Law & Society Blog

The question lurking in the back of my mind is: Will retributivism prove too much? If we imagine a state that justifies punishment purely on retributive grounds, would such a state be able to consistently not punish some instances of crime? Prosecutorial discretion can be explained in terms of consequentialism as an efficient use of resources as measured by the ends of punishment, that is, deterrence, which can be achieved by punishing less than 100% of all crimes. If the crime itself, on the other hand, is sufficient grounds for punishment, can there be retributivist reason not to punish?

Pure retributivism can be seen to lead to a duty to punish, because a purely retributive system would find no reason to justify selectively not punishing crime. (If the state has a duty to punish, it is only a small step for the citizen/victim to demand that the state fulfil its duty, but that is not a central point here.) A duty to punish is not widely accepted today, and I think it is an indication that retributivism is seen as taking the theory of punishment only so far, even by its supporters.

Perhaps the right approach is to bifurcate the justification of punishment: Punishment needs to be justified vis-a-vis society and vis-a-vis the criminal. Society demands a justification for punishment, because it has an interest in limited state abridgment of liberty and because unjustified punishment may affect all of us, even the innocent. To justify punishment in social terms it is necessary (and sufficient) to demonstrate that the threat of punishment and the act of punishment prevent crime (or in a lesser form of the argument, lend the citizens a sense of security and peace despite the presence of crime). This justification does not work for the criminal: The crime committed can no longer be prevented. Future crime can be prevented just as easily by punishing an innocent citizen and proclaiming him or her to be guilty as by punishing the guilty citizen and proclaiming him or her to be guilty. “Why me?” is the question the criminal asks to demand a justification of punishment, and the answer commonly given is retributivist: “Because you are guilty of the crime.” In this way, the “principle of guilt” justifies and limits the state in meting out punishment. The criminal’s guilt justifies that he or she is singled out for the purposes of crime prevention in an consequentialist calculus. The requirement of punishing only the guilty limits the state in using the same consequentialist calculus to punish those who may or may not be guilty but whose punishment will effeciently deter others.