1. Introduction

Given our natural predisposition to retaliate against those who harm us, it’s no surprise that proposals to make the criminal justice system less punitive can elicit strong pushback. Recently, some philosophers, in particular Derk Pereboom and Gregg Caruso, have suggested prison reform should include moderating or eliminating its retributive component, focusing instead on rehabilitating offenders by quarantining them in non-punitive environments.[1] The public is kept safe and the prospect of incarceration, however liberal in its amenities, necessarily operates as deterrent for those with enough to lose, such as would-be white-collar criminals. We should spend more time researching and addressing the social determinants of crime instead of supposing we can punish our way clear of it. Moreover, some of these reformers argue, the common intuition that offenders deserve punishment, and thus are apt targets of deprivation and harsh treatment independently of any future benefit, is misguided. We should reject retribution since it’s unjustifiable.

Such proposals predictably invite skepticism, derision, even outrage. Those who militate against retribution are portrayed as apologists for offenders, as deniers of the obvious truth that harsh treatment is indeed deserved for inflicting harm on innocent victims. Incarceration involving significant suffering is morally mandatory, whether or not any social good such as reform or deterrence accrues.

Among those resisting the call to reject retributivism is University of California, Riverside philosopher John Martin Fischer. In a forthcoming 2023 paper for the Harvard Review of Philosophy, he notes the increasing visibility of moral responsibility skeptics such as Pereboom and Caruso who reject “basic desert” - the fundamental appropriateness of being blamed or punished for wrongdoing independent of any forward-looking consideration.[2] He sees such skepticism as an unfortunate departure from any acceptable moral responsibility framework, and thus seeks to defend retribution against the skeptics, who he says “aim to dismantle a central and important feature of our conceptualization of ourselves.” He arrives at a position he calls semiretributivism, which incorporates some of the skeptics’ concerns about criminal justice but without conceding their case against basic desert (see section 4 below).

Following Peter Strawson’s seminal 1962 paper Freedom and resentment, Fischer holds that moral anger toward offenders, a natural reactive attitude, is nothing we should feel ashamed of.[3] He quotes victims’ impact statements to illustrate their fervent wish to see offenders suffer and even die for crimes such as murder, rape, and assault; and he urges skeptics to grant the moral probity of such a wish. Reading such statements, it is indeed difficult not to feel the justice of inflicting significant pain and deprivation upon those who have caused serious personal harm. The ubiquity and strength of moral anger as a natural reaction to being victimized is therefore not in doubt. What can be questioned, however, is whether and to what extent acting on that anger can be justified if, as retributivists claim, no forward-looking benefit of inflicting suffering on offenders need result.

2. The natural consequentialism of moral anger

That we harbor strong propensities to punish those who harm us - that we seek to harm them in turn - isn’t difficult to explain. For a social group to survive as a cohesive and mutually protective entity within which its members can flourish, aggressors and cheaters have to be kept in check, so moral anger in response to transgressions was a logical target of natural selection.[4] The expression of anger in punishing harm-doers, thus deterring and incapacitating them, and perhaps even reforming them, contributed to social stability and thus reproductive success. We can understand this as a kind of natural consequentialism, what Daniel Dennett would call a “free-floating rationale” hit on by evolution: our punitive reactivity, along with positive propensities such as gratitude and reciprocity, functions to maintain social order.[5] Of course, we don’t experience our retributive emotions as functional or forward-looking, nor did nature intend anything of the sort in selecting for them, but they exist because, along with culturally transmitted variations in their expression, they had and still have the effect of producing at least a modicum of social stability. Our strong inclination to inflict harm on harm-doers thus has a naturally consequentialist rationale which explains why crime victims so fervently want to see offenders suffer, and which explains why we so often emotionally sympathize with their desire for punishment, whatever our considered, dispassionate opinion might be on retribution.

Given all this, what’s striking about retribution is that it’s characterized as exactly that sort of punishment which needs no consequentialist justification. This makes psychological sense given the observations above. From the emotional perspective of our reactivity, inflicting suffering on the offender is the objective, the point of punishment, whether or not such suffering deters, incapacitates, reforms, or results in any other social benefit. Acting on behalf of moral anger presents itself as needing no justification based on good consequences. We can see, therefore, that the conscious, ostensibly principled insistence by retributivists that no benefit of punishment need result speaks on behalf of our reactivity. It betrays, or at least ignores, the original functional role of moral anger. Punishment that inflicts harm proportionate to the offense (sometimes disproportionate, given the strong desire to punish) is simply deserved, full stop. The call for retribution, based in basic desert, can be understood as simply the expression of moral anger shorn of its naturally consequentialist rationale.

3. Can compatibilist freedom justify retribution?

But why should we heed this call? Fischer notes that retribution is central to current conceptions of moral responsibility as implemented in our criminal justice system, but the legitimacy of that centrality is what’s at issue. The powerful grip on us of our punitive reactivity is not obviously self-validating, even though it may present itself as such. Why should we indulge it if indeed no benefit from such indulgence need result? Simply because we strongly desire to? That desire is evident in Fischer’s repeated declaration of his firm intuition, no doubt shared by many, that the consequence-ignoring expression of moral anger must have a place in any adequate moral framework.

Since the retributive impulse, however natural it might be, is not self-validating, Fischer seeks to justify its moral acceptability on grounds of free action: he claims that those who act freely when committing offenses merit anger and deserve punishment simply because they committed the offense. Since Fischer is a compatibilist, the freedom in question is consistent with the possible truth of determinism. He calls it having “guidance control” over one’s behavior, where such control is internal to the reasons-responsive, uncoerced agent, but operates in the context of there being no genuine alternative possibilities, which is compatible with determinism.[6] On Fischer’s “actual-sequence” view, we needn’t suppose an offender could have acted otherwise in an actual situation, but he is nevertheless morally responsible, an apt target of our reactive attitudes, because he has sufficient authorship of action.[7]

Note, however, that this criterion for free, hence blameworthy action – having reasons-responsive self-control – is just that which makes an agent sensitive to the possible consequences of acting badly. The knowledge that I will likely be the target of moral anger and punishment should I transgress might deter me from committing the transgression. Why then, if I transgress, would retributivists claim I’m a legitimate target of sanctions that are independent of any action guiding function? The answer, I suggest, is that this is simply our punitive reactivity, blind to its consequentialist rationale, asserting itself. Such reactivity generally targets reasons-responsive agents, of the sort Daniel Dennett calls morally competent (thus excluding infants and the insane), because they are guidable; we can thus see that Fischer’s criterion for blameworthiness lines up with the natural consequentialism described above.[8] But his insistence that such agents simply deserve harsh treatment apart from any behavior-guiding consequence, or other social benefit, is reactivity taking charge. And of course, most of us are inclined to react that way when presented with horrific crimes, at least initially, even when apprised of these considerations. 

We might try to justify harsh treatment motivated by moral anger on the consequentialist grounds that explain why we have reactive attitudes. Punitive segregation in a bleak detention facility certainly incapacitates offenders and so serves public safety; it likely deters some would-be wrong-doers; and it might occasionally serve moral reform (harsh treatment not being known for its ameliorative effect on character and motives). But citing such outcomes is obviously not in the spirit or logic of retributivism, which demands suffering for its own non-consequentialist sake, even as it tries to dress up that demand as something morally admirable.

4. Semiretributivism in question

Whether or not Fischer convinces us that desert-based punishment is morally mandatory, he acknowledges that skeptics of basic desert adduce considerations that should figure in deciding how much suffering and harsh treatment should be inflicted on wrong-doer; for example, how long a sentence in what sort of a facility. This is what makes his brand of retributivism semiretributivism: the basic desert he defends can be offset to some extent by appreciating the causal determinants of crime. This works as follows:

Free will and moral responsibility skeptics, unlike many, perhaps most, compatibilists, tend to highlight the formative and situational circumstances that determine an offender’s character, behavioral propensities, and ultimately the crime in question.[9] Fischer, a determinist for all practical purposes, will likely agree that such circumstances completely explain the offender and the offense, even if the offense was committed sanely and voluntarily and thus freely on his definition. But he rightly points out that such circumstances can be overlooked by retributivists: “Retributivism leaves out (or does not require attention to) the myriad social factors that can significantly affect human behavior, and the best, most humane ways to discourage recidivism and encourage re-entry.” To his fellow retributivists he advises: “…we should incorporate, as appropriate, familial and social factors that bear on the causation of an individual’s behavior, including poverty and abuse.” The upshot of such incorporation is the mitigation of blameworthiness and desert: “…we feel the force of the moral responsibility skeptics’ legitimate concerns about how one’s early experiences and developmental history significantly shape behavior.” And this results in Fischer’s semi-retributivist balance between desert and mitigation:

“We can give what we consider due weight to both desert-based responsibility and responsibility-undermining facts about upbringing and social context. These generate pro tanto reasons that go into a judgment as to what should be done, all-things-considered. My own view is that, despite [Robert Harris’s] terrible crime, other factors (such as Harris’s brutal childhood experiences) should have issued in a less severe (but still substantial) punishment.“ (underlining added)

Having generously conceded that attributions of desert can and should be mitigated by considering the causal factors that explain an offender, such as a brutal childhood,[10] Fischer still hasn’t made clear (to me in this paper) why acting freely in his sense entails the moral acceptability of inflicting suffering that serves no consequentialist good, the essence of retributivism (he may have done so elsewhere of course). That such infliction is widely perceived as morally acceptable, even mandatory, and that retribution motivated by moral anger is central to our current criminal justice system, does not justify that centrality.

We all feel the visceral pull of retributive emotions when confronted with the horrific inhumanity and cruelty of the worst wrongdoers, whether criminal or political; we would be morally deficient if we didn’t. Moral responsibility skeptics are not, or at least should not be, in the business of persuading us to abandon our negative reactive attitudes, an impossibility in any case.[11] The anger we feel in response to being victimized is a necessary point of our moral compass without which we would continue to be victimized. The question is not whether we should abjure our reactivity – we should not and cannot – but to what extent we should act on its bidding. What’s problematic is portraying moral anger as something we should seek to express independently of its forward-looking function, so that inflicting suffering for the sake of inflicting it is seen as morally admirable. For the reasons stated in section 3, I don’t see how the control in action Fischer holds as grounding moral responsibility can justify such a view. Absent that justification, it is not morally admirable, or even acceptable, as I see it, to impose harsh treatment on offenders which serves no forward-looking purpose. And I agree with moral responsibility skeptics such as Pereboom and Caruso that the principle of least infringement should govern the extent to which harsh treatment is imposed, if at all, once we’ve agreed on the aims of criminal justice.[12] But that’s a topic for another day.

TWC  1/28/2023