The Moral Permissibility of Punishment considers the most prominent consequentialist,

retributivist, and hybrid attempts at establishing

The legal institution of punishment presents a
punishment’s moral permissibility. Finally, it
distinctive moral challenge because it involves a
considers the abolitionist alternative.
state’s infliction of intentionally harsh, or
burdensome, treatment on some of its members— Table of Contents
treatment that typically would be considered
1. What is Punishment?
morally impermissible. Most of us would agree,
for instance, that it is typically impermissible to 2. Various Questions
imprison people, to force them to pay monetary
sanctions or engage in community service, or to 3. Consequentialist Accounts
execute them. The moral challenge of a. Deterrence
punishment, then, is to establish what (if
anything) makes it permissible to subject those b. Incapacitation
who have been convicted of crimes to such
c. Offender Reform
treatment.
d. Sentencing
Traditionally, justifications of punishment have
been either consequentialist or retributivist. e. Objections and Responses
Consequentialist accounts contend that
punishment is justified as a means to securing 4. Retributivist Accounts
some valuable end—typically crime reduction, . Deserved Suffering
by deterring, incapacitating, or reforming
offenders. Retributivism, by contrast, holds that a. Fair Play
punishment is an intrinsically appropriate
b. Censure
(because deserved) response to criminal
wrongdoing. Each type of account has been c. Other Versions
roundly criticized, on a variety of grounds, by
theorists in the other camp. In an effort to break d. Sentencing
this impasse, scholars have attempted to find 5. Alternative Accounts
alternative strategies that incorporate certain
consequentialist or retributivist elements but . Rights Forfeiture
avoid the standard objections directed at each. a. Consent
Each of these accounts has, in turn, met with
criticism. Finally, abolitionists argue that none of b. Self-Defense
these defenses of punishment is satisfactory, and
c. Moral Education
that the practice is morally impermissible; the
salient question for abolitionists, then, is how else d. Hybrid Approaches
(if at all) society should respond to those forms of
wrongdoing that we now punish. 6. Abolitionism

This article first looks more closely at what
punishment is; in particular, it examines the
distinctive features of punishment in virtue of
which it stands in need of justification. It then
highlights various questions that a full
justification of punishment would need to
answer. With these questions in mind, the article
7. References and Further Reading
1. What is Punishment?
When we consider whether punishment is
morally permissible, it is important first to be
clear about what it is that we are evaluating.
Theorists disagree about a precise definition of
punishment; nevertheless, we can identify a
number of features that are commonly cited as
elements of punishment.
First, it is generally accepted that punishment
involves the infliction of a burden. The state
confines people in jails and prisons, where
liberties such as their freedom of movement and
association, and their privacy, are heavily
restricted. It imposes often heavy monetary
sanctions or forces people to take part in
community service work. It subjects people to
periods of probation during which their
movements and activities are closely supervised.
In the most extreme cases, it executes people.
Theorists disagree on precisely how to
characterize this feature of punishment. Some
describe punishment as essentially painful, or as
involving the infliction of suffering, harsh
treatment, or harm. Others instead write of
punishment as involving the restriction of
liberties. However we characterize the specific
nature of the burden, it is relatively
uncontroversial that punishment in its various
forms is burdensome.
One might object that some prisoners could
become accustomed to incarceration and so not
see it as a burden, or that the masochist might
even enjoy his corporal punishment. In response
to supposed counterexamples such as these, a
defender of the “burdensomeness” feature of
punishment might argue that the comfortable
prisoner and the masochist are still punished
insofar as they are treated in ways that
are typically regarded as burdensome by those on
whom they are inflicted. Alternatively, one might
argue that a particular case of incarceration,
corporal punishment, and so forth, indeed does
not count as punishment if the prisoner does not
find it burdensome (Boonin, 2008: 8-10).
Whatever one makes of these attempted
counterexamples, it remains the case that
punishment theorists by and large agree that
burdensomeness is an essential feature of
punishment.
But punishment is not merely burdensome. A
second widely accepted feature of punishment is
that it is intended to be burdensome. This feature
distinguishes punishment from other forms of
treatment that may be burdensome but are not
intentionally so. Many people undoubtedly
regard it as burdensome to pay their taxes, for
instance, but presumably most do not regard this
as a form of punishment. This is because although
taxes may be foreseeably burdensome, they are
not intentionally so. That is, the state does not
levy taxes intending for them to be burdensome;
rather, the intention is to pay for roads, an
education system, and other public goods. That
paying for these goods is burdensome to many
taxpayers is incidental, and if there were a way to
collect sufficient revenue to pay for needed
public goods without this being a burden to
taxpayers, then so much the better.
Punishment, however, is different. Punishment is
intended to be burdensome. If it were not
burdensome, then it would not be doing its job.
For instance, as we will see below, some theorists
contend that the aim of punishment is to reduce
crime by deterring potential criminals. But for the
threat of punishment to be the sort of thing likely
to deter criminals, the punishment itself must be
burdensome. Other theorists (retributivists)
contend that wrongdoers deserve to suffer, and
that punishment is justified as the infliction of this
deserved suffering. Here again, the
burdensomeness of punishment is not merely
incidental, it is intended.
Of course, not all impositions of intended burdens
count as punishment. A third commonly accepted
feature of punishment is that it is imposed on
someone guilty of an offense, as a response to that
offense. Actually, there is some disagreement
about this point. To count as punishment, must it
be imposed on someone who is actually guilty of
a crime? Or would it make sense to talk of
punishing an innocent person (either mistakenly
or intentionally)? Some scholars contend that
punishment must be of a guilty person. Susan
Dimock writes, “The innocent may be
‘victimized’ by the penal system, but they cannot
be ‘punished’” (Dimock, 1997: 42). By contrast,
H. L. A. Hart contends that we should
acknowledge not only punishment of actual
offenders, but also cases (which he calls “sub-
standard or secondary”) of punishment “of
persons…who neither are in fact nor supposed to
be offenders” (see Hart, 1968: 5).
A fourth feature of punishment, widely
acknowledged at least since the publication of
Joel Feinberg’s seminal 1970 article “The
Expressive Function of Punishment” is that it
serves to express condemnation, or censure, of
the offender for her offense. As Feinberg
discusses, it is this condemning element that
distinguishes punishment from what he calls
“nonpunitive penalties” such as parking tickets,
demotions, flunkings, and so forth. (Feinberg,
1965: 398-401). As we will see below, some
scholars have taken this expression of censure to
be central to the justification of punishment. But
whether or not it plays a role in the justification
of the practice, this expressive function is
typically accepted as a distinctive feature of
punishment.
Finally, it is worth highlighting that this article
focuses on the legal institution of punishment—
rather than, say, parents’ punishment of their
children or other interpersonal cases of
punishment (but see Zaibert, 2006). Legal
theorists often assert as one of punishment’s
features that it must be imposed by a properly
constituted legal authority (typically, the state).
They thereby aim to differentiate legal
punishment from private vengeance or
vigilantism. This does not mean we must accept
uncritically that the state is the proper authority to
impose punishment. Ideally, a full account of
punishment should provide a plausible answer to
why (or if) the state has an exclusive right to
impose punishment.
These, then, are the most commonly cited
features of punishment: punishment involves the
state’s imposition of intended burdens—burdens
that express social condemnation—on people
(believed to be) guilty of crimes, in response to
those crimes. This is not intended as a precise
definition or a set of necessary and sufficient
conditions for punishment. Theorists may
disagree about particular elements, or especially
about how exactly to flesh out the various
elements. But this description is sufficient to give
us a sense of why punishment stands in need of
justification: It involves the state’s treating some
of its members (imposing intentionally
burdensome, censuring sanctions) in ways that
typically would be morally impermissible.
2. Various Questions
When theorists ask whether punishment is
justified, they typically assume a backdrop in
which the legal system administering punishment
is legitimate, and the criminal laws themselves
are reasonably just. This is not to say that they
assume that all legal systems are legitimate and
all criminal laws are reasonably just in the actual
world. Indeed, questions of political legitimacy
and criminalization are important topics that have
received a great deal of attention in their own
right. But even in societies in which the legal
system is legitimate and the laws are reasonably
just, a general question arises of whether (and if
so, why) it is permissible for the state to impose
intended, censuring burdens on those who violate
the laws.
This general question of punishment’s moral
permissibility actually comprises a number of
particular questions. A full normative account of
punishment should provide answers to each of
these questions.
First, there is the question of punishment’s
function, or purpose. Put simply, what reason is
there to want an institution of punishment? H. L.
A. Hart referred to this as punishment’s “general
justifying aim,” although this term may be
misleading in two ways: on one hand, to say that
the aim is justifying implies that it is sufficient, by
itself, to establish punishment’s permissibility.
As we will see, some scholars point out that more
is needed to justify punishment than merely citing
its function, no matter how valuable. On the other
hand, talk of a justifying aim seems to privilege
consequentialist accounts, according to which
punishment is justified as a means to some
socially valuable goal. But even for retributivist
accounts, according to which punishment is
justified not as a means to some end but rather as
an intrinsically appropriate response to
wrongdoing, we still need an explanation of why
such a response is important enough to warrant
the state’s institution of punishment. A first
question, then, is what sufficiently important
function punishment serves.
Even if we establish some sufficiently valuable
function of punishment, this may not be enough
to justify the practice. Some scholars contend that
a crucial question is whether punishment violates
the moral rights of those punished. If punishing
offenders violates their rights, then it may be
morally impermissible even if it serves some
important function (Simmons, 1991; Wellman,
2009). What we need, according to this view, is
an account of why, in principle, the practice of
imposing intended burdens on people in the ways
characteristic of punishment does not violate their
moral rights.
In addition to justifying the practice of
punishment in general, a complete account of
punishment should also provide guidance in
determining how to punish in particular cases.
Even if the institution of punishment is morally
permissible, a particular sentence may be
impermissible if it is excessively harsh (or on
some accounts, if it is too lenient). What
principles and considerations should guide
assessments of how severely to punish?
Relatedly, although this point has received less
attention, we should ask not only about the
appropriate severity of punishment but also about
the proper mode of punishment. We may critique
certain sentences not in virtue of their severity but
because we believe the form of punishment
(incarceration, capital punishment, and so forth)
is in some sense inappropriate (Reiman, 1985;
Moskos, 2011). What considerations, then,
should guide assessments of whether
imprisonment, fines, community service,
probation, capital punishment, or some other
form of punishment is the appropriate response to
instances of criminal wrongdoing?
Finally, as mentioned, it is important to ask about
the state’s role as the agent of punishment. Why
is it the state’s right to impose punishment (if
indeed it is)? Furthermore, what gives the state
the exclusive right to punish (Wellman, 2009)?
Why may victims not inflict punishment on their
assailants (or hire someone to inflict the
punishment)? Another question related to the
proper agent of punishment—a question that has
become increasingly salient in the decades
following the Nuremberg trials—is when (if ever)
the international community, rather than a
particular state, can be the proper agent of
punishment. What sorts of crime, and which
criminals, are properly accountable to the
institutions of international criminal law rather
than (or perhaps in addition) to the domestic legal
systems of particular states?
As we will see, various accounts of punishment
focus on different questions. Also, some accounts
seek to answer each of these questions by
appealing to the same moral principles or
considerations, whereas others appeal to different
considerations in answering the different
questions.
3. Consequentialist Accounts
Consequentialism holds that the rightness or
wrongness of actions—or rules for action, or
(relevant to our context) institutions—is
determined solely by their consequences. Thus
consequentialist accounts of punishment defend
the practice as instrumentally valuable: the
consequences of maintaining an institution of
legal punishment, according to this view, are
better than the consequences of not having such
an institution. For many consequentialists, the
burden of punishment itself is seen as a negative
consequence—an “evil,” as Jeremy Bentham
called it (Bentham, 1789: 158). Thus for
punishment to be justified, it must be the case that
it brings about other, sufficiently valuable
consequences to outweigh its onerousness for the
person on whom it is inflicted. Typically,
punishment is defended as a necessary means to
the socially valuable end of crime reduction,
through deterrence, incapacitation, or offender
reform.
a. Deterrence
Deterrence accounts contend that the threat of
punishment serves as a disincentive for potential
criminals. On such accounts, for the threat of
punishment to be effective as a deterrent, it must
be credible—it must have teeth, so to speak—and
thus the legal system must follow through on the
threat and impose punishment on those who
violate laws. Theorists have distinguished two
potential audiences for the deterrent threat: first,
the threat of punishment might serve to dissuade
members of the public generally from committing
crimes that they might otherwise have
committed. This is called general deterrence.
Second, for those who do commit crimes and are
subjected to punishment, the threat of future
punishment (namely, the prospect of having to
experience prison again, or pay further fines, and
so forth) might provide a disincentive to
reoffending. This is typically referred to
as specific (or special) deterrence.
b. Incapacitation
Punishment might also help to reduce crime by
incapacitating criminals. Unlike deterrence,
incapacitation does not operate by dissuading
potential offenders. Incapacitation instead aims to
remove dangerous people from situations in
which they could commit crimes. Imprisoning
someone in a solitary confinement unit, for
instance, may or may not convince her not to
commit crimes in the future; but while she is
locked up, she will be unable to commit (most)
crimes.
c. Offender Reform
A third way in which punishment might help to
reduce crime is by encouraging or facilitating
offender reform. The aim of reform is like that of
specific deterrence in one respect: both seek to
induce a change in the offender’s behavior. That
is, the aim for both is that she should choose not
to reoffend. In this respect, both reform and
specific deterrence differ from incapacitation,
which is concerned with restricting rather than
influencing offenders’ choices. But reform differs
from specific deterrence in terms of the ways in
which each seeks to induce different choices.
Punishment aimed at specific deterrence provides
prudential reasons: we impose onerous treatment
on an offender in hopes that her aversion to
undergoing such treatment again will convince
her not to reoffend. Punishment with the aim of
offender reform, by contrast, aims to reshape
offenders’ moral motives and dispositions.
d. Sentencing
Each of these aims—deterrence, incapacitation,
and reform—will have distinct implications with
respect to sentencing. Punishment aimed at
reducing crime through deterrence would in
general need to be severe enough to provide
members of the public with a significant
incentive not to offend, or to provide offenders
with an incentive not to reoffend. Also, as
Bentham explained, the severity of sentences
should reflect the relative seriousness of the
crimes punished (Bentham, 1789: 168). More
serious crimes should receive more severe
punishments than do less serious crimes, so that
prospective offenders, if they are going to commit
one crime or the other, will have an incentive to
choose the less serious crime.
For punishment aimed at reducing crime through
incapacitation, sentences should be restrictive
enough that dangerous offenders will be unable
to victimize others (so, for instance, prison
appears generally preferable to fines as a form of
incapacitative punishment). In terms of duration,
incapacitative sentences should last as long as the
offender poses a genuine threat. Similarly,
sentences aimed at reducing crime through
offender reform should be tailored, in terms of the
form, severity, and duration of punishment, in
whatever ways are determined to be most
conducive to this aim.
Finally, insofar as punishment itself is considered generated somewhat more optimism about the
to be, in Bentham’s words, an “evil,” the prospects for offender reform (Cullen, 2013).
consequentialist is committed to the view that
Whereas critics have questioned whether
sentences should be no more severe than is
punishment deters or facilitates offender reform,
necessary to accomplish their aim. Thus whether
there is little doubt that punishment—especially
she endorses deterrence, incapacitation, reform,
incarceration—incapacitates (prisoners may still
or some other aim (or a combination of these), the
have opportunities to commit crimes, but their
consequentialist should also endorse a parsimony
opportunities are at least significantly limited.)
constraint on sentence severity (Tonry, 2011).
Critics have raised questions, however, about the
After all, to impose sentences that are more
link between incapacitation and crime reduction.
severe than is necessary to accomplish
For punishment to be justified on incapacitative
punishment’s aim(s) would appear to be an
grounds, after all, it would need to be the case not
infliction of gratuitous suffering—and so, from a
only that punishment in fact incapacitates, but
consequentialist perspective, unjustified.
that in so doing it helps to reduce crime. At least
e. Objections and Responses in some cases, there is reason to doubt whether
the link between incapacitation and crime
Typical consequentialist accounts of punishment
reduction holds. Most notably, locking up drug
contend that the practice is justified because it
dealers or gang members does not appear to
produces, on balance, positive consequences by
decrease drug- or gang-related crimes, because
helping to reduce crime, either through
the incapacitated person is quickly and easily
deterrence, incapacitation, or offender reform.
replaced by someone else (Tonry, 2006: 31-32).
Critics have objected to such consequentialist
accounts on a number of grounds. Even if we accept, for argument’s sake, that
punishment contributes to crime reduction, it still
First, some have objected to deterrence accounts
may not be justified on consequentialist grounds
on grounds that punishment does not actually
if it also generates costs that outweigh its benefits.
deter potential offenders. A key worry is that
The costs of punishment are not limited to the
often (perhaps typically) those who commit
suffering or other burdens inflicted on offenders,
crimes act impulsively or irrationally, rather than
although these burdens do matter from a
as efficient calculators of expected utility, and so
consequentialist perspective. Scholars have also
they are not responsive to the threat of
highlighted burdens associated with certain forms
punishment. The question of whether punishment
of punishment—in particular, incarceration—for
deters is an empirical one, and criminological
offenders’ families and communities (Mauer and
studies on this question have come to different
Chesney-Lind, 2002). These costs matter in
conclusions. In general, evidence seems to
consequentialist calculations. In addition, we
indicate that punishment does have some
must consider the financial costs of maintaining
deterrent effect, but that the certainty of
an institution of criminal punishment. In 2012,
apprehension plays a greater deterrent role than
the Vera Institute of Justice released a study of 40
does the severity of punishment (Nagin, 2013).
U.S. states that found that the total taxpayer cost
A similar line of objection has been raised against of prisons in these states was $39 billion. Thus
reform-based accounts of punishment. defenders of punishment on consequentialist
Criminological research in the 1970s led many grounds must show not only that punishment is
scholars and practitioners to conclude that beneficial, but also that its benefits are significant
punishment did not, indeed could not, promote enough to outweigh its costs to offenders and to
offender reform (the mantra “nothing works” was society generally.
for many years ubiquitous in these discussions).
More recent criminological work, however, has
Furthermore, even if punishment’s benefits punishment, because punishment, by definition,
outweigh its costs, consequentialists must make is a response to those guilty of crimes (or at least
the case that these benefits cannot be achieved believed to be guilty, whereas in McCloskey’s
through some other, less burdensome response to example, the sheriff knows the person to be
crime. If there are alternatives to punishment that innocent). H. L. A. Hart refers to this response as
are equally effective in reducing crime but are the “definitional stop” and he suggests it is
less costly overall, then from a consequentialist unhelpful because it seeks to define away the
perspective, these alternatives would be interesting normative questions. Setting
preferable (Boonin, 2008: 53, 264-67). terminology aside, the relevant questions are
whether and why it is permissible to impose
Suppose, however, that the benefits of
intended, condemnatory burdens on those
punishment outweigh its harms and also that
(believed to be) guilty of crimes. The
there are no alternatives to punishment that
consequentialist’s response is that doing so
generate, on balance, better overall
produces the best consequences, but then it seems
consequences. In this case, punishment would be
that the consequentialist should be committed to
justified from a consequentialist perspective.
imposing such burdens on those not (believed to
Many theorists, however, do not endorse
be) guilty of crimes when doing so produces the
consequentialism. Indeed, the most prominent
best consequences. Such a practice would strike
philosophical objections to consequentialist
many as morally wrong, however. Thus the
accounts of punishment take aim specifically at
objection arises for consequentialists regardless
supposed deficiencies of consequentialism itself.
of definitions.
Perhaps the most common objection to
Others have responded to the objection that
consequentialist accounts is that they are unable
consequentialism would allow for punishing the
to provide principled grounds for ruling out
innocent by suggesting that scenarios such as
punishment of the innocent. If there were ever a
McCloskey suggests are so far-fetched that they
situation in which punishing an innocent person
are unlikely to occur in the real world. In actual
would promote the best consequences, then
cases, punishing the innocent will rarely, if ever,
consequentialism appears committed to doing so.
produce the best consequences. For instance,
H. J. McCloskey imagines a case in which, in the
some contend that the sheriff in the example
wake of a heinous crime, a small-town sheriff
would likely be found out, and as a result the
must decide whether to frame and punish a person
public would lose its trust in law enforcement
whom the townspeople believe to be guilty but
officials; the long-term consequences, therefore,
the sheriff knows is innocent if doing so is the
would be worse than if the sheriff had not
only way to prevent rioting by the townspeople
punished the innocent person. As critics have
(McCloskey, 1957: 468-69). If punishing the
pointed out, however, this response only shows
innocent person defuses the residents’ hostilities
that punishing the innocent will usually be ruled
and prevents the riots—and thereby produces
out by consequentialism. There might still be
better overall consequences than continuing to
cases, albeit rare, in which punishing the innocent
search for the actual criminal—then it appears
would generate the best consequences (maybe the
that the consequentialist is committed to
sheriff is adept at covering up his act). At best,
punishing the innocent person. But knowingly
then, consequentialism seems only able to ground
punishing an innocent person strikes most of us
a contingent prohibition on punishing the
as deeply unjust.
innocent. Some consequentialists have accepted
Consequentialists have responded to this this implication, albeit reluctantly (see Smart,
objection in various ways. Some contend that 1973: 69-73).
what McCloskey describes is not actually
A similar objection to consequentialist accounts
is that they cannot provide a principled basis for
the widely held intuition that punishment should
be no more severe than an offender deserves
(where desert is the product of the seriousness of
the offense and the offender’s culpability). On
this view, it is morally wrong to subject those
guilty of relatively minor crimes to harsh
punishment; such punishment would be
excessive. For consequentialist accounts, though,
it appears that excessively harsh sentences would
be permitted (indeed, required) if they produced
the best overall consequences.
Jeremy Bentham contended that
consequentialism does have the resources to
ground relative proportionality in sentencing—
that is, lesser offenses should receive less severe
sentences than more serious offenses receive. His
reasoning was that if sentences for minor offenses
were as harsh as for more serious offenses,
potential offenders would have no incentive to
commit the lesser offense rather than the more
serious one (Bentham, 1789: 168). If Bentham is
right, then there is a consequentialist basis for
punishing shoplifters, for instance, less harshly
than armed robbers. But this does not rule out
punishing shoplifters harshly (more harshly than
most of us would think justified) and punishing
armed robbers even more harshly; again, a
consequentialist would seem committed to such a
sentencing scheme if it promoted the best overall
consequences.
Defenders of consequentialist sentencing have
another response available, namely that
excessively harsh sentences do not, in practice,
produce the best consequences. For instance,
criminological research suggests a) that stiffer
sentences do not produce significant deterrent
effects (it is primarily the certainty of punishment
rather than its severity that deters); b) that
extremely long prison terms are not justified on
incapacitative grounds (for one reason, most
offenders “age out” of criminal behavior anyway
by their 30s or 40s); and c) that extremely harsh
sentences may, on balance, have criminogenic
effects (that is, they may make people more likely
to reoffend). This sort of response, of course,
makes the prohibition of disproportionate
punishment a contingent matter; in other
words, if extremely harsh sentences did help to
reduce crime and this produced, on balance, the
best overall consequences, then consequentialism
would appear to endorse such sentences. Critics
thus charge that consequentialist accounts are
unappealing insofar as they are unable to ground
more than a contingent prohibition on
disproportionately harsh punishment.
Even if we prohibit punishment of the innocent or
disproportionate punishment of the guilty, a third,
Kantian objection holds that consequentialist
punishment is not properly responsive to the
person being punished. According to this
objection, to punish offenders as a means to
securing some valuable social end (namely, crime
reduction) is to use them as mere means, rather
than respecting them as ends in themselves (Kant,
1797: 473; Murphy, 1973).
In response to this objection, some scholars have
contended that although consequentialists regard
punishment as a means to an end, punishment
does not treat offenders as mere means to this
end. If we limit punishment to those who have
been found guilty of crimes, then this treatment is
arguably responsive to their choices and does not
use them as mere means. Kant himself suggested
that as long as we reserve punishment only for
those found guilty of crimes, then it is permissible
to punish with an eye toward potential benefits
(Kant, 1797: 473).
A more recent objection to consequentialist
systems of punishment, developed by R. A. Duff
(1986, 2001), charges that consequentialist
systems of punishment, with their focus on crime
reduction, treat offenders as dangerous
“outsiders”—as the “they” whom “we,” the law-
abiding members of society, must threaten,
incapacitate, or remold to ensure our safety. Such
a conception of the criminal law is
inappropriately exclusionary, Duff claims. The
criminal law, and the institution of punishment,
in a liberal polity should treat offenders
inclusively, as (still) members of the community
who despite having violated its values could, and
should, nevertheless (re)commit to these values.
In response, one might object that systems of
punishment aimed at crime reduction need not be
exclusionary in the way Duff suggests. In
particular, punishment that aims to deter crime
might be said to treat all community members
equally, namely as potential offenders. For those
who have not committed crimes, deterrent
punishment regards them as potential offenders
and aims to provide an incentive not to offend
(that is, general deterrence). For those who have
committed crimes, deterrent punishment
similarly regards them as potential (re)offenders
and aims to provide an incentive not to (re)offend
(that is, specific deterrence). In this way,
punishment with a deterrent aim might be said to
speak to all community members in the same
terms, and thus not to be objectionably
exclusionary.
4. Retributivist Accounts
As we have seen, consequentialist accounts of
punishment are essentially forward-looking—
punishment is said to be justified in virtue of the
consequences it helps to produce. A different sort
of account regards punishment as justified not
because of what it brings about, but instead
because it is an intrinsically appropriate response
to crime. Accounts of the second sort have
traditionally been described as retributivist. In
general, we can say that retributivism views
punishment as justified because it is deserved,
although particular accounts differ about what
exactly this means.
Theorists have distinguished two varieties of
retributivism: positive retributivism and negative
retributivism. Positive retributivism is typically
characterized as the view that an offender’s desert
provides a positive justifying reason for
punishment; in other words, the state should
punish those who are found guilty of criminal
wrongdoing because they deserve it. Negative
retributivism, by contrast, provides a constraint
on punishment: punishment is justified only of
those who deserve it. Because negative
retributivism provides only a constraint on
punishment, not a positive reason to punish, the
negative retributive constraint has featured
prominently in attempts at mixed accounts of
punishment; such accounts allow punishment for
consequentialist aims as long as the punishment
is only of those who deserve it. On the other hand,
because negative retributivism does not provide a
positive justifying reason to punish, some
scholars argue that it does not properly count as
retributivism at all.
The distinction between retributivism and
consequentialism is not always a neat one. Notice
that one might endorse the claim that punishment
is a deserved response to wrongdoing and then
further assert that it is a valuable state of affairs
when wrongdoers get the punishment they
deserve—a state of affairs that therefore should
be promoted. On this type of account, retribution
itself essentially becomes the consequentialist
aim of punishment (Moore, 1903; Zaibert, 2006).
Nevertheless, in keeping with general practice,
this article will treat retributivism as distinct
from, and in competition with, consequentialist
accounts.
a. Deserved Suffering
One common version of retributivism contends
simply that wrongdoers deserve to suffer in
proportion to their wrongdoing. Often this claim
is made by way of appeal to intuitions about
particular, usually heinous crimes: surely the
unrepentant war criminal, for example, who has
tortured and murdered many innocent people,
deserves to suffer for what he has done.
Proponents argue that retributivism is justified
because it best accounts for our intuitions about
particular cases such as these (Moore, 1987;
Kleinig, 1973).
Justifying retributivism requires more, of course,
than merely appealing to common intuitions
about such cases. After all, even if many (even
most) people do feel, in hearing reports of terrible
crimes, that the perpetrators deserve to suffer, not
everyone feels this way. And even those who do
have such intuitions may not feel entirely
comfortable with them. What we would like to
know is whether the intuitions themselves are
justified, or whether, for instance, they amount to
an unhealthy desire for vengeance. Critics
contend that those who rely on our intuitions
about particular cases as evidence that
retributivism is justified fail to provide the
needed explanation of why the intuitions are
justified.
There are other questions for such a view: does
any sort of moral wrongdoing deserve to be met
with suffering, or only some cases of
wrongdoing? Which ones? And why is meting
out deserved suffering for wrongdoing properly
the concern of the state?
b. Fair Play
Another prominent type of retributivist account
begins with a conception of society as a
cooperative venture in which each member
benefits when there is general compliance with
the rules governing the venture. Because each of
us benefits when everyone else plays by the rules,
fairness dictates that we each have an obligation
to reciprocate by playing by the rules, too. A
criminal, like other members of society, benefits
from general compliance with laws, but she fails
to reciprocate by complying with the laws herself.
She essentially becomes a free rider, because she
counts on others to play by the rules that she
violates. By failing to restrain herself
appropriately, she gains an unfair advantage over
others in society. The justification of punishment
is that it corrects this unfair advantage by
inflicting burdens on the offender proportionate
to the benefit she gained by committing her crime
(Morris, 1968).
On the fair play view, then, punishment is
justified as a deserved response to an unfair
advantage taken against members of society
generally. Such an account offers a relatively
straightforward answer to the question of why
punishment is the state’s business. The state has
an interest in assuring those who accept the
burdens of compliance with the law that they will
not be at a disadvantage to those who would free-
ride on the system.
Critics of the fair play view have argued that it
provides a counterintuitive conception of the
crime to which punishment responds. It seems
strange, for instance, to think of the wrong
perpetrated by, say, a rapist as a sort of free-riding
wrong against society in general, rather than an
egregious wrong perpetrated against the victim in
particular. In response to this charge, Dagger
(1993) argues that crimes may be wrong in both
senses: they may wrong particular victims in
various ways, but they are also in every case
wrongs in the sense of free riding on society
generally.
c. Censure
Another influential version of retributivism
begins with the claim, discussed earlier, that one
of punishment’s distinctive features is that it
communicates censure, or condemnation, of the
offender for her offense. This retributivist
account, developed most notably by R. A. Duff
(1986, 2001), takes the censuring feature as the
key to establishing punishment’s moral
permissibility. Offenders deserve to be censured
for what they have done, and punishment is
justified because it delivers this censuring
message.
Duff understands crimes as public wrongs, as
violations of important public values. It follows
on this account that the state is the appropriate
agent of punishment; the state properly calls
offenders to account for their violations of the
political community’s shared values.
Censuring involves, in part, urging an offender to
think about the wrong she has done, to repent and
(re)commit herself to the values that she has
violated. Thus it follows from censure accounts
such as Duff’s that offender self-reform is an aim
of punishment. But notice the crucial distinction
between this sort of account and the variety of
consequentialist account that aims at offender
reform. Although offender reform is an aim of
punishment on the censure account, it is not
a justifying aim. In other words, on the censure account, however, is whether the prudential threat
view, punishment is not justified insofar as it will tend to drown out the moral message.
tends to promote offender reform. Rather,
punishment is justified because it communicates d. Other Versions
deserved censure. Part of what it means to Alternative versions of retributivism have been
censure, however, is to urge wrongdoers to repent offered. Some scholars, for instance, argue that
and reform. those who commit crimes violate the trust of their
fellow community members. Trust, on this
A common critique of the censure view asks why
account, is an essential feature of a healthy
punishment—that is, the imposition of intended
community. Offenders undermine this trust when
burdens—is the proper way to censure
they victimize others. In such cases, punishment
wrongdoers. It seems that the polity could
is a deserved response to such violations and an
communicate messages of censure to offenders
appropriate way to help maintain (or restore) the
without imposing intended burdens; for example,
conditions of trust among community members
it could issue a public proclamation condemning
(see Dimock, 1997). Advocates of this trust-
the crime and blaming the offender. Why, then, is
based variety of retributivism must explain which
the hard treatment characteristic of punishment
violations of trust rise to the level that warrants
an appropriate vehicle for conveying such
criminalization, so that violators should be
messages? One type of response, offered by Duff
subject to punishment. Also, we might question
and others (see also Falls, 1987), holds that hard
whether such accounts are purely retributivist
treatment is needed to convey adequately the
after all: if punishment is justified at least in part
polity’s condemnation of crimes. Nonpunitive
as a means of helping to maintain conditions of
censure—blaming without imposing intended
trust in a community, then this appears to be a
hard treatment—would fail to communicate the
consequentialist rationale. On the other hand, if
seriousness of the wrongdoing.
punishment is justified not for what it helps to
Also, on Duff’s account, hard treatment can bring about but rather as an intrinsically
function to induce in offenders the sort of moral appropriate (because deserved) response to
reflection that may lead to repentance, reform, violations of trust, then we need an explanation of
and reconciliation (with their victims and the why such violations deserve punishment, perhaps
community more generally). Some have as opposed to some other form of response.
objected, however, that such an account implies
Another form of retributivism holds that
too intrusive a role for the state. It is not a proper
offenders incur a moral debt to their victims, and
function of the state, critics charge, to seek to
so they deserve punishment as a way to repay this
induce repentance and moral reform in offenders.
debt (McDermott, 2001). This moral debt is
Thus even some scholars who agree that
distinct from the material debt that an offender
punishment is justified as a form of censure
may incur. In other words, a person who robs
nevertheless disagree about the role of the hard
from another person incurs a material debt equal
treatment element. For Andrew von Hirsch
to the value of whatever was stolen, but she also
(1993), for instance, the intended burdens
incurs a moral debt for violating the victim’s
characteristic of punishment act as a sort of
rights. The offender takes not only a material
prudential supplement: punishment, as censure,
good from the victim but also a moral good.
serves to remind offenders (and community
Repayment of material goods does not settle this
members) of the moral reasons to comply with
moral debt, and so punishment is needed to fill
the law. Punishment, as hard treatment, also
this role. As Daniel McDermott characterizes it,
provides a prudential threat as a sort of
punishment serves to deny the ill-gotten moral
supplement for those of us for whom the moral
good to the perpetrator (McDermott, 2001: 424).
message is not sufficient. One worry with such an
Such an account raises a host of questions: what more harshly than less serious offenses (murder
precisely is the nature of the moral good that has should be punished more harshly than
been taken from the victim? How can a moral shoplifting, for instance); and that differences in
good be taken away from someone? In what sense sentence severity should reflect differences in
(if at all) has the perpetrator gained this good? relative seriousness of offenses (because murder
How does punishment deny this good to the is much more serious than shoplifting, murder
offender, and how does this thereby make things should carry a much more severe sentence).
right for the victim?
Some scholars have challenged the notion of
e. Sentencing ordinal proportionality constraints in sentencing,
both because offenders cannot neatly be
Because retributivism claims that punishment is
distinguished into a manageable number of
justified as a deserved response to wrongdoing,
desert-based groups—Michael Tonry calls this
retributivist accounts should provide some
the “illusion of ‘like-situated offenders’” (Tonry,
guidance about what sentences are deserved in
2011)—and because individual offenders’
particular cases. Typically, retributivists hold that
subjective experiences of the same sentence may
sentences should be no more severe than is
vary greatly. For example, someone who is
deserved. This negative retributivist constraint on
young, physically imposing, or has no children
sentencing corresponds with the negative
may have a much different experience of a 10-
retributivist constraint on punishment itself
year prison term from someone who is much
(namely, that punishment is justified only of
older, physically frail, or must leave behind her
those who deserve it). By contrast, positive
children to serve the sentence. Considerations
retributivism holds that offenders’ sentences
such as these do not in themselves demonstrate
should be no less severe than they deserve. Some
that the tenets of ordinal proportionality are false
scholars find this positive retributivism
(that like cases should not be treated alike, for
unappealing because it seems to preclude the
instance, or that more serious violations should
state from taking into account mercy or other
not receive harsher sentences). Rather, these
considerations that might count in favor of lenient
considerations raise challenges to our ability in
sentences. In other words, some are more
practice to implement a just sentencing scheme
comfortable with retributivism’s setting a ceiling
that reflects ordinal proportionality.
but not a floor on sentence severity. One question,
though, is whether (and if so, why) retributivists Even if sentences can be devised that satisfy
are justified in endorsing the negative retributivist ordinal proportionality, however—in other
constraint on sentencing without also endorsing words, even if a sentencing scheme itself is
the positive retributivist constraint. internally proportionate—particular sentences
may fail to be proportionate if the entire
Retributivists often discuss sentencing in terms of
sentencing scheme is too severe (or lenient). For
proportionality, where a proportionate sentence is
instance, a sentencing scheme in which even the
understood as one that is deserved (or at least, on
least offenses were punished with prison terms
some accounts, not clearly undeserved).
would appear disproportionate even if sentences
Sentences may be proportionate in two senses:
in the scheme were proportionate relative to each
first, they may be proportionate (or
other. Thus theorists note a second sense of
disproportionate) relative to each other. This
proportionality: cardinal, or nonrelative,
sense of proportionality, called ordinal
proportionality. Cardinal proportionality
proportionality, holds that similarly serious
considers whether sentences are commensurate
offenses should receive similarly severe
with the crimes they punish. A prison term for
punishments (like cases should be treated alike);
jaywalking would appear to violate cardinal
that more serious offenses should be punished
proportionality, because such a sentence strikes
us as too severe given the offense, even if this like response is clearly indicated, it will not
sentence were proportionate with other sentences always be palatable (torturing the torturer, for
in a sentencing scheme—that is, even if it example).
satisfied ordinal proportionality. Thus cardinal
We might assert instead that the sentence and the
proportionality concerns not the relation of
offense need not be alike in kind, but that the
sentences to one another, but instead the relation
sentence should impose an amount of suffering
of a sentence to the crime to which it is a
equal to the harm done by the offender. Still,
response. Put another way, even if an entire
questions arise of how to make interpersonal
sentencing scheme is internally (ordinally)
comparisons of suffering. And again, for the most
proportionate, we need guidance in how to anchor
heinous crimes, a principle of inflicting equal
the sentencing scheme to the crimes themselves
amounts of suffering may recommend sentences
so that offenders in particular cases receive the
that we would find troubling.
sentences they deserve.
The fair play view holds that punishment
In addition to addressing questions of deserved
functions to remove an unfair advantage gained
sentence severity, we would like retributivism to
by an offender relative to members of society
provide some guidance about how to determine
generally. Critics of this view often object,
what mode, or form, of punishment is appropriate
however, that it provides insufficient or
in response to a given crime. Is prison time,
counterintuitive guidance about sentencing. Put
community service, capital punishment,
simply, there does not seem to be any advantage
probation, or something else the deserved form of
that an offender gains, in proportion with the
response, and why?
seriousness of her crime, relative to community
The implications of retributivism for sentencing members generally. On one version of the view,
will depend on the specific account’s explanation the offender gains freedom from the burden of
of why punishment is said to be the deserved self-constraint that others accept in complying
response to offending. with the particular law that the offender violates.
If so, then the sentence severity should be
Those who appeal to intuitions that the guilty
proportionate to the burden others feel in
deserve to suffer, for instance, can similarly
complying with that law. But compliance with
appeal to intuitions that those who are guilty of
laws is often not a burden for most citizens.
more serious offenses deserve to suffer more than
Indeed, it is often less burdensome to comply
those who are guilty of less serious offenses. As
with prohibitions on serious offenses (murder,
discussed, however, we would like to know how
assault, and so forth) than it is to comply with
much punishment is deserved in particular cases
prohibitions on lesser crimes (tax evasion,
in nonrelative terms, and also what form the
jaywalking, and so forth), given that we are more
suffering should take. One well-known account
often tempted to commit the lesser crimes. But if
of sentencing is provided by lex talionis (that is,
the unfair advantage that punishment aims to
an eye for an eye, a tooth for a tooth). Immanuel
remove is freedom from the burden of self-
Kant famously endorsed this principle:
constraint, and if self-constraint is often more
“Accordingly, whatever undeserved evil you
burdensome with lesser crimes, then these less
inflict upon another within the people, that you
serious crimes will often appear to merit
inflict upon yourself” (Kant, 1797: 473). As
relatively more severe punishments. This is a
critics have noted, though, not every crime
violation of ordinal proportionality.
appears to have an obvious like-for-like
response—what would lex talionis demand for Similar problems arise for other versions of the
the childless kidnapper, for instance (Shafer- fair play view. Suppose, for instance, that the
Landau, 2000: 193)? And even when a like-for- unfair advantage a criminal gains is not freedom
from the burden of complying with the particular
law she violates, but rather freedom from
complying with the rule of law in general. This
general compliance, Richard Dagger writes, is a
genuine burden: “there are times for almost all of
us when we would like to have the best of both
worlds—that is, the freedom we enjoy under the
rule of law plus freedom from the burden of
obeying laws” (Dagger, 1993: 483). Critics have
objected, however, that on this conception of the
unfair advantage all offenses become, for the
purposes of punishment, the same offense. Both
the murderer’s and the tax cheat’s unfair
advantage is freedom from compliance with the
rule of law generally. If the unfair advantage is
the same, however, then removing the advantage
would seem to require equal sentences. Again,
such sentencing appears to violate ordinal
proportionality.
For the censure view, questions arise about what
form of punishment and what severity will
communicate the deserved message of
condemnation in particular cases. On such a
view, the principles of ordinal proportionality
appear to follow straightforwardly: censure
should reflect the seriousness of the wrongdoing,
and so if punishment is the vehicle of
communicating censure, then sentences should
reflect the appropriate relative degree of censure
for each case.
The censure view should provide guidance not
only about how severely to punish crimes relative
to each other, but also how severely to punish in
absolute terms, and also the appropriate mode of
punishment. To say that manslaughter should be
censured more severely than theft, for instance,
does not actually tell us how severely to censure
manslaughter or theft, or with what form of
punishment. Again, the challenge is in
determining how to anchor the sentencing scale
to actual offenses. Should the least serious
offenses receive censure in the form of a small
fine, a day in jail, or a year in jail? Should the
most serious offenses receive capital punishment,
life imprisonment, or some less severe sentence?
Similar questions arise for accounts that
characterize punishment as a deserved response
to violations of trust, or as a deserved response to
the incurrence of a moral debt. What form and
severity of punishment is appropriate to maintain
conditions of community trust in response to
attempted kidnapping, or the theft of a valuable
piece of art? How severe must a sentence be to
resolve the moral debt that is incurred when one
impersonates a police officer, or cheats on her
taxes?
Indeed, questions about fixing deserved
sentences in response to particular offenses arise
for retributivist accounts generally. Critics have
charged that retributivism is unable to provide
adequate, nonarbitrary guidance about either the
deserved severity or deserved form of
punishment in particular cases (see Shafer-
Landau, 2000).
Retributivists are, of course, aware of such
objections and have sought to meet them in
various ways. Nonetheless, questions about
proportionate sentencing continue to be a central
challenge for retributivist accounts.
5. Alternative Accounts
In part as a response to objections commonly
raised against consequentialist or retributivist
views, a number of theorists have sought to
develop alternative accounts of punishment.
a. Rights Forfeiture
At the outset, we said that the central question of
punishment’s permissibility is why (if at all) it is
permissible to treat those who have committed
criminal offenses in ways that typically would be
impermissible. For some theorists, this question
is best cast in terms of rights: why are the sorts of
intended burdens characteristic of punishment,
which would constitute rights violations if
imposed on those who have not been convicted of
criminal wrongdoing, not violations of the rights
of those punished?
One way in which punishment would not violate
the rights of offenders is if, in committing the
crime for which they are convicted, they forfeit
the relevant right(s). Because offenders forfeit
their right not to be punished, the state has no
corresponding duty not to punish them. As W. D.
Ross writes, “the offender, by violating the life or
liberty or property of another, has lost his own
right to have his life, liberty, or property
respected, so that the state has no prima
facie duty to spare him, as it has a prima
facie duty to spare the innocent” (1930: 60-61).
Notice that the forfeiture view itself does not
imply any particular positive justification of
punishment; it merely purports to explain why
punishing offenders does not violate their rights.
This is consistent with maintaining that the
positive justification of punishment is that it helps
reduce crime, or conversely, that wrongdoers
deserve to be punished. Thus the forfeiture view
does not provide a complete account of the
justification of punishment. Proponents,
however, take this feature to be a virtue rather
than a weakness of the view.
The forfeiture claim raises a number of key
questions: first, why does someone who violates
the law thereby forfeit the right not to be
punished? For those who are gripped by the
dilemma of why punishing offenders does not
violate their rights, the mere answer that
offenders forfeit their rights, without some deeper
account of what this forfeiture amounts to, may
seem inadequate. Thus some theorists attempt to
ground their forfeiture claim in a more
comprehensive moral or political theory (see, for
instance, Morris, 1991).
Second, what is the nature of the rights forfeited?
Do offenders forfeit the same rights they violate?
If so, then this raises some of the same challenges
as we saw with certain forms of retributivism:
what right is forfeited by a childless kidnapper,
for example? Alternatively, is the forfeited right
simply the right not to be punished? If every
offender forfeits this same, general right, then on
what basis can we distinguish what sentence is
permissible for different offenders? For example,
if the burglar forfeits the same right as the
murderer, then what prevents us from imposing
the same punishment in each case (could two
offenders forfeit the same right to different
degrees, as some have suggested)?
Third, how should we determine the duration of
the forfeiture? Fourth, if an offender forfeits her
right against punishment, then why does the state
maintain an exclusive right to punish? Why are
other individuals not permitted to punish?
b. Consent
Rights forfeiture theorists argue that punishment
does not violate offenders’ rights because
offenders forfeit the relevant rights. Another way
that punishment might be said not to violate
offenders’ rights is if offenders waive their rights.
This is the central claim of the consent view.
Defended most notably by C. S. Nino (1983), the
consent view holds that when a person
voluntarily commits a crime while knowing the
consequences of doing so, she effectively
consents to these consequences. In doing so, she
waives her right not to be subject to punishment.
This is not to say that she explicitly consents to
being punished, but rather that by her voluntary
action she tacitly consents to be subject to what
she knows are the consequences.
Like the forfeiture view, the consent view does
not supply a positive justification for punishment.
To say that a person consents to some treatment
does not by itself provide us with a reason to treat
her that way. So the consent view, like the
forfeiture view, is compatible with
consequentialist aims or with the claim that
punishment is a deserved response to offending.
One challenge for the consent view is that it does
not seem to justify punishment of offenders who
do not know that their acts are subject to
punishment. For someone to have consented to be
subject to certain consequences of an act, she
must know of these consequences. What’s more,
even if an offender knows she is committing a
punishable act, she might not know the extent of
the punishment to which she is subject. If so, then
it is not clear how she can be said to consent to
her punishment. It is not clear, for example, that
a robber who knows that robbery is a punishable
offense but does not realize the severity of the
punishment to which she will be subject thereby
consents to her sentence.
By contrast, other critics have charged that the
consent view cannot rule out sentences that most
of us would find excessive. This is because a
person who voluntarily commits an action with
knowledge of the legal consequences, whatever
these consequences happen to be, has consented
to be subject to the consequences. As Larry
Alexander has put it: “If the law imposes capital
punishment for overparking, then one who
voluntarily overparks ‘consents’ to be executed”
(Alexander, 1986).
Another difficulty for the consent view is that
tacit consent typically can be overridden by
explicit denials of consent. Thus it would seem to
follow that one who tacitly consents to be subject
to punishment could override this tacit consent by
explicitly denying that she consents. But of
course, we do not think that an offender should be
able to avoid punishment by explicitly refusing to
consent to it (Boonin, 2008).
c. Self-Defense
Another proposed justification of punishment
conceives of punishment as a form of societal
self-defense. First consider self-defense in the
interpersonal context: When an assailant attacks
me, he culpably creates a situation in which harm
will occur: either harm to me if I do not
effectively defend myself or harm to him if I do.
In such a circumstance, I am justified in acting so
that the harm falls on my attacker rather than on
me. Similarly, when an offender creates a
situation in which either she or her victim will be
harmed, the state is permitted to use force to
ensure that the harm falls on the perpetrator rather
than on the victim (Montague, 1995).
So far, this view appears to justify state
intervention only to stop ongoing crimes or ward
off impending crimes. How does this view justify
punishment as a response to past crimes?
Advocates of the view claim that the state is not
only justified in intervening to stop actual
offenses; it is also permitted to threaten the use of
force to deter such crimes. For the threat to be
credible and thus effective as a deterrent,
however, the state will need to follow through on
the threat in cases in which offenders are not
deterred. Thus punishment of offenders is
permissible.
Notice that although the self-defense account
views punishment as a deterrent threat, it is not a
pure consequentialist account. Crucial to
punishment’s permissibility on the self-defense
view is the claim that an offender has culpably
created the circumstance in which harm will fall
either on the perpetrator or the victim. This
backward-looking element is missing from pure
consequentialist accounts that cite punishment’s
deterrent effects in defending the practice.
Critics object that the analogy between self-
defense and punishment breaks down in a number
of respects. First, many self-defense theorists
argue that the logic of defensive force permits the
use of such force even against “innocent” threats.
But we do not typically believe that, by analogy,
punishment of innocent people is permitted, even
if such punishment helped to maintain the
credibility of a deterrent threat. Second, the
degree of force that is permitted to stop an actual
attack may far exceed what we intuitively believe
would be permitted as punishment of an offense
that has already been committed.
Third, it is one thing to follow through on a threat
in order to deter the person who has just offended
from offending again. It is another thing—and
one might argue, more difficult to justify—to
punish one person in order to maintain a credible
deterrent threat against the public generally. If we
believe the primary deterrent effect of
punishment is as a general deterrent (rather than
as a specific deterrent), then the analogy with
typical accounts of self-defense seems strained. It
would be as if, to deter the oncoming assailant
from following through with his attack, I grab
someone nearby (who has previously attacked
me) and inflict the same degree of harm that I
would aim to inflict on the assailant to defend
myself. This might, of course, be permissible if
my previous attacker had thereby acquired a duty
to protect me from future harm by allowing
himself to be punished as a means of maintaining
a credible deterrent threat (Tadros, 2011).
d. Moral Education
The moral education view shares certain features
of consequentialist accounts as well as
retributivist accounts. On this view, punishment
is justified as a means of teaching a moral lesson
to those who commit crimes (and perhaps to
community members more generally, as well).
Like standard consequentialist accounts, the
education view acknowledges that part of the
story of punishment’s justification involves its
importance in reducing crime. But the education
theorist also takes seriously the worry expressed
by many retributivists that aiming to shape
people’s behavior merely by issuing threats is, in
G. W. F. Hegel’s words, “much the same as when
one raises a cane against a dog; a man is not
treated in accordance with his dignity and honour,
but as a dog” (Hegel, 1821: 36). By contrast, a
central feature of the moral education view is that
those who commit crimes are moral agents,
capable of reflecting on and responding to moral
reasons. Thus moral education theorists view
punishment not as a means of conditioning
people to behave in certain ways, but rather of
“teaching the wrongdoer that the action she did
(or wants to do) is forbidden because it is morally
wrong and should not be done for that reason”
(Hampton, 1984).
Another way to express this difference between
the education view and standard consequentialist
views is that consequentialist views focus entirely
on whether punishment promotes some goal. The
education view, however, holds that only certain
means are appropriate for pursuing this goal:
namely, punishment aims to engage with the
offender as a moral agent, to teach her that (and
why) her behavior was morally wrong, so that she
will reform herself. Thus we can even distinguish
the education view from consequentialist
accounts that aim at crime reduction through
offender reform. For such consequentialist
accounts, punishment’s justification is solely a
matter of whether, on balance, it promotes these
ends. The education view sets offender reform as
an end, but it also grounds certain constraints on
how we may appropriately pursue this end.
The education view, like the retributive censure
view discussed earlier, views punishment as a
communicative enterprise. Punishment
communicates to offenders (indeed, to the
community more generally) that what they have
done is wrong. Thus on both accounts,
punishment aims to encourage offenders to
reform themselves. But whereas the retributive
censure theorists view the message conveyed by
punishment as justified insofar as it is deserved,
education theorists contend that punishment is
justified in virtue of what it aims to accomplish.
In this respect, the education view sits more
comfortably with standard consequentialist
accounts than with retributivist views.
The education view conceives of punishment as
aiming to confer a benefit on the offender, the
benefit of moral education. This is not to say that
punishment is not burdensome; as we have seen,
its burdensomeness is an essential feature of
punishment. But the burdens of punishment are
intended to be ultimately beneficial. Thus
education theorists roundly reject accounts
according to which it is permissible (or even
required) to inflict harm on those guilty of
wrongdoing. Instead, education theorists hold,
following Plato, that we should never do harm to
anyone, even those who have wronged us.
Critics have raised various objections to the
moral education view. Some are skeptical about
whether punishment is the most effective means
of moral education. Others point out that many
(perhaps most) offenders are not apparently in
need of moral education: many offenders realize
they are doing something wrong but do so
anyway. Even those who do not realize this as
they are acting may recognize it soon afterward.
Thus they do not seem to need moral education.
Finally, some object that the education view is
inappropriately paternalistic. According to the
education view, after all, the state is justified in
coercively restricting offenders’ liberties as a
means to conferring a benefit (moral education)
on them. Many liberal theorists are
uncomfortable, however, with the idea that the
state may coerce a person for her own benefit.
e. Hybrid Approaches
Finally, some theorists have responded to
seemingly intractable disputes between
consequentialists and retributivists by contending
that the question of punishment’s permissibility
is not actually a single question at all. Instead,
establishing punishment’s permissibility involves
answering a number of questions: questions about
the aim of the practice, about its limits, and so on.
Once we distinguish different questions that bear
on punishment’s permissibility, we can then
recognize that these questions may be answered
by appeal to different moral considerations. What
emerges is a hybrid account of punishment’s
permissibility.
The most famous articulation of a hybrid view
comes from H. L. A. Hart (1968), although there
have been numerous attempts to develop such
accounts both before and after Hart. The specifics
of these accounts vary somewhat, but in general
the point has been to distinguish the question of
punishment’s aim (Hart called this the “general
justifying aim”) from the question of how we
must constrain our pursuit of that aim. The first
question, about punishment’s aim, is usually
answered according to consequentialist
considerations, whereas the second question,
about appropriate constraints, is typically
answered by appeal to retributivist principles. In
other words, if we are asking what reason could
justify society in maintaining a system of
punishment, the answer will appeal to
punishment’s role in reducing crime, and thereby
protecting the safety and security of community
members. But if we ask how we may punish in
particular cases, the answer will appeal to
retributivist principles about proportionality and
desert. Some have distinguished these questions
in terms of the proper (consequentialist) rationale
of legislators in criminalizing certain types of
behaviors and the proper (retributivist) rationale
of judges in imposing sentences on those who
violate the criminal laws.
Although such views are sometimes described as
“two-question” or “two-level” views, with the
focus on consequentialist aims and retributivist
constraints, there is no reason in principle why we
should distinguish only two questions. As we saw
earlier, punishment actually raises a host of
specific normative questions, and so if we accept
the general strategy of distinguishing questions
and answering them by appeal to different
considerations, then there is no reason in
principle to stop with only a two-level hybrid
theory. A hybrid view might offer distinct
considerations in answer to a variety of questions:
what is the positive aim of punishment? Does
punishment violate offenders’ rights? How
severely may we punish in particular cases? What
mode of punishment is permissible in particular
cases? And so on.
Also, although hybrid theories typically follow
the pattern of aims and constraints, so that
consequentialism provides the reason to have an
institution of punishment and retributivism
provides constraints on how we punish, there is
no reason in principle why this could not be
reversed. A hybrid theory might hold that
suffering is an intrinsically appropriate
(deserved) response to wrongdoing, but then
endorse as a constraint, for example, that such
retributive punishment should never tend to
undermine offender reform.
Critics have charged hybrid accounts with
being ad hoc and unstable. Although we can
distinguish different questions related to
punishment’s permissibility, it is a mistake to
think that the answers to these questions are
entirely independent of each other, so that we can
answer each by appeal to entirely distinct
considerations. For example, if we accept the
consequentialist view that punishment’s general characteristic of punishment. After all, we
justifying aim is that it helps to deter crime, then generally think of those who are sick as
why would considerations of deterrence not also warranting sympathy or concern, not
play a role (even a decisive role) in how severely condemnation.
we punish in particular cases? Why should
Other options for abolitionists would be to
retributivist proportionality considerations
endorse some model of restitutive or restorative,
govern in sentencing if these conflict with the
rather than criminal, justice. We might require
pursuit of crime reduction through deterrence?
that offenders make restitution to their victims, as
Retributivists, for their part, often argue that defendants in civil lawsuits are often required to
hybrid theories such as Hart’s, on which make restitution to plaintiffs (Boonin, 2008: 213-
consequentialism supplies the justifying aim of 75). Or offenders might engage with victims in a
punishment, relegate retributivism to a peripheral process of restorative justice, one in which both
role. Retributivists, after all, tend to regard offenders and victims play an active role, with
consequentialism as providing inappropriate aims of repairing the harms done and restoring
reasons to punish. Characterizing retributivism’s the relationships that have been damaged
role as providing constraints on the pursuit of (Braithwaite, 1999). Neither the restitutive nor
consequentialist aims is thus unsatisfying to the restorative models are centrally concerned
many retributivists. with imposing intended, censuring burdens on
offenders.
6. Abolitionism
Not surprisingly, these alternative accounts are
Some scholars are unpersuaded by any of the
themselves subject to various objections. Critics
standardly articulated justifications of
of the treatment model, for instance, charge that
punishment. In fact, they conclude that
it provides insufficient limits on what sort of
punishment is morally unjustified, and thus that
treatment of offenders is permissible. The aim of
the practice should be abolished. An obvious
“curing” diseased individuals might warrant quite
question for abolitionists, of course, is what (if
severe treatment, both in scope and duration.
anything) should take the place of punishment.
Similarly, scholars have argued that the treatment
That is, how should society respond to those who
model fails properly to respect offenders, as it
behave in ways (committing tax fraud, burglary,
treats them merely as patients rather than as moral
assault, and so on) that currently are subject to
agents who are responsible, and should be held
punishment?
responsible, for their actions (Morris, 1968).
One option would be to endorse a model of
Critics of the restitutive and restorative models
treatment rather than punishment. On this model,
may point out that some crimes do not clearly
an offender is viewed as manifesting some form
lend themselves to restitution or restoration: some
of disease or pathology, and the appropriate
crimes may seem so heinous that no victim
response is thus to try to treat and cure the person
restitution or restoration of relationships is
rather than to punish her. Treatment differs from
possible. Other crimes do not have clearly
punishment, first, because it need not be
specifiable victims. In addition, consequentialists
burdensome. At least in principle, treatment
may worry that practices of restitution or
could be pleasant. In practice, of course,
restoration may be inadequate as means of crime
treatment may often be burdensome—indeed, it
reduction if, for example, they are less effective
may involve many of the same sorts of
than punishment at deterring potential offenders.
restrictions and burdens as we find with
Retributivists also may argue that something
punishment. But even though courses of
important is lost when we respond to wrongdoing
treatment may be burdensome, treatment does not
solely with restitutive or restorative practices.
typically convey the condemnation that is
Particularly for those who hold that an important
function of punishment is to convey societal
censure, restitution or restoration may seem
inadequate as responses to crime insofar as they
are not essentially concerned with censuring
offenders. Alternatively, some retributivists
argue that the restorative ideals can best be served
by a system of retributive punishment (Duff,
2001; Bennett, 2008).