Deterring Retributivism: The Injustice of 'Just' Punishment
2002; Northwestern University School of Law; Volume: 96; Issue: 3 Linguagem: Inglês
ISSN
0029-3571
Autores Tópico(s)Law, Economics, and Judicial Systems
ResumoArticles INTRODUCTION Retributivism' is all the rage. Whether it is revival,2 resurgence,13 or renaissance,4 retributivism's rapid rise5 since the early IMAGE FORMULA9 19700 has been remarkable. The U.S. Supreme Court,' state courts,8 state legislatures,9 philosophers, and legal scholars' alike are increasingly acIMAGE FORMULA11 knowledging retributivism as the dominant of Even its critics acknowledge that retributivism can fairly be regarded as the leading philosophical justification for the institution of criminal punishment.9)12 Putting the rhetorical excesses of retributivism's ascendancy aside, what is truly striking is that of borne out of the harsh and rigid justicel3 of the Old TestamentA has been transformed into that stakes out the higher moral ground.15 Simply put, retributivism justifies punishment, or the suffering by the punished, not on any actual good IMAGE FORMULA13 consequences that might be attained, but solely because the punished deserve it.16 From its roots in vengeance, bloodlust, revenge, retaliation, and an eye for an eye, 17 retributivism is pitched as the only which, in justifying punishment, does justice by (i) not justifying of the innocent, (ii) not using persons as mere means to attain other goals, (iii) giving principled account of the requisite degree of desert and punishment, and (iv) justifying of only those who are morally culpable.18 The principal alternative conception of punishment--consequentialism-is claimed by retributivists to be morally inferior to retributivism on these four counts. Consequentialist theories justify not on the desert due the offender but on the actual, good consequences that are attained, for example, deterrence of crime, incapacitation of the offender, and rehabilitation of the offender. Until the retributivist revival, consequentialist theories of had enjoyed the mantle of being humane, merciful, rational, enlightened, and morally sensitive from Plato onward. Retributivism was dismissed as irrational, taking blind vengeance like beast.19 Punishment under retributivism was conceived as tak[ing] pleasure in another's evil [which] belongs to hatred, which is contrary to the charity whereby we are bound to love all men.20 Retributivism was reviled IMAGE FORMULA16 as nothing more than a triumph, or glorying in the hurt of another... [which is] contrary to reason[,] ... against the Law of Nature and is commonly stiled by the name of Cruelty.1121 But the tables have now turned; it is retributivism which now claims to reflect our aspiration to higher moral principles and it is consequentialism that is widely considered morally unpalatable. My project is not to defend consequentialist of punishment, but to displace retributivism's place on the high moral ground. Just as retributivism is said to turn back the crime on the criminal,22 I will seek to turn back retributivism's principal criticisms of the consequentialist onto itself. As result, I conclude that retributivism is no better than consequentialism as of punishment. And it is perhaps worse. By presenting new arguments demonstrating that retributivism fails to satisfy its own criteria of just punishment, the injustice of the theory of just punishment is revealed. By showing that retributivism falls victim to its own withering critique of other theories of punishment, retributivism succumbs to its own Ishmael effect.23 That is, IMAGE FORMULA18 retributivism is incoherent. In contrast, consequentialism, while undeniably flawed, may be true to itself This age-old debate over the justification of is not merely of theoretical interest. …
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