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Friday, December 30, 2011

A Recent Illustration of Political vs. Comprehensive Retributivism

This post will exhibit fidelity to Paul's recent heuristic for determining which posts belong to which writers. Yes, this is about retributive justice, and punishment more generally. I raise it now in part because a couple of my favorite folks in the field are guesting on Prawfs, Michael O'Hear and Carissa Hessick, and perhaps they'll want to weigh in.

In some of my recent work, I've tried to elaborate the distinction between what I call political retributivism from comprehensive retributivism. I'm a fan of the former in liberal democracies but more likely to enlist with the comprehensive retributivists, to some extent, in wicked regimes. Part of the attraction to political retributivism is that it recognizes the special communicative language that state punishment speaks in, and it attempts to impose, calibrate, and justify only the liberal state's efforts at authorized punishment for criminal offenses, rather than trying to make sense of or justify the amount of suffering an offender experiences in response to his moral wrongdoing. So the emphasis is on punishment for offenses rather than suffering for wrongdoing. It's pretty difficult to tell which approach has more adherents within the retributive justice camp. I like to think the political approach is winning the hearts and minds of most criminal law theorists, at least within liberal democracies, but it's pretty clear that it hasn't happened yet. 

Criminal law theorists are not without their standard ways of drawing examples to illustrate the differences between the approaches: we often talk about the burglar who breaks his leg during the home invasion or the reckless driver who kills a family member as a passenger in his car. Should the fact of private suffering mitigate state punishment or liability, or in extreme cases, thwart liability by way of prosecutorial declinations?

Often, these examples seem abstract. Here's one ripped from the pages of the recent news. A couple weeks ago, a New York man perpetrated a crime of unspeakable cruelty: he doused a 73 year old woman in gasoline, and then lit her on fire in an elevator, and blocked her escape so she had to burn to death.  As the reporter for the Times put it:

Mr. Isaac, 47, methodically set the woman aflame, burning her alive in the elevator of her building in Brooklyn on Saturday, only a few feet from her apartment door, the police said. He sprayed the flammable liquid in the woman’s face and over her cowering body, and then lighted a Molotov cocktail to ignite the fire.

Within minutes, Ms. Gillespie was burning to death in the narrow cab, and her assailant had fled down the stairs. The attack lasted only a few minutes, all of it captured by surveillance cameras; the sheer, calculated brutality stunned even the most hardened of homicide detectives.

During the course of the crime, he experienced some severe burns himself. Now I take it as a given that his liability to murder charges shouldn't be influenced by his private suffering that he experienced as a result of his crime. (Notice that his suffering is a result of his crime but not a response by others to his crime.)  I also think I would be unmoved by any desert-grounded claim that his sentence should be reduced, even somewhat, as a result of his injuries, which don't appear to be life-threatening. But here, I constantly face challenges, not only from comprehensive retributivists, but also the various utilitarians out there who think that "extra-legal suffering" should be offset by reductions in legal penalties. To me, it's a crazy suggestion that indicates that people don't understand the social meaning of punishment correctly, but it's an intuition that remains rather obdurately.  


Posted by Administrators on December 30, 2011 at 09:02 AM in Criminal Law, Current Affairs, Dan Markel | Permalink


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