Retributive justice

Retributive justice is a theory of criminal justice wherein punishments are justified on the grounds that the criminal has created an imbalance in the social order that must be addressed by action against the criminal. The theory is often associated with harsh punishment, and the phrase "an eye for an eye, a tooth for a tooth" is a commonly heard justification for this theory. However, proponents of the theory argue that the retribution should be proportional to the crime, and that minor crimes should have mild punishments while major crimes should have harsh punishment; in other words, not "a life for an eye" or "an eye for life", but "an eye for an eye" and "a life for a life".

History

In the early period of all systems of law the redress of wrongs takes precedence over the enforcement of contract rights, and a rough sense of justice demands the infliction of proportionate loss and pain on the aggressor as he has inflicted on his victim. Hence the prominence of the "lex talionis" in ancient law. The Bible is no exception: in its oldest form it included the "lex talionis," the law of "measure for measure" (this is only the literal translation of middah ke-neged middah).

In modern times, of all jurisdictions, the U.S. state of California has been the most aggressive in embracing the retributive justice model. In 1976, Governor Jerry Brown signed the Determinate Sentencing Law, which made retributivism the sole objective of the state's sentencing system: "The Legislature finds and declares that the purpose of imprisonment for crime is punishment."California Penal Code Section 1170(a)(1).

The subject in modern times

In practice, punishment has this effect only indirectly. Some long-term studies in many countries, including People's Republic of China, U.S.A., and in the Islamic world and South Africa, have shown that, for instance, death penalty measures do not deter murder; others disagree. Some feel that longer sentences do not deter crime nor reduce recidivism, other than a brief respite while the offenders are actually imprisoned; others disagree and point to the obvious fact that an incarcerated offender cannot subject law-abiding people to more crime. Some exploit this limited idea of success to argue for tough justice measures, e.g. "three strikes you're out", which often deal out very long prison sentences in an attempt to keep the offenders off the street longer, and thus to reduce the long term crime rate. Critics charge this can lead to a form of carceral state where huge numbers of people are imprisoned or, at best, on parole.

Many inquiries have shown that such sentencing approaches reduce crime. But the crowded prison conditions and desocialization of inmates seem to make it all but impossible for any education, training or rehabilitation to occur, so that the inmate could find productive work in society after release (if released - again, incarcerated offenders cannot subject law-abiding citizens to further crimes). California, for example, has a three-strikes law where an offender receives strikes for "serious and violent felonies"; each strike is factored into subsequent sentencing for continued convictions, three strikes makes an offender eligble for a life sentence. The effect this has on crime is disputed by some.

At the same time, some have argued that a zero tolerance policy toward minor crimes creates a social atmosphere of order, which prevents more serious crime from occurring; several studies support this notion. Less severe than a zero tolerance approach is the so-called "Broken Windows" approach to policing and criminal justice. This approach involves vigilantly policing petty crime in an effort to prevent a disordered environment conducive to more serious crime. Although intensive, it borrows much from Right Realism in general and Rational Choice Theory in particular.

Furthermore, there are many who advocate punishment of criminals regardless of the presence or absence of a deterrent effect. The belief underlying this view is that the need for a criminal to be punished is a requirement that comes from basic fairness and justice and not necessarily as a result of deterrence.

Alternatives to retributive measures include psychiatric imprisonment, restorative justice and transformative justice. They are discussed more in those articles. A general overview of criminal justice puts each of these ideals in context.

Retributive justice can be contrasted to restorative justice. It is a way to see crime as a violation of the state. It is defined by lawbreaking and establishment of guilt. It determines blame and administers punishment in a contest between the offender and the state.

Subtypes

There are two distinct "flavors" of retributive justice. The classical definition embraces the idea that the amount of punishment must be proportional to the amount of harm caused. A more recent version, advocated by Michael Davis, dismisses this idea and replaces it with the idea that the amount of punishment must be proportional to the amount of unfair advantage gained by the wrongdoer. Davis introduced this version of retributive justice in the early 1980s, at a time when retributive justice was making a resurgence within the philosophy of law community, perhaps due to the practical failings of reform theory in the previous decades. This was to many a breath of fresh air into a theory that had been all but abandoned decades prior, particularly in the United States. There currently appears to be a greater amount of discussion about the difference between these two flavors of retribution than between retribution itself and the other theories of punishment.

Criticism

On some theories of ethics, punishment, or proportional punishment, is evidently self-contradictory; retributive punishment is unethical, these theories claim, if "two wrongs do not make a right."

Some hold that the motive behind the Christian sanction for interpersonal relations ("turn the other cheek" before seeking retribution for a wrong), and the motive behind the sanctions for social magistrates (which include the application of retributive justice, e.g., "just stonings"), are conflicting. On the other hand, the motives for the social sanctions can be attributed to other justifications beyond simple retaliation.

Notes

Sources

Christopher Bennett, 'The Varieties of Retributive Experience', Philosophical Quarterly 54 (2002): 145-63.
Christopher Bennett, 'Forgiveness and the Claims of Retributivism', Journal of Moral Philosophy 1 (2004): 89-101.
Thom Brooks, 'Corlett on Kant, Hegel, and Retribution', Philosophy 76 (2001): 561-80.
Thom Brooks, 'Kant's Theory of Punishment', Utilitas 15 (2003): 206-24.
Thom Brooks, 'Choosing Correct Punishments', Archives de Philosophie du Droit 47 (2003): 365-69.
Thom Brooks, 'Retributivist Arguments against Capital Punishment', Jounal of Social Philosophy 35 (2004): 188-97.
Thom Brooks, 'Is Hegel a Retributivist?' Bulletin of the Hegel Society of Great Britain 49/50 (2004): 113-26.
Thom Brooks, 'Kantian Punishment and Retributivism', Ratio 18 (2005): 237-45.
John Cottingham, 'Varieties of Retribution', Philosophical Quarterly 29 (1979): 238-46.
Michael Davis, 'How to Make the Punishment Fit the Crime', Ethics 93 (1983): 726-52.
David Dolinko, 'Some Thoughts about Retributivism', Ethics 101 (1991): 537-59.
Ted Honderich, Punishment: the Supposed Justifications
Douglas Husak, 'Holistic Retributivism', California Law Review 88 (2000): 27-36.
Martha C. Nussbaum, 'Equity and Mercy', Philosophy & Public Affairs 22 (1993): 83-125.
C. L. Ten, 'Positive Retributivism', Social Philosophy & Policy 7 (1990): 194-208.

Criminal law | Justice