Table of contents
2. Why do we punish?- Purposes and related Severity
2.1. Utilitarian purposes
2.2. Retributive purposes
2.3. Experimental evidences - Which perspective do we actually adopt?
3. Dynamics of Retribution
3.3. Emotional dynamics
3.2. Cognitive dynamics
4. Individual & Cultural Differences
4.1. Individual differences
4.2. Cultureal differences
5. Retribution in Special Contexts
5.1. Tricky "offenses" - Immoral or benefical behaviour?
5.2. Tricky victims - The mentally ill
5.3. Tricky judges - Groups
5.4. Tricky punishments - Harsh interrogation techniques
6. Implications for Jurisprudence
“For since the message declared by angels proved to be reliable, […] every transgression or disobedience received a just retribution […].”
It might seem like putting the cart before the horse: Unlike distributional justice, retributive justice does not deal with how to set up justice, but how to smooth out injustice. But actually every stick has two ends. So does the “cart” justice. Justice is done, when everybody gets his just deserts. And while just deserts refer to rewards on the one end – the end of distributive justice, they refer to punishment at the other end – the end of retributive justice. The issue of retributive justice arises after a wrongdoing like a crime has occurred and addresses the task of imposing an adequate sanction to the wrongdoer. Thus retribution is rather linked to reconstitute justice than to constitute it.
But how exactly should the horse push? To say, how should justice be reconstituted? Giving the offender his just deserts seems to be a facile task. But what are just deserts? What are just deserts for somebody evading taxes - thereby stealing money from the state - compared to somebody stealing the savings of an old woman? What are just deserts for somebody maliciously burning the house of his ex-wife compared to somebody setting a house on fire because he has fallen asleep while smoking? What are just deserts for a killing soldier compared to a killing civilian? Or what are just deserts for a husband burgling a pharmacy to get some exorbitant expensive medicine for his wife? And even if we individually know the answers to those questions: Would our answers be the same as the answers of our neighbor, our wife, or our best friend? And would they be the same in Germany and in the USA, Russia or Somalia?
Finding answers to these questions is not a trivial issue. For the claim for just deserts is not limited to criminal contexts; it underlies every social relationship and does therefore occur in everyday life. Or as Bernard Weiner has pointed out: “Everybody is a judge and life is a courtroom.” So retribution also concerns questions like, how you should react to your child, when it has lied, or how you will behave towards a car-driver, who has ignored your right of way.
Item, many scientists have looked upon the issue. But while philosophers and jurists focus on normative questions, psychologists focus on descriptions. They do not make implications on what should be just, but about what humans experience to be just. But there is one aspect both groups of scientists seem to have in common: Retributive justice seems to be deeply linked to the question of morality. Or with the words of Marcus T. Cicero: “Nothing lacking justice can be moral.”
2. Why do we punish? – Purposes and related severity
Imagine the case of a thief having stolen the savings of an old woman. Probably he will be punished for his wrongdoing. This punishment can serve several purposes, which can be divided in two categories: Utilitarian purposes and retributive purposes. Utilitarian reasons consider only future consequences of the punishment like prevention of further offenses. Thus punishment is linked to potential harm in the future. Retributive purposes, however, consider only the previous done offense. And the question, in which way the circumstances make the offender deserve punishment. So while utilitarian purposes are forward-looking, retributive purposes are backward-looking.
2.1. Utilitarian purposes
The main utilitarian reason of punishment is deterrence. Deterrence can be targeted at the offender (special deterrence) as well as at others (general deterrence). E.g., imagine a child having swiped some cookies in the kitchen without permission. Blaming or punishing the child might not only prevent the child itself to do so again, but also his sisters. Thus punishment should be behaviour control (Vidmar & Miller 1980). The underlying assumption of deterrence supporters: Humans are rational actors. Somebody will be prevented from performing an unwanted act, when the pain of punishment is greater than the pleasure of the act.
This has some important implications for the severity of the punishment. E.g., as the rate of the concerned crime is very high, punishment should be very severe as well - namely to outbalance the apparent attractiveness of the crime. That applies also for the amount of the refusal of the crime. Likewise a low detection rate approves for high severity. Finally, a high publicity – e.g. due to high media interest – should increase the severity, because it increases to probability of deterring others. And concerning the offender himself the probability of a repeat offense is important. Carried to extremist punishment is not necessary at all, if the offense will definitely not be committed again – neither by the offender not by others.
Ideally punishment does not deter the offender from a repetition, because he fears the punishment, but because he is reeducated, which means he changes his belief system and now accepts laws and social norms. If so, the offender will be rehabilitated into society. If he instead seems to be incorrigible, the most efficient way of preventing a repeat offense is to exclude him. In former times exiles were used broadly, but nowadays they may rather occur in private contexts (like firing a wrongdoer in a company) than in legal contexts. However, sentences of very long imprisonment can be seen as a way of exile rather than deterrence.
2.2. Retributive purposes
In contrast to the utilitarian perspective punishment from retributive perspective is just linked to the committed offense. Even if there will definitely be no repeat offense, punishment seems necessary, because the offender should not get away with his “brazenness”; he should pay his dues. Retribution actually means something like “give back”. Give back the offender what he has given the victim: harm. Thus the magnitude of punishment should mirror the character of the offense. But while in biblical times the rule “an eye for an eye” proposed an equality of harm and punishment (e.g. death penalty for a murder), now proportionality is considered as sufficient (e.g. lifelong imprisonment). The severity of the offense – and therefore also the severity of punishment – is determined by several factors like the magnitude of the caused harm. A car-crash with injured people seems more severe than a crash with mere material damage. Furthermore it is important, if the offender intended the harm or if he was just negligent. The factors will be discussed in detail below.
Concerning just the already committed offense one might think it would be sufficient to restore the status quo. E.g. a theft might be obliged to give stolen goods back. But to restore the material status quo does often not seem satisfactory – at least not, if the offender committed the wrong intentionally. Punishment is more than restoring distributive justice. It is also a moral condemnation. Namely because an offense is not only an affront to somebody´s belongings or health´, it is also an affront to values: First to the value of the victim - meaning the self-concept of the victim - and second to the value of the injured law or rule. The offender grants power over the victim and lowers its status. Punishment in contrast lowers the status of the offender again and rehabilitates the esteem of the victim in the society. Thus offenses and punishment are also a symbolic communication. And the offender does not only deliver the message of infiltrating the victim´s status; he also delivers the message of not playing the social game with his fellowmen. This may be kind of an “invitation” making others also obey the rules, therefore threatening the further co-existence of the group and making the whole group a victim. Or as Martin Luther King Jr. said: “Injustice anywhere is a threat to justice everywhere.” Punishment however should make the norms salient again and restore solidarity. This counts for society as for every group like families, religious networks or class mates.
It should be noted that “norms” in this sense do not only refer to rules and precepts explicitly defined by a social contract (rationally agreed rules of cooperation), but to deeply internalized rules. Rules, which bind society per se together; which are obligatory, universal and not alterable. To say they apply for everybody, no matter if he or she shares them. One may call them moral rules. Violating moral rules is a taboo. If they are violated, the whole world view is threatened. That is, the belief how the world ought to be. Moral norms are absorbed early in development of the child and are therefore very stabile. Threatening them causes strong disturbance and disharmony. To say, people feel very uncomfortable.
Note: Although retribution is backward-looking in the way of determining severity of the punishment only by the already done offense, it has some impact on the future as well – e.g., by making the rules salient again or by preventing self-administered justice. This might be considered utilitarian, but arrives from retributive responses. The table below summarizes the purposes of both perspectives – the utilitarian and the retributive – as well as the factors determining the severity of punishment from each perspective.
Goals, targets & influencing factors of punishment
illustration not visible in this excerpt
Source: Compiled by the author
Of course punishment can meet utilitarian and retributive purposes contemporaneously: The offender may be deterred and the status of the victim might be reestablished. But as argued, the severity of punishment depends on the chosen perspective. So an imposer of punishment must commit himself more or less to one of the perspectives. Therefore the distinction between the approaches has been highlighted in philosophical debates since centuries. Well known are the different attitudes of the utilitarian Jeremy Bentham and the “retribuitionist” Emanuel Kant, who advanced a deontological ethic (c.f. his categorical imperative). But which ethic or perspective do average citizen refer to - the utilitarian or the retributive?
2.3. Experimental evidences - Which percpective do we actually adopt?
Many studies have discovered that most people support both perspectives. When asked, what should be the purpose of punishment, they argue punishment should deter and that it is just necessary, because the offender has to pay his dues. Both motives are valued equally. But when faced with a single case, test-takers tend more to the retributive perspective. So would people insist a harsher punishment, if the caused harm is pretty big. But they would not do so, when the amount of publicity is big. Thus in fact do retributive factors mitigate or exaggerate the severity of punishment, while deterrence factors do not or at least not that much.
Influence of retribution factors on severity of punishment – but not of deterrence factors
illustration not visible in this excerpt
Source: Carlsmith & Darley & Robinson 2008
When test-takers are explicitly told to judge according to utilitarian motives, they do pay attention to issues like publicity and probability of repeat offense. But they nevertheless factor retributive factors into the judging. And when told to involve only utilitarian reasons, tests takers are not as satisfied with their judgment as they have been before (Carlsmith 2006).
The fact that people do heavily account for retributive motives might also be shown by this: Have you ever seen a theft being surprised that he is punished? Probably not. Every sane grown up knows he will be punished for a wrongdoing. Nevertheless there were about 800 000 delinquents in Germany in 2006. Many of them repeaters. So obviously deterrence does not work well. Especially studies concerning death penalty support this. But making people aware of the malfunction of deterrence, they still want to punish the offender (Vidmar & Miller 1980). Not to punish seems somewhat “false”. People “know” an offender has to be punished, but they do not know, why they think so. The reason is: The urge to punish is an intuition. And intuitions come to our mind without being questioned, to say without or with little rational reasoning. Hence apparently emotions seem to be an important factor in judging.