Some Thoughts About Retributivism

Some Thoughts About Retributivism
Author(s): David Dolinko

Source: Ethics, Vol. 101, No. 3 (Apr., 1991), pp. 537-559
Published by: The University of Chicago Press
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Some Thoughts about Retributivism

David Dolinko
The great end of punishmentis not the expiation or atonementof
the offensecommitted,but the preventionof futureoffensesof the
same kind. [Hopt v. Utah, 110 U.S. 574, 579 (1884)]
"Retributionis no longer the dominant objective of the criminal
law," but neither is it a forbiddenobjective nor one inconsistent
withour respectforthe dignityof men. [Greggv.Georgia,428 U.S.
153, 184 (1976), pluralityop., cite omitted]
The Legislaturefindsand declaresthatthe purpose of imprisonment
is punishment.This purpose is best servedby termsproportionate
to the seriousness of the offense.[Cal. Penal Code sec. 1170(a)(1),
enacted by Stats. 1976, c. 1139, sec. 273]
The quotations above illustratea dramaticchange in the regardin which
That doctrine,
courtsand legislatorshold the doctrineof retributivism.
seeminglyrejected by the Supreme Court a centuryago, is today the
officialbasis for penal policyin the nation's most populous stateand an
acceptable basis on which to send convictsto theirdeaths. This shifton
the part of officiallegal sentimentparallels a shiftin the views of philosophers and legal scholars. Fiftyyears ago a defenderof retributivism
acknowledged the general belief "that the retributiveview is the only
moral theory except perhaps psychologicalhedonism which has been
Contemporaryscholarsassert,however,
definitely
destroyedby criticism."1
thatretributivism
is no longer "the poor relationin the familyof theories
of punishment"but "seems to be in the ascendant,"2and in particular
fortheamount
"has replacedrehabilitation
as the conventional
justification
of punishment."3
1. J. D. Mabbott,"Punishment,"Mind 48 (1939): 152-67, p. 152.
2. Hugo Adam Bedau, "Retributivismand the Theory of Punishment,"Journalof
Philosophy
75 (1978): 601-20, p. 602. See also James Q. Wilson and Richard Herrnstein,
Crimeand Human Nature(New York: Simon & Schuster,1985), pp. 496-97 (retributivism
has regained favorwithcourts and legal scholars).
3. Michael Tonry and Norval Morris,"SentencingReformin America,"in ThePursuit
of CriminalJustice,ed. Gordon Hawkins and Franklin Zimring (Chicago: Universityof
Ethics101 (April 1991): 537-559
(? 1991 by The Universityof Chicago. All rightsreserved.0014-1704/91/0103-0513$01.00
537

538
Ethics
April1991
This born-again retributivism

has had a substantialimpact on the
criminaljustice system,for example by fuelingthe recenttrend toward
determinatesentencing.4Perhaps its most visibleimpact has been as a
pillarof America'sunique affectionforthe death penalty.5Retributivism
has traditionallyprovided the primarybasis of support for the death
penaltyin the United States,6and data fromrecentpolls stronglysuggest
that the majorityof those Americans who support capital punishment
todaydo so largelyon retributivegrounds.7Likewise,the death penalty's
chief academic enthusiast,Ernest Van Den Haag, has said that even if
executionhad no extradeterrenteffecthe would supportit "on grounds
ofjustice alone."8
It is preciselythe prominenceand impactof modern-dayretributivism
that should prompt us to investigateits credentialsmost carefully.Nohave frequentlyrelied heavilyon
toriously,proponents of retributivism
Chicago Press, 1984), p. 254. Tonry and Morristrace the "renascence of retributionas a
respectablejustificationfor punishmentin America" to the 1971 publication of Struggle
(New York: Hill & Wang, 1971), a reporton U.S. prisonsprepared by a Working
forJustice
Partyfor the American Friends Service Committee,and the appearance fiveyears later
both of Andrew von Hirsch's book DoingJustice(New York: Hill & Wang, 1976) and of
Fair and CertainPunishment(New York: McGraw-Hill, 1976), a report of the Twentieth
CenturyFund Task Force on Criminal Sentencing.
in Penal Theory," in Crime,Proof,and
4. D. J. Galligan, "The Return to Retributivism
ed. C. F. H. Tepper (London: Butterworth,1981), p. 144.
Punishment,
5. "Unique," at least,among what are called the "Westerndemocracies."Capital punishmenthas been completelyabolished in France,WestGermany,Austria,the Netherlands,
Sweden, Norway,Denmark, and Portugal (AmnestyInternational,UnitedStatesofAmerica:
TheDeathPenalty[London: AmnestyInternationalPublications,1987], p. 231). It is retained
onlyforwartimeor militaryoffensesin Italy,Spain, and Switzerland.The United Kingdom
retainsthe death penaltyonly for high treason (in practice,a wartimeoffense,for which
the lastexecutionoccurredin 1946) and piracywithviolence.Belgiumand Greece,although
retainingcapital punishmentin theory,have abandoned it in practice-the last execution
death sentences imposed in
in Greece took place in 1972, while none of the thirty-seven
Belgiumbetween1962 and 1974 was carriedout. See "European Parliament(EP), Strasbourg:
Resolutions in 1981 concerning Fundamental Rightsand Freedoms," Human RightsLaw
Journal2 (1981): 427-28, editors'note (*); and "Editor'sNote," HumanRightsLaw Journal
6 (1985): 80.
6. Lawrence Kohlbergand Donald Elfenbein,"The Developmentof MoralJudgments
45 (1975): 614-40.
JournalofOrthopsychiatry
concerningCapital Punishment,"American
7. A 1985 Gallup poll found that 71 percent of those favoringcapital punishment
would continue to support it even if "new evidence showed thatthe death penalty.. . does
not lower the murder rate" (Robert Bohm, "AmericanDeath PenaltyAttitudes:A Critical
& Behavior14 [1987]: 380-96, p. 388).
Examination of Recent Evidence," CriminalJustice
This confirmedan earlierstudyin which,of 273 respondentswho favoredcapitalpunishment
and believed it deterredwould-be criminals,66 percentwould stillfavorit even if it were
proven no bettera deterrentthan life imprisonment(and 48 percenteven if it caused as
many murders as it prevented!) (Phoebe Ellsworthand Lee Ross, "Public Opinion and
Capital Punishment:A Close Examinationof the Views of Abolitionistsand Retentionists,"
Crime& Delinquency29 [1983]: 116-69, p. 147).
8. Ernest Van Den Haag, "The Death PenaltyOnce More," U.C. Davis Law Review18
(1985): 957-72, p. 965.

Dolinko
Thoughts
aboutRetributivism 539
metaphor and imagerywhose suggestivepower exceeds its clarity.We

are told, forexample, thatthe crimemustbe nullified,thatthe criminal
must pay his debt to society(or, alternatively,
thatsocietymust pay him
in
back), thatthe wrongdoerhas some sense willedhis own punishment,
and other puzzling things.One who believes,as I do, thatretributivism
has had significantand perniciouseffectson the criminaljustice system
will naturallywonder whetherits devotees have been able to transform
defensibletheoryof punishment.
suchenigmaticutterancesintoa rationally
I believe they have not, and are not likelyto do so. In what follows,I
shall sketchbrieflysome generaldoubtsabout the validityof a retributivist
viewand thenexamine in detailthreerecent,thoughtfuleffortsto replace
metaphor and imagerywitha coherenttheoryof punishment.
Doubts about the validityof retributivism
presuppose some notion
of what retributivism
is. This is by no means clear, given the wide range
of positionsto which the retributivist
label has been applied.9 The "reof interesthere is thatwhichpurportsto providea justification
tributivism"
for the institutionof criminal punishment.I shall thereforedisregard
theories concerned exclusivelywith how to structurethe schedule of
as well as the use of "retributivism"
to
penalties fordifferentoffenses,10
characterizeviews as to who may properly be punished."1 Moreover,
is itselfa proteanconcept,it is helpfulto distinguish
because 'justification"
of punishment.
twoquestionsthatarisein discussionsabout thejustification
One concerns what could be called the "rationaljustification"of the
practiceof punishment:why-for whatreason or reasons-do we punish
wrongdoers?'2 The second question asks, rather,for the "moraljustification" of punishment: why is it morallypermissibleto engage in this
particularpractice?'3 The demand for a rationaljustificationasks what
e.g., are discussed in John Cottingham,"Varieties
9. Nine versionsof retributivism,
PhilosophicalQuarterly
29 (1979): 238-46.
of Retributivism,"
10. Michael Davis, e.g., in "How to Make the PunishmentFit the Crime," Ethics93
(1983): 726-52, sketchesa "retributiveprinciplefor settingstatutorypenalties" (p. 727)
ofcriminal
which,he argues,could be accepted even bysomeone whojustifiestheinstitution
punishmenton purely utilitariangrounds.
position11. For example, Martin Golding describes the "minimalist"retributivist
hold- as demanding"onlythatno one should
whichhe believesmostmodern retributivists
ofLaw [Englewood
be punished unlesshe is guiltyof a crime and culpable" (Philosophy
Cliffs,N.J.: Prentice-Hall,1975], p. 85). AnthonyQuinton similarlytakesthe "fundamental
to be "thatonlythe guiltyare to be punished,thatguiltis a necessary
thesis"of retributivism
condition of punishment" ("On Punishment,"Analysis14 [1954]: 133-42, p. 136). This
"minimalist"position,however,can be endorsed even bysomeone who rejectsa retributivist
justificationof the practiceof punishment.
12. It is importantnot to beg thisquestion in favorof some formof consequentialism,
as would be done by asking,e.g., "What good does punishmentdo?" or, "What function
does punishmentserve?"
13. The distinctionbetween the rationaland the moraljustificationof punishmentis
Hits Back,"
drawn,thoughin differentlanguage, by K. G. Armstrongin "The Retributivist
Mind 70 (1961): 471-90, p. 474. Armstrongspeaks of "point" and "justification"rather
than rationaland moraljustification.Armstrong'sterminologyis apt to confuse precisely

540
Ethics
April1991
makes a particularsocial practicesensible,or valuable,or worthengaging

in, while the demand fora moraljustificationasks whatmakes it morally
legitimate.Loosely, the distinctionis that between, "For what reason?"
and, "By what right?"
It could, of course, turnout thatthe answersto these two questions
are interrelated.Perhaps,forexample, the verysame considerationsthat
establish the moral proprietyof punishing malefactorsalso give us a
powerful,or even decisive,reason to punish them(as mightbe true,e.g.,
were it shown that punishing offendersis morallyobligatory).But the
questionsthemselvesare quite distinct.One providesa moraljustification
for a social practice (such as punishment)by establishingthat we may
instituteor engage in thatpracticewithoutbehavingimmorallyor without
violatingany moral principles.Whetherwe have any adequate reasonfor
doing what we are thus morallyfree to do-instituting or engaging in
the practiceat issue-is a furtherquestion,whose answermay but need
not be furnishedby the same considerationsthat give the practice its
moraljustification.
For example, the progressiveincome tax is a social practicewhose
rationaljustificationis partlythat it raises revenue for governmentoperationsand partlythat it promotesegalitarianwealth redistribution.A
moral justificationfor this practice might take the form of a political
theorythat explains why the state may use coercive means to fund its
legitimateoperations withoutviolatingthe moral rightsof its citizens,
and whyegalitarianwealthredistribution
is a goal thatthe stateis morally
permittedto pursue. The rational and the moral justificationsof this
social practice are obviously distinct:a followerof Robert Nozick can
acknowledge that the rationaljustificationof the income tax is (partly)
to redistributewealth while insistingthat the practicehas no moraljustificationat all but is morallyillegitimate.14
Rational and moraljustificationmay differeven fora social practice
whose rationaljustification(unlikethatof the income tax) is not straightforwardlyconsequentialist.Imagine a governmentthat adopts a policy
of protectingendangered species fromextinctionand does so solelyout
of a belief that ensuringcontinued diversityof life formsis intrinsically
valuable. The rationaljustificationof the practiceis simplyits intrinsic
value, but its moraljustificationmightwell be more complex,callingfor
an explanation of the circumstancesunder which a governmentmay
legitimatelydevote its resources to promotingintrinsicallyworthwhile
policies that serve no instrumentalgoals.
because "justification"
is so frequentlyused to mean whatI am calling"rationaljustification"
(and what he wished to contrastwithhis sense of "justification")-the reason forengaging
in a practice ratherthan the moral license for doing so.
14. Robert Nozick contests the legitimacyof redistributivetaxation in his Anarchy,
State,and Utopia(New York: Basic, 1974), pp. 169-72.

Dolinko
Thoughts
I take it, then, that one may ask both for the rationaljustification
of the practice of punishmentand for its moral justification,and that
theseneed not (althoughtheymight)coincide.The importanceof carefully
distinguishingthe differentissues that are apt to get lumped together
in discussionsof punishmentreceivedits classicformulationthirtyyears
ago fromH. L. A. Hart in his "Prolegomenon to the Principlesof Punishment."'15 The distinctionI am employing,however,is not the same
as thatwhichHart drew,and thisis deliberate:Hart's taxonomythreatens
to blurjust what needs to be kept separate and is confusedbesides. Hart
speaks of "the question why and in what circumstance[punishment]is
a good institutionto maintain"as the question of the "generaljustifying
aim" of punishment,distinguishing
thisbothfromthequestionof defining
punishment and from "the question 'To whom may punishment be
applied?' "-the question of "distribution."'6 But to speak of a 'justifying
aim" risksconflatingthe issue of whywe punish (the "aim" or rational
us to punish (morally
justificationof the practice)withthatof whatentitles
'justifying"the practice)-as, indeed, Armstronghad already noted.17
And to split off,as Hart does, the question of who may be punished
fromboth definitionand "generaljustifyingaim" suggeststhat we can
decide what punishmentis and why we engage in it withoutknowing
who is supposed to receive punishment-which seems preposterous.
(Imagine being asked to decide eitherwhyit makes sense to inflictdeprivationson some people, or whyit is morallyproper to do so, without
being told which people are to sufferthese deprivations!)Indeed, Hart
himselfinconsistently
builds an answerto the "distribution"questioninto
his supposedly separate "definition"of punishment,by specifyingthat
punishment,in its "standard"or "central"case, "mustbe of an actual or
supposed offenderfor his offense.'18
Working,then,withthe distinctionbetween rationaland moraljusin a way that captures the
tification,we can characterizeretributivism
class of views that are most prominentand influentialin currentlegal
as a person who explains either
discourse. Let us thinkof a retributivist
the rationaljustificationof punishment,or itsmoraljustification,
or both,
by appealing to the notion that criminalsdeserve punishmentrather
than to the consequentialistclaim that punishingoffendersyieldsbetter
15. Delivered as the presidentialaddress to the AristotelianSociety on October 19,
1959, H. L. A. Hart's "Prolegomenon to the Principlesof Punishment"was subsequently
reprintedin Hart's Punishment
and Responsibility
(New York:OxfordUniversityPress, 1968),
pp. 1-27.
16. Ibid., pp. 4, 9.
17. Armstrong,p. 474. Hart's distinctionleaves it unclear whetherhe actuallymerges
the rationaland the moraljustifications
of punishmentunder the rubricof "generaljustifying
aim." He mayintend"generaljustifyingaim" to include onlywhatI am callingthe "rational
justification"of punishment,while using the who-may-be-punished
question ("distribution")
as his way of asking what morallyjustifiesthe practiceof punishment.
18. Hart. D. 5.

542
Ethics
April1991
so characterized,can be
resultsthan not punishingthem. Retributivists,
invokingdesert
classifiedas "bold" or "modest,"withbold retributivists
to explain the rationaljustificationof punishment-the very point of
invokingdesert
having such a practiceat all-and modest retributivists
only to explain why punishmentis morallyjustified.I believe thatboth
views are highlyproblematic,because the notion of desertis not strong
enough to account for either the rational or the moral justificationof
punishment.
The bold retributivist
assertsboththatlawbreakersdeservepunishment
and that this,all by itself,constitutesa good or sufficient
reason forthe
stateto inflictpunishmenton them.Accepting,forargument'ssake, the
firstof theseassertions,we mayneverthelessfindthesecond one dubious.
Afterall, the government,state,or "society"does not automaticallytake
it upon itselfto give people what theydeserve in otherrespects.People,
forexample,who do good deeds-people who are kind,charitable,caring,
who take care of ailing relativesor help strangersin distress-might be
thoughtto deserve reward, yet the state does not routinelyadminister
such a reward system.For that matter,people who engage in behavior
but
that mightbe thoughtto deserve or meritcensure or ill-treatment
whichdoes not violatea criminallaw are not generallysubjected to such
sanctionsby the state.Why,then,should it be thoughtso importantfor
the government,the state, or "society"to make sure that people who
violatecriminallaws receivetheir'just deserts"?Whysingleout precisely
thisone categoryof persons and insistthatthe statemustgive themwhat
theydeserve? A plausible answer is thatwe believe one veryimportant
task of governmentis to reduce or eliminate the incidence of those
harmful forms of behavior that are prohibitedby criminal laws, and
believe furtherthatgovernmentcan best performthattaskby inflicting
punishmenton those who breach such laws. But, of course, thisis to say
thatthe rationaljustificationof punishingoffendersis actuallyto reduce
crimeratherthan simplyto give people "what theydeserve" forits own
sake.
One mightobject that the argumentjust presented attacksa straw
who believesthatgivinglawbreakerstheirjust deserts
man-a retributivist
is the only point or purpose of punishmentand thus its entirerational
the objection runs, need not adopt
justification.Real-liferetributivists,
so vulnerablea positionbut can acknowledgethatthepracticeof punishing
offenders
servesmultiplegoals,ofwhich"doingjustice"is one and reducing
can concede thatan official
the crime rate another. Such a retributivist
practicewhose only point would be givingpeople what theydeserve is
one we would not be rationally
justifiedin adopting,whileyetmaintaining
that part of our reason for having the practice of punishmentis the
desire to give offenderswhat theydeserve.'9
19. von Hirsch, for one, appears to adopt such a mixed position,assertingthatboth
desertand deterrenceare needed tojustifycriminalpunishment(pp. 35-55). It is unclear,
however,whethervon Hirsch means that desert and deterrenceare both relevantto the

Dolinko
Thoughts
I do not findthisobjection persuasive.For one thing,a viewactually

embraced by one of the most prominentand influentialof retributivists,
Kant, cannot fairlybe dismissedas a strawman.20More important,the
supposedly less vulnerable version of retributivismthat the objection
envisionsseems to me to ascribe so feeble a role to "doingjustice" as a
reason for punishing criminalsthat I wonder whyit should be thought
"retributivist"
at all. That versionacknowledgesthatpartof the rational
justificationof punishmentis a desire to deter crime-but surelythat
goal is so importantas to give us, all by itself,an excellent reason to
adopt a social practice that can help us achieve it? What need is there,
of punishment,to appeal in addition
in explainingthe rationaljustification
to a supposed general desire to give people theirjust deserts-a desire
whose failureto set the machineryof governmentin motionin any other
area suggeststhat,by itself,it carrieslittleweight?The onlyground that
I can see for insistingthat deterrence is not the whole storyand that
"doing justice" must be appealed to is the belief that, absent such an
appeal, the deterrencestorywould constitutea morallyunjustifiedform
of "using people." But thissortof appeal to "givingcriminalstheirdue"
uses thatnotionto explain the moral ratherthanthe rationaljustification
of punishment.
is an implausibletheory.And,
For these reasons, bold retributivism
in fact,a great deal of the currentpopularityof retributivism
seems to
theclaimthat,although
focuson whatI have called modestretributivism,
our goal in punishing-our rationaljustification-may well be the deterrenceof potentiallawbreakersor the protectionof law-abidingcitizens,
what morallyjustifies punishing wrongdoers is that they deserve the
treatmentwe mete out to them.
is problematic.The claim
But even thismodestformof retributivism
is thatpunishment-which involvesdoing to wrongdoersthingsthatwe
ordinarilythinkof as violatingpeople's rights,like incarceratingthem
against their will for years-is morally permissiblebecause it is what
wrongdoersdeserve. Yet we do not, in general, believe that treatinga
rationaljustification
of punishmentor,instead,thatdesertplaysa rolein themoraljustification
of a practicewhose rationaljustificationrestson the need to deter potentialcriminals.His
to include bothrational
meaningis unclearbecause he explicitlyuses the term"justification"
and moraljustification,assertingthata 'justification"of punishmentmust"notonlyidentify
the aims of the institutionof punishmentbut explain whythe pursuitof thoseaims through
justified"(p. 36, n. *).
punishmentis morally
20. Kant insiststhat punishment"can never be used merelyas a means to promote
some other good for the criminalhimselfor for civil society,but . . . must in all cases be
imposed on him onlyon the ground thathe has committeda crime"(Immanuel Kant, The
ElementsofJustice,trans.J. Ladd [Indianapolis: Bobbs-Merrill,1965], p. 100
Metaphysical
[emphasis added]). That he believes "doing justice" must be the rationaljustificationof,
or reason for,punishmentemerges clearlyfrom his rejection of the idea that we might
commute the death sentence of a condemned man who volunteersto allow dangerous
experimentsto be performedon him and survives(pp. 100-101). Even if there is utility
to be gained by not punishing,we must punish.

544
Ethics
April1991
person in a way that would otherwiseviolate his rightsis automatically

permissiblesimplybecause the person deserves this kind of treatment.
Consider, forexample, Lear, a rich man withtwo sons,Jeremyand
Howard.Jeremytrulyloves Lear and has alwaystreatedhim withaffection
and respect,even caringforhim (at greatpersonal sacrifice)duringLear's
finalillness. Howard, on the other hand, is a reprobate who has spent
his time drinking,gambling,and chasing women, neglectinghis father
(forwhom, in truth,he feelslittleregard) almostcompletely.Perversely,
however,Lear has always felta sneaking admirationfor Howard while
secretlydespisingJeremyas a priggish,unimaginative,overlyrepressed
bore. (This is grosslyinaccurate,and unfairto Jeremy,but Lear at some
level always wished he himselfcould have boldly defied the constraints
of proprietyand convention,as he believes Howard has.) Lear's will
leavesJeremya comparativepittanceand bequeaths thebulkof theestate
to Howard. Surely we mightwell agree thatJeremydeserved to inherit
the estate while Howard deserved to be cut out of the will.Yet the state,
actingthroughitsjudiciary,will not on thataccount set aside Lear's will
and hand over to Jeremythatwhich he, ratherthan Howard, deserves.
To do so would violate Howard's rightto the estate,a righthe possesses
despite deserving to inheritnothing.21As Joel Feinberg has noted, "a
person'sdesertof X is alwaysa reason forgivingX to him,but not always
a conclusivereason," because "considerationsirrelevantto his desertcan
have overridingcogency in establishinghow he ought to be treatedon
balance."22
One verylikelyresponse to the point that it is not always morally

permissibleto give people what theydeserve, where doing so involves
what would otherwiseviolate their rights,is that we need to focus on
can argue
preciselywhywrongdoersdeservepunishment.The retributivist
thatthe particularbasis on whichthe wrongdoer'sdesertrestsis one that
morallyjustifiespunishing him, even though there are other instances
of desertin whichit would be wrong to give an individualthe treatment
he deserves.
21. If one objectsthatthe example presupposes the moral proprietyof our institutions
of inheritance,suppose instead thatLear had, during his lifetime,made a giftof the bulk
of his estate to Howard. We would not consider it morallypermissibleto seize the estate
and give it to Jeremyon the ground that he, ratherthan Howard, deserved it.
22. Joel Feinberg,"Justiceand Personal Desert,"in hisDoingand Deserving(Princeton,
N.J.: Princeton UniversityPress, 1970), p. 60. Another example of someone's deserving
treatmentthat it is neverthelesswrong to mete out appears in Thomas Nagel's discussion
of the moral limitson the conduct of war: although one mayjustifiablykillenemysoldiers
even if they are draftees personally opposed to the war, one is not morallyjustified in
killingnoncombatants-even those who wholeheartedlysupport theirgovernment'sevil,
aggressive policy. Thus "in war we may often be justified in killingpeople who do not
deserve to die, and unjustifiedin killingpeople who do deserve to die, if anyone does"
and PublicAffairs1 [1972]: 123-44, pp.
(Thomas Nagel, "War and Massacre," Philosophy
139-40).

Dolinko
Thoughts
What is probablythe most influentialcontemporarydefense of retributivism,stemmingfrom Herbert Morris's essay "Persons and Punishment,"takesthisapproach.23For Morris,thebasis forthewrongdoer's
desert is his possession of an unfair advantage, and punishing him is
justifiedbecause it eliminatesthatadvantage.Criminallaws are constraints
on behaviorwhose observancebenefitseveryonebyassuringeach person
a "sphere" of "noninterferenceby otherswithwhat each person values,
such ... as continuance of life and bodily security."24A person who
violates these constraintsis a free rider who "has something others
have-the benefitsof the system-but [who] by renouncingwhatothers
... has acquired an unfair
have assumed, the burden of self-restraint,
advantage."25Punishingsuch a person is morallyjustified,then,because
it "restoresthe equilibriumof benefitsand burdens by takingfromthe
individualwhathe owes"-the "unfairadvantage"he gainedbyhiscrime.26
This account bridgesthe gap between"X deservespunishment"and
"PunishingX is morallyjustified"only to the extentthatwe understand
what "unfair advantage" criminalsderive from their crimes. So what,
precisely,is that "advantage"? One might naturallysuppose, as John
Finnisdoes, thatit consistsin the criminal's"indulginga (wrongful)selfpreference,""permittinghimselfan excessive freedomin choosing,"or
But
"actingaccordingto [his] tastes"insteadof exercisingself-restraint.27
then the advantage the criminal obtains from his crime ought to be
thatotherscarrybut thathe
proportionalto the burden of self-restraint
has thrownoff.And thisin turndepends upon how great a temptation
people generallyfeel to committhe crimein question. Thus veryserious
crimeswhich most people feel littleinclinationto commit(e.g., murder)
yielda lesseradvantage-and hence deserve a lesser punishment-than
those (like speeding or tax evasion) that testmost people's self-restraint
23. HerbertMorris,"Personsand Punishment,"Monist52 (1968): 475-501, reprinted
in Herbert Morris,On Guiltand Innocence(Berkeley: Universityof CaliforniaPress, 1976),
pp. 31-58.
24. Morris,On Guiltand Innocence,p. 33.
25. Ibid., p. 34.
26. Ibid. It should be noted thatMorrishimselfis not directlydefendingtheretributivist
account of punishment.Though he presentsthe model of punishmentjust sketched,his
concern is not to argue forits superiorityto alternativemoraljustificationsof punishment
butto argue thatwrongdoershave a rightto be punishedratherthansubjectedto "therapeutic
treatment."Nonetheless,Morris'smodel of what ajust punishmentsystemwould look like
who have
has exerted enormous influenceover subsequent proponents of retributivism,
of theinstitution
of punishment.
moraljustification
treateditas the paradigmof a retributivist
27. John Finnis,"The Restorationof Retribution,"Analysis32 (1972): 131-35, p. 132.
JeffrieMurphy endorsed a similar view when he described punishmentas a device for
ensuring that the criminaldoes not "gain an unfair advantage" or "profitfromhis own
criminalwrongdoing,"and characterizedthe "profit"intrinsicto criminalwrongdoingas
(JeffrieMurphy,"Marxismand Retribution,"in
"not bearing the burden of self-restraint"
Justice,and Therapy[Dordrecht: Reidel, 1979], p. 100).
his Retribution,

546
Ethics
April1991
more severely.28
This, of course, is a mostunwelcomeresult,whichmust
be avoided if Morris'sapproach is to be tenable.29We need some better
account of exactlywhat "unfairadvantage" criminalsderive fromtheir
misdeeds.
Just such an account is put forwardin the firstof the three efforts
I shallexamineto cash out or replacethemetaphorson whichretributivism
Accordingto Sher,"thestrength
relies:George Sher'srecentbook Desert.30
of one's inclinationto transgresscannot be what determinesthe amount
of extra benefitone receivesfromtransgressing.''31
Rather, the magnitude of the criminal's"benefit"from his crime is determinedby "the
strengthof the moral prohibitionhe has violated."32Sher explains that
a person who acts wronglydoes gain a significantmeasure of extra
liberty:whathe gainsis freedomfromthedemandsof theprohibition
he violates.Because otherstake thatprohibitionseriously,theylack
a similarliberty.And as the strengthof the prohibitionincreases,
so too does the freedom fromit which its violationentails. Thus,
even if the murderer and the tax evader do succumb to equally
strongimpulses,theirgains in freedomare farfromequal. Because
the murdererevades a prohibitionof far greaterforce . . . his net
gain in freedomremains greater.And forthatreason, the amount
of punishmenthe deserves seems greateras well.33
Has Sher explained the criminal's"unfairadvantage" in a way that
plausible? I thinknot.
makes Morris's version of modest retributivism
First, Sher's discussion assumes that a crime necessarilyinvolves the
violation of a "moral prohibition,"but this is in one sense false and in
anotheruseless forSher's purposes. It is falseiftakento mean thatevery
crime involvesbehavior that is morallyimproper even prior to its legal
proscription.Tax evasion, a crime Sher mentions,illustratesthis point,
since it involvesbehavior thatwould not be immoralat all absent a legal
requirementto pay the tax in question. Drivingon the left-handside of
28. See RichardWasserstrom,"Capital Punishmentas Punishment:Some Theoretical

Issues and Objections,"in MidwestStudiesinPhilosophy,
ed. PeterFrench,Theodore Uehling,
and Howard Wettstein(Minneapolis: Universityof Minnesota Press, 1982), vol. 7, pp.
496-98.
29. Nor would it do to maintain thatcastingoffthe burden of self-restraint
yieldsa
"benefit"whose magnitude is the same regardlessof how much temptationanyone feels
to do the prohibitedact. For this would implythat "all lawbreakershave benefitedin the
same way and . . . to the same extent by throwingoff the restraintsof law" and hence
should "receivethe same punishment"(Jean Hampton,"The Retributive
Idea," in Forgiveness
and Mercy,byJeffrie
Murphyand Jean Hampton [Cambridge: CambridgeUniversityPress,
1988], p. 115).
30. See esp. George Sher, "Deserved Punishment,"in his Desert(Princeton, N.J.:
PrincetonUniversityPress, 1987), pp. 69-90.
31. Ibid., p. 81.
32. Ibid.
33. Ibid., p. 82.

Dolinko
Thoughts
the road, similarly,is in itself"morallyneutral" conduct which can be

thoughtimmoral(in theUnitedStates,thoughnotin theUnitedKingdom!)
only insofar as it violates a law. Such crimes,to which the traditional
frommaluminse offenses,
epithetmalumprohibitum
applies,are distinguished
which involve behavior thatwould be immoraleven in the absence of a
legal prohibition:murder,rape, and robberyare examples. And Sher's
criterionfor the magnitude of a criminal's "unfair advantage"-"the
strengthof the moral prohibitionhe had violated"-breaks down for
malumprohibitum
offenses:we would be forcedto conclude thatnone of
in "advantage"to theoffender,
offenses
results
so thatno punishment
these
for such offensescan be deserved.
Sher mighttryto salvage his criterionby arguing that even malum
prohibitum
offensesdo involvethe breach of a moral prohibition-namely,
the moral prohibitionagainst breaking the law.34Taken in this sense,
however,the claim that every crime necessarilyinvolves violationof a
moral prohibitionis useless for Sher, because every malumprohibitum
offense will turn out to involve violation of the very same moral
prohibition-"Do not break the law." Hence, Sher's criterionwould tell
us thatall such offensesyieldthesame "unfairadvantage,"and all deserve
thesame punishment-income taxevasionand big-timecocainesmuggling
just as much as speeding or destroyingbirds'nestsin a public cemetery.35
Sher's analysis is vitiatednot only by the questionable assumption
thata crimemustinvolvea moral violationbut even more fundamentally
by the dubious status of its central claim-that one who breaks a law
thereby"gains ... freedom from the demands of the prohibitionhe
violates."36In whatway does the lawbreaker"gain" thisfreedom?In one
sense,the lawbreakerhas perhapsrevealedthathe has a kindof "freedom"
byexercisingit-by demonstrating
thathe is able to violatetheprohibition.
In this sense, however,he must have been "free" fromthe prohibition
even before his lawless act (or he could not have committedit!), and
presumably,many law-abidingcitizensare equally "free" (in this sense)
to violate the prohibition.In another sense, we may ask whether the
criminal'swrongfulact has released him from a constraintupon his
actionswhich the prohibitionimposes on the actionsof his fellows.One
would thinkthe answer should be "no." Though the criminalhas in fact
done whatis prohibited,thisin no waydissolvesor abrogatestheobligation
34. This, of course, assumes there is such a moral prohibition.The existence and
scope of a moral obligationto obey the law has been hotlydebated. See, e.g., Joseph Raz,
"The Obligation to Obey the Law," in his TheAuthority
ofLaw (Oxford: Oxford University
Press, 1979), pp. 233-49; Richard Wasserstrom,"The Obligation to Obey the Law," in
ed. Robert Summers (Berkeley: Universityof California Press,
Essaysin Legal Philosophy,
1968), pp. 274-304; and M. B. E. Smith,"Is There a Prima Facie Obligation to Obey the
Law?" Yale Law Journal82 (1973): 950-76.
35. This last is a misdemeanorin California,unless the birdsin question are swallows
(CaliforniaPenal Code,sec. 598 [West]).
36. Sher, p. 82.

548
Ethics
April1991
he, like everyoneelse, is under not to do that act. (Indeed, therewould

be no basis fordeciding to punish the wrongdoerif his criminalact had
somehow repealed the prohibitionit is alleged to violate.) In a third
sense, we may assert that by violatingthe prohibition,the criminalhas
manifestedhis disregardor contemptforthatprohibition-has, we might
say, shown that he regards himselfas "free" fromits demands. But it
seems incorrect,if we are using "free"in thismanner,to claim that the
lawbreakergains his freedomby breakingthe law; rather,he breaks the
law because he already regards himselfas "free"to do so. Indeed, even
people who in factnever violate a given prohibition-perhaps because
the occasion never presents itself,perhaps because they fear being
caught-could inwardlyreject the prohibition'sclaim of authorityover
them and thus regard themselvesas "free" to breach the prohibition.
It is hard to assign any meaning to Sher's claim that the criminal
has gained "freedomfromthe demands of the prohibitionhe violates,"
unlessitsimplymeans thatthecriminalhas in factignoredthe prohibition's
demands. To make Morris'sversionof modest retributivism
work,there
mustbe somethingthata criminalnecessarily"gains" fromlawbreaking,
which we can claim gives him the "unfairadvantage" that punishment
removes. Confrontedwiththe difficulty
of specifyingwhat this"gain" is
in a way that will make the theorycome out right,Sher has, I think,
simplyreifiedthe criminal'sact of law-violation,misleadinglylabeled it
"freedom,"and treated it as the "unfair advantage" to be taken away.
Once we see thismove clearly,Sher's analysisbecomes virtuallyindistinguishablefromHegel's obscureclaim thatpunishmentsomehow"annuls"
the crime itself-a claim no more convincingin its new garb.
Nevertheless,there does seem to be truthin the underlyingnotion
thatthe wrongdoerenjoys"an unfairadvantage" as compared to his lawabiding fellowcitizens.Unlike them,the criminalenjoysthe benefitconof other people (freedom from aggression
ferredby the self-restraint
and interference)withouthaving paid the price everyoneelse pays for
thisbenefit(restraining
hisown aggressiveimpulses).But ifthewrongdoer's
"unfair advantage" is his enjoying a benefithe has not paid for, the
"advantage" can be removedjust as readilyby takingaway the benefit
as by exacting the unpaid "price." Indeed, deprivingthe wrongdoerof
his benefitis perhaps the easier and more appealing solution,because
it spares the rest of us the difficulttask of calculatingwhat kind and
degree of impositionon the criminalcountsas the equivalentof the selfrestraintthat he failed to "pay." Instead, we need only cease to restrain
ourselves frominterferingwith or aggressingagainst the criminal.He
thereby loses precisely the "sphere of noninterference"that he had
wrongfully
gained,ratherthansome supposed equivalentof thatbenefit.37
37. Perhaps,though,thecriminalshould notlose his entire"sphereof noninterference."
Afterall, one mightsay,the criminalpresumablyhas obeyed some laws-i.e., has displayed
some self-restraint-so we should view him as having paid some but not all of the "price"

Dolinko
Thoughts
Unfortunately,what we now seem to have arrivedat is the notion

thatthe morallyjustifiedpunishmentfora criminalconsistsin licensing
everyoneelse to engage in aggressiveconducttowardhim. This amounts
to a kind of outlawry-declaring the criminalfairgame foranyone who
wishes to harm him or his interests-far differentfrom the formsof
criminalpunishmentwe actuallyemploy and which Morris'sapproach
was intended to justifymorally.
Morris's "unfairadvantage" approach seems to have led us into a
blind alley, and we noted that Sher's attemptto salvage that approach
appears, on analysis,an unwittingversionof Hegel's metaphor of "annulling" the crime. A conscious effortto develop that metaphor seems
to underlie a second and quite differenteffort-Jean Hampton's-to
explain why criminalsdeserve punishment,and to do so in a way that
shows thatit is proper to give them what theydeserve.38For Hampton,
punishmentis "deserved" if it is "necessaryto humble the wrongdoer
and therebyvindicate the victim'svalue."39 She regards retributionas
restingon twoseparateideas,each "mandatingtheharmof thewrongdoer
as a means to an end."40 I wish to focus on what seems to me the more
important
oftheseideas,whichHamptonlabels"punishmentas a defeat."'41
goes astray
Hampton believes that Morris'sversionof retributivism
because it fails "to link our condemnation of a wrongdoerto thatwhich
"42 Her own account, accordingly,builds on her
makeshis conductwrong.
forothers'forbearance.The problemthen becomes decidingjust how much of his "sphere
of noninterference"the criminalhas failed to pay forand mustforfeit.Should we say that
other citizens are free to inflicton the criminalthe same wrong he inflictedon others?
How many citizensshould be able to do this to him? What if his crime was one without
identifiablevictims?Morris'smetaphor betraysus at everyturn.
38. Hampton acknowledgesthe Hegelian rootsof her enterpriseat p. 131 and p. 142.
39. Ibid., p. 158. She actually says "perceivedas necessary" (my emphasis)-but it
seems odd to suppose that incorrectperceptions could make someone actually deserve
thatwhatwas meantwas thata culpritdeservespunishment
punishment.I assume,therefore,
if punishmentreallywould be necessaryto "vindicatethe victim'svalue," not merelyif it
is believed (by whom?) to be necessaryfor that purpose.
40. Ibid., p. 123.
41. Ibid., p. 124. The other idea that Hampton thinks underlies retributivism"punishmentas vindicatingvalue throughprotection"(p. 138)-receives considerablyless
attention.Moreover,it is hard to understandjust what thissecond idea is supposed to be.
Some of Hampton's discussionof thissecond idea makes it sound like deterrence;at other
places "vindicatingvalue throughprotection"seems hard to distinguishfrom"punishment
as a defeat." Ultimately,"vindicatingvalue throughprotection"seems to presuppose that
a practiceof punishingoffendersis alreadyin place and to call simplyforevenhandedness
in deciding which offendersto punish (or, more accurately,whichvictimsto "vindicate"):
"Because society'spunishmentprotectsthose who are valuable, people who long fora high
valuationmay come to demand punishment... because theywant the expressionof what
thelegal protectionsymbolizes"(pp. 141- 42). But thisreasoningcannotshowthatpunishing
wrongdoers is morally permissible-only, at most, that if it is permissible,then society
should not limit punishment to only those wrongdoers whose victimsare regarded as
sociallyprominent,wealthy,well connected,etc.
42. Ibid., pp. 116-17.

550
Ethics
April1991
notion of what it is that makes the wrongdoer'sconduct wrong-which,

That is,thewrongdoer
demeans"thevictim.43
she says,is thatit"objectively
respectfulof the victim's
failsto treathis victimin a manner sufficiently
value or worth,44therebyimplicitlyclaiming that he is superior to, or
higher in value than, his victim.45Punishment,then, is justifiedor appropriatebecause it servesto assertor to make manifestthe moral truth
whichthe wrongdoer'saction has denied: thatwrongdoerand victimare
of equal value and entitled to equal respect. The core of Hampton's
analysisis set forthin the followingpassage:
By victimizingme, the wrongdoer has declared himselfelevated
withrespectto me, actingas a superiorwho is permittedto use me
forhis purposes.A falsemoralclaimhas been made. The retributivist
demandsthatthe falseclaimbe corrected.The lordmustbe humbled
to show thathe isn'tthe lord of the victim.If I cause the wrongdoer
to sufferin proportionto my sufferingat his hands, his elevation
over me is denied, and moral realityis reaffirmed.I master the
purported master,showing that he is my peer.
So I am proposing thatretributivepunishmentis the defeatof
the wrongdoerat the hands of the victim(eitherdirectlyor indirectly
throughan agent of the victim's,e.g., the state)thatsymbolizesthe
correctrelativevalue of wrongdoerand victim.It is a symbolthat
is conceptuallyrequired to reaffirma victim'sequal worthin the
face of a challenge to it.46
is of
Now, it is not entirelyclear whetherHampton's retributivism
the "bold" or the "modest"variety.Is Hampton suggestingthatreaffirming
the victim'sworthin the manner she describes rationallyjustifiespunishment?Or is her analysismeantto tellus onlywhyitis morallypermissible
to punish? On the one hand, she often speaks in a bold retributivist
manner,as when (in the passage just cited) she assertsthat punishment
is "conceptuallyrequired," and when she expands upon thisthoughtby
43. Of course,thispresupposes thatwe are dealing witha crimethathas an identifiable
"victim."Many crimeslack this feature,and it will not do simplyto suggest (as Hampton
does, p. 125, n. 19) thatin such cases all of us somehow count as victims.When somebody
violates federal law by committingthe felonyof unauthorized possession of blank paper
of the sortused to printdollar bills (in violationof sec. 474 of Title 18 of the United States
Code), I simply do not see that I or anyone else have been "demeaned" or otherwise
victimized.I willignore thispoint in what follows,however,because Hampton could reply
that her analysis at least explains the proprietyof punishing the most serious types of
crime-and I want to show that it breaks down even in those core cases.
notionof"demeaning"treatment)
44. Hampton,p. 124; see also pp. 44-45 (introducing
and pp. 52-53 (postulatingthat wronginga person entails treatinghim in an objectively
demeaning way).
45. Ibid., pp. 124-25. Hampton never explains why treatinganother person in a
demeaning fashion necessarilyinvolves claiming that one is of superior value, worth,or
statusto that person. Couldn't a wrongdoerbe actingout of a beliefthatno one-neither
others nor himself- has any inherent value that requires respect? I thinkquite a few
wrongdoersare in factpeople who loathe themselvesas much as others.
46. Ibid., pp. 125-26.

Dolinko
Thoughts
explaining that punishmentis so "uniquely suited to the vindicationof

the victim'srelativeworth" that it could not be replaced by any other
she endorses Kant's
means of achievingthatgoal.47Even more strikingly,
view that failureto punish a wrongdoerwould make us "accomplicesin
the crime."48On the otherhand, Hampton acknowledgesthatdeterring
crimeis a "primaryreason" whyoffendersare punished and appears to
findthisreason legitimate.49
And we findher arguing thatpunishment,
as the attemptto "master"the wrongdoer,is "not morallywrong"-the
language of the modest retributivist.50
This ambiguityin Hampton's
positionis ultimatelyof littlesignificance,however,because her version
of retributivism
is defectiveon eitherinterpretation.
is its failure
Recall thatthe general problemwithbold retributivism
to explain whyit should be so importantfor the state to give criminals,
but not otherpeople, their'just deserts."Hampton'stheory,ifinterpreted
as a form of bold retributivism,
raises this problem in an acute form.
Read as a bold retributivist,
Hampton is claiming that the rationaljustificationof punishment,itsverypoint,is to nullifythe false moral claim
implicitin the act of wrongdoing-the wrongdoer's claim to greater
But whyshould we care about nullifying
worthor value than thevictim.51
preciselythose claims?Why,indeed, should we care about it so strongly
and so deeply as to establish a complex and costlysocial mechanism
devoted to nullifyingsuch claims-and nullifyingthem by doing to the
claimantsthingswhich we would otherwiseregard as violationsof their
rights?Afterall, we certainlydo not believe thatitis somehowimperative
to set up a social or governmentalmechanism to seek out and correct
false moral claims in general, nor even all false claims by one person to
possess greater worth or value than another. If someone publishes a
book assertingthat men are superior to women, or Jews to Gentiles,or
blacks to Latinos, or a book assertingthat its author is an Uebermensch
greaterin moral value than any other human being on the face of the
earth,we do not regard it as obligatoryon the governmentto see to it
that a reply is published forthwith.Still less would we thinkthat the
governmentought to clap the author in jail or in some other fashion
thefalsemessageof superiority
symbolically
"nullify,"
throughpunishment,
that the author has quite clearlycommunicated.
Curiously, Hampton seems to have made the very error that she
ascribesto Morris-failure to link punishmentof the wrongdoerto that
47. Ibid., p. 128.
48. Ibid., p. 131. Her reason for endorsing this view is that failureto punish would
constitute"acquiescing in the message [the crime] sent about the victim'sinferiority."
49. "Reason as well as instinctdirectsus to harm wrongdoersin order to deter future
crimes"(ibid., p. 139).
50. Ibid., p. 127.
is to annul or countertheappearance
suffering
motiveforinflicting
51. "The retributive
of the wrongdoer's superiorityand thus affirmthe victim'sreal value" (ibid., p. 130).
of therelative
providedbythewrongdoing
Punishment"can annul thefalse evidenceseemingly
(p. 131).
worthofthevictimand wrongdoer"

552
Ethics
April1991
whichmakeshis conductwrong.She connectspunishmentto the message

which,she believes,the wrongfulact expresses. But whatmakes such an
act wrong is not thatit expresses the wrongdoer'smorallyfalse message,
"I'm worthmore than you are." If thatwere what made the act wrong,
explicitassertion of the falsehood ought to be everybit as wrong (and
deservejust as much punishment)as its implicitassertionthroughthe
criminalact. What is cruciallyimportantis thewayin whichthe wrongdoer
goes about conveyinghis moralfalsehood-and Hampton overlooksthat
aspect of the matterentirely.A rapistdeserves punishmentnot because
he has communicatedhis beliefthathe is of greatervalue than his victim
but because he has done so by raping her.
Suppose, now, that we take Hampton to be a modest retributivist.
Her analysis,so interpreted,tellsus not whywe punish wrongdoersbut
why it is morally permissibleto punish them. Punishmentis morally
properbecause itservesto correct,or to nullify,thefalseclaimofsuperior
worthinherentin the wrongdoer'sact. Hampton, on thisaccount,is not
committedto the view that correctingor nullifyingsuch claims is itself
our purposein inflicting
punishment-the viewthatgeneratesthedifficulty
described above. Yet the "modest" versionof her thesisfaces grave difficultiesof itsown. First,it is surelynot true thatwhateverwould correct
(or "nullify")a mistakenmoral claim is ipso facto morallypermissible.
Imagine, for example, someone who mistakenlyinsistson the spotless
moral rectitudeof the governmentof Iran, or Cuba, or Indonesia (pick
whicheveryou thinkmostimmoral).Suppose you were able to have this
person abducted and thrown into an Iranian, Cuban, or Indonesian
prison, and that you knew that the abuse she would encounter there
would cure her of her mistakenmoral appraisal of the regime. Does it
followthat the abduction and imprisonmentmust thereforebe morally
permissible? Hampton herself acknowledges that not everythingthat
would nullifya false claim of superiorityis automaticallypermissible
when she argues thattorturinga tortureris wrongeven thoughit would
affirmthe equal worthof torturerand victim.52Therefore, the fact (if
it be such) that punishmentnullifiesa false claim of superioritycannot
be sufficientto demonstratethat punishmentis morallypermissible.
A second problem is that it is very doubtfulwhetherpunishment
reallydoes "correct"or "nullify"the wrongdoer'ssupposed assertionof
his superior value. Hampton's idea is that "to inflicton a wrongdoer
somethingcomparable to what he inflictedon the victimis to master
him in the way thathe masteredthe victim.The score is even. Whatever
masteryhe can claim, she can also claim. If her victimizationis taken as
evidence of her inferiority
relativeto the wrongdoer,then his defeat at
52. Ibid., pp. 135-37. She concludesthatwe cannotsimplydo whateverwould reaffirm
the victim'smoral worth but must instead impose "limitsthat reflectthe value of the
wrongdoer"and relyon "punishmentsthatwould give the best expressionpossible of the
value of the person hurt by the wrongdoersubject to these limits"(p. 137).

Dolinko
Thoughts
her hands negates thatevidence."53As she latersums it up, "punishment

undercutsthe probativeforceof the evidence of his superiorityprovided
by the wrongdoer'saction."54
But how,precisely,does the state's"defeating"the wrongdoerconvey
the message that the victimhas value equal to that of the wrongdoerconvey,as Hampton puts it, "the experience of defeatat thehandsofthe
How does it get across that the victimhas evened the score
victim"?55
and can now claim whatevermasterythe wrongdoercan? It would seem,
rather,thatwhile the wrongdoerclaimed "superiority"by defeatingthe
victimhimself,a whole gang of partisansof the victimhas now banded
togetherand defeated the hopelesslyoutnumberedwrongdoer!Perhaps
thisconveysthe message thatsocietyas a whole is the equal (or perhaps
themaster)of the wrongdoer,but ithardlyseemsan apt wayof expressing
the message that the victim,individually,is the wrongdoer'sequal.
One mightargue that by acting as the victim'schampion and "defeating"the wrongdoer in the victim'sname, the communityat large
demonstratesor affirmsitsbeliefthatthe victimis thewrongdoer'sequal.
But thismove underminesHampton'scontentionthatpunishmentcorrects
or nullifiesthe wrongdoer'sclaim, because it depicts punishmentas affirminga proposition quite differentfrom that which the wrongdoer
denied. In Hampton's view, the wrongdoer,in committinghis crime,
denies that the victimis his equal. To assert that others believe in the
victim'sequality is not to controvertthe wrongdoer. Hampton wants
punishmentto proclaim that the criminalis mistaken,not merelythat
the communityat large does not agree withhim.
in understandinga "defeat"at society's
Connected withthisdifficulty
handsas evidenceof thevictim'sequalityis a thirdproblemwithHampton's
picture of punishment. That picture presents punishment as a communicativeenterprise-as a matterof sending messages to "correct"or
"nullify"the messages implicitin criminalacts. Thus the criminalact
conveys a "false moral claim" which it is the point of punishmentto
deny;56victimization"counts as evidence" of the victim'sinferiority,57
and punishment"negates the evidence" by "send[ing]an annullingmessage."58But to whom does Hampton suppose that these various claims
and messages are being sent-who is the audience forthe various pieces
of evidence she describes?
Consider, for example, Hampton's argumentthatno alternativeto
punishmentcould equally well vindicatethe victim'sworth,not even a
ticker-tapeparade for the victim,because "the fact that he had been
53.
54.
55.
56.
57.
58.
Ibid., p. 128.
Ibid., p. 129, n. 25.
Ibid., p. 126 (emphasis added).
Ibid., pp. 125-26.
Ibid., p. 128.
Ibid., pp. 129, 131.

554
Ethics
April1991
masteredby the wrongdoerwould stand. He would have lost to her,and

no matterhow much the communitymightcontend thathe was not her
inferior,the loss counts as evidence that he is."59 But for whom is the
wrongdoer's deed "evidence" of the victim'sinferiorstatus? Evidently
not forthe community,whichis contendingthatthevictimis not inferior.
as evidenceof inferiority?
Is the victimsupposed to regardhis victimization
Whyshould he? If you findyour home burglarized,you may experience
anger, or a sense of defilement,or fear that it will happen again, or all
of these-but will you feel that the burglar has demonstratedthat his
moralvalue is greaterthan yours?Surelynot!60Is it,then,thewrongdoer
himselfforwhom the crime "counts as evidence" of his superiorworth?
If so, the problem previouslydescribed recurs: how will the state's"defeating"the wrongdoerundercutforthe wrongdoer"the probativeforce
of the evidence of his superiority"to the victimwhichwe are supposing
his crime affordshim?6'
Hamptonappears to deal withthisproblemof "audience"
Surprisingly,
by denyingthather analysisrequiresany audience at all forthe "evidence"
retributivism
fromvarious
and the "messages"it invokes.In distinguishing
will
consequentialistreasons forpunishing,she assertsthata retributivist
insiston inflictingpunishment "even in a situationwhere neitherthe
wrongdoernor societywill eitherlistento or believe the message about
the victim'sworthwhichthe 'punitivedefeat'is meantto carry,and where
the victimdoesn't need to hear (or willnot believe) thatmessage."62But
thisseems to undermine Hampton's theorycompletely.We have already
seen that the theorymisrepresentscrime as wrongfulmerelybecause it
conveys false moral messages. We then found that the theoryfails to
explain why punishing the criminalshould be taken as "correcting"or
"nullifying"those messages. Now we discover that Hampton insistson
imposing punishmenteven where it will not "correct"or "nullify"the
wrongdoer'smoral falsehood.63I conclude thatHampton's account fails
to give us a plausible formof eitherbold or modest retributivism.
59. Ibid., p. 128.
60. You may feel that the crime indicates that the burglar believeshe is worthmore
than you, but that is a differentmatterand not what Hampton is claiming.She wants to
justificationthatmakes punishment
not a rehabilitative
defend a versionof retributivism,
a way of curing the wrongdoer of his false beliefs. (Morally educating the criminal is
explicitlylabeled a nonretributivemotivefor punishment[p. 129].)
61. Ibid., p. 129, n. 25.
62. Ibid., p. 130.
63. To be sure,Hampton does suggestthatpunishmentshould be imposed onlywhere
it may possibly be taken as "correcting"or "nullifying"the message conveyed by the
crime-"only if people are at least able to understand the symbolicsignificanceof the
punishment,albeit perhaps unwillingto do so" (ibid., p. 132). But merelyacknowledging
that some audience is required seems far fromansweringthe question of preciselywhat
audience Hampton has in mind and does nothingto resolve the problem sketchedabove:
even
Hampton's theoryinsiststhat a criminalact is "evidence" of the victim'sinferiority
where neitherthe victimnor societyso interpretsit.

Dolinko
Thoughts
PreviouslyI argued that George Sher fails in his effortto make

as a matterof fairnessor displausible Morris'spictureof retributivism
I have nowarguedthatequal failurebesetsJeanHampton's
tributivejustice.
out of the Hegelian
effortto constructa coherentaccount ofretributivism
vision of punishmentas "annulling" the crime. A thirdrecent defense
of retributivism-Michael Moore's article "The Moral Worthof Retribution"-follows a strikinglydifferentpath, avoiding the common retributivist
metaphorsaltogetherratherthanseekingto unpackand develop
througha coherence
them.64Moore proposes to support retributivism
strategy-that is, "byshowingthatitbest accounts forthose of our more
particularjudgments that we also believe to be true."65
Strangely,however,Moore does verylittleto carryout his proposal.
Althoughhe does supply a fewexamples of "particularjudgments" that
certaincriminalsdeserve punishment,he devotes the bulk of his essay
ratherthan presentingan
to refutingvarious objectionsto retributivism
explains our intuitionsand does
affirmative
argumentthatretributivism
so better than rival theories.66And to the extent that he does follow
through on his coherence strategy,Moore produces a deeply flawed
argument.
the factthatoffendersdeserve
In Moore's versionof retributivism,
punishmentnotonly"givessociety... a rightto punishculpableoffenders"
(i.e., morallyjustifies punishment) but also "gives society the dutyto
punish."67Desert thus answers the question, "What reason do we have
foradopting the practiceof punishingwrongdoers?"The reason is that
thispractice.Moore'stheory,therefore,
we are morallyobligatedto institute
comprises both "bold" and "modest" retributivism-it purportsto tell
us both what reason we have to punish wrongdoers and why we are
morallypermittedto do so. In its "bold" aspect, we should expect it to
in explainingwhyitis onlycriminaloffenderswhose
encounterdifficulty
'just deserts" it is crucial for the state to mete out. The way in which
arises forMoore, we shall now
thisgeneral problemof bold retributivism
see, is that his strategycannot establisha "duty"to punish more than a
small subset of criminals-yet would rationallyjustifytheirpunishment
even if theirconduct were not criminalat all.
who are morally
Moore assertsthatit is obligatoryto punishoffenders
culpable,68and that "'Moral culpability'... does not presuppose that
and
Character,
64. Michael Moore, "The Moral Worthof Retribution,"in Responsibility,
theEmotions,ed. Ferdinand Schoeman (Cambridge: Cambridge UniversityPress, 1987),
pp. 179-219.
65. Ibid., p. 183.
66. Moore's principal effortgoes into responding to what he calls the Nietzschean
judgments arise from pathological
case against retributivism-the claim that retributive
cannot be justifiedby showingit to be the best explanation
emotions,so thatretributivism
of such judgments (ibid., pp. 191-217).
67. Ibid., p. 182.
68. Ibid., pp. 181-82.

556
Ethics
April1991
the act done is morallybad, only that it is legallyprohibited."69That is,

anyone who commitsa crime,and satisfiesthe "conditionsof fairfault
ascription"-roughly, is neitherjustified nor excused-deserves punishment,and it is morallyobligatoryto inflictpunishmenton whoever
deserves it.70That thisobligationexistsis supposed to be establishedby
itsconstitutingthebest explanationforour "particularjudgments"about
punishmentand desert. But while Moore's retributivist
claim applies to
anyone who commitsa crime,the "particularjudgments"Moore adduces
all involvea great deal more than simple violationsof legallyproscribed
norms.71 They involve strikingly
vicious murders-acts one mightwell
judge deservingof punishmentwhetheror nottheyconstitutedviolations
of law.72
Moore's principalexample, for instance,is the case of StevenJudy,
who raped and murdereda strandedwoman motorist,drownedher three
small children,and later said he had not been "losing any sleep" over
thesedeeds.73Suppose thata memberofa WorldWar II Nazi extermination
squad treateda Jewishwoman and her childrenin the occupied Ukraine
in this fashion,and later boasted similarlyof his sound sleep. Suppose
furtherthat,under the laws applicable at thattime and place, his deeds
werenot crimesat all. Wouldn'twe nevertheless
feel"an intuitive
judgment
that punishment (at least of some kind and to some degree) is warranted"74-a judgment everybit as strongas that which StevenJudy's
unambiguously criminal acts arouse? Imagine, on the other hand, a
pedestrianwho violatesa statetraffic
law bycrossinga streetin themiddle
of the block-at 4:00 A.M., withno automobilesanywherein the vicinity.
Is it so clear that we judge intuitivelythat punishmentis warrantedindeed, that societyhas a dutyto punish thisjaywalker?
69. Ibid., p. 181, n. 1.
70. Ibid. Moore gives an account of the "conditionsof fairfaultascription"in "The
Moral and MetaphysicalSources of the Criminal Law," in NomosXXVII: Criminal
Justice,
ed. J. Roland Pennock and John Chapman (New York: New York UniversityPress, 1985),
pp. 12-14. The moral principlesthat define culpability,he there explains, fall into four
categories: (1) those definingwho is a moral agent (excluding infantsand the insane); (2)
those limitingblameworthinessto persons with a fair chance of acquainting themselves
withthe normsof society(excludingchildrenand, to some extent,aliens); (3) thoserequiring
actusreus,mensrea,and (in some cases) prohibitedresult;and (4) thosedefiningjustifications
and excuses.Giventhatinsanityand infancyare oftenlooselyclassifiedas excusingconditions
and thatthe requirementsof category3 mustbe satisfiedifwe are to speak of the defendant
as having committeda crimeat all, it seems not inaccurateto describeMoore's "conditions
of fairfaultascription,"as the textdoes, as meaning thatthe actor is neitherjustifiednor
excused.
71. Moore's examples appear in "The Moral Worthof Retribution,"p. 184.
72. If one thinks"punishment"must,by definition,be imposed only forviolationsof
law, then at least the murderersMoore points to deserve to have harm inflictedon them,
regardlessof whethertheirdeeds violate any law.
73. Moore, "The Moral Worthof Retribution,"p. 184.
74. Ibid.

Dolinko
Thoughts
The best explanation for such judgments in the cases Moore cites,
therefore,
seems not to be a principlethatapplies to all,and only,violations
of criminallaw. The best explanation forthesejudgments is thatpeople
who inflictsevere, unmerited,gratuitouspain, violence, and death on
others deserve to be harmed themselves,ratherthan a "retributivism"
thatcalls for punishingany "culpable" offender,even if the "offense"is
an act in itselfmorallyneutral. Moore, I suggest,has stacked the deck
by giving us a group of especially savage murders and invitingus to
generate, from these examples, an intuitionthat "criminals"as such
oughtto be punished(regardlessof the consequences).75No such intuition
would likelyarise fromcontemplating,say, an Englishman visitingLos
Angeles who, in the dead of the night,with no other vehicles around,
forgetsforseveral minuteswhichside of the road he is required to drive
on. Stillless would we be likelyto arriveat Moore's intuitionby focusing
on people who violate morally evil laws-for example, someone who
violates an ordinance forbiddinggivingfood to homeless persons.
One mightsuppose that Moore's coherence approach could be salvaged by limitingit to the most serious crimes.So construed,the claim
would be that our "particularjudgments" that those committingthese
seriouscrimesdeserveto be punishedare bestexplainedbytheretributivist
principle that punishmentfor serious crimes is justified "because, and
only because, the offenderdeserves it."76But this response stillmisses
the point that we would regard punishmentas deserved by those who
deliberatelyinflictunmerited,graveharm on otherswhetheror not their
acts are "criminal."Furthermore,to attemptto rescue Moore's approach
is to overlook the oddity of applying a coherence strategyat all to a
problem like that ofjustifyingpunishment.
That problem arises only because we are calling into question an
entiresocialpractice.How, then,can we respondbyappealingto particular
instancesof that practice,treatingthem as the datum whose "best explanation"we seek?Consider,as an analogy,a similarcoherencejustification
forthe view,say, thatwomen are inferiorto men, offeredcirca 1800 by
one man to another. Someone has raised the question of whetherit is
reallyjustifiableto treatwomen as inferiorand is met withthe response
that,"Well, of course, we all have the intuitionthat in thissituationwe
should discriminateagainst women, and likewisein thisand this;now,
the best way of accounting for these particularjudgments is to suppose
75. Later in his articlehe suggeststhat the guilt feelingswe would experience if we
imagined committinga crime "validate" thejudgment thatwe would deserve punishment
(ibid., 214) and hence that anyone who acts likewise deserves it too. In presentingthis
argument,Moore again stacksthe deck: we are to imagine "intentionallysmash[ing]open
the skull of a 23-year-oldwoman witha claw hammer while she was asleep" (p. 213), not
jaywalking,trading on inside information,or giving away ducklingsto promote a store
sale. (The last of these violates sec. 599 of the CaliforniaPenal Code.)
76. Moore, "The Moral Worthof Retribution,"p. 179.

558
Ethics
April1991
women to be morallyand intellectuallyinferiorto men." Wouldn't one

feel that the crucial question is being begged? The coherence strategy
forjustifyingretributivist
punishmentseems to me similarlyflawed.
That Moore should presentso unconvincinga case forretributivism
is not, perhaps, surprisingin view of his failure to perceive the chief
argumentagainstthattheory.As notedearlier,Moore devotesconsiderable
attentionto various objectionsto retributivism,
whichhe seeks to refute.
Yet he ignores what I thinkis the principal objection,which we noted
earlierplagues even "modest"retributivism:
someone'sdeservingto receive
certaintreatmentis not sufficient
to make itmorallypermissible(letalone
obligatory)to give him that treatment,particularlyif doing so would
involve violatinghis rights.77Moore is contentto assert that punishing
offendersachievesjustice.78But givingpeople what theydeserve is not
all thereis to 'justice."79Moore does nothingto showthatin thisparticular
typeof case, where what is in question is punishingoffenders,it trulyis
just, and thereforemorallypermissible,to give people what theydeserve
despite the conflictwith what would normallybe thought to be their
rights.
One furtheraspect of Moore's discussion seems to me significant
a potentially
because itillustrates
dangerousfeatureofretributivist
thinking.
Moore shares withmany retributivists-HerbertMorrisis a prominent
example-the belief that his approach, unlike its rivals,treatscriminal
offenderswiththe respectthatis theirdue as moralagents.Moore makes
thisbeliefexplicitin discussingthe case of RichardHerrin,a Yale student
froma disadvantagedLatino backgroundwho beat his sleepinggirlfriend
to death witha hammeraftershe indicatedshe wantedto see othermen.
Appealing to the powerful guilt feelingswe readers would feel if we
imagined ourselves committingthis crime, Moore asks "whetherthere
is any reason not to make the same judgment about Richard Herrin's
actual deserts as we are willing to makesabout our own hypothetical
deserts,"and concludes thatthereis not.80Any reluctancewe mightfeel
to transferto Herrin our hypotheticalguilt and desert can only "come
fromfeeling more of a person than Richard"-it is "elitistand condescending toward others not to grant them the same responsibilityand
desert you grantto yourself."8'The disturbingaspect of this argument
is its potentialfor eliminatinga salutaryawareness of the costs and the
limitsof our practiceof punishment.
Retributivistsfrequentlycomplain that their consequentialistfoes
have no reason not to inflictpunishmenton innocentpersons, if doing
so would happen to have good consequences, and likewiseno principled
basis forrejectingtortureand otherbarbaricpunishmentsifthesewould
77.
78.
79.
80.
8 1.
See pp. 543-44 above.

Moore, "The Moral Worthof Retribution,"pp. 185-86.
See Feinberg.
Moore, "The Moral Worthof Retribution,"p. 215.
Ibid.

Dolinko
Thoughts
maximize deterrence.82Yet if we thinkthat the point of punishmentis

to deter,we are likelyto recognize that it has limits,imposed by rights
that exist independentlyof our punishing practices. We can striveto
achieve our deterrentgoal only withinthe bounds that these rightsdeon the other hand, like Moore,
marcate. One who thinksretributively,
is apt to regard the whole punishmentpracticeitselfas an expressionof
''respectforpersons."The sense of a tensionbetweenpunishingoffenders
and respecting persons is lost, and it becomes all too easy to justify
excessesand vindictivenessas "givingthe criminalwhathe deserves"and
thus respectingthe wrongdoer,much as Moore shows his respect for
Richard Herrin.
With this observationI have returnedto my startingpoint. Retributivismis presentlymuch in vogue among those concerned with our
criminaljustice system.I fearthatitsimpacthas alreadybeen pernicious,
for example by bolsteringcapital punishmentand by encouraging an
terms,as
increasing reliance on imprisonment,for longer and longer
erbtvs
ahrnet
83
the standard response to crime. Continued adherence to retributivist
modes of thoughtmay well encourage even greatervindictivenessand
a peculiarly self-righteousand smug indulgence of our society'smost
so dangerousshouldnotbe accepted
punitivereflexes.A theorypotentially
I
withoutgood reasons, and hope to have indicatedhow farwe stillare
frompossessing such reasons.
Rethinking
82. Moore himselfpresentssuch an argumentin his bookLaw and Psychiatry:
(Cambridge: Cambridge UniversityPress, 1984), pp. 238-40.
theRelationship
83. A recent studyfound that the United States incarceratesa higher percentageof
its population than any other nation in the world,includingthe Soviet Union and South
Africa,both of which had higherincarcerationrates than the United States ten years ago
("U.S. Imprisons Black Men at 4 Times S. Africa'sRate," Los AngelesTimes[January 5,
1991], p. Al). American prison sentencesare longer than those in other Westernnations
Crime[New York: Pantheon, 1985], p. 29). Their length has
(Elliott Currie, Confronting
increased steadilyin recent years. In New York, e.g., the proportionof prisonerswith
minimumsentences of over thirtymonths rose from4 percent in 1970 to 31 percentin
1980. States that have modifiedtheirsentencinglaws as part of the recent trend toward
determinatesentencinghave, almost withoutexception, increased theirpenalties as well
in theUnitedStates:
Reform
(Sandra Shane-DuBow, Alice Brown, and Erik Olsen, Sentencing
and Effect[Washington,D.C.: National Instituteof Justice,1985], p. 279).
Content,
History,
Governmentstatisticsreveal a steadyincrease in both the numberof prisonersin stateand
federalinstitutionsand the proportionof the populace incarceratedduringthe 1980s. The
formerfigurereached an all-timehigh of 710,054 at the end of 1989-more than twice
the figureas of the end of 1980 (Bureau of JusticeStatistics,Bulletin-Prisonersin 1989
[Washington,D.C.: GovernmentPrintingOffice,1990], p. 1). The year-end 1989 rate of
incarceration-274 prisonersper 100,000 residents-also set a new record, and was 97
states
percent greater than the year-end 1980 rate (ibid). Prison systemsin thirty-seven
and the Districtof Columbia are operating under some formof court order or consent
decree because ofviolationsofinmates'rightsstemmingfromovercrowding(CriminalJustice
Newsletter
[ January3,1989], p. 4). Yetrelianceon lockingup offenderscontinuesunabated:
then-federal"drug czar" William Bennett, e.g., has called for more prosecutors,more
judges, and more prison space, sayinghe favorsstiffersentencesand denial of parole to
[May 15, 1989], p. 7).
drug offenders(CriminalJusticeNewsletter


Some Thoughts About Retributivism

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Some Thoughts About Retributivism

Author(s): David Dolinko

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