Response to a libertarian defense of retribution

Writing in the Boston Globe on “Revenge and the death penalty,” libertarian Cathy Young defended retribution as a central aim of criminal justice, even as she came out against capital punishment.[1]  She concluded her piece saying: “Death penalty opponents have a strong case.  But as long as they deny the legitimacy of retribution, their arguments are likely to fall flat.”  At first glance, this seems to stake out a reasonable middle ground with broad appeal: concede the merits of retributive justice, but stop short of executions.

But on closer consideration, denying the legitimacy of retribution looks increasingly plausible, and it makes for a stronger case against capital punishment. The scientific understanding of the human animal, which shows character and behavior to be completely caused by environmental and genetic factors, challenges the traditional notion of contra-causal freedom ordinarily used to justify retribution.  In particular, cognitive neuroscience is unraveling the mysteries of the brain, calling into question the freely willing mind or soul that many Americans suppose is the deeply deserving target of retributive justice.  Without such a target, the claim that offenders should nevertheless receive their just deserts is difficult to defend.  Making this point against retribution is a perfectly reasonable strategy in opposing the death penalty and other unnecessarily punitive sanctions, support for which is largely driven by retributive emotions.[2]

At a recent conference at the conservative American Enterprise Institute, Princeton neurophilosopher Joshua Greene argued that once the soul and causality-defying free will go, retribution goes too.[3]  Whatever our crimes, we are not blameworthy “deep down in our souls,” since we don’t have such things.[4]  In which case, Greene said, we must drop retribution as an aim of criminal justice in favor of deterrence, rehabilitation and public safety.  Of course, as he also pointed out, America isn’t ready for this, and may not be for quite some time.  Nevertheless, we have to start somewhere, and the growing scientific consensus that we are fully natural creatures, not supernatural little gods, is pushing this issue inexorably to the fore.[5] 

In defending retribution, which she claims is something other than mere state-sanctioned revenge, Young argues that it restores “moral balance,” addresses “moral culpability,” satisfies our desire to make offenders “pay” for their crimes, and expresses our “moral outrage.”  Notice, however, that all these functions of retribution, however principled they  may sound, require exactly what revenge requires: inflicting pain on the offender at least proportionate to the pain he inflicted.  Retributive aims, like the urge for revenge, can only be satisfied by increasing the net suffering in the world. 

The question is, absent the contra-causal, freely willing agent that deeply deserves to suffer, what justifies imposing penalties beyond what’s necessary for such things as public safety, deterrence, rehabilitation, and victim restitution?  Some, like Susan Jacoby in her book Wild Justice (which Young cites in her op-ed), think that unless we satisfy the public desire for retribution, the legitimacy of the law is called into question and vigilante justice will run riot.  Such pragmatism, however, begs the important moral question of whether we should act on the desire, whether public or private, to see offenders suffer for their suffering’s sake.  

To say that offenders just deserve to suffer is not to answer the question about retribution, but to block it.  Lacking a clear and compelling answer, the public may just be wrong in supposing that they have an untrammeled right to their retributive satisfactions.  In which case we need to go about changing public attitudes and beliefs regarding retribution.

Some might argue that the victim’s wish to see the perpetrator suffer or die should nevertheless count in our moral calculus as a basic moral good, but if so, it must be weighed against other values that, according to most ethical systems, should take precedence.  We can’t carry out executions or impose brutal prison sentences while simultaneously modeling and encouraging the non-violent, considerate behavior we want as the social norm.  We can’t exact our pound of flesh and rehabilitate offenders so that they become productive citizens who no longer endanger society.  On balance, do we want a culture in which retribution trumps more progressive goals?  For that is the choice we face.

In the light of science, we can see that there is no ultimately blameworthy agent, independent of the conditions that shape a person, that merits either execution or degradation by punitive imprisonment.  In the light of our best ethical instincts, we can see that retribution is unworthy of us as creatures who seek our better natures.  We can and must deny its legitimacy if we are to make moral progress and build a more enlightened society.[6]

TWC July, 2005

Notes