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Friday, May 29, 2020

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).

Posted by Adam Kolber on May 29, 2020 at 02:29 AM in Adam Kolber | Permalink

Comments

Perhaps I should have spoken more clearly that the piece isn't addressed merely to "whole life views of desert" but to whole life views of retributivism that include the overpunishment prohibition. (There are a lot of statements, though, that I think point in the right direction. For example, the post is called "Why Retributivism has a Time Frame Problem," and even in the short post above, I do mention that the focus is on purer forms of retributivism that endorse the overpunishment prohibition.)

At least in the circles of punishment theorists that I tend to see, the overpunishment prohibition is widely (almost unanimously) accepted by those who identify as retributivists. But I accept your central point that it is the overpunishment constraint combined with desert that causes most of the problems I discuss. In terms of what we *should* focus on, it depends. One approach is to try to address influential views and another is to try to find the best version of some view. Both seem worthwhile. But since I have broader doubts about desert, I was less inclined to seek out the best version of whole-life desert. Thanks!

Posted by: Adam Kolber | May 29, 2020 11:29:18 AM

Hi Adam. I think that your replies clarify that your objections apply to desert based views that endorse an absolute constraint on over-punishment – to all such views and only to such views – but not to whole life views as such. They apply to whole life views that endorse such a constraint, but that is because they endorse such a constraint and not because they are whole life views. These objections apply to non-whole-life view that endorse such a constraint, and they do not apply to whole life views that do not endorse such a constraint. Therefore, I think that it is misleading to describe these as objections to whole life views.

A conclusion that whole life views that endorse such a constraint should be rejected is important if such views are influential. But since the fact that some versions of a view are implausible does not entail that other versions of this view are implausible, we should reject the whole life view only if there are compelling objections that all of its versions – especially the best one. Therefore, if an absolute constraint on over punishment is implausible (as I and I think you too think) we should focus on whole life views that do not endorse such a constraint.

Posted by: Re'em Segev | May 29, 2020 10:45:53 AM

Thanks, Re'em, for your characteristically insightful comments.

You wrote: "The fact that we have limited evidence about the facts that are important according to this view is not a reason to doubt that this view is correct." On this point, I agree. My challenge to the whole life view is not that it is theoretically unsound but "hopelessly impractical." I don't defend consequentialism in this piece, and of course some think consequentialism is hopelessly impractical as well. But I think the difference is this: for consequentialism, there are uncertainties whether we punish or don't punish. Because acting and failing to act are essentially treated symmetrically, uncertainty doesn't necessarily push consequentialists away from punishment. But most retributivists (see Alexander/Ferzan cite above) put a heavy thumb on the scale against overpunishment relative to underpunishment. So to the extent we have little clue what a defendant deserves from a whole life perspective, that should strongly push most retributivists away from punishment. By contrast, for consequentialists, we may have limited information as to how much punishment optimally deters burglary but that doesn't mean we should have no punishment at all. And at least that problem is one that the social sciences can address. (It's true though that issues about what is intrinsically valuable and how we aggregate value are hard for consequentialists.)

You wrote: "Your second objection is that a person who has less than what she deserves 'could knowingly break the law and still be immune to punishment'. But this is not an implication of the whole life view. This view implies only that there is no reason relating to desert to punish in this case. There may [be] other reasons."

In the first paragraph, I wrote, "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." So I think your comment is fair as to some forms of retributivism. But most retributivists endorse a firm prohibition on knowing overpunishment. They would not allow punishing in excess of desert for consequentialist reasons. Consider the famous example of the mob demanding that the local sheriff hang a person the mob believes to be guilty but the sheriff knows is innocent. The traditional retributivist answer is that punishment is impermissible, even if punishment is required to stop the rampaging mob from killing three innocent people. I think the kind of retributivism you have in mind is different from the traditional view in that it could lead to a different answer in the sheriff hypothetical (a hypothetical that is usually used to embarrass those who would allow or require the sheriff to hang the innocent person).

I'm not sure if I understand the remaining points in that paragraph but maybe the above implicitly addresses it. I think my comments here do address your comments beginning "Your third objection . . . " In other words, yes, there are retributivists who may be okay with knowing punishment in excess of desert, but I'm treating them as a small minority. And again, they seem to give answers in the sheriff hypothetical that conflict with the traditional retributivist answer.

In terms of other approaches, well, I devote a lot of energy in the paper to agreeing with your view about the arbitrary nature of non-whole-life approaches to desert. You write: "And the view that there are no desert based concerns, including in the context of criminal punishment, is also hardly self evident. Is there nothing to be said against punishing an innocent person when the consequences in all other respects are not bad?"

This is, of course, a huge can of worms that I will have a lot to say about elsewhere. But here's one consideration: You offer some reasons here in defense of a whole-life view of desert. Yet, to the extent the actual criminal justice system considers desert, I think it much more closely fits a non-whole-life view. If that's true (and I admit there's room for debate), it suggests that the lay intuitions supporting desert seem pretty far removed what you and I think are a more philosophically defensible conception of desert. I think there are (and write about) many other ways in which our desert intuitions seem faulty, particularly in efforts to identify punishment proportional to desert. Maybe we can correct these faulty intuitions, but I see the problem as pervasive enough that one might just decide that desert is too problematic to figure into a sound justification of punishment. Thank you again!

Posted by: Adam Kolber | May 29, 2020 9:54:36 AM

Thanks Adam. I'm not convinced by these objections to the whole life view.

The fact that we have limited evidence about the facts that are important according to this view is not a reason to doubt that this view is correct. Consider the view that there is reason against harming a (good) person. Is the fact that I'm not sure if a certain action will harm a (good) person a reason to doubt this view? Similarly, I'm sure that you are not impressed by the objection to consequentialism that we have limited evidence regarding about the consequences of our actions.

Your second objection is that a person who has less than what she deserves "could knowingly break the law and still be immune to punishment". But this is not an implication of the whole life view. This view implies only that there is no reason relating to desert to punish in this case. There may other reasons. The whole life view also does not entail that we should tell people who have less than they deserve that there is no desert based reason to punish them. Indeed, it entails a reason against doing so. Harming innocent people for example is wrong (also) since these people do not deserve to be harmed – and this is true even if the agent has less than she deserves. The whole life view does entail that if a person has already suffered enough, there is no desert based reason to punish her further. But that seems reasonable to me.

Your third objection – that the whole life view should not rely on crimes as proxies since this may lead to over punishment that is always wrong – is not applicable to the most reasonable version of the whole life view. This view considers over punishment as bad in one way, but as something that may be justified overall, for example, if a punishment that is slightly more than what a person deserves is the only way to prevent serious harm to many innocent persons who do not deserve such harm.

Finally, even if these or other objections are compelling, we should consider if the alternatives are better. Other versions of desert draw lines that seems arbitrary (from the point of view of desert), I think: why should it matter when exactly did a person suffer? And the view that there are no desert based concerns, including in the context of criminal punishment, is also hardly self evident. Is there nothing to be said against punishing an innocent person when the consequences in all other respects are not bad?

Posted by: Re'em Segev | May 29, 2020 8:47:04 AM

One may read hereby, good article, of"Carmichael Ellis & Brock"concerning the reducing of sentence, thanks to cooperation with investigation, of one defendant in criminal proceedings. Here, titled:

"RULE 35(B) SUBSTANTIAL ASSISTANCE REDUCTIONS

SUBSTANTIAL ASSISTANCE SENTENCING REDUCTIONS"

Here:

https://www.carmichaellegal.com/rule-35-b-substantial-assistance-reductions

Posted by: El roam | May 29, 2020 6:06:07 AM

And contrary to what is written in the post, there is more than certain transparency or reasonable transparency in sentencing. There are strict guidelines in this regard(statutory so).

Here for example, the post of Carissa Byrne Hessick at the time( here, in PrawfsBlawg) titled:

"SCOTUS Term: Hughes v. United States and Federal Sentencing"

https://prawfsblawg.blogs.com/prawfsblawg/2018/06/scotus-term-hughes-v-united-states-and-federal-sentencing-.html#comments

Posted by: El roam | May 29, 2020 5:56:44 AM

Interesting, just worth to note, that judges, many times(unwittingly) combines both approach ( whole life v. current ). One can simply extract from the current, many indicators concerning the whole life of one perpetrator:

Suppose, one person, justifies the offense, since he had no choice. He couldn't provide livelihood to his family. Couldn't put food on the table. He has been fired from his job, couldn't get new job. Had no choice. This is one thing:

Over a person, for the same offense, whatever, doesn't have any family, hadn't been fired from no job. He wasn't and wouldn't even looking for job. Strictly:

Not out of necessity the offense has been committed, but: way of life. One can extract it, from the "current" simply:

Whether, way of life, or: one off. Distress, out of control, or, pathology.

Another illustration, would be, cooperation with the authority investigating and prosecuting:

If the person, was frightened. quickly admitting, he was cooperative, spared time and money of taxpayer etc.... One may conclude, that:

He is normal citizen. Not criminal. He fears the law and its agents. This is not way of life, but rather, One off, or out of genuine distress. He doesn't consider, the law and its agents, as inherent enemies.

Thanks

Posted by: El roam | May 29, 2020 5:28:22 AM

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