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Monday, November 16, 2015

Your Turn, Retributivists

In recent posts, I argued that retributivists have not done enough to justify the foreseen but unintended side effects of punishment. I commend to you Alec Walen’s thoughtful reply to my last post. My reaction: What a gentleman!  I appreciate his conciliatory approach and his willingness to question his own preferred theory. So if I--and now I can add Walen--are correct, there is indeed more work for retributivists to do. Let me add some further thoughts in light of his reply:

To my suggestion that there is a high burden to justify the side effects of confinement, Walen suggests that the burden might not be so high if we decide that offenders partially forfeit their rights to be free from side-effect harms. This is an interesting suggestion, though it does raise several questions. If retributive desert justifies purposeful inflictions and partially justifies side-effect harms, doesn't it seem clearer now why one might call those side-effects punishment? Not that we need to get hung up on terminology, but if side-effect harms are justified (in part) by desert and they take a form similar to those of familiar punishment practices, I think it's understandable why we might consider them a form of punishment, broadly construed, at least when assessing punishment severity.

Also, on the standard retributivist view, as each day in prison passes, a prisoner deserves one fewer day in prison. Intentional inflictions reduce remaining sentences. Shouldn't the same principle apply to side-effect harms? Wouldn't that create obligations to monitor prisoner side-effect harms in case adjustments are necessary? In Walen's reply, he states that we may already calculate prison sentences in ways that recognize that a certain amount of side-effect harm is to be expected. But even if we do or should, we'd have to make adjustments for variation in prisoner side-effect harm. Walen recognizes the point; he claims that doing so would be extraordinarily difficult and risk exploitation. Surely that's true. But many retributivists say that we can never knowingly overpunish (see, e.g. Alexander and Ferzan, p. 102 n.33). Wouldn't failing to individualize (or correct) punishment amounts violate this retributivist rule? If not, is that because the rule only applies to purposeful inflictions? If the rule only applies to purposeful inflictions, then I think retributivists lose their distinctive answer to the old "should-the-sheriff-hang-an-innocent-person" hypothetical. And if the rule only applies to purposeful inflictions, why is that? It strikes me as odd that the retributivist framework may hinge on treating purposeful and knowing inflictions differently, even though we consider these mental states largely equivalent in most areas of the substantive criminal law. (P.S. Thanks to Orin Kerr for his helpful comments encouraging me to clarify what I meant by punishment severity in my first post last week.)

Posted by Adam Kolber on November 16, 2015 at 05:02 AM | Permalink


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