Why Retributivism Has a Time Frame Problem

Many have the intuition that those who do good deserve good things, and those who do bad deserve bad things. Retributivists take this intuition quite seriously. They argue that criminal offenders should suffer or be punished in proportion to their moral desert. It is offenders’ moral desert, they believe, that justifies the harsh treatment offenders receive. In the more pure forms of retributivism that I focus on here, moral desert is all that retributivists need to examine to assign amounts of punishment to particular offenders.

It turns out to be quite difficult, however, to decide exactly what counts in assessments of moral desert for criminal justice purposes. Even if we assume desert depends on actions (as opposed to, say, character or virtue), retributivists must decide whether to examine offenders’ desert for crimes and other misdeeds across their entire lives (the “whole life” approach) or only for what are typically recent crimes under consideration at a current sentencing proceeding (the “current crime” approach).

Neither view is acceptable. The whole life view examines all of offenders’ good and bad deeds and all of the good and bad things that have happened to them in order to impose penal treatment proportionate to moral desert. Unfortunately, we have limited evidence of offenders’ prior conduct and of the good and bad things that have happened to them since birth. Moreover, punishing those who have suffered great misfortune risks augmenting the mismatch between their well-being and what they deserve. In some cases, the whole life approach could lead to unworkable “moral madness” (Ezorsky 1972, p. xxv) in which a person has suffered so much that he could knowingly break the law and still be immune to punishment.

Some retributivists might cling to the whole life approach but view it as an idealization. They might say recent crimes are proxies for whole life desert given available evidence. But retributivists widely endorse a firm prohibition on purposely, knowingly, or recklessly overpunishing (Alexander and Ferzan 2009, p. 102, n. 33). In any world we can plausibly imagine, using recent crimes as a proxy for overall moral desert would make the risk of overpunishment enormous and could be deemed knowing overpunishment whenever a judge deliberately ignores evidence from an offender’s past that would mitigate.

Our actual sentencing practices, to the extent they contain retributivist features, largely reflect a different approach. Most judges purport to sentence offenders only for crimes for which they have been recently convicted (the current crime approach). To the extent judges consider offenders’ broader history at all, they typically believe that it informs the seriousness of the crimes currently being sentenced. Outside of prior criminal history, an offender’s broader history has limited effect on sentencing. Sentencing practices vary substantially, however, often in nontransparent ways, and likely reflect both the whole life and current crime approaches to varying degrees.

Even if the current crime view predominates among judges in the United States, retributivists cannot simply rely on what a legal system actually does. They must show that whatever practices they advocate are morally justified. And if desert matters so much to retributivists that it can justify punishment, it’s not obvious why we generally fail to examine desert holistically. Looking narrowly at recent crimes risks ignoring offenders’ positive desert and prior suffering and might cause offenders to get even less of what they deserve than if the state hadn’t intervened at all.

Retributivists must choose a time frame in which to analyze desert, but the choice puts them in an unenviable position. The whole life view is impractical to the point of absurdity, while the current crime view is theoretically unsound. Hence the choice of a pertinent time frame in which to evaluate desert presents a serious challenge to retributivist justifications of punishment (and, implicitly, a challenge to many hybrid theories of punishment that have substantial retributivist components), particularly when such justifications are meant to apply to real-world punishments such as incarceration. Retributivists have often ignored the choice, perhaps because it is so difficult to make. But to uphold the retributivist justification, they must select a time frame and explain why the choice is neither theoretically unsound nor hopelessly impractical.

This post is adapted from the introduction to "The Time Frame Challenge to Retributivism," which appears in the recently-published OUP collection Of One-eyed and Toothless Miscreants: Making the Punishment Fit the Crime? (Michael Tonry ed., 2019).