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IN THE UNITED STATES, nearly two million people are kept in prison at any given time, and dozens are executed each year. That adds up to quite a lot of suffering deliberately inflicted by the state. How can we justify it?
Well, one way is by arguing that such punishment has good consequences: It deters potential criminals, it quarantines actual criminals from society, and - on rare occasions - it leads to the offender's rehabilitation. This is the utilitarian rationale for punishment. A quite different way is by insisting that a person who culpably does harm deserves to be made to suffer and that's all there is to it. This is the rationale for punishment put forward by believers in retributive justice.
The idea of retributive justice may seem a little retardataire these days, a little morally backward. We associate it with the vengeful God of the Old Testament, whereas the utilitarian conception of punishment comes out of the enlightened eighteenth- century reformism of Jeremy Bentham. The retributionist's crude calculus for determining the severity of punishment - "an eye for an eye" - compares poorly with the utilitarian's dispassionate weighing of empirical probabilities in his effort to maximize deterrence and minimize total suffering. The retributive notion of guilt appears increasingly quaint as modern science discovers the springs of criminality in genes and brain chemistry. Finally, retribution tends to be lustily invoked by those backward types who favor the death penalty; they argue that the murderer's punishment must fit his crime whether or not that punishment provably deters other murderers.
Still, even the most morally progressive among us are not wholly free from retributive instincts. In an article in The Journal of Philosophy titled "An Explanation of Retribution," Andrew Oldenquist of Ohio State writes: "The pursuit of Adolf Eichmann, Josef Mengele, and other Nazis in their dotage, tending their rose gardens in South America, makes no utilitarian sense whatever. They will not do their crimes again, nor would their punishment deter others." Yet in our most reflective moments, we still feel they deserve punishment.
This notion can find prominent backers in the philosophical tradition. Immanuel Kant not only maintained that the suffering imposed on the guilty is good in itself; he opted for a Taliban-like schedule of penalties in which the nature of the punishment would be determined exclusively by the crime. For example, slanderers would kiss the hand of their victim, rapists would be castrated, murderers hanged, and so forth. Hegel's advocacy of retributive justice had a more abstract, dialectical flavor: A crime is a negation of the moral order, he claimed, so punishment is required to negate the negation and thus reaffirm the right.
Some contemporary philosophers have advanced arguments for retributive punishment that have a suspiciously consequentialist ring to them. Robert Nozick, for example, has tried to justify retribution by its effect on the criminal: Since values by themselves have no causal power, he submits, punishment is necessary to "reconnect" the wrongdoer to the moral norms of the community.
Oldenquist dissents from Nozick's slightly starry-eyed view, arguing that "a moral community exacts retribution for its own good and not primarily to inform, connect, cure, use, or send any kind of message to the criminal." Oldenquist's case for retributive justice turns on what he sees as a social need for it: Humans can flourish and achieve their full humanity only in a society whose members hold one another morally accountable and hence deserving of blame and punishment for harms committed - "the essence of retribution." To deal with the objection that retribution stems from a barbarous desire to "get even," Oldenquist lays down conditions under which vengeance becomes "sanitized" into a form of justice: The punishment must be predictable; it must be decided after due deliberation and not in the heat of passion; it must be applied by officials who are not friends or relatives of the harmed party; and so on.
But even if we accept that punishment on retributive grounds is (1) socially necessary and (2) not a mere urge for revenge, we still have not established the truth of the claim "Some people deserve to be punished." Oldenquist admits as much, conceding that retributive judgments may have to be justified independently of their truth or falsity; indeed, we should regard them as part of a social ritual akin to marriage or bear dances. A mistaken retributive judgment would thus, he says, be akin to "doing the bear dance incorrectly."
If the retributive case for punishment is philosophically shaky, the utilitarian case has grave defects of its own. Deterrence would seem to sanction the punishment of innocent persons as long as they were widely believed to be guilty, not to mention the punishment of wives and children of criminals who are difficult to apprehend, such as terrorists. Even the benign idea of quarantining criminals for social protection and rehabilitation - championed by Clarence Darrow, who opposed punishment per se on the grounds that humans never really act freely and hence cannot be held accountable for their actions - can lead to unwelcome consequences. Why not quarantine and "treat" likely criminals before they commit their crimes?
Happily, there is at least one proposition about punishment that everyone seems to agree on these days, regardless of his or her philosophical orientation. It is that torture - the deliberate infliction of physical pain - is not a morally permissible way of punishing a wrongdoer. Unless, curiously, that wrongdoer is a child in need of a spanking.
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