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Thursday, February 16, 2006

Retribution, Recognition, and the Death Penalty

There is an interesting debate among contemporary retributivists over whether the principle of proportionate punishment should be interpreted in terms of objective deprivations or in terms of subjective suffering. Depending on other commitments (to cardinal versus ordinal proportionality), the first view demands that an offender undergo a loss whose worth is comparable either to the loss undergone by his or her victim or to the loss imposed on those convicted of similar offenses. The second view demands that punishment cause a level of physical and psychological distress comparable to that either suffered by the victim or inflicted upon similar offenders. The two views come apart where an offender’s subjective susceptibility to certain deprivations does not track their objective magnitude, such as where a recidivist places low weight on his or her own freedom or a murderer undervalues his or her own life. 

Both sides have strong claims. Objectivists can argue that since an offender has already demonstrated warped values in committing the offense, the justice system should not be expected to accommodate (let alone validate) similarly distorted values at sentencing. Subjectivists can argue that an offender who does not experience a punishment as an objectively proportional hardship is in some sense getting off easy. I suspect, however, that at the very least a punishment must be of a kind that its objective magnitude could be subjectively experienced and recognized by its recipient. One reason for thinking this is that on some retributivist views (most famously the teleological retributivism of Robert Nozick) punishment should create the possibility that an offender will recognize in the severity of the punishment the gravity of the offense itself, and will in this way be reconnected to correct values, to the victim, and to the moral community. I realize this is nonetheless an odd-sounding criterion, partly because it is hard to think of an objectively proportionate deprivation that cannot be subjectively experienced as such. But I think there might be one: Death.

      Leaving certain refinements to the side, death is a misfortune because it involves the loss of all the goods life makes possible. But one does not experience this loss or recognize its occurrence, for “Death is not an event in life: we do not live to experience death.” By contrast, a sentence of life imprisonment does not deprive one of all the goods of life, only most of them. But a life sentence does allow for contemporaneous recognition of the magnitude of the loss imposed. It is true that an offender sentenced to death can recognize before the fact the severity of the sanction that will be imposed; but that which makes the sanction so severe will never be felt. If a term of life imprisonment could be served in an induced coma, offenders could predict the impact of the sentence on their overall welfare, but they would not experience that loss or recognize its impact as it occurred. The hypothetical may be too fraught to be conclusive, but I think it at least suggests the intuitive importance of (the possibility of) contemporaneous recognition of the severity of a punishment. It does seem important to give offenders the opportunity to reflect on their fate as it happens, and hopefully acknowledge the wrongfulness of their acts as the reason for their punishment. That capital punishment does not allow for such a possibility is some reason to think that the death penalty, despite its talonic allure, might fail to realize the promise of retributive justice.

      For Dan’s take on retributivism and the death penalty, click here.

Posted by Adil Haque on February 16, 2006 at 03:37 AM in Criminal Law | Permalink


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Are you proposing to bring back the cross, the gibbet and the oubliette?

Posted by: nk | Feb 16, 2006 9:00:28 AM

Just kidding. The death penalty is waning in most western societies including ours because society's need of it, to assuage its outrage and to reaffirm it own morality by contrasting with the depravity of the criminal, is diminishing. Which I would say is the true intent and effect of criminal punishment. Not retribution on the criminal, and only "collective" redress to the victim as a valued, legitimate part of society.

Posted by: nk | Feb 16, 2006 9:13:21 AM

"It does seem important to give offenders the opportunity to reflect on their fate as it happens, and hopefully acknowledge the wrongfulness of their acts as the reason for their punishment."

Can you say more? I'm not seeing why this is so.

Posted by: Guest | Feb 16, 2006 9:55:12 AM

To Guest: The general idea that punishment should be more than a painful stimulus, and should engage with an offender's moral reasoning is well-expressed by Herbert Morris' articles on punishment theory, especially Persons and Punishment, 52 Monist 475-501 (1968), and A Paternalistic Theory of Punishment, 18 American Philosophical Quarterly 263-71 (1981). The "as it happens" part is what I'm trying to explore and motivate, but what you see is more or less what I've got. I'm afraid it's still a rather indistinct intuition.

Posted by: Adil Haque | Feb 16, 2006 11:46:39 AM

Great post, Adil. It reminded me of an issue that came up in a criminal case I had while in practice. We were working on a sentencing memorandum (back in the Guidelines days), and we were before Judge Weinstein in the EDNY, so we had reason to think he was open to arguments for downward departures. One of the claims we tried to develop was that our client would subjectively experience time in prison as a greater, and more painful, deprivation than might the "heartland" money-laundering offender. (Some courts had bought this theory, where defendants made the case that they were likely to be sexually assaulted in prison, because of their age, stature, and appearance, and would therefore suffer more in prison. What a sad comment on our prisons!).

Posted by: Rick Garnett | Feb 16, 2006 1:34:30 PM

Thanks, Rick. Once recognized, the problem is pretty pervasive. A first-time offender will probably suffer more from imprisonment than a career offender, someone with a family more than a single person, someone with a high standard of living more than someone with a low standard of living. One reason I'm hesitant to accept the subjectivist approach is that it seems to run into pretty serious distributive justice issues (adaptive preferences, diminishing marginal utility, etc.).

Posted by: Adil Haque | Feb 16, 2006 1:45:55 PM

The general idea that punishment should be more than a painful stimulus, and should engage with an offender's moral reasoning

Posted by: nk | Feb 17, 2006 12:13:43 AM

Isn't this argument invalidated by simple common sense? If you were a murderer, and you could choose whether to be imprisoned for the rest of your life or executed, which would you choose? I think the overwhelming majority of people would choose life imprisonment. It srikes me as odd that you are arguing that the subjective experience of the death penalty is 'less bad' than the subjective experience of life imprisonment, when given a choice motivated by their own, personal, subjectively defined preference, people intuitively make the exact opposite choice (death penalty appeals are not motivated by the desire to suffer more, after all). Anti-death penalty adherents argue against the death penalty because it is 'cruel and unusual', not because it is the easy way out.


Posted by: Steve | Feb 19, 2006 10:36:44 AM

Steve: Sorry for the very long delay. The email alerting me to your comment was unfortunately sent to my spam box. I wasn't arguing that death is less bad than life imprisonment, but that death as a form of punishment might not serve retributivist purposes. Thanks for your comment.

Posted by: Adil Haque | Mar 2, 2006 2:50:39 PM

Hi ! Your site is very interesting. Thank you.

Posted by: Rustie | Mar 15, 2006 11:29:30 PM

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