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Thursday, December 04, 2008

Retribution: an emerging consensus?

Now a chance to trumpet other people's work. Following up on my previous post, I want to point out that the "consequentialist retributivist" position I present there is not solely my own (though I do think my article provides an especially direct and thorough elaboration of it). Others have also advanced such a view, or strongly hinted at it, or at least have shared its critique of the competing retribution-as-deontological-duty view. For example, in this article (written at the same time as, and independently of mine), Mitch Berman expresses what I take to be a similar position in the end, though in a very different way and with different emphasis. Mark White confronts the same problem (how do we pursue retribution in a world of scarce resources?) in this piece, though his analysis and conclusions differ somewhat. (Interestingly enough, White's piece was also written around the same time, and independently of mine.) Doug Husak points out the need to balance retribution with other goals in this short piece (scroll down to page 991 of the volume). Last but certainly not least, noted Prawf Dan Markel presents a similar view on pages 2193-94 and 2212-13 of this article, among several other places.

Now my question: does anybody disagree?

First of all, it seems quite interesting to me that other several people were pursuing similar questions, and reaching compatible answers, at the same time I was. (I'm glad I didn't write a different article before getting to this one.)

More generally, though, I wonder if the retribution-as-duty view, long associated with retributivist thinking, still has any committed adherents. As my article discusses, even Michael Moore (as serious and sophisticated a retributivist as anyone) seems to have retreated from that view in his recent writing. I've also heard from criminal-law theorist Kim Ferzan about an informal conversation she had with some other retributivists, including, I think, Moore and Berman, and others I can't recall. The generally shared view seemed to be that while "negative" retributivism (avoiding punishment of the innocent) might be a duty, "positive" retribution (punishing the guilty) should probably be seen as something like a good.

That sounds more or less like an emerging consensus to me. I'm not sure I agree that even negative retributivism imposes a deontological duty: in some cases, it might be appropriate (though regrettable) to punish an innocent person for the sake of saving hundreds or thousands of other innocents. I think the easiest way to get to that result is to see it as a tradeoff of consequentialist goods and harms, but it might not be the only way; others (including Moore) seem to think a "threshold" understanding of duties can get to the same place. In any event, the bottom line is that there seems to be a lot more agreement than discord here.

Like many people, I'm in the habit of agreeing with myself. Often, though, I don't agree very strongly. Yet in this case, I do feel pretty strongly that "consequentialist retributivism" makes sense, and it seems others hold similar views too. Are we all just making a point that's clearly correct, even if previously obscure or unelaborated? Have the deontological retributivists left the building?

Posted by Michael Cahill on December 4, 2008 at 05:48 PM in Article Spotlight, Criminal Law, Legal Theory | Permalink


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Posted by: Sharon | Dec 15, 2008 2:05:27 AM

Two quick reactions to Ken Simons's thoughtful comment:

First, I want to highlight KS's apt characterization of my project in the 4th paragraph of his comment. My article discusses how to implement criminal law, not how to specify or conceptualize the norms that govern criminal law. I spend all of one paragraph at the very end of my article noting, but not committing myself to, the possible implications of adopting "consequentialist retributivism" (CR) for purposes of specifying criminal norms themselves.

Second, the concerns KS raises in the last paragraph are well taken, but I don't know if they apply to CR uniquely or in a way that CR can't possibly account for. One issue the comment raises, and which any criminal-justice scheme must consider, is whether the "good" of, say, punishing a single guilty person is equal to, or less than, the "bad" of punishing a single innocent person. I take no position on that in my article either, but it's quite possible that a CR scheme (or any scheme) should assess the relative magnitude of these outcomes so as to stack the deck in favor of avoiding undeserved punishment.

Of course, another way to do that might be to see the "negative" side (avoiding punishment of the innocent) as a deontological duty, even if the "positive" side is seen as a consequentialist good. And as my initial post notes, that might well be a more useful way of characterizing things; I'd have to think about it a little more.

But, as I understand it, those discussions characterizing retribution as a deontological duty in both directions (to punish the guilty, and to avoid punishing the innocent) are generally silent as to whether the negative duty is the same as, or stronger than, the positive duty. In other words, deontological retributivism (DR) could also favor such things as a preponderance standard if the duties are defined so as to be neutral between Type I and Type II error. I'm not saying DR actually does see the duties in that way; again, to my knowledge, DR accounts are typically silent on the matter. In fact, I'd be curious to know how DR would describe the relationship between the negative and the positive duty, or whether it even sees itself as providing the tools to weigh those duties.

Posted by: Michael Cahill | Dec 5, 2008 2:54:32 PM

"If you think that retribution has no value, i.e. that considerations such as moral desert have no proper bearing on criminal liability, then it is certainly true that you have no need for retribution of any variety. But I tend to think punishing guilty people is a good thing"

What if I assume retribution has some small symbolic value, and in some instances, emotional value (e.g., to angry crime victims), but little utilitarian value in terms of improved public safety, reduced recidivism, encouraging rehabilitation, etc.? How am I to weigh this "goodness," which you've postulated but say need not be proven, versus other good outcomes in the world? You're not giving me much to hang my hat on here unless you tell me WHY retribution is inherently good - i.e., what specific, positive benefits you see inherent to retribution that cannot be otherwise achieved.

Posted by: Gritsforbreakfast | Dec 5, 2008 12:28:26 PM

Is there an emerging consensus that deontological retribution is misguided and should be replaced by consequentialist retribution?

Like several other commentators, I think not.

Deontological retribution differs fundamentally from consequentialist accounts of punishment in its understanding of a number of critical criminal law issues: what acts should be punished, and why, and to what extent; and of what mental states should be necessary or sufficient, and what justifications and excuses should be allowed. (Standard examples: Ordinary tort negligence might warrant criminal punishment, if this would achieve optimal deterrence, but deontologists can object to punishment for minor fault; punishment of Nazi war criminals today might have little deterrent or consequentialist benefit, but might be called for as a matter of just deserts.)

Michael’s posts and his illuminating article, Retributive Justice in the Real World, address a different point—not whether deontology gives a different account than consequentialism of the criminal law norms we have or should have, but whether it can give an adequate account of how an actual punishment system should implement these norms.

This is an extremely important issue. And it is a problem that deontologists and nonconsequentialists have scanted, and not only here. Whenever the substance of a legal norm is justified nonconsequentially, we then must decide what procedures to employ to implement the norm. In tort law, suppose the primary duties of tort are explained and justified by corrective justice or a rights-based approach. Still, there are resource constraints that affect our ability to provide an adequate remedy to every plaintiff with a valid substantive complaint.

So I agree that deontological retribution is incomplete. We also need an account of how to implement or execute retributive (and other nonconsequentialist) norms in the real world of scarce resources, discretion, fallible decisionmakers, etc.

But I am not convinced that the account we need here should be thoroughly consequentialist. Michael’s suggestion that we recharacterize retribution as a consequential good that we should maximize along with all other goods is only one solution to the problem, and a problematic one. After all, if one of those other goods is “deterring crime efficiently,” then this could justify radical procedural adjustments that overwhelm the “intrinsic good” of achieving just deserts. Why not permit punishment of serious crimes based on a preponderance standard of proof, or even less? The slope seems slippery.

Posted by: Ken Simons | Dec 5, 2008 11:48:10 AM

In response to Doug B. (and Gritsforbreakfast), David Dolinko has made a similar critique of "consequentialist retributivism" (CR), and I respond to that critique in my article at pages 864-67. CR is not an oxymoron (and does not simply devolve into utilitarianism, which I take to be the underlying thrust of the comment) because it posits that retribution has some intrinsic value, while utilitarianism does not. For a CR adherent, the fact that a person deserves punishment is a good prima facie reason for punishing that person, and the fact that s/he does not is a good reason for refusing to punish, irrespective of whether punishing (or refusing to punish) can be shown to promote overall "utility" in that case.

If you think that retribution has no value, i.e. that considerations such as moral desert have no proper bearing on criminal liability, then it is certainly true that you have no need for retribution of any variety. But I tend to think punishing guilty people is a good thing, and that not punishing innocent people is also a good thing, and I'm confident that many other people share those views.

Posted by: Michael Cahill | Dec 5, 2008 10:02:35 AM

Bingo! Doug B. nailed it, IMO.

Posted by: Gritsforbreakfast | Dec 5, 2008 8:50:29 AM

Does it count as disagreement if I assert that "consequentialist retributivism" as an oxymoron? In my view, what essentially defines retributivism is its fundamental commitment to deontology. Once you start assessing consequences, I think the core philosophical debate is over and then we are simply dickering over which kinds of utility we seek to maximize.

For this reason and others, if in fact nobody is prepared to make a full-throated defense of "deontological retributivism," I suggest we just stop worrying or even thinking about retributivism is criminal law theorizing and in punishment practices.

Posted by: Doug B. | Dec 5, 2008 8:19:45 AM

I disagree. The drafters of the MPC Model Code: Sentencing embraced limiting retributivism, which uses positive and negative deontic retributivism to set minimum and maximum penalties. LR posits that desert intuitions can set a sentencing range but not a specific point within that range, so consequentialist considerations are used to help select a specific sentence within the constraints set by positive and negative desert. Limiting retributivism is not itself a consensus view, but it's adoption by the ALI makes it hard to argue that a contrary consensus has developed against either positive or negative deontic retributivism. More later.

Posted by: Adil Haque | Dec 4, 2008 11:22:32 PM

Orin Said, "You don't run into deontological retributivists these days. "

This guy might take some offense to that!

It is a minority view, in its strong forms, though, and probably rightly.

Posted by: Matt | Dec 4, 2008 7:26:56 PM

"Now my question: does anybody disagree?"

Not many people, I would guess. You don't run into deontological retributivists these days. That's one of the puzzling things about teaching retributive theory, I think: Some of the "standard accounts" of retributivism seem out of whack with what most people actually think. A lot of student are kind of confused by that, and I don't blame them.

Posted by: Orin Kerr | Dec 4, 2008 7:05:45 PM

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