Retributive Theory of Punishment: A Critical Analysis

By Abhishek Mohanty, WBNUJS

Editor’s Note: The issue of punishment of criminals has been a well debated topic for societies since time immemorial. This has been debated by jurists like Hart, Anthony Flew and Stanley Benn. The broad theories of punishment are divided into consequentalist and retributivist theories.  In this paper, the author will focus on the aspects of retributivist system of punishment. The advantages and criticisms of this system will be also discussed. The various forms of retributivist philosophy like payback, annulment will also be discussed. Further, a comparison of the retributivist system against the other forms will also be covered. 

INTRODUCTION

If we see A holding a knife over B’s dead body, we might conclude that A is morally and causally responsible for B’s death. However there might also be a case that A killed B in an act of self-defence. In this case, A is only causally and not morally responsible for the death of B. How does one decide punishment in such cases? Does one receive lesser punishment or th same punishment in both cases?

The issue of punishment of criminals has been a well debated topic for societies since time immemorial. Broadly, punishment was defined by Antony Flew[1], Stanley Benn[2] and HLA Hart[3] to be something unpleasant for an offense against legal rules which is adminstered by the society and imposed by a legal authority. An essential ingredient of “a certain expressive function: punishment is a conventional device for the expression of atitudes of resentment and indignation, and of judgments of disapproval and reprobation, on the part either of the punishing authority itself or of those ‘in whose name’ the punishment is inflicted”[4]. The broad theories of punishment are divided into consequentalist and retributivist theories.[5] Consequentalist theories are concerned with the practice of punishment if it brings out better consequences. Retributivist theories of punishment see it as important because it punishes the criminals in proportion to their crime thereby restoring a proper balance.

The way how a society punishes criminals is important because of its connection to several events that happens. The recent Delhi rape case where an increased demand for the rapists to be hanged was made inspite of our court system allowing for death penalty in very select cases and that too in the ‘rarest of the rare’ case threw up the debate regarding the system of punishment which should be followed in such cases. Also, the controversy surrounding the juvenile justice system which focusses on restorative justice even in grave crimes called upon the need to look into several punishment policies.

BASIS OF RETRIBUTIVISM

The most classic form of retributivism is derived in Code of Hammurabi’s lex talionis, which  stands for ‘an eye for an eye and a tooth for a tooth’. Most retributivists believe that a guilty person should suffer pain. Herbert Hart defined retributivism as ‘the application of the pains of punishment to an offender who is morally guilty’.[6] . It has been commented that retributivism is seen as making some appeal to ‘moral desirabiltiy’.[7] If a thief intends to steal money from someone, he is morally responsible for the same. And because of this moral responsibility, the thief deserves punishment.

The core princples of retributivism are desert and proportionality. The two principles are somewhat interlinked. For retributivists, the punishment has to be proportional to the crime committed. Desert refers to some demerit which has caused the accused to commit a crime. Retributive punishment has to be proportional to the degree of desert. The more the desert, the more the punishment should be. Retributivism is backward-looking. Retributivists do not punish a criminal for what he or she might do, but only punish for the crimes one has committed and in the amount the person deserves. Retributivists do not concern themselves with the consequences of the acts but only with the desert which has occurred.

In the retributivist theory of punishment, the punishment is seen as a form of ‘payback’ for the crimes one has committed.[8] Mostly retributive justice seeks to punish a person for a crime in a way that is compensatory for the crime. Retributivists argue that criminals deserve punishment on account of their wrongdoing. If they deserve punishment, then justice demands we punish. We do injustice if we fail to punish criminals because they then do not receive what they deserve.[9]

Another school of thought of retributivists sees punishment as a way to remove the ‘unfair advantage’ that the criminals possess due to commission of the crime. Like a thief benefits from breaking the law by stealing someone’s possession. The punishment meted out should remove the unlawful and unfair advantage. [10] The criminals are seen to be free-riders on the law-abiding community. By punishing them, the unfair advantage is wiped out.[11]

One view of retributuivism put forward by Hegel in early nineteenth century saw the idea of punishment to cancel, negate or annul the offender’s crime.[12] In this view, the criminal rejects the victim’s rights while committing a crime. If we leave the crime unpunished, it is regarded as an innocent deed. But by punishing the criminal, the status quo ante crime is restored. This view was taken forward by Hampton who said that by the very act of commission of crime, the criminal fails to respect the victim’s value as a human being. Reteibutive punishment vindicates “the value of victim denied by the wrongdoer’s action through the construction of an event that not only repudiates the action’s message of superiority over the victim but does so in a way that confirms them as equal.”[13] In this way punishment “can annul the message, sent by the crime, that they are not equal in value”.[14]

Now returning to the situation given in the opening, a lower punishment shall be given in the second case since there was no desert on the part of A. It was an act of private defence. This distinction is important because the proportional punishment can only be set properly if one knows whether A is morally and causally responsible for the said act.[15]

ADVANTAGES OF THE RETRIBUTIVIST THEORY

Emphasizes proportional punishment

Retributivist theory focusses on punishment to only those who ‘deserve’ it. Unlike deterrence theory, an innocent can never be punished. Since they are backward-looking, they are not concerned with the possibility of a person committing a crime. For punishment to be meted out, a person must be found guilty.[16]

Retributivist theory emphasizes the need of proportionality of the punishment to the desert. Instead of restitution where the wrongdoes repays the society what he gained from the crime, but such a punishment is flawed. A person who has stole a sum of money should not only give back the money but should also suffer to the extent he made the victim suffer.[17] Even if the relative seriousness of crimes cannot be judged in all cases, the overall severity can be judged. Also, such proportional punishment gives a sort of protection against severe and disporoportional punishments for crimes.[18]

In 1975, consequentalist ideas were dominant in the English-speaking countries for a century. Officials in the United States were allowed broad discretions to individualize sentences. Punishment could be lengthened arbitrarily or even shortened. Such discretion was criticized by the scholars of that time.[19]

Retributive punishment sends out a message

The idea of punishment as a form of denunciation of the criminal and his act by the society has been envisioned by scholars like Morris, Hampton and Sir. Sir James Stephen put the message in the words as,

“The sentence of the law is to the moral sentiment of the public in relation to any offence is  what a seal is to hot wax. It converts into a permanent final judgment what might otherwise be a transient sentiment.”[20]

In his evidence to the Royal Commission on Capital Punishment, Lord Denning observed,“ultimate justification of any punishment is not that it is a deterrent but that it is the emphatic denunciation by the community of a crime.”

In the opinion of Hart, punishment should not be for sake of denunciation alone but a deserved punishment does serve as a denunciation. According to him, we do not live in society in order to condemn though we may condemn in order to live.[21] Morris contended that by punishing wrongdoers each citizen learns the particular significance of the evil underlying offenses and the degree of seriousness. Hampton  opined that punishment is somehow representative of the pain suffered by the victim of crime and hence by inflicting punishment the wrongdoer shall understand the immorality of the action.

The Supreme Court in the Dhananjoy Chatterjee[22] case held that appropriate punishment is the manner in which the courts respond to society’s cry for justice and that justice demands imposition of punishment befitting the crime to reflect public abhorrence.

Not meting out to punishment is unfair to victims and society alike

All legal systems recognize the need of punishment in response to crimes. If the perpetrators of crime are allowed to walk free or pay money and escape punishment, that would mean that they have not committed any wrong. The unfair advantage that they would have gained by seeking recourse to illegal methods would not be paid back or annulled if such a situation arises.

CRITICISMS OF THE RETRIBUTIVIST THEORY

The requirement of desert required to punish crimes has in itself some difficulties. The very nature of morality being subjective makes it difficult to deliver punishments for crimes. The immorality of crimes needs to be comparable. For this, a sort of gold standard is required to assess a crime. A society has its citizens adhering to very different conceptions of good and bad. For some, using drugs is a matter of personal liberty while for some it is seen to be an reprehensible act. Nations have varying laws on subjects like prostitution, drug use etc. The very question of setting a common moral standard seems every bit fair since it involves asserting one’s view over others. Hence the process of unifying morality for ‘punishing evil’ is far complicaed than what it might appear.

Another problem of retributivist theory is with dealing with amoral crimes. Although most crimes are both illegal and immoral like rape, murder, theft etc., there are crimes like traffic offences and jaywalking which although illegal cannot be said to be immoral. For example, a overspeeding driver on an empty road cannot be said to be doing anything immoral although overspeeding constitutes an illegal act. In such crimes, the punishment cannot be set proportional to the wickedness of the crime because of the absence of wickedness. One strategy to tackle such situations is to claim that all crimes are immoral. But this involves imposing of morality which goes back to the first criticism of the theory.

Retributivists are uncomfortable with mercy and pardons. Sometimes a greater good can be achieved by pardoning a criminal instead of punishing him. However, Kant famously quoted that if ‘justice goes, there is no longer any value in human beings living on the earth’[23]. A bloody war is more acceptable than avoiding it through injustice. Modern common law systems have a system of plea bargaining where in the accused admits to the guilt in lieu of a reduced sentence. The state justifies such sentences on the grounds of saving of taxpayers’ money and courts’ time. Hence, the criminal does not get what his deserved punishment was.[24]

COMPARISON WITH OTHER THEORIES

Deterrence Theory: Punishment is used to deter people from committing a crime. It is divided into special deterrence and general deterrence. Special deterrence imposes punishment to discourage a person from committing a crime whereas general deterrence punishes an offender to make an example out of him. However, this theory has been criticized because unlike retributvism, it punishes offenders before they have even committed a crime. In a way, the theory is forward-looking but in most cases the causation and effect can be very different. It does not require desert for the crime to be punishable. Also, the idea of making an example out of an offender runs counter to the proportional punishment which has been long championed by retributivists.

Rehabilitation Theory: Although the goal of rehabilitation is to reform the offender and transform him to a law-abiding citizen, it has long been argued that such processes have not been very successful. Moreover, the very idea of unfair advantage which the criminal gains, makes it morally improper to expect that the criminal will reform himself to a good human being. Retributivists stick to the point that all crimes should be punished. Hence by this idealistic thought of criminals changing to their earlier good state, retributivist forcefully reject the notion of such rehabilitation. Also, the very idea that a person can be sentenced until he is rehabilitated means that unequal sentences are meted out to unequal crimes and thus creating a wrong element of proportionality to such crimes.[25]

Restorative system: In this system, instead of any punishment being meted out, the victim, offender and the community participate together in a process of restitution. The offender takes complete responsibility for the crime and initiates restitution to the victim. Hence, the idea of punishment is completely discarded and is thus opposite to idea of retributivists. Such a system is woefully inadequate to address crimes like murder since there cannot be any restitution in such cases.

It must be noted that retributivist punishment can not be meted in all cases. The weightage given to proportionality in the retributive system of justice carries with itself several advantages and disadvantages. Retributivism ignores the offender’s future conduct or effects punishment can have on crime rates. However, in many cases(like that of juveniles), one should take into account the effect of punishment on the accused. Hence, a lenient and reformative system of punishment should be observed in such cases.

The idea of equality of punishment is actually difficult to implement in many situations. What can be the punishment for crimes like rape, kidnapping, forgery and so on? The state cannot exercise the same brutality since it would be demoralising to the communtiy and also somewhat barbaric. In today’s societies, the maximum punishment that can be imposed is the death penalty which has its own critics. But however in many cases like the Delhi rape case, terrorist attacks the death penalty has been imposed and not condemned by the society.[26]

RECOMMENDATIONS TO THE RETRIBUTIVIST SYSTEM OF PUNISHMENT

Under the retributive system of punishment, the link between the victim and the accused is termed irrelevant. The crimes are seen to be against the state. But in several cases, the victim’s relation to the accused is pivotal because of the effect that the punishment can have on the relation can be damaging.[27] The Truth and Reconciliation Commission in South Africa used restorative justice instead of punishing the wrongdoers. The wrongdoers could be pardoned by the victims of the crimes. This approach was a reconcilitatory approach to deal with human-rights violation. This approach helped the people of South Africa to achieve a sort of compromise without which the consequences of a full-fledged criminal process would have led to further racial divide already prevalent in the country.

Many scholars believe that the idea of proportionality should only prescribe maximum sentences possible in the cases. A modest theory of ‘limiting retributivism’ emphasizes on the need of punishment to be within a range of not lenient and not too severe punishment. Norval Morris viewed retributive punishments to be imprecise in their assessment.[28] Several other writers have proposed flexible retributive limits on different grounds. For example, Armstrong wrote that:

the right to punish offenders up to some limit, but one is not necessarily and invariably obliged to punish to the limit of justice… For a variety of reasons(like reformng the criminal) the approporiate authority may choose to punish a man less than it is entiled to, but it is never just to punish a man more than he deserves.”[29]

Some utilitarian approaches to punishment like Ends-Benefits proportionality also takes cognizance about the concet of proportionality. But however, it recommends punishing in proportion to the harm caused or threatened, but only when such and to such extent that such punishment will prevent future crimes. This theory not only takes into account the actual crime control but also the undesirable consequence of the sanction.[30]

 Edited by Hariharan Kumar

[1] Antony Flew, ‘The Justification of Punishment’[1954]. Philosophy, 29, 293-294

[2] S I Benn, ‘An Approach to the Problems of Punishment’ [1958] Philosophy 127, 325

[3] HLA Hart, Punishment and Responsibility (1st, Clarendon Press, Oxford 1968) 5

[4] Joel Feinberg, Doing & Deserving; Essays in the Theory of Responsibility (1st, Princeton University Press,  Princeton 1970) 98

[5] Although this broad classifcation has been challenged, but the two words are used to group together a set of very diverse theories. Matravers 2000:4 n 4

[6] R.A.Duff and Stuart P.Green, ‘Introduction: The Special Part and Its Problems’ in Defining Crimes: Essays on the Special Part of the Criminal Law (OxfordL Oxford University Press, 2005): 1-20

[7] T. M. Scanlon, What We Owe to Each Other (Cambridge: Belknap/Harvard University Press,1998), p. 266.

[8]  John Cottingham, ‘Varieties of Retribution’, Philosophical Quarterly 29 [1979], pp. 238-46.

[9] Thom Brooks, Punishment (1st, Taylor & Francis, 2012) 20

[10] Herbert Morris, “Persons and Punishment” 1976 31-58. Published in Monis 52 [1968]: 475-501

[11] John Deigh and David Dolinko, The Oxford Handbook of Philosophy of Criminal Law (1st, Oxford University Press, Oxford 2012) 34

[12] Hegel, Philosophy of Right (1st, Dyde, 1952) 100

[13] Hampton 1992: 1677

[14] Murphy & Hampton 1988: 131

[15] Supra, note 9

[16] Immanuel Kant, ‘The Retributive Theory of Punishment’ in (eds), The Philosophy of Law (1st, , 1887).

[17] Murray N. Rothbard, “Punishment and Proportionality,” in Assessing the Criminal: Restitution, Retribution, and the Legal Process, R. Barnett and J. Hagel, eds. (Cambridge, Mass.: Ballinger Publishing, 1977), pp. 259–70.

[18] Tom Elis, ‘Principles of Retribution’ (Debates in criminal justice 2010) <http://debatesincriminaljustice.com/wimbas/RetributionCh5/page_02.htm> accessed 15 Nov 2013

[19] Davis 1969

[20] Sir James Stephen, A History of the Cirmnal Law of England (1st, MacMillan, London 1883) 81-82

[21] Supra, note 3

[22] Dhananjoy Chatterjee v State of West Bengal 1994 SCR (1) 37

[23] Robinson, Distributive Principles of Criminal Law, 1

[24] Douglas Husak, ‘Malum Prohibitum and Retribution’ in RA Duff and Stuart P Green, Defining Crimes, 66 n 8

[25] K.G.Armstrong, ‘The Retributivist Hits Back’ [1961] Mind, New Series 33

[26] Sanjoy Mazumder, ‘India and the death penalty’ (BBC News 2005) <http://news.bbc.co.uk/2/hi/south_asia/2586611.stm> accessed 16 Nov 2013

[27] George P Fletcher, ‘The Place of Victims in the theory of Retribution’ [199] Buffalo Criminal Law review , 51

[28] Norval Morris, The Future of Imprisonment (1974) 83-119

[29] Supra, note 25

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