How both cohere in a single justification of punishment
My objective is to sketch a theory to justify state punishment that combines principles of retributive desert with considerations of deterrence and crime control. Any acceptable theory, I believe, must incorporate these distinct components. But how? My first of two sections identifies several background assumptions that I hope are acceptable but for which I cannot argue. My second and final section presents the theory itself and the reasons I believe it to be preferable to alternatives.
Legal philosophers since at least the time of Plato have struggled to justify state punishment. Anyone who is familiar with the voluminous literature on this topic must be struck by the enormous discrepancy between the kinds of approach that are favored by theorists from different disciplines. Obviously, generalizations about these matters are perilous. Abolitionism—the position that punishment cannot be justified and thus the state must find alternatives that do not rely on penal sanctions, to deal with offenders—is becoming somewhat more respectable among academic commentators in the United States. In my judgment, no alternative is less problematic than punishment itself. In any event, fundamental differences persist in distinct disciplines among theorists who continue to believe that state punishment can be justified. In what follows, I will use a very broad brush to characterize these differences. I hope that my (admittedly oversimplified) description is useful not only to illustrate the conflict between disciplines, but also to identify the challenge that any acceptable theory must meet.
Many and probably most legal philosophers are broadly sympathetic to the retributive tradition. Legal philosophers disagree profoundly about how retributivism should be characterized. According to my preferred account, retributivism refers loosely to a family of theories that award a central and indispensable place for desert in their efforts to justify state punishment. Particular retributive theories differ depending on the exact role that desert should play. By contrast, many and probably most criminologists and economists are likely to favor a utilitarian or consequentialist framework. Punishment is justified if its imposition produces better results than its absence—and better than any alternative means to respond to persons who commit crimes. Most consequentialists hold that punishment is justified if it is the optimal means to deter criminality, although several lesser objectives of punishment are frequently alleged to enter into its rationale. As these crude sketches indicate, the prevention of crime seemingly plays no role in the thought of legal philosophers, while desert is conspicuously absent from the perspective of criminologists and economists. The wide chasm between the justificatory strategies invoked within these disciplines seems insurmountable.
Legal philosophers have a hard time understanding why criminologists tend to attach so little significance to desert. I regard the most significant challenge to a consequentialist approach to be as follows. Any respectable theory of punishment must explain why the commission of a crime by the individual to be punished should be needed before a penal sanction is justifiably imposed. Utilitarian theories fail to satisfy this basic desideratum. If better consequences could be achieved by punishing those known to be innocent—if crime could thereby be reduced more effectively—why insist that those to be punished must actually be guilty? Legal philosophers are likely to take seriously the Kantian worry about using persons as a mere means to achieve a greater good. Kant regarded any such use as a paradigm instance of immorality. Although philosophers disagree about exactly how the Kantian constraint should be analyzed and applied, it seems to clearly prohibit the infliction of penal sanctions on innocent persons as a means to reduce crime. But if those to be punished deserve their treatment, sanctions can plausibly be imposed without disregarding the Kantian constraint.
Of course, criminologists are equally baffled by the presuppositions of legal philosophers. The most straightforward reason requires no deep philosophical sophistication. Desert, if it exists at all, is gained solely because of what someone has done in the past. Can it really be true that the attainment of future goods in general, and the reduction of crime in particular, plays no role whatever in an adequate defense of punitive sanctions? Only philosophers would seem to think that an acceptable theory of punishment could afford to ignore prevention altogether. The apparent commitment to this extraordinary position is further evidence that philosophers are detached from reality and unresponsive to problems that arise in the real world. This divide may seem intractable, but my primary objective in what follows is to sketch a way to bridge it. Of course, I am not alone. Much of the recent history of efforts to justify state punishment can be interpreted as an attempt to incorporate both desert and deterrence within a single framework. Mixed theories of punishment seek to provide a role for both backward-looking conceptions of desert as well as forward-looking goals of deterrence. The problem, of course, is that no one has clearly succeeded in explaining exactly how these two components can be combined intelligibly. Many of the most well-known attempts to do so are ad hoc, incomplete, rest on simple confusions, have peculiar implications, or do not really solve the problem they were meant to address. In this part I mention only one such failed effort, although I return to a second familiar attempt in Part II.
For example, some theorists celebrate a distinction between negative (or weak) and positive (or strong) forms of retributivism.1 Any justification of punishment must accept limitations on what it will allow to be done to achieve social benefits. Almost no one openly approves of brutal torture, for example, even if it could be shown to be effective in reducing crime. Negative retributivists hold that the pursuit of worthwhile objectives such as crime reduction must be limited by a demand that the innocent not be punished: Only the guilty are eligible for penal sanctions. As so construed, retributive desert provides only a limitation on what may be done when an affirmative reason to punish is given. The rationale for observing this constraint—like the rationale for precluding torture—is independent of the justification for reducing crime. Positive retributivists, by contrast, hold that a reason to punish is to dispense retributive justice to those who deserve it—those who are culpable for perpetrating criminal offenses without justification or excuse. Although this distinction itself is relatively unproblematic, it should be apparent that negative retributivism, as so construed, is not really a theory of punishment at all. Negative retributivists explicitly deny that desert provides any reason to punish. Thus it purports to tell us not when to punish, but when not to punish. All the real justificatory work is done by the pursuit of valuable objectives such as crime control.
Moreover, the conception of desert contained in negative retributivism is peculiar and incompatible with what most of us are inclined to say about desert in other contexts. If the desert of the offender simply limits what we are allowed to do to achieve our objectives, desert turns out not to be a reason-giving property. More precisely, desert is not a property that gives anyone a reason to take any positive action. Normally, however, when we claim that a person deserves to be treated in a given way, we imply at least that someone has a reason to provide the treatment in question. It would be odd, for example, to say that a person deserves a reward for providing some notable service, but then to add that no one has the slightest reason to reward him.
If the distinction between negative and positive retributivism is not especially helpful to justify punishment, how should both backward-looking judgments of desert and forward-looking considerations of deterrence be integrated into a single theory of punishment? I seek to answer this question in Part II. In order to do so, however, I must make several background assumptions. First, I presuppose a definition of punishment itself. We must be able to recognize when given treatments are instances of punishment rather than other kinds of sanctions (e.g., taxes, compensatory damages, quarantines) with which punishments are easily confused. In the absence of an adequate definition, we are bound to be uncertain about what it is we are trying to justify. In my view, a response amounts to a punishment when it deliberately expresses condemnation or stigma and imposes a deprivation or hardship. Each of these components is crucial. A treatment is not punitive because it happens to deprive and stigmatize. In order to qualify as a punishment, the very purpose of a response must be to inflict a hardship and to condemn. That is, punishments intentionally impose condemnation and deprivation. Armed with this definition, we can clarify the exact question to be addressed. The question of why the state is justified in punishing criminals is identical to the question of why the state is justified in deliberately stigmatizing and imposing a deprivation on persons who commit crimes.
Next, I presuppose that the state implements (an approximation of) the correct theory of criminalization so that the offender whose punishment we seek to justify will have breached a statute that is legitimately contained within its criminal code. With this assumption in place, it becomes accurate to refer to these individuals as culpable wrongdoers. I will return briefly to this assumption later, when trying to explain the central role of the state in imposing punishment. I mention it here because it is almost certainly an indispensable (but surprisingly neglected) ingredient of any account of justified punishment. We cannot hope to justify punishment in the absence of commitment about what it is imposed for. A theory should not be faulted for failing to justify the punishment of persons who breach statutes that our best theory of criminalization would not have allowed us to enact in the first place.
In addition, I assume that offenders who commit such crimes without justification or excuse can have negative desert, that is, can be deserving of something bad. This assumption is huge, and I cannot defend it here. I suspect it will be denied mostly by desert skeptics, that is, by philosophers who deny the existence of desert altogether. Some such skeptics do not reject the existence of desert per se, but only the allegation that the suffering inherent in punishment can be among those things that persons might deserve.2 I make no effort to respond to desert-skeptics, but not because their worries are immaterial to my project. Instead, I neglect them because it is exceedingly difficult if not impossible to devise persuasive arguments on one side or the other. In what follows, I will assume without argument that desert is sensible despite requiring explication and analysis. Like obligation and responsibility, desert is part of the moral furniture of the world. This latter claim, like many comparable claims about moral concepts, is notoriously difficult to defend.3 I confess that I find myself unable to convince or to produce non-question-begging arguments against nihilists who deny the intelligibility of all moral discourse.
Moreover, I recommend that we avoid commitment about whether the stigmatizing deprivation of a deserved punishment is intrinsically valuable. All we really need to affirm is that desert provides a reason to treat persons as they deserve. My suggestion is designed to avoid what some philosophers have regarded as the most barbaric and counterintuitive implication of retributivism: that a world that includes more deprivation could contain more value than a world with less. Indeed, this implication is worrisome. My suspicion, however, is that the state of affairs in which people are treated as they deserve does have intrinsic value—that is, contains more value than the state of affairs in which people are not treated in accordance with their desert. Perhaps giving offenders what they deserve precludes, negates, or changes the valence of what would otherwise be an intrinsic disvalue, so it is not intrinsically bad when offenders receive their just deserts. If we had just one “happiness pill” we were allowed to distribute, and we could give it either to someone with positive desert or to someone with negative desert, we would create more intrinsic value by making the former choice, even though the amount of happiness in each world is identical. Or, if we had just one “unhappiness pill” we were forced to distribute, and we could give it either to someone with positive desert or to someone with negative desert, we would create less intrinsic disvalue by making the latter choice. I am unsure whether any of these suspicions is defensible, but I think both are widely shared. In any event, I deny that the adequacy of my view depends on them.
Like the existence of desert itself, claims about what is intrinsically valuable are extraordinarily hard to support. The difficulties of defending judgments about intrinsic value are compounded when we introduce impersonal goods into our calculus—as we must. No one knows how to balance these impersonal goods—goods that are not good for anyone—against personal goods—goods that are good for persons. Nonetheless, philosophers persist in trying to assess retributivism by reference to its supposed commitments about intrinsic value. Intuitions about hypothetical cases are routinely solicited to support (and to challenge) these alleged commitments. I will mention one such example later. For now, suffice it to say that most of these cases are hard to imagine, so we should lack confidence in whatever intuitions we report.4 And even if we are confident about our intuitive response, we may be hard-pressed to decide that whatever value we think is achieved is intrinsic or merely instrumental. Thus we should try to escape from this morass. In light of the difficulties philosophers encounter when addressing these hypothetical cases, it would be preferable if we did not need to resolve disputes about intrinsic value at all. I hope that we only need believe that desert is a reason-giving property; it provides a moral reason to treat persons as they deserve. The weight of this reason, as I will indicate, is typically minimal and probably has substantial force only when the most monstrous crimes are perpetrated. We need not decide whether or not intrinsic value is produced when we conform to this reason.5 Maybe it is; maybe it is not; maybe the answer depends on further details of given examples.
I believe desert provides something approximating a necessary condition for justified punishment. But if the strength of the reason supplied by desert is minimal—as I believe it to be—the absence of this reason might not seem to be so crucial either. Why not punish the innocent? This question is yet another example of an issue that need not detain us. One response is that the reason not to punish that applies to those who do not deserve to be punished is much more stringent than the reason to punish that applies to those who do deserve their treatment. This claim is not ad hoc. The negative public reaction to the punishment of the innocent is much stronger than the negative public reaction to the failure to punish the guilty, and all non-consequentialists recognize a weighty deontological constraint against punishing those who lack negative desert.6 Still, it is inevitable that any system of penal justice in the real world will punish innocent persons. The inevitability of this injustice does not show that a rationale for punitive sanctions cannot be built upon the foundation of desert.7 At the end of the day, theorists should be willing to bite the bullet about the morality of punishing the innocent. If the instrumental value of punishment is sufficiently great, it may well be permissible, all things considered, to falsely accuse and convict someone who lacks negative desert.8 This concession is not as startling as it may appear. As I will indicate, we are unlikely to know that the conditions in the familiar thought-experiments designed to give us pause—which typically stipulate supreme confidence that the injustice will never be detected—obtain in the real world.9 Finally, hard questions about the moral status of punishing the innocent should be posed to all theorists, regardless of the jurisprudential tradition to which they belong. We should not suppose that difficulties that plague all theories of justified punishment raise special problems for attempts to defend a desert-based account.
With these background assumptions in place, I move now to my preferred strategy for combining retributive desert with deterrence in a coherent justification of state punishment. To do so, I will discuss each of the premises and inferences in the following argument:
1. Criminal C deserves punishment p.
2. Someone has a reason to give p to C.
3. The state has a reason to give p to C.
4. The state has an all-things-considered reason to give p to C.
A justification of an imposition of state punishment, as I construe it, had better support (4). As we will see, the centerpiece of my theory—the part that mixes retribution and deterrence—involves a novel way to bridge the chasm between (3) and (4). First, however, I discuss some of the earlier premises.10
Premise (1) suffices to make my theory a version of retributivism. As we will see, desert plays an indispensable role in my overall justification. By starting here, it should be clear that I begin my inquiry somewhere in the middle. I do not pretend that a complete defense of (1) would be trivial or straightforward. Obviously, it is neither. As I have indicated, I make no effort to respond to desert-skeptics. I also admit that even if we accept some claims about desert as true, and some claims about deserved punishments as true, we are bound to be uncertain about how to instantiate the variable p. Judgments of desert are notoriously vague and imprecise. Critics of retributivism never tire of pointing out the difficulties of identifying the cardinal desert of a given offender—the exact quantum of punishment she deserves for committing her particular offense. Generally, I concur that the severity of the punishments imposed upon most offenders in the United States in recent years is grossly disproportionate to the extent of their desert. It is unfair to blame retributivism for our epidemic of over-incarceration. Because it is difficult to substantiate this belief, however, I remain non-committal on exactly what punishment given offenders deserve and simply represent this quantum of punishment as p.
Let us see how a defense of (1) might get off the ground, although my own attempt will be incomplete and inconclusive. Recall that punishment, by definition, involves two crucial components: hard treatment or deprivation and stigmatization or condemnation. A separate rationale is required to show why an offender deserves each; together, these rationales would show why an offender deserves punishment. Of the two, condemnation is the easier to defend. I contrast three analytically distinct stages through which responses to wrongdoing might (and often do but need not) pass. Suppose Harry knowingly, unjustifiably, and inexcusably rapes Sally. I assume without argument that a set of Strawsonian reactive attitudes are apt or appropriate for Sally. As Strawson famously indicates, normal individuals feel indignation and resentment toward those who wrong them.11 What is fitting and appropriate for Sally is a feeling and/or an attitude.12 The fact that persons have these feelings and attitudes, it seems to me, is the clearest and least controversial part of what wrongdoers deserve. That is, Harry deserves that Sally feels resentment and indignation toward him (and almost certainly much more) in virtue of the rape he has perpetrated. I think we should say—although Strawson himself did not express the matter quite this way—that it is fitting and appropriate for Sally to judge Harry to be blameworthy for what he has done. Still, Sally might decline to share her feelings and attitudes with anyone, regardless of how fitting and appropriate they may be. Thus, a second stage through which her response to wrongdoing might pass takes place when she expresses her feelings and attitudes through verbal or non-verbal behavior. She might confide in her friends or therapist, for example. If and when Sally moves to this second stage, we might say that she no longer merely judges Harry to be blameworthy; she blames him.
Next, these feelings and attitudes might be conveyed or somehow made known to the wrongdoer himself. The expression of Sally’s feelings and attitudes to Harry represents yet a third contingent stage in her response to his act. Blame expressed to the wrongdoer himself might be called directed blame.13 Does Harry deserve the blame Sally directs to him? I think so. We are not simply interested in how victims are entitled to feel or the judgments they are entitled to make about those who wrong them. More importantly, we want to know what wrongdoers deserve. Presumably, part of what Harry deserves is that he be made aware of the feelings and judgments it is appropriate for others to have and to make. The easiest way for him to gain such awareness is for Sally to direct her blame at him. If Harry possesses a normal psychology, he doubtless will experience a loss of utility when he becomes aware that others blame him and that their judgments are appropriate. Moreover, persons with a normal psychology feel guilt and remorse when they recognize the gravity of their wrongs. These feelings are also unpleasant. The resultant disutility Harry can be expected to experience is part of what I believe him to deserve. This disutility might be called suffering, but this term might mislead us into thinking that physical pain is involved. Disutility is probably the more neutral and thus the preferable term.
Notice that no mention has yet been made of the role of the state in expressing condemnation and stigma, and for good reason. The rationale for allowing or requiring the state to create formal institutions that convey blame exceeds anything that has been said thus far. The case for state action is not simply that Harry deserves such state action to take place. When Harry has been stigmatized and condemned by victims and others who learn about his offense, it is hard to see how anything more must be done to him in order to treat him as he deserves. Of course, state punishment is the institution legal philosophers must try to justify. I will briefly turn to the role of the state in discussing premise (3).
In any event, criminal punishment necessarily involves a second component I have characterized as hard treatment—some extra deprivation or loss of rights. How is this component of punishment deserved? This question is even more difficult than its predecessor; only two kinds of answers are available. The first is that this extra hardship is justified in terms of desert itself. Criminal defendants deserve not only to be made aware of the condemnation of others and to feel the guilt and remorse (or disutility) such awareness almost inevitably causes, but also deserve an additional deprivation. The second alternative is that this additional hardship is not justified in terms of desert, but depends on some other objective—in all likelihood, on instrumental goals. Deterrence and crime control are the most plausible candidates for these instrumental goals. Additional deprivations are imposed on criminals not because they deserve it, but because they are used for the greater good of public safety and crime reduction. This latter alternative, however, does not represent much progress in explaining how punishment can be deserved. The deprivations imposed by penal sanctions such as imprisonment are problematic because they seem to treat persons in ways that violate their rights and contravene the Kantian principle against treating persons merely as a means. Desert provides a promising rationale for infringing (rather than violating) rights or for allowing persons to be treated as a mere means; as we have seen, it is the basis for condemnation that is appropriately directed. This second alternative, however, explicitly denies that the additional hardship imposed is justified in terms of desert. Thus, it represents little headway in producing an adequate justification of punishment. Hence the first alternative would make punishment easier to defend than the second would.
Return, then, to the first kind of answer. Why might criminals deserve the additional deprivation or hardship imposed when they already experience a loss of welfare or utility due to the guilt and remorse they feel (and ought to feel) in response to their wrongdoing and the condemnation directed against them? To my mind, this is the single most difficult question to answer in constructing a defense of punishment based on desert. One possible answer is that remorse and guilt are necessarily inadequate. The loss of welfare or utility such feelings cause is less than the loss of welfare or utility wrongdoers deserve to experience when they are blamed. The lacuna is filled by inflicting an extra hardship.
John Kleinig makes a different attempt to show that criminals deserve hard treatment. He alleges that “more than [censure, rebuke, and condemnation] is deserved. For though such expressions of blame constitute some kind of practical response to wrongdoing, they fail to ‘embody’ it. That is why desert defensibly requires not merely a response, but a proportionate one. One cannot separate out the ‘blame’ from something more.”14 If an additional deprivation is not imposed, wrongdoing is not taken sufficiently seriously. In describing why “something more” than condemnation is required, Kleinig invites us to shift our perspective: “To think otherwise is to make the same mistake as would be involved were someone to take the view that appropriate responses of gratitude to benefaction could always consist of sincere expressions of thanks.”15 Kleinig’s argument invites the rejoinder that positive and negative desert may be asymmetrical. Persons who perform exceptionally good deeds might deserve more from their benefactors than praise, but persons who perform extraordinarily bad deeds may not deserve more from their victims than condemnation. After all, the challenge is to explain how the loss of welfare and disutility that results from hard treatment can be deserved. Apart from the possible asymmetry of punishments and rewards, however, Kleinig’s observation is trenchant. Although good deeds sometimes are said to be their own reward, something is deficient about a response to a massively generous act that consists solely in a verbal expression of gratitude. If the beneficiary is really as grateful as he claims to be, some additional benefit—a gift or a return favor of roughly comparable value—is required to supplement the expression itself. Otherwise, he might add, the benefactor has not been treated as he deserves.
So much for (1). If we concede (1) to be true, the transition to (2) is straightforward. As I have suggested, if criminal C deserves punishment p, then someone has a reason to give p to C. But further elaboration on (2) is helpful. Retributivists should not be content merely to argue that someone has a reason to treat offenders as they deserve. They must also try to identify the weight or strength of this reason in a world in which persons have countless reasons for and against alternative courses of action. We lack a vocabulary to quantify the precise strength of given reasons. Nonetheless, most reasons play little role in practical deliberation. After all, we have a reason to relieve the pain of suffering rodents and even to eat our cars for the valuable minerals they contain.16 But these reasons have minimal strength and are easily outweighed by conflicting demands. In many cases, the reason anyone might have to treat offenders as they deserve is vanishingly small. Thus, the contested issue is not only whether someone has a reason to treat offenders as they deserve (or whether such treatment has intrinsic value), but how much weight (or how much intrinsic value) this reason exerts. I allege that the reason to give (or the intrinsic value, if any, of giving) offenders what they deserve is small—perhaps even miniscule.
But the strength of the reason created by desert is not constant across all offenses. Ceteris paribus, the weight of this reason varies with the seriousness of the crime. If the offender and the offense are sufficiently heinous, the overall case for inflicting punishment becomes more compelling. This characteristic of desert accounts for a (weak) intuition I tend to share and that many philosophers take to represent the ultimate test of whether a respondent holds retributive sympathies: The affront to retributive justice many of us would feel if Hitler or Stalin managed to escape the punishments they deserved for their terrible crimes. According to the famous thought-experiments, Hitler has evaded capture, has never paid for his crimes, and is found to be living a happy and tranquil life on some island paradise. It is stipulated that nothing done or not done to Hitler will ever be known to outsiders and thus will not deter future wrongdoing or promote any other instrumental benefits.17 Does anyone have a reason to punish him? Would intrinsic value be produced thereby? I tend to reply affirmatively, but I do not think we should have any certainty in our answer. In my judgment, our intuitions about this hypothetical case should not be given a great deal of credence. I mention this hypothetical case example to point out that we might well concede it without applying our conclusion to more ordinary crimes. Massive culpable wrongdoing creates massive desert and thus generates a stronger reason to impose deserved punishment.
We should resist the tendency to draw too general a lesson from this weak intuition about how the state should treat the worst fiends in history. Many retributivists have failed to appreciate that the reason to punish—to give criminals what they deserve—is not very weighty in the overwhelming majority of cases and can only be sufficient in the most extreme examples. Retributivists should know better than to make this mistake. No retributivist can be heard to claim that we have a pro tanto reason to permit crimes rather than to prevent them because their occurrence allows us to add intrinsic value through prosecution and punishment. Nor do retributivists complain that we miss opportunities to increase the quantity of intrinsic goodness in the universe because the state fails to apprehend and prosecute more garden-variety offenders. This sentiment is expressed (and is respectable) only when villains like Osama Bin Laden remain at large.
Some support for my position about the weight of the reason to punish comes from our attitudes about positive desert. When a person performs a socially valuable act that displays exceptional virtue, he deserves an appropriate recognition and reward. Again, however, few theorists seem to believe that a significant injustice is perpetrated when the deserved response is not forthcoming. The best explanation of this belief is that the reason created by positive desert is nearly always weak—too weak to support the all-things-considered judgment that we should undertake the effort of actually bestowing the reward or recognition. Of course, the overall case for commemorating truly astounding accomplishments is much stronger; an injustice would be done if Aristotle or Newton were not honored in some tangible way. In any event, the same conclusions apply, I think, when desert is negative.
Do the foregoing claims simply assume what I have admitted to be most controversial: that some amount of intrinsic good, however small, is produced when culpable wrongdoers are made to experience disutility? Perhaps. As I have indicated, I would prefer to bypass questions of value altogether and simply rely on what reason we have to perform or not perform given actions (e.g., impositions of punishment). Our best theories of intrinsic goodness are so controversial and under-developed that few implications of an account should be regarded as sufficiently counterintuitive to lead us to reject them on that ground alone. So the disutility inherent in deserved punishment probably is intrinsically valuable—to a tiny degree. If I am forced to express my position in terms of intrinsic value and to explain how disutility can ever be good, I offer the following response on my behalf. Much of the sting of this position can be eased by returning to my earlier position about how a responsible moral agent (e.g., Harry) ought to feel when he commits a serious wrong for which he is culpable. Typically, this person should recognize the wrong he has done and ought to feel shame and remorse for having done it. Subtleties aside, he should feel bad about his deed. Others in an appropriate relation are permitted to blame him for his culpable act. A person who is blamed by others, admits he is a legitimate target of blame, and recognizes the gravity of the wrong he has perpetrated but does not feel awful about what he has done is a curious creature indeed. I strongly suspect that something is defective about the psychology of the culpable wrongdoer who does not feel bad under these circumstances. Those who deny my claim must posit a peculiar human psychology, deny that these feelings produce disutility, or offer a solely instrumental account of why such persons should experience shame and remorse. I believe that any of these alternatives is less plausible than my original contention that these feelings of culpable wrongdoers are good and appropriate despite causing disutility.
But how should we move from (2) to (3)? That is, by what rationale does the reason to punish come to vest in the state? According to some approaches, this question can be very difficult. For those who rely solely on utilitarian, consequentialist considerations, the answer can only be instrumental. That is, the state should impose punishment because it does a better job of punishing than any competing alternative. Perhaps these theorists are correct about the relative advantages of state punishment over its competitors, but one wonders why they should be so confident. Few alternatives have been given a sufficient trial to be deemed as failures. In any event, my answer to this question is not wholly instrumental but returns to my prior claims about the importance of identifying what persons are justifiably punished for. According to my theory of criminalization, the state enters the picture of what it can justifiably punish in two related places. First, the state may enact penal statutes only to punish public wrongs. The state neither does nor should punish all wrongs—even when these wrongs are egregious.18 Instead, the state should proscribe only public wrongs, that is, wrongs that properly concern the whole polity and not merely those victims who have been wronged.19 Second, the state must have a substantial state interest in proscribing conduct and in subjecting offenders to state punishment.20 The requirement that the state interest must be substantial is designed to support the intuition that trivial state interests, however real, do not warrant a punitive response. If I am correct about these two claims, it follows that a theory of the state—in particular, a theory of which wrongs concern it and to what extent—is needed to decide what crimes the state may enact and enforce through the infliction of punishment. Thus a theory of justified criminal law and punishment cannot be derived solely from moral philosophy, but is intimately connected to a political theory of the state. No legal philosopher can hope to provide an adequate theory of the former in the absence of normative presuppositions about the latter.
More importantly for our present purposes, the foregoing claims make it relatively easy to understand why the state has the authority to punish crime. Since any conduct the state is justified to proscribe must concern it (as well as its direct victims)—and also implicate a substantial interest of the polity—the authority of the state to impose punishment is no more mysterious than the authority of any person or institution to deliberately impose a stigmatizing deprivation on those who commit wrongs against it. Schools, for example, may punish their students who break the rules of a competition by using banned substances just as Sally may punish Harry for raping her. Admittedly, all punishments require a justification, whether or not they are imposed by the state. My point is not that punishment itself is easy to justify, but that the authority of the state to punish criminals is no more in need of explication than the authority to punish in these other kinds of case.
Finally, what about the transition from (3) to (4)? The defense of this step involves the most original part of my theory and identifies the place where consequentialist goods such as crime-reduction play a necessary role in what is otherwise an unmixed retributive account. Even though someone has a reason to punish Harry, and this reason might be vested in the state, it hardly follows that the state is actually justified in punishing, all things considered. Like other persons and institutions, the state has several reasons to do many things. In order to defend an all-things-considered reason for the state to punish, it must conclude that it is important to treat people as they deserve, that is, to conform to the reason it has to punish. Thus separate considerations are needed to show why political systems should go to the tremendous effort and expense of creating institutions that are designed to give offenders what they deserve.
Most thoughtful philosophers acknowledge the gap between (3) and (4). I believe, however, that this gap involves a chasm. Recall that the crucial feature of my version of retributivism is that the weight of the reason created by negative desert is usually minimal. Countless considerations come into play in most or all moral disputes, and it is always easy to identify several reasons that the state should not give p to C, even though C deserves p. Desert may be all that is needed to justify punishment in a divine realm, but it provides an extraordinarily weak reason to create earthly institutions that treat persons as they deserve. In the real world—the world in which we seek to justify punishment—at least three reasons invariably militate against giving p to C. I will only summarize these reasons here.21 Punishment is extraordinarily expensive, prone to error or mistake, and subject to tremendous abuse. In nearly all cases, a plethora of additional reasons against giving p to C can be found. The collateral consequences of punishment, especially its impact on third parties such as friends and family, provide additional considerations. When all of the reasons on both sides are identified and balanced, it frequently turns out to be impermissible, all things considered, for the state to give criminals the punishments they deserve.
Since the weight of the reason created by desert is small and significant countervailing reasons can always be found on the other side, in all but the most extreme cases the state requires additional reasons to treat criminals as they deserve. What reasons will suffice? Of the many possible reasons that might be adduced, only the prospects of general deterrence are sufficiently important to bridge the chasm between (3) and (4). Admittedly, a few of the reasons that allow us to move from (3) to (4) —and to actually permit the infliction of punishment on the deserving—are not solely instrumental. Additional deontological factors—norms of fairness and equality, for example—come into play in deciding whether to impose punishments. Still, on my theory, deterrence is by far the most prominent of the reasons to actually give run-of-the-mill criminals the punishments they deserve. Thus deterrence is essential to a complete justification of punishment. It shows why the state should actually (all things considered) go to the enormous trouble of creating penal institutions and employing them to actually give offenders the punishments they deserve.
My position may seem reminiscent of the well-known approach adopted by H.L.A. Hart, but the differences are important. Hart famously argued that different normative questions about punishment should be contrasted and that distinct moral principles should be invoked to answer them.22 In particular, questions about the general justifying aim of punishment should be contrasted to questions of how punishment should be distributed, that is, from questions about who should be punished and to what extent. The general justifying aim of the institution of punishment, Hart contended, is crime-prevention and deterrence. But matters of distribution should be governed by separate considerations that reflect retributive principles. I am skeptical that Hart’s approach is defensible.23 In any event, my own approach differs in assigning weight to retributive principles even at the level of what Hart called the general justifying aim of punishment. On my account, contra Hart, the institution of punishment should not be created unless the state has a reason to treat offenders as they deserve. Typically, however, the reason to give offenders what they deserve is extraordinarily weak and cannot justify real-world institutions with all of the disadvantages systems of penal justice are known to have. States should go to the enormous trouble and expense of actually conforming to its reason—that is, to create institutions to give offenders what they deserve—only if consequentialist objectives, most notably crime-prevention and deterrence, are thereby achieved.
Deterrence may enter into the complete justificatory story at other places as well. Fines and imprisonment are the most familiar modes of deprivation, but other kinds of hardships might be imposed on offenders. Decisions about the particular mode of deprivation provide yet another opportunity to ensure that punishments attain instrumental objectives such as crime reduction. Unless some other deontological constraint is violated, the determination to impose one kind of punishment rather than another should be made after examining empirical evidence about which of the available alternatives is likely to achieve our instrumental goals most efficiently. Again, legal philosophers who hope to justify the actual inflictions of punishment in the real world cannot afford to neglect the criminological data that bears on these matters.24 Even if hard treatment itself is deserved, the form it should take need not be governed by desert.
I do not know whether the theory I have sketched qualifies as a “mixed” theory. In any event, I hope the foregoing sketch of a theory of justified state punishment provides a plausible way to combine retributive considerations with deterrence in a coherent justification of state punishment. Like any philosophical theory, my view has its weaknesses, and quite a few details remain unfilled. The challenge, however, is to present a less problematic alternative that combines the ingredients of retributive desert with deterrence in a single theory of punishment. Unless we become abolitionists, a competitive theory would need to be defended before I would be persuaded to reject my own theory.
1 See David Dolinko: ‘Some thoughts about retributivism’, 101 Ethics 537 (1991).
2 See, for example, Derek Parfit, On What Matters (Oxford: Oxford University Press, Volume One, 2011), 263–72.
3 For empirical evidence that “the bare retributive norm is a basic, independent part of our moral worldview” and is among those “norms [that] retain normative legitimacy even if they have no independent justification,” see Shaun Nichols, ‘Brute retributivism’, in Thomas A. Nadelhoffer, The Future of Punishment (Oxford: Oxford University Press, 2013), 25, 32, 43.
4 For a nice discussion, see Jakob Elster, ‘How outlandish can imaginary cases be?’ 28 Journal of Applied Philosophy 241 (2011).
5 For further speculation, see Douglas Husak: ‘Retributivism in extremis’, 32 Law and Philosophy 3 (2013).
6 The importance of not punishing those who lack desert provides a plausible normative defense for the presumption of innocence in Anglo-American law. See the symposia in 8 Criminal Law and Philosophy 283–525 (2014).
7 For possible worries about the moral ramifications of punishing the innocent, see George Schedler: ‘Retributivism and fallible systems of punishment’, 30 Criminal Justice Ethics 240 (2011).
8 I avoid considering whether the false conviction qualifies as a punishment as I have characterized it. The contested issue, after all, is not conceptual, but normative: whether framing persons known to be innocent can be justified by good consequences.
9 The debate on this point goes back decades. See, for example, T.L.S. Sprigge: A utilitarian reply to Dr. McCloskey’, 8 Inquiry 264 (1963).
10 I present some of this material in Douglas Husak: ‘What Do Criminals Deserve?’ in Kimberly Ferzan and Stephen Morse, eds.: Legal, Moral, and Metaphysical Truths: The Philosophy of Michael S. Moore, Oxford: Oxford University Press, 2016.
11 Peter F. Strawson: ‘Freedom and Resentment’, 48 Proceedings of the British Academy 1 (1962).
12 These feelings and attitudes are effectively beyond our control. As Hume observed, “the mind of man is so formed by nature that, upon the appearance of certain characters, dispositions, and actions, it immediately feels the sentiment of approbation or blame.… [T]hese sentiments are not to be controlled or altered by any philosophical theory or speculation whatsoever.” An Enquiry Concerning Human Understanding, ed. Eric Steinberg, Indianapolis, IN: Hackett, 1977, 68.
13 See Michael McKenna: ‘Directed blame and conversation’, in D. Justin Coates and Neal A. Tognazzini, eds.: Blame: Its Nature and Norms, Oxford: Oxford University Press, 2013, 119.
14 John Kleinig: ‘What does wrongdoing deserve?, in Michael Tonry, ed.: Retributivism Has a Past. Has It a Future?, Oxford: Oxford University Press, 2011, 46, 54.
15 Id.,.54. Kleinig attributes his argument to Terrance McConnell: Gratitude, Philadelphia, PA: Temple University Press, 1993.
16 See the discussion of reasons in Mark Schroeder: ‘The negative reason existential fallacy’, (forthcoming).
17 A nice discussion of these hypothetical cases is offered in Michael Moore: ‘Closet retributivism’, in Michael Moore, ed.: Placing Blame, Oxford: Clarendon Press, 1997, 83.
18 See Leo Katz: ‘Villainy and felony’, 6 Buffalo Criminal Law Review 100 (2003).
19 See R. A. Duff: ‘Towards a Modest Legal Moralism’, 7 Criminal Law and Philosophy (2013).
20 See Douglas Husak: Overcriminalization, Oxford: Oxford University Press, 2008.
21 See Douglas Husak: ‘Why Punish the Deserving?’, 26 Nous 447 (1992). Reprinted in Douglas Husak, ed.: The Philosophy of Criminal Law, Oxford: Oxford University Press, 2009, 393.
22 H. L. A. Hart: ‘Prolegomenon to the Principles of Punishment., in Hart: Punishment and Responsibility, Oxford: Oxford University Press, 2d. ed., 2008, 1.
23 See Douglas Husak: ‘A framework for punishment: what is the insight of Hart’s Prolegomenon?” in Christopher G. Pulgram, ed. Houndmills, Basingstoke: Palgrave Macmillan, 2014, 91.
24 See Raymond Paternoster: ‘How much do we really know about criminal deterrence?’, 100 Journal of Criminal Law & Criminology 765 (2010).
Dolinko, D. (1991) ‘Some thoughts about retributivism’, Ethics, 101(3): 537–59.
Duff, R.A. (2013) ‘Towards a modest legal moralism’, Criminal Law and Philosophy, 8: 217–35.
Elster, J. (2011) ‘How outlandish can imaginary cases be?’, Journal of Applied Philosophy, 28: 241.
Hart, H.L.A. (1975; 2nd edn 2008) ‘Prolegomenon to the principles of punishment,’ in H.L.A. Hart Punishment and Responsibility, New York, NY: Oxford University Press.
Husak, D. (1992) ‘Why punish the deserving?’, Nous, 26: 447; reprinted in The Philosophy of Criminal Law (2009), Oxford: Oxford University Press.
Husak, D. (2008) Overcriminalization, New York, NY: Oxford University Press.
Husak, D. (2013) ‘Retributivism in extremis’, Law and Philosophy, 32: 3–31.
Husak, D. (2015) ‘What do criminals deserve?’, in K. Ferzan and S. Morse (eds.) Legal, Moral, and Metaphysical Truths: The Philosophy of Michael S. Moore, Oxford: Oxford University Press.
Husak, D. (2014) ‘A framework for punishment: what is the insight of Hart’s prolegomenon?’ in C. Pulgram (ed.) Houndmills, Basingstoke: Palgrave Macmillan.
Katz, L. (2002) ‘Villainy and felony: A problem concerning criminalization’, Buffalo Criminal Law Review, 6: 451–82.
Kleinig, J. (2011) ‘What does wrongdoing deserve?’ in M. Tonry (ed.) Retributivism Has a Past. Has it a Future? Oxford: Oxford University Press.
McConnell, T. (1993) Gratitude, Philadelphia, PA: Temple University Press.
McKenna, M. (2013) ‘Directed blame and conversation’, in D. Coates and N. Tognazzini (eds.) Blame: Its Nature and Norms, Oxford: Oxford University Press.
Moore, M. (1997) ‘Closet retributivism’, in M. Moore (ed.) Placing Blame, Oxford: Clarendon Press.
Nichols, S. (2013) ‘Brute retributivism’, in T.A. Nadelhoffer (ed.) The Future of Punishment, Oxford: Oxford University Press.
Parfit, D. (2011) On What Matters, Vol. 1, Oxford: Oxford University Press.
Paternoster R. (2010) ‘How much do we really know about criminal deterrence?’, Journal of Criminal Law & Criminology, 100: 765.
Schedler, G. (2011) ‘Retributivism and fallible systems of punishment’, Criminal Justice Ethics, 30: 240.
Schroeder, M. (2007) ‘The negative reason existential fallacy’, unpublished paper, available in PDF format at: http://www-bcf.usc.edu/~maschroe/research/Schroeder_Negative_Reason_Existential_Fallacy.pdf.
Sprigge, T.L.S. (1963) ‘A utilitarian reply to Dr. McCloskey’, Inquiry, 8: 264.
Steinberg, E. (1977) An Enquiry Concerning Human Understanding, Indianapolis, IN: Hackett Publishing.
Strawson, P.F. (1962) ‘Freedom and resentment’, Proceedings of the British Academy, 48: 1.