp. 125-26.








explaining that punishment

s so

"uniquely

suited

to the vindication f

the victim'srelative worth" that it could not be

replaced by any other

means of achieving hatgoal.47Even more strikingly,

he endorses Kant's

viewthat failureto punish a wrongdoerwould make us "accomplices n

the crime."48

n

the

other

hand, Hampton acknowledges

hatdeterring

crime s

a "primary eason" why

offenders

re punished

and appears to

findthisreason legitimate.49 nd we findher arguing

thatpunishment,

as the

attempt

o

"master"

the

wrongdoer,

s "not morallywrong"-the

language of the modest retributivist.50his ambiguity n Hampton's

position

s

ultimately

f

little ignificance,

owever,because her version

of retributivisms defective n either nterpretation.

Recall that the general problem

withbold retributivisms its failure

to explain why tshould be so important or the state to give criminals,

but not otherpeople,theirjust deserts."Hampton'stheory,

f

nterpreted

as

a

form of bold

retributivism,

aises this

problem

in

an acute form.

Read as a bold retributivist, ampton is claiming

that the rational us-

tification

f

punishment,

ts

verypoint,

s

to

nullify he false moral claim

implicit

n the

act

of

wrongdoing-the wrongdoer's

claim

to

greater

worth r

value than

the victim.51

ut

why

hould we

care about nullifying

precisely hose claims? Why, ndeed, shouldwe care about it so strongly

and so deeply as to establisha complex and costlysocial mechanism

devoted

to

nullifying

uch claims-and

nullifying

hem

by doing

to the

claimants

hings

which we

would otherwise

egard

as violations f their

rights?After ll, we certainly o

not believe

that

t s somehow mperative

to

set up a social or governmentalmechanism

to seek out

and

correct

false moral claims

n

general,

nor even all false claims

by

one

person

to

possess greater

worth

or

value than another.

If

someone

publishes a

book

asserting

hat

men

are

superior

to

women,

or

Jews

to

Gentiles,

r

blacks to Latinos, or a book asserting hat ts author is an Uebermensch

greater

n

moral value than any

other human being

on the

face

of the

earth,

we do not

regard

it

as

obligatory

n the

government

o see to it

that a

reply

is

published

forthwith.

till less would we think that the

government ught

to

clap

the author

in

ail

or in

some other fashion

symbolicallynullify,"hrough unishment,

he

false

message

of

superiority

that

the author has

quite clearly

communicated.

Curiously, Hampton

seems to have made

the

very

error that

she

ascribes

to

Morris-failure

to link

punishment

f the

wrongdoer

o that

47.

Ibid., p. 128.

48. Ibid.,

p.

131. Her reason

for endorsing

this view

s that failure

to

punish

would

constitute

acquiescing

in themessage

[the

crime]sent about

the victim's

nferiority."

49.

"Reason as

well as

instinct

irectsus

to harm wrongdoers

n order to

deter

future

crimes"

ibid., p. 139).

50. Ibid.,

p. 127.

51.

"The

retributive

otivefor nflicting

uffering

s to

annul or counter

he

appearance

of the wrongdoer's

superiority

nd

thus

affirm he

victim's

real value" (ibid.,

p.

130).

Punishment

"can annul

the

alse evidence

eemingly

rovided

y

he

wrongdoing

f

the

relative

worth fthevictimnd wrongdoer"p. 131).







552

Ethics

April1991

which

makes

his

conduct

wrong.

She connects

unishment

o

the

message

which,

he

believes,

the

wrongful

ct

expresses.

But

what makes

such

an

act

wrong

s not

that

t

expresses

the

wrongdoer's

morally

alse

message,

"I'm worthmore than you are." If thatwerewhat made theactwrong,

explicit

assertion

of the

falsehood

ought

to

be

every

bit

as

wrong (and

deserve ust

as

much

punishment)

s

its

implicit ssertion

throughthe

criminal ct. What s

crucially

mportant

s the

way

n

which he

wrongdoer

goes

about

conveying

his

moral

falsehood-and

Hampton

overlooks hat

aspect

of

the matter

ntirely.

A

rapist

deserves

punishment

not

because

he has communicatedhis beliefthathe is of

greater

value

than

his

victim

but

because

he has

done

so

by raping

her.

Suppose,

now,

that we

take

Hampton

to be a

modest

retributivist.

Her analysis, o interpreted,ellsus notwhywe punishwrongdoersbut

why

it

is

morally

permissible to punish them.

Punishment s

morally

properbecause it erves

ocorrect,

r

to

nullify, he false

laimof

superior

worth nherent

n

the

wrongdoer's

ct.

Hampton,

on this

ccount,

s

not

committed o the

view

that

correcting

r

nullifying

uch claims

is itself

our

purpose

n

nflicting

unishment-the

view

hat

generates he

difficulty

described

above. Yet the

"modest"

version

of her thesis

facesgrave

dif-

ficulties

f

its own.

First,

t

s

surely

not

true that

whateverwould

correct

(or "nullify") mistaken moral claim is ipso factomorallypermissible.

Imagine, for

example, someone

who

mistakenly nsists

on

the spotless

moral

rectitude f the

government f

Iran,

or

Cuba,

or

Indonesia

(pick

whichever

you

think

most

mmoral).

Suppose you were able to

have

this

person

abducted and

thrown nto an

Iranian, Cuban,

or

Indonesian

prison,

and that

you knew that the abuse she

would

encounter

there

would cure her

of

her

mistaken

moral

appraisal

of

the

regime.

Does it

followthat the abduction and

imprisonment

must

therefore e

morally

permissible?Hampton herselfacknowledgesthat not everything hat

would

nullify

false claim of

superiority

s

automaticallypermissible

when she

argues

that

torturing

torturer s

wrong

even

though

t

would

affirm

he

equal

worth of torturer nd victim.52

herefore,

the fact

if

it be

such) that

punishmentnullifies false

claim of

superiority annot

be sufficiento

demonstrate hat

punishment

s

morally

permissible.

A

second

problem is that it is

very

doubtful

whether

punishment

really

does

"correct"

r

"nullify"

he

wrongdoer's

upposed

assertion

of

his

superiorvalue.

Hampton's idea

is

that "to inflict n

a

wrongdoer

somethingcomparable to what he inflicted n the victim s to master

him n

the

way thathe

masteredthe victim. he

score s even.

Whatever

mastery

he can

claim,

she can also

claim.

If

her

victimization

s

taken

as

evidence of her

inferiority

elative

o the

wrongdoer,

hen his

defeat at

52. Ibid., pp. 135-37.

She concludes hatwe

cannot imply o whatever

would

reaffirm

the victim's

moral worth but must

instead impose

"limits that reflect he value of

the

wrongdoer"

nd relyon

"punishments hat would give the

best

expressionpossible of the

value of the person hurtby thewrongdoer subject to these limits" p. 137).







Dolinko

Thoughts

boutRetributivism

553

her hands negatesthat vidence."53

As

she later ums t

up, "punishment

undercuts he

probative

forceof the evidence of his

superiority rovided

by

the

wrongdoer's

ction."54

But how, precisely, oes thestate's defeating" he wrongdoer onvey

the

message

that

the victimhas value

equal

to that

of the

wrongdoer-

convey,

s

Hampton puts it,

"the

experience

of

defeatat thehandsofthe

victim"?55

ow does

it

get

across that the victimhas

evened the score

and can

now claim

whatever

mastery

he

wrongdoer

an? It would

seem,

rather, hat while the wrongdoerclaimed

"superiority" y defeating he

victim

himself,

whole

gang

of

partisans

of the victim

has

now

banded

together nd defeated the

hopelessly

utnumbered

wrongdoer Perhaps

thisconveysthemessage thatsociety s a whole is theequal (or perhaps

the master)

f

the wrongdoer, ut

t

hardly

eems an

apt way

of

expressing

the

message

that the

victim,

ndividually,

s

the

wrongdoer's qual.

One mightargue

that

byactingas the victim's hampion and "de-

feating"

the

wrongdoer

in

the victim's

name,

the

community

t

large

demonstrates

r affirmsts

belief

hat he victim s the

wrongdoer's qual.

But thismove underminesHampton'scontention hat

punishment orrects

or nullifies he

wrongdoer'sclaim,

because

it

depicts punishment

s af-

firming proposition quite different rom

that

which

the wrongdoer

denied. In Hampton's view,the wrongdoer, n committing is crime,

denies that the victim s

his

equal.

To assert that others believe

in

the

victim's

quality

is not to controvert he

wrongdoer. Hampton wants

punishment

to

proclaim

that the

criminal

s

mistaken,

not

merely

that

the

community

t

large

does not

agree

withhim.

Connected with

his

difficulty

n

understanding

"defeat" t

society's

hands

as evidenceof thevictim's

quality

s a

third roblemwithHampton's

pictureof punishment. That

picture presents punishment as a com-

municative nterprise-as a matter fsending messagesto "correct" r

"nullify"

he

messages implicit

n

criminal acts.

Thus

the criminal act

conveys

a "false moral claim" which

it

is

the

point

of

punishment

to

deny;56victimization

counts

as evidence"

of

the victim's nferiority,57

and

punishment negates

the

evidence"

by "send[ing]

n

annulling

mes-

sage."58

But

to whom does

Hampton

suppose

that these various claims

and

messages

are

being

sent-who is the audience for he various

pieces

of evidence

she describes?

Consider,

for

example, Hampton's

argument

that no

alternative o

punishment

could

equally

well vindicatethe victim's

worth,

not even

a

ticker-tape arade

for the

victim,

because "the fact that he had

been

53.

Ibid., p. 128.

54. Ibid., p. 129,

n.

25.

55. Ibid., p. 126 (emphasis added).

56.

Ibid., pp. 125-26.

57. Ibid., p. 128.

58. Ibid.,

pp.

129, 131.







554 Ethics April

1991

masteredby the

wrongdoer

would stand. He would have lost to her, and

no matterhow

much the community

might ontend thathe was not her

inferior, he loss counts as evidence

that he

is."59

But for

whom is the

wrongdoer'sdeed "evidence" of the victim's nferior tatus? Evidently

not for he community,

hich

s contending hat he victims not nferior.

Is the victim upposed

to regardhis victimization

s evidence f nferiority?

Why should he?

If

you

find

your

home burglarized,you

may experience

anger,

or

a

sense

of

defilement,

r fear that

t will

happen again,

or all

of

these-but

will

you

feel that the

burglar

has demonstrated hat his

moral value is greater han yours?

urelynot 60

s

it,

hen,

hewrongdoer

himself or whom

the crime "counts

as evidence" ofhis superiorworth?

If so, the problem

previouslydescribedrecurs: how

will the state's "de-

feating"

hewrongdoerundercutforthewrongdoer theprobative orce

of the evidence

of his

superiority"

o

the

victimwhichwe are

supposing

his crime affordshim?6'

Surprisingly,

ampton appears

to deal with his

roblem

f "audience"

by denying hather analysis equires

ny audience

at

all

for he "evidence"

and the

"messages"

t

nvokes.

n

distinguishing

etributivismrom

arious

consequentialist

easons

for

punishing,

he asserts hat retributivist

ill

insiston inflicting unishment

"even

in a

situation

where neither the

wrongdoernor societywill either istento or believethemessage about

the

victim's

worth

which he

punitive

defeat' s meanttocarry,nd where

the victim oesn't

need

to hear

(or

will not

believe)

that

message."62

But

this eems to undermine

Hampton's

theory ompletely.

We have

already

seen

that the

theorymisrepresents

rime

as

wrongfulmerely

because it

conveys

false moral

messages.

We then found that the

theory

fails to

explain why punishing

the criminal hould

be taken as

"correcting"

r

"nullifying"

hosemessages.

Now we discover that

Hampton

insists

on

imposing punishmenteven where it will not"correct"or "nullify" he

wrongdoer's

moral falsehood.63

conclude that

Hampton's

account fails

to

give

us

a

plausible

formof

eitherbold or modest retributivism.

59.

Ibid.,

p.

128.

60. You may

feel

that

the

crime

ndicates that

the

burglar believes

e is worth more

than you, but that s a different

matter nd not what Hampton is claiming.

She wants to

defend a version of retributivism,ot

a

rehabilitativeustification

hatmakes punishment

a way of curing the

wrongdoer of his false beliefs. (Morally educating

the

criminal

s

explicitly abeled a nonretributivemotiveforpunishment p. 129].)

61. Ibid., p. 129,

n.

25.

62. Ibid., p. 130.

63. To

be

sure, Hampton

does

suggest

hat

punishment hould

be

imposed only

where

it may possibly be

taken as "correcting" r "nullifying"

he

message

conveyed by the

crime-"only

if

people

are at least able to understand

the

symbolic

ignificance

f the

punishment,

lbeit

perhaps

unwilling

o

do

so"

(ibid., p. 132).

But

merely cknowledging

that some audience is required seems

far from

nswering

the

question

of precisely

what

audience Hampton has in mind

and

does nothing

o

resolve

the

problem

sketched

bove:

Hampton's theory nsists hat a

criminal ct is

"evidence"

of

the victim's

nferiority

ven

where neitherthe victimnor society o interpretst.







Dolinko Thoughts

boutRetributivism

555

Previously argued that George Sher fails

in his effort o make

plausible Morris'spicture

of retributivisms a matter f fairness r dis-

tributivejustice.have

now

argued

that

qual

failure

esetsJean

Hampton's

efforto construct coherent ccount of retributivismut of the Hegelian

vision

of

punishment

as

"annulling"

the crime.

A

thirdrecent defense

of retributivism-Michael Moore's

article "The

Moral

Worthof Retri-

bution"-follows a strikinglyifferent ath, avoiding

the common re-

tributivist etaphors ltogether ather

han

seeking

o unpack and develop

them.64Moore proposes

to support retributivismhrougha coherence

strategy-that s, "byshowing

that t best

accounts for

hose of

our

more

particular udgments

that we also believe to be true."65

Strangely, owever,Moore does very

ittle

o

carry

ut his

proposal.

Although he does supplya fewexamples of "particularudgments" that

certaincriminalsdeserve punishment,he devotes the

bulk of his essay

to refuting arious objectionsto retributivismather

han presenting n

affirmativergument

thatretributivismxplains our intuitions nd does

so

better than rival theories.66And to the extent that he does follow

through

on his coherence strategy,Moore produces

a deeply flawed

argument.

In Moore's version

of retributivism,hefactthat offenders eserve

punishment ot only gives ociety.. a right opunish ulpableoffenders"

(i.e., morally ustifies punishment)but also "gives

society the duty o

punish."67Desert

thus answers the

question,

"What

reason

do we have

for

adopting

the

practice

of

punishingwrongdoers?"

The reason

is that

we are morally bligated

o nstitutehis

practice.

Moore's theory, herefore,

comprises

both "bold"

and "modest" retributivism-it

purports

to tell

us both what reason we have to punish wrongdoers

and

why

we are

morallypermitted

o do so.

In

its

"bold"

aspect,

we should expect

it to

encounterdifficultynexplainingwhy t sonlycriminal ffenderswhose

'just

deserts"

t is crucial for the state

to mete out. The

way

in

which

this

general problem

of bold retributivism

rises for

Moore,

we shall now

see,

is that

his

strategy

annot establish

"duty"

to

punish

more than a

small

subset

of

criminals-yet

would

rationallyustify

heir

punishment

even

if

theirconduct

were not criminal t all.

Moore

asserts

hat

t s

obligatory

o

punish

offenders ho are

morally

culpable,68

nd that

"'Moral

culpability'

.. does

not

presuppose

that

64.

Michael Moore,

"The

Moral

Worth f Retribution,"

n

Responsibility,

haracter,

nd

theEmotions,

d.

Ferdinand Schoeman

(Cambridge:

Cambridge

University

ress, 1987),

pp.

179-219.

65. Ibid., p.

183.

66. Moore's

principal

effort oes into responding

to

what he calls the

Nietzschean

case against

retributivism-the

claim

that

retributiveudgments arise

from pathological

emotions,

o that

retributivismannot

be

ustified

by showing

t

to

be the best

explanation

of such udgments

(ibid., pp. 191-217).

67. Ibid., p. 182.

68. Ibid., pp. 181-82.







556 Ethics

April1991

theact done is

morally

bad, onlythat t s

legally

prohibited."69hat is,

anyone

who commits

crime,

and

satisfies he

"conditionsof fair

fault

ascription"

roughly,

is

neither

ustified nor

excused-deserves

pun-

ishment, nd it is morallyobligatory o inflict unishmenton whoever

deserves t.70

hat this

obligationexists s

supposed to be

establishedby

itsconstituting

he best

explanationforour

"particularjudgments"bout

punishment

nd

desert. But while

Moore's

retributivistlaim

applies to

anyone

who commits

crime,

he

"particularjudgments"

Moore adduces

all involvea

great deal more than

simpleviolations f

egallyproscribed

norms.71

They

involvestrikingly icious

murders-acts one

mightwell

judge

deserving

f

punishment

whether r not

they

onstituted

iolations

of law.72

Moore's

principalexample, for

nstance,

s the case of Steven

Judy,

who

raped

and

murdered strandedwoman

motorist,

rownedher three

small

children,

and later said he had not

been

"losing

any sleep"

over

thesedeeds.73

uppose

that

member fa WorldWar

I

Nazi

extermination

squad treated

Jewish

woman

and her children

n

the

occupied Ukraine

in

this

fashion, nd laterboasted

similarly f his

sound sleep.

Suppose

further

hat,

under

the laws

applicable

at that

time and

place,

his

deeds

were not crimes t all.

Wouldn'twe nevertheless

eel an

intuitive

udgment

that punishment at least of some kind and to some degree) is war-

ranted"74-a

judgment

every

bit as

strong s that

which Steven

Judy's

unambiguously

criminal acts

arouse?

Imagine,

on

the other

hand,

a

pedestrianwho violates state rafficaw

by

crossing

street

n

the middle

of the block-at 4:00

A.M.,

with

no automobiles

nywhere

n

the

vicinity.

Is

it

so clear that

we

judge intuitivelyhatpunishment s

warranted-

indeed, that

society

has a

duty

o

punish

this

aywalker?

69. Ibid., p.

181,

n.

1.

70. Ibid. Moore

gives

an

account of

the

"conditionsof fair fault

scription"

n

"The

Moral

and

MetaphysicalSources of

the

Criminal

Law,"

in

Nomos

XXVII: Criminal

ustice,

ed. J.

Roland

Pennock

and

John Chapman

(New

York: New

York University ress,

1985),

pp. 12-14. The

moral

principlesthat define culpability, e there

explains, fall nto four

categories: 1) those

defining

who

is a

moral

agent (excluding

nfants nd the

insane); (2)

those limiting

blameworthiness o persons with a fair

chance of

acquaintingthemselves

with he

normsof society

excluding

hildren

nd,

to some

extent,

liens); 3)

those

requiring

actus

eus,

mens

ea,

nd

(in some

cases) prohibited

esult;

nd

(4)

those

definingjustifications

and

excuses.Given that

nsanity

nd

infancy re often

oosely lassified s excusing

onditions

and that he

requirements f

category must

be

satisfied

fwe

are

to speak of

the

defendant

as having committed crimeat

all,

it

seems

not inaccurate o describe

Moore's "conditions

of fair

fault

scription,"

s the text

does,

as

meaning

that the

actor s

neither

ustifiednor

excused.

71. Moore's examples

appear in "The

Moral Worthof

Retribution," . 184.

72.

If one thinks

punishment"

must,

by definition,

e

imposed only

for

violations f

law, thenat least

the

murderersMoore points to deserve

to have harm

inflicted n

them,

regardlessof

whether heir

deeds violate any law.

73.

Moore,

"The

Moral Worthof

Retribution," . 184.

74. Ibid.







Dolinko

ThoughtsboutRetributivism

557

The best

explanation

forsuch

udgments in the

cases

Moore cites,

therefore,eems not to

be a

principle hat

pplies to

all,

and

only,

iolations

of criminal aw.

The best

explanation

for

these

udgmentsis

that

people

who inflict evere,unmerited,gratuitouspain, violence, and death on

others

deserve to be

harmed

themselves,

ather than a

"retributivism"

that

calls for

punishingany

"culpable"

offender,

ven

if

the

"offense" s

an act in

itself

morally

neutral.

Moore,

I

suggest,has

stacked the deck

by

giving

us

a group of

especially

savage

murders

and inviting

us to

generate,

from

these

examples,

an

intuition

that

"criminals" s

such

oughtto be

punished

regardless f the

consequences).75 o

such

ntuition

would likely

rise from

contemplating, ay, an

Englishman

visiting os

Angeles who, in the dead of the night,with no othervehiclesaround,

forgets orseveral

minutes

which side of

the road he is

required to drive

on. Still

ess would

we be

likely o arrive t

Moore's

intuition

y

focusing

on

people

who

violate

morallyevil

laws-for

example,

someone who

violates an

ordinance

forbidding

ivingfood to

homeless

persons.

One

might

uppose

that

Moore's

coherence

approach

could

be sal-

vaged

by

limiting t to

the most serious

crimes. So

construed, he claim

would be

that our

"particular

udgments" that

those

committing

hese

serious

rimes

eserve o be

punished re best

explained

by

the retributivist

principle thatpunishmentforserious crimes s ustified"because, and

only

because, the

offender

deserves

it."76

But this

response

still

misses

the

point

that we would

regardpunishment

s

deserved

by

those

who

deliberately

nflict

nmerited, rave

harm on

others

whether r

not their

acts are

"criminal."

Furthermore,

o

attempt

o

rescue

Moore's

approach

is to

overlook

the

oddity

of

applyinga

coherence

strategy t all

to a

problem ike

that of

ustifying

unishment.

That problem

arises

only

because we

are calling

into

question an

entire ocialpractice.How,then, an werespondbyappealingtoparticular

instances of

that

practice,

treating hemas

the datum

whose

"best ex-

planation"we

seek?

Consider, s an

analogy, similar

oherencejustification

for the

view, ay,

that

women are

inferior o

men,

offered

irca 1800

by

one

man to

another.

Someone has raised

the

question

of

whether

t

is

really ustifiable

o treat

women as inferior

nd is met with

the

response

that,

"Well,

of

course,

we all have

the intuition hat n

this

ituationwe

should

discriminate

gainst

women,

and

likewise

n

this

nd

this;now,

the bestwayof accountingfortheseparticularudgmentsis to suppose

75. Later

in his article he

suggests

that the guilt

feelingswe

would experience f

we

imagined

committing crime

"validate" the

udgment thatwe

would

deserve punishment

(ibid.,

214)

and hence that

anyone who

acts

likewise deserves it

too. In

presenting his

argument,Moore again

stacks

he

deck: we are

to imagine

"intentionally

mash[ing]

open

the

skull of a

23-year-oldwoman with

claw hammer while

she

was asleep" (p.

213), not

jaywalking,

trading on inside

information, r giving

away

ducklingsto promote a

store

sale.

(The last of these

violates sec. 599

of

the

California Penal

Code.)

76.

Moore,

"The

Moral Worthof

Retribution," .

179.







558 Ethics April1991

women to be morally nd intellectuallynferior o men." Wouldn't one

feel that the crucial question

is

being begged? The coherence strategy

for ustifying etributivistunishment eems to me similarly lawed.

That Moore should present o unconvincing case forretributivism

is not, perhaps, surprising n view of his failure to perceive the chief

argument gainst

hat

heory.

s noted

earlier,

Moore

devotes onsiderable

attention o various objectionsto retributivism, hich he seeks to refute.

Yet he ignoreswhat

I think s

the principal objection,whichwe noted

earlier

plagues

even "modest" etributivism:omeone's

deserving

o

receive

certain reatment

s

not sufficiento make

t

morally ermissible let alone

obligatory)

o

give

him

that

treatment, articularly

f

doing

so

would

involve violating

his

rights.77Moore

is contentto assert

that punishing

offenders chieves ustice.78But givingpeople whattheydeserve is not

all

there s to

justice."79Moore does

nothing

o

show

that

n

this

particular

type

of

case,

where what s

in

question

is

punishingoffenders,

t

truly

s

just,and thereforemorallypermissible, ogive people whattheydeserve

despite the

conflict

with what would normally

be

thought to be their

rights.

One

further

spect

of Moore's discussion seems

to

me

significant

because

t llustrates

potentiallyangerous

feature fretributivist

hinking.

Moore shares with many retributivists-HerbertMorris s a prominent

example-the

belief

that

his

approach,

unlike its

rivals,

reats

criminal

offenders

with he

respect

hat s

theirdue

as moral

agents.

Moore

makes

this

belief

xplicit

n

discussing

he case of Richard

Herrin,

Yale student

from disadvantagedLatinobackgroundwho beat

his

sleepinggirlfriend

to death

with hammerafter he indicated he wanted

to

see

other

men.

Appealing

to the

powerful guilt feelings

we readers would feel

if

we

imaginedourselvescommitting

his

crime,

Moore asks "whether here

is any reason not to make the same judgment about Richard Herrin's

actual

deserts as we are

willing

to

makes

bout our own

hypothetical

deserts,"

nd concludes thatthere s not.80

Any

reluctancewe

might

feel

to transfer

o

Herrin

our

hypothetical uilt

and desert can

only

"come

fromfeelingmore of a person

than

Richard"-it

is

"elitist nd conde-

scending

toward others not to

grant

them the same

responsibility

nd

desert

you grant

to

yourself."8'

The

disturbing spect

of this

argument

is

its

potential

for

eliminating salutary

wareness of the costs and the

limits f our

practice

of

punishment.

Retributivistsrequently omplain thattheirconsequentialistfoes

have no reason

not to inflict

unishment

n innocent

persons,

f

doing

so would

happen

to have

good consequences,

and likewiseno

principled

basis for

rejecting

orture nd

other

barbaric

punishments

f

these would

77. See pp. 543-44

above.

78.

Moore,

"The Moral Worth

of Retribution,"

p.

185-86.

79.

See

Feinberg.

80. Moore,

"The Moral Worth

of Retribution,"

.

215.

81. Ibid.







Dolinko Thoughts

boutRetributivism

559

maximize deterrence.82

et

if

we think hat the

point

of punishment

s

to deter,we

are likely o recognize

that t has limits, mposed by rights

that exist

independentlyof

our

punishing practices.

We can strive

to

achieve our deterrentgoal onlywithin he bounds that theserightsde-

marcate. One

who thinksretributively,

n the other

hand,

like

Moore,

is apt to

regard the whole punishment

practice

tself s an expressionof

''respect orpersons."

The sense

ofa tension etweenpunishing

ffenders

and

respecting

persons

is lost,

and it

becomes

all too easy to justify

excesses

and vindictiveness s "giving

he criminalwhathe deserves"

nd

thus respecting

the

wrongdoer,

much as Moore

shows his

respect

for

RichardHerrin.

With this observation

have returned

to

my starting

oint.Retri-

butivism s presentlymuch in vogue among those concernedwith our

criminal

ustice

system.

fear

that ts mpact

has alreadybeen pernicious,

for example by bolstering

apital punishment

and

by encouraging

an

increasing

reliance on imprisonment,

or longer and longer

terms, s

83

ahrnet

erbtvs

the standard

response

to crime. Continued

adherence

to

retributivist

modes

of

thought

may

well

encourage

even

greater

vindictiveness nd

a

peculiarlyself-righteous

nd

smug indulgence

of our

society's

most

punitive

eflexes. theory

otentiallyo dangerous

hould not be accepted

withoutgood reasons,and I hope to have indicated how farwe still re

from

possessing

such reasons.

82.

Moore

himself resents

uch an

argument

n his bookLaw

and

Psychiatry:

ethinking

theRelationship

Cambridge:

Cambridge

University

ress,

1984),

pp.

238-40.

83.

A recent studyfound

that the

United

States

ncarcerates

higher percentage

of

its population

than any

other

nation

n the

world, ncluding

the Soviet

Union

and

South

Africa,both

of

which had

higher

ncarceration

ates than

the

United

States

ten

years

ago

("U.S.

Imprisons

Black

Men

at 4 Times S.

Africa's Rate,"

Los

Angeles

Times

January

5,

1991], p. Al). American prisonsentencesare longerthan thosein other Westernnations

(Elliott

Currie,

Confronting

rime

New

York:

Pantheon,

1985],

p. 29).

Their

length

has

increased steadily

n

recent years.

In New

York,e.g.,

the proportion

of

prisoners

with

minimum entences

of over

thirty

months

rose from

4

percent

n 1970

to 31 percent

n

1980.

States

that have

modified

their entencing

aws

as part of

the recent

trend

toward

determinate

entencing

have,

almost without

xception,

ncreased

their

penalties

as

well

(Sandra

Shane-DuBow,

Alice

Brown,

and

Erik

Olsen,

Sentencing

eform

n theUnited

tates:

History,

ontent,

nd

Effect

Washington,

.C.: National

Institute

f

Justice,

985], p.

279).

Government

tatistics

eveal

a

steady

ncrease

n both

the numberof prisoners

n state

nd

federal

nstitutions

nd

the

proportion

f the

populace

incarcerated uring

the 1980s.

The

formerfigurereached an all-timehighof 710,054 at the end of 1989-more thantwice

the figure

s of

the

end of

1980 (Bureau

of Justice

tatistics, ulletin-Prisoners

n

1989

[Washington,

.C.: Government

Printing

Office,

1990], p. 1).

The

year-end

1989 rate

of

incarceration-274

prisoners

per

100,000

residents-also

set

a new record,

and was 97

percent

greater

than

the year-end

1980 rate (ibid).

Prison systems

n

thirty-seven

tates

and

the District f

Columbia

are operating

under

some

form

of court order

or

consent

decree because of

violations

f

nmates'rights

temming

rom

vercrowding

CriminalJustice

Newsletter

January

,1989],

p.

4).

Yet relianceon locking

up

offenders

ontinues

unabated:

then-federal

drug

czar" William

Bennett, e.g.,

has called for

more

prosecutors,

more

judges,

and

more

prison

space,

saying

he favors tiffer

entences

nd denial

of

parole

to

drug offenders Criminal ustice ewsletterMay 15, 1989], p.

7).

dolinko. some thoughts about retributivism

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