Abstract
Retributive approaches to the justification of legal punishment are often thought to place exacting and unattractive demands on state officials, requiring them to expend scarce public resources on apprehending and punishing all offenders strictly in accordance with their criminal ill deserts. Against this caricature of the theory, I argue that retributivists can urge parsimony in the use of punishment. After clarifying what parsimony consists in, I show how retributivists can urge reductions in the use of punishment in order to conserve scarce resources for other valuable social purposes, minimize the foreseeable and adverse effects of legal punishment on the innocent, and accommodate the fact that existing societies fail in numerous ways to satisfy the conditions that make retributive punishment fully justified.
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Notes
Retributivism’s origins are usually traced to Immanuel Kant. See Kant (2002, pp. 194–205). Kant in places seemed committed to a stringent version of retributivism, requiring societies about to dissolve to execute the last murderer still imprisoned so that “blood guilt does not cling to the people for not having insisted upon this punishment…” (p. 198). Contemporary retributive theories generally split into two camps—unfair advantage and communicative versions of the theory. For the former, see Morris (1968); Murphy (1973); Sadurski (1985), and Sher (1987, especially pp. 69-90). For communicative versions, see Hampton (1991), Duff (1986), and Anderson (1999). Whether these versions of retributivism regard proportionate punishment of the guilty as an exacting duty of the state is not easily discerned in most instances.
See Tonry (1992), pp. 59–83. However, Tonry’s rejection of proportionality is, as he admits, less based on theory than its implications for practice. He believes that proportionality will, in practice, ‘exacerbate social injustice and further damage the already disadvantaged’ (p. 65). See also Morris (1982, chap. 5). Morris casts proportionality as a weak constraint on sentencing. For further skepticism about the feasibility of working out the details of retributive proportionality, see Walker (1991, pp. 96–105).
Cahill admits that there are difficult questions that would have to be addressed concerning how to weigh and compare the intrinsic goods that the state is to pursue under a consequentialist retributivist approach, just punishment among them. Yet as he correctly notes, crime reduction theories face similar kinds of difficult questions (Cahill 2007, p. 867).
Douglas Husak has recently questioned whether retributive approaches to the justification of punishment can explain why violations of many existing mala prohibita are to be punished at all (Husak 2008, pp. 103–119).
The discussion the follows relies in places on claims (some with empirical dimensions to them) that I cannot pause to support fully. Some of these claims would require one or more articles of their own to substantiate. It might therefore be useful to construe my defense of retributive parsimony hypothetically: If these claims can be more fully made out, then they are the basis for some diminishment of punishment on retributive grounds. I believe that many of them can be made out and I will offer what support for them that I can.
Andrew von Hirsch urges less use of imprisonment and reduced sentences on grounds of parsimony, though only part of his rationale for doing so invokes desert considerations. One prong of von Hirsch’s theory would have us censure wrongdoers proportionally with the seriousness of their offenses. He no longer appears convinced that hard treatment is necessary to give effect to censure, and he worries that too much of it may overwhelm the moral message that state condemnation of conduct is designed to send. He accepts hard treatment as a prudential supplement, though he does not believe that most citizens require much of it to be effective. He suggests maximum 3-year prison sentences for the most serious crimes, with the exception of homicides, which he believes should usually be punished with no more than 5 years imprisonment. Hence, von Hirsch’s entire retributive argument for parsimony rests on his intuition that long prison sentences will cause offenders to lose sight of the moral message that punishment is, in part, designed to send. His intuitions about this are somewhat different than mine. I would think that a maximum 5-year sentence for deliberate murder belittles the victim’s loss of his or her entire life and so does not send a forceful enough moral message about the wrongness of the crime. In any case, my argument for retributive parsimony rests on a more diverse set of claims about retributive theory and its application to contemporary societies. For von Hirsch’s views on parsimony, see von Hirsch (1993, pp. 36–46) and von Hirsch and Ashworth (2005, pp. 142–143).
Another way to reduce the impact of punishment would be to rely more often on restorative justice conferences, especially for less serious property offenses and offenses against persons. These conferences would minimize state involvement, with its attendant highly stigmatizing effects and might encourage offenders (and their victims) to take more responsibility for determining appropriate remedial responses for their misconduct. For an overview of restorative justice, see Baithwaite (1998). Importantly, retributivists would insist that restorative justice conferences must be structured so that it is offenders who ultimately take responsibility for their crimes. On this point, see Duff (2003).
Another way in which to reduce the level of punishment is to reject the practice of assigning consecutive sentences to offenders who have committed numerous crimes in favor of a practice of assigning concurrent sentences. I believe that retributivists must have limited enthusiasm for such a proposal, especially in cases in which offenders severely victimize a number of people, each of whose victimization should be acknowledged in the sentence that offenders receive. Still, whether the acknowledgement of multiple victims must take the form of consecutive sentences reflecting the seriousness of the crime committed against each victim, or could involve “bulk discounts,” is a matter about which there is room for debate among retributivists. On bulk discounts in sentencing and the forms they might take, see Ryberg (2005) and Jareborg (1998).
Some countries already do these things, of course. See the chapters discussing prison visitation programs and prisoner leaves in Germany and Sweden in van Zyl Smit (2001).
This possibility, and the problems with it, are discussed in Lippke (1999).
For a detailed analysis of how social deprivation undermines the abilities of communities to produce responsible citizens, see Currie (1998, Chap. 4).
Here I part ways with von Hirsch and Ashworth (2005, pp. 62–74).
It is, of course, controversial what a fully developed account of the moral rights of individuals will look like. This point is made by Husak (2008, pp. 71–72).
For a critique of the current understanding of legal responsibility within the criminal law, see Arenella (1992).
I discuss the problems with devising a realistic form of non-punitive confinement in Lippke (2008, pp. 406–413).
Zimring (1998, pp. 485–490) argues that juveniles are impulsive and too easily influenced by peer pressure to be fully capable of moral responsibility.
See Lazarus (2004), especially her discussion of efforts by the Federal Constitutional Court to prod German states to live up to constitutional standards regarding the treatment of prisoners, pp. 50–71.
Winick (2003) develops this argument in relation to the effects on offenders of sex offender registries.
As, for instance, von Hirsch and Ashworth (2005, pp. 75–91) have attempted to do in response to charges that desert theory leads to excessive punitiveness in sentencing.
References
Anderson, Jami L. 1999. Annulment retributivism: A Hegelian theory of punishment. Legal Theory 5: 363–388.
Arenella, Peter. 1992. Convicting the morally blameless: reassessing the relationship between legal and moral accountability. UCLA Law Review 39: 1511–1622.
Baithwaite, John. 1998. Restorative justice. In The handbook of crime and punishment, ed. Michael Tonry, 323–344. New York: Oxford University Press.
Braithwaite, John, and Philip Pettit. 1998. Not just deserts: A republican theory of criminal justice. Oxford: Clarendon Press.
Brook, Aaron S. 1999. An analysis of modern shame punishment as an alternative to incarceration. William and Mary Law Review 40: 653–686.
Cahill, Michael T. 2007. Retributive justice in the real world. Washington University Law Review 85: 815–870.
Cole, David. 1999. No equal justice: Race and class in the American criminal justice system. New York: New Press.
Currie, Elliot. 1998. Crime and punishment in America. New York: Henry Holt.
Dolinko, David. 1991. Some thoughts about retributivism. Ethics 101: 537–559.
Duff, R.A. 1977. Psychopathy and moral understanding. American Philosophical Quarterly 14: 189–200.
Duff, R.A. 1986. Trials and punishments. Cambridge: Cambridge University Press.
Duff, R.A. 2003. Restoration and retribution. In Restorative justice and criminal justice: Competing or reconcilable paradigms?, eds. Andrew von Hirsch, Julian V. Roberts, and Anthony Bottoms, 43–59. Oxford: Hart Publishing.
Fine, Cordelia, and Jeanette Kennett. 2004. Mental impairment, moral understanding, and criminal responsibility: Psychopathy and the purposes of punishment. International Journal of Law and Psychiatry 27: 425–443.
Griffin, James. 1986. Well-Being: Its meaning, measurement, and moral importance. Oxford: Clarendon Press.
Hagan, John, and Ronit Dinovitzer. 1999. Collateral consequences of punishment for children, communities, and prisoners. Crime and Justice: A Review of Research 26: 121–162.
Hampton, Jean. 1991. A new theory of retribution. In Liability and responsibility: New essays in law and morals, eds. R.G. Frey, and Christopher W. Morris, 377–414. Cambridge: Cambridge University Press.
Haney, Craig. 2003. Mental health issues in long-term solitary and ‘supermax’ confinement. Crime & Delinquency 49: 124–156.
Harris, Grant T., Tracey A. Skilling, and Marnie E. Rice. 2001. The construct of psychopathy. Crime and Justice: A Review of Research 28: 197–264.
Hochschild, Jennifer. 1991. The politics of the estranged poor. Ethics 101: 560–578.
Husak, Douglas. 1992. Drugs and rights. Cambridge: Cambridge University Press.
Husak, Douglas. 2008. Overcriminalization: The limits of criminal law. Oxford: Oxford University Press.
Husak, Douglas, and Peter de Marneffe. 2005. The legalization of drugs. Cambridge: Cambridge University Press.
James, Doris J. and Lauren E. Glaze. 2006. Mental health problems of prison and jail inmates. Bureau of Justice Statistics Special Report. Washington, D.C.: U. S. Department of Justice.
Jareborg, Nils. 1998. Why bulk discounts in multiple offense sentencing? In Fundamentals of sentencing theory, eds. Andrew Ashworth, and Martin Wasik, 129–140. Oxford: Clarendon Press.
Kahan, Dan. 1996. What do alternative sanctions mean? University of Chicago Law Review 63: 591–653.
Kant, Immanuel. 2002. The philosophy of law (trans: Hastie, W.). 194–205. Union, N.J.: Lawbook Exchange.
Kurki, Leena, and Norval Morris. 2001. The purposes, practices, and problems of supermax prisons. Crime and Justice: A Review of Research 28: 385–424.
Lazarus, Liora. 2004. Contrasting prisoners’ rights: A comparative examination of Germany and England. Oxford: Oxford University Press.
Lippke, Richard L. 1999. Making offenders pay—for the costs of their punishment. Social Theory and Practice 25: 61–77.
Lippke, Richard L. 2004. Against supermax. Journal of Applied Philosophy 21: 109–124.
Lippke, Richard L. 2007. Rethinking imprisonment. Oxford: Oxford University Press.
Lippke, Richard L. 2008. No easy way out: Dangerous offenders and preventive detention. Law and Philosophy 27: 383–414.
Markel, Dan. 2001. Are shaming punishments beautifully retributive? Retributivism and the implications for the alternative sanctions debate. Vanderbilt Law Review 54: 2157–2242.
Massaro, Toni M. 1991. Shame, culture and American criminal law. Michigan Law Review 89: 1880–1944.
Mill, J.S. 1979. Utilitarianism, ed. George Sher. Indianapolis: Hackett Publishing.
Morris, Herbert. 1968. Persons and punishment. Monist 52: 475–501.
Morris, Norval. 1982. Madness and the criminal law. Chicago: University of Chicago Press.
Morris, Norval, and Michael Tonry. 1990. Between prison and probation: Intermediate punishments in a rational sentencing system. New York: Oxford University Press.
Morse, Stephen. 1998. Excusing and the new excuse conditions: A legal and conceptual review. Crime and Justice: A Review of Research 23: 329–406.
Murphy, Jeffrey. 1972. Moral death: A Kantian essay in psychopathy. Ethics 82: 284–298.
Murphy, Jeffrey. 1973. Marxism and retribution. Philosophy and Public Affairs 2: 217–243.
Nagin, Daniel S. 1998. Deterrence and incapacitation. In The handbook of crime and punishment, ed. Michael Tonry, 345–368. New York: Oxford University Press.
Nathanson, Stephen. 1985. Does it matter if the death penalty is arbitrarily administered? Philosophy and Public Affairs 14: 149–164.
Ryberg, Jesper. 2005. Retributivism and multiple offending. Res Publica 11: 213–233.
Sadurski, Wojciech. 1985. Giving desert its due. Dordrecht, Netherlands: D. Reidel.
Sher, George. 1987. Desert. Princeton, N.J: Princeton University Press.
Steiker, Carol S. 2005. The ethics and empirics of capital punishment: No, capital punishment is not morally required. Stanford Law Review 58: 751–789.
Stuntz, William J. 1998. Race, class, and drugs. Columbia Law Review 98: 1795–1842.
Tonry, Michael. 1992. Proportionality, parsimony, and interchangeability of punishments. In Penal theory and penal practice, eds. R.A. Duff, S. Marshall, R.E. Dobash, and R.P. Dobash. Manchester, UK: Manchester University Press.
van den Haag, Ernest. 1978. The collapse of the case against capital punishment. National Review 31: 395–407.
van Zyl Smit, Dirk. 2001. Imprisonment today and tomorrow: International perspectives on prisoners’ rights and prison conditions, 2nd ed. The Hague: Kluwer Law International.
von Hirsch, Andrew. 1993. Censure and sanctions. Oxford: Clarendon Press.
von Hirsch, Andrew, and Andrew Ashworth. 2005. Proportionate sentencing: Exploring the principles. Oxford: Oxford University Press.
Walker, Nigel. 1991. Why punish: Theories of punishment reassessed. Oxford: Oxford University Press.
Wasik, Martin, and Andrew von Hirsch. 1994. Sect. 29 revisited: Previous convictions in sentencing. Criminal Law Review 1994: 409–418.
Whitman, James Q. 1998. What is wrong with inflicting shame sanctions? Yale Law Journal 107: 1055–1092.
Whitman, James Q. 2003. Harsh justice: Criminal punishment and the widening divide between America and Europe. Oxford: Oxford University Press.
Winick, Bruce J. 2003. A therapeutic jurisprudence analysis of sex offender registration and community notification laws. In Protecting society from sexually dangerous offenders: Law, justice, and therapy, eds. Bruce J. Winick, and John Q. La Fond, 213–229. Washington, D. C.: American Psychological Association.
Zimring, Franklin E. 1998. Toward a jurisprudence of youth violence. Crime and Justice: A Review of Research 24: 477–501.
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Lippke, R.L. Retributive Parsimony. Res Publica 15, 377–395 (2009). https://doi.org/10.1007/s11158-009-9101-7
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DOI: https://doi.org/10.1007/s11158-009-9101-7