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Melbourne University Law Review |
MIRKO BAGARIC[*] AND KUMAR AMARASEKARA[†]
[Retributivism has been the dominant theory of punishment in the Western world for the past few decades. This is despite the fact that there is no single widely accepted retributive theory or defining characteristic shared by retributive theories. This paper analyses the most influential retributive theories of punishment: intrinsic retributivism, the unfair advantage theory and the theories advanced by Antony Duff and Andrew von Hirsch, and concludes that none of the theories is able to provide a justification for punishment. The most pervasive flaw with retributive theories is that they are unable to substantiate the link between crime and punishment without relying on consequentialist considerations. The shortcomings of the retributive theories are so grave that we should abandon retributivism as a worthwhile legal and philosophical concept and look elsewhere for a justificatory theory of punishment. To this end, it is contended that the utilitarian theory of punishment is the soundest theory of punishment.]
Retributivism, under the banner of just deserts, has replaced utilitarianism as the prime philosophical underpinning of punishment in the Western world.[1] It is also generally perceived that the philosophical leaning towards retributivism has permeated most sentencing systems,[2] despite the gulf that normally exists between theories of punishment and sentencing practice and the tendency of the sentencing systems of most jurisdictions not to adopt a primary rationale for sentencing.[3]
This paper examines the leading contemporary retributive theories and argues that despite the widespread appeal of retributivism, it is unable to justify the link between crime and punishment. This forms a central plank of the wider thesis that there should be a reversion to a utilitarian-based system of punishment and sentencing. As a matter of logic, this requires not only a rejection of retributivism, but also a positive case in favour of the utilitarian theory of punishment, which would need to address many of the damaging criticisms that have been levelled against it. Considerations of space prevent this latter task being undertaken extensively at this point. However, due to the persuasiveness of these attacks, we provide an overview of the manner in which they can be met. The utilitarian theory of punishment is further fortified by illustrating the manner in which it deals with many of the problems plaguing retributive theories.
Before turning to substantive issues, we shall first clarify some definitional matters and then outline the reasons for the popularity enjoyed by retributivism. In Part IV of this paper we consider how the utilitarian theory can respond to the most damaging criticisms that have been made against it. After briefly considering other non-retributive theories of punishment which have been proffered, the final four substantive parts of this paper discuss why we believe that retributivism does not justify the institution of punishment.
A vast array of theories of punishment have been advanced which are classified as retributive.[4] As a result of the diversity of these theories, it has proven remarkably difficult to isolate a distinctive feature of theories which carry the tag.[5] Nonetheless, all retributive theories assert that offenders deserve to suffer and that the institution of punishment should inflict the suffering they deserve; however, they provide vastly divergent accounts of why criminals deserve to suffer.[6]
A cornerstone of many retributive theories is the proportionality thesis, which asserts that the punishment must be equivalent to the level of wrongdoing.[7] This is a claim enthusiastically endorsed by Andrew von Hirsch, one of the main contemporary proponents of retributivism, who asserts that:
Sentences according to [the just deserts] theory are to be proportionate in their severity to the gravity of the criminal’s conduct. ... In such a system, imprisonment, because of its severity, is visited only upon those convicted of serious felonies. For non-serious crimes, penalties less severe than imprisonment are to be used.[8]
He argues that the basis for proportionality is essentially that punishment is the vehicle for condemnation and, as a matter of fairness, punishment must be proportionate, since the severity of the sanction expresses the stringency of the blame.[9] However, the view that punishment should be commensurate with the seriousness of the offence does not provide a justification for punishment, rather, it too simply acts as a restraint on it.[10] Such a claim is also not distinctly retributivist. Utilitarians have also been known to invoke the principle of proportionality.[11]
It has also been asserted that a distinctive feature of retributivism is that punishing criminals is itself just: it cannot be inflicted as a means of pursuing some other aim.[12] However, even a cursory consideration of some of the leading contemporary retributive theories reveals that few do not ultimately advert to extraneous reasons to justify punishment. Only one retributive theory (intrinsic retributivism)[13] claims that punishment is justified because it is intrinsically good to punish wrongdoers. All other retributive theories appear to rely, at least partially, on the instrumental effects of punishment to justify the practice. These include the capacity for punishment to convey blame or reprobation,[14] to induce repentance, self-reform, reparation and reconciliation,[15] or to restore the fair balance of benefits and burdens which is disturbed by crime.[16]
Accordingly, it is difficult to identify a principle that represents a retributive pedigree. The true picture seems to be that there are many different theories of punishment which could be labelled as retributive. There is no clear positive and internal unifying principle running through all of them. Nevertheless, they do have at least one thing in common: they are not utilitarian.[17] Thus, retributive justifications for punishment do not turn on the likely achievement of consequentialist goals: punishment is justified even when ‘we are practically certain that attempts [to attain consequentialist goals, such as deterrence and rehabilitation] will fail.’[18] It may well be that the negation of utilitarianism is the distinctive badge worn by retributive theories. This alludes to another characteristic feature of retributive theories: they are essentially backward-looking; punishment is an appropriate response to a past offence, irrespective of other incidental effects.[19] This is in contrast to utilitarianism, which is concerned only with the likely future consequences of imposing punishment. The contrast with utilitarianism also explains why theories which rely on factors or virtues outside the parameters of the act of punishment itself are still regarded as retributive. The virtues invoked are not, at least expressly, consequentialist in nature, but instead are those commonly associated with a deontological account of morality.[20]
It is unclear whether this captures the full contrast between retributivism and utilitarianism. However, for the purpose of this paper the precise definition of retributivism is not critical, for it is argued that all of the leading retributive theories are unsound.
The hallmarks of retributivism are, however, made clearer by further contrasting it with the utilitarian theory of punishment.
Utilitarianism is the theory that the morally right action is that which produces the greatest amount of utility. The utilitarian theory of punishment is merely an application of the general utilitarian theory of morality to the specific issue of punishment. Utility has been defined in numerous ways and although in this domain it does not matter significantly which version of utilitarianism is adopted,[21] we shall adopt what we consider to be the most persuasive and coherent version of utilitarianism: hedonistic act utilitarianism.[22] This provides that the utility that should be maximised is happiness or pleasure, which is the sole intrinsic good, and that pain is the sole inherent evil. Henceforth, it is referred to simply as utilitarianism.
The utilitarian starting point regarding punishment is to consider the most direct and immediate effect of punishment and, from this perspective, punishment is a bad thing because it causes unhappiness to the offender. It is only justified because of the wider contingent benefits it produces, which it is felt outweigh the bad consequences. The good consequences of punishment, which are thought to outbalance the suffering inflicted on the offender, include discouraging potential offenders from committing crimes in the first place and, once the offender is apprehended, discouraging the offender from re-offending, rehabilitating him or her and, where necessary, incapacitating the offender. If there are several forms of punishment which produce the same good consequences, we must choose the one which imposes the least unpleasantness upon the offender. Thus, unlike retributivism, the utilitarian theory of punishment is forward-looking: the commission of a criminal act does not justify punishment; rather, punishment is only warranted if some good can flow from it.
The dominance of retributivism stems, first, from a vacancy which was created in the field of a justificatory theory of punishment, after widespread criticisms were levelled at the utilitarian theory of punishment. Secondly, retributivism presented a neat and simple solution to many of the perceived problems which plagued utilitarianism. Utilitarianism lost many supporters as a result of two broad types of attack: one pragmatic and the other theoretical.
The first criticism was the perceived failure of penal practice and the treatment-based goals of sentencing to measure up to the prime utilitarian objectives of deterrence[23] and rehabilitation.[24] Research findings relating to rehabilitation, in particular, were at one point so depressing that a ‘nothing works’ attitude was pervasive.[25] Given the apparent failure to achieve such lofty and ambitious sentencing goals, the natural inclination was to set the sights on aims which were far more achievable. Future-oriented goals of punishment, such as rehabilitation and deterrence, made way for backward-looking considerations, where the main goal was to ensure that criminals got what they deserved. Thus the aim of doing more good through the prison system was replaced by the goal of doing justice, where justice broadly equated to imposing punishment that was proportionate to the severity of the crime.[26] On this rationale, so long as the punishment fitted the crime, or almost did so,[27] the sentencing system was a ‘success’, irrespective of the indirect consequences stemming from it. Retributivism was the clear beneficiary of such an approach. A retributive sentencer can be sure that the sentence will achieve the purpose for which it is imposed — punishing the offender to the extent of his or her wrongdoing. The simplicity and appeal of retributivism is evident in Mabbott’s justification for punishing students breaking a rule compelling attendance at chapel:
Many of those who broke this rule broke it on principle. I punished them. I certainly did not want to reform them; I respected their character and their views. I certainly did not want to drive others into chapel through fear of penalties. ... My position was clear. They had broken a rule; they knew it and I knew it. Nothing more was necessary to make punishment proper.[28]
The decline of utilitarian punishment and sentencing was also greatly accelerated by the fact that, at the theoretical level, there was a move towards rights-based moral theories and widespread support for arguments that utilitarianism commits us to abhorrent practices, such as punishing the innocent. The main argument in support of rights-based moral theories is aptly stated by John Rawls, who claims that only rights-based theories take seriously the differences between human beings and, in addition, protect certain rights and interests which are so paramount that they are beyond the demands of net happiness.[29]
Charges of this nature have been extremely influential. In the last half of this century, following the Second World War, there has been an immense increase in ‘rights talk’,[30] both in sheer volume and in the number of supposed rights. Assertion of rights has become the customary means of expressing our moral sentiments: ‘there is virtually no area of public controversy in which rights are not to be found on at least one side of the question — and generally on both’.[31] The domination of ‘rights talk’ is such that it is accurate to state that ‘[t]he doctrine of human rights has at least temporarily replaced the doctrine of maximising utilitarianism [sic] as the prime philosophical inspiration of political and social reform’.[32]
The narrower theoretical objection to utilitarian punishment — that it permits punishment of the innocent — has been so persuasive that it alone has led many to reject utilitarianism as a general theory of morality.[33] The real force of this objection is found in the more general criticism that utilitarianism fails to protect basic individual rights and interests, and since it does not prohibit anything per se, may lead to horrendous outcomes. This contrasts with the apparent ease with which retributivism deals with this dilemma: by confining punishment only to wrongdoing,[34] it ensures that no person is sacrificed for the good of others.
It is also often claimed that, under a retributive regime, offenders are not treated as more (or less) blameworthy than is warranted by the seriousness of the offence and, hence, the principle of proportionality is thought to sit most comfortably in a retributive system of punishment. The appeal of retributivism is also said to lie in the simple fact that it accords with our common sense notions of equity.[35]
It has been argued at length elsewhere that the criticisms which have been levelled against utilitarianism are unpersuasive.[36] However, given the influential nature of these attacks, an outline of what they are and how they can be countered is provided.
The supposed good consequences that utilitarians normally invoke to justify punishment are incapacitation, rehabilitation and deterrence. The empirical evidence relating to the first two objectives is still not promising.[37]
Incapacitation is not an objective of punishment and sentencing, but rather a means of protecting the community. Its efficacy cannot be judged by the height of the prison wall. In order for incapacitative sentences actually to protect the community, it must be demonstrated that the offenders who are subject to such sanctions would have offended if they had not been restrained.
To this end, the evidence suggests that we cannot distinguish with any meaningful degree of confidence those offenders who will re-offend from those who will not. Studies have shown that in predicting dangerousness, psychiatrists are wrong nearly 70 percent of the time.[38] Despite some initial optimism, predictive techniques, which draw on more concrete supposed risk factors, such as employment history and the age at which a person first started offending, have also had a low success rate.[39]
The fact that a person has previously committed a serious offence is a particularly poor guide to identifying future serious offenders. A recent study which tracked the offending behaviour of 613 offenders released from prison in New Zealand for a two and a half year period revealed that those who would be classified as serious offenders[40] were no more likely to receive a further conviction within two and a half years after release than ordinary offenders and were, in fact, less likely to be imprisoned within that time.[41] It was also found that, of all serious offences committed by the entire sample group, the vast majority was committed by offenders who were imprisoned for non-serious offences.[42] In total, only 30 of the sample of 613 offenders committed a serious offence within the follow-up period.[43] It was noted that there is very little hope of achieving crime control through altering the definition of a serious offence.[44]
The most recent extensive review of incapacitation research notes that current predictive techniques (including those which go beyond simply looking at prior criminality to such things as employment history and so on) ‘tend to invite overestimation of the amount of incapacitation to be expected from marginal increments of imprisonment’.[45] Our ability to predict which offenders are likely to re-offend is so poor that it has been estimated that the increase in crime rate if prison use was reduced or abolished could be around five percent.[46]
The evidence concerning rehabilitation is more promising than was the case a quarter of a century ago. In a recent wide-ranging review of the published studies in rehabilitation (which compared the recidivism rate of offenders who were subject to rehabilitative treatment with those who were not), Howells and Day conclude that there has been a significant degree of success with cognitive-behavioural programs.[47] These programs target factors that are (presumably) changeable and are directed at the ‘criminogenic needs’ of offenders, that is, factors which are directly related to the offending, such as anti-social attitudes and a lack of problem-solving skills and self-control. Promising programs have been developed in the areas of anger management, sexual offending and drug and alcohol use. These appear to be more successful than programs based on, for example, confrontation or direct deterrence, physical challenge or vocational training.[48] Three judges in Missouri have even imposed transcendental meditation programs as part of the probation conditions of minor offenders, apparently with great success.[49]
Despite such developments, the most that can be said confidently at this point regarding the capacity of criminal punishment to reform is that there is some evidence that it will work for a small portion of offenders and that there is no firm evidence which shows that it cannot work for the majority of offenders. However,
treatments do not ... exist ... that can be relied upon to decide sentences routinely — that can inform the judge, when confronted with the run-of-the-mill robbery, burglary, or drug offense, what the appropriate sanction should be, and provide even a modicum of assurance that the sanction will contribute to the offender’s desistence from crime.[50]
A more fundamental problem with invoking rehabilitation as an objective of punishment is that rehabilitation (at least of the type which appears to be having some success) and punishment may be inconsistent. Punishment by its very nature must hurt.[51] There seems to be an inherent contradiction between deliberately subjecting someone to pain and at the same time trying to get him or her to see things your way. The more tolerant, understanding and educative we are in trying to facilitate attitudinal change in others, the closer we come to providing them with a social service.[52] For example, cognitive-behavioural programs focus on the needs of offenders. They attempt to meet these needs by providing education and counselling which is aimed at reshaping the beliefs, attitudes and values of offenders and improving their problem-solving capacity, in order that they no longer engage in criminal behaviour.[53] Such programs seem to work better in community settings than when delivered in institutions.[54] There is very little difference between such programs and educational courses within the community (which are enthusiastically undertaken by many law-abiding members of the community). This is all the more so, given that it is a feature of many rehabilitative ‘sanctions’ that they cannot be ‘imposed’ unless the offender consents to them.[55] By making the interests of the offender paramount, modern rehabilitative programs are more akin to welfare services than punitive sanctions. In order for the goal of rehabilitation to justify punishment, it must be shown at minimum that reform is attainable in a setting that is directed primarily at imposing unpleasantness on the offender. There is no evidence to support this. One suspects that this tension will prove irreconcilable.[56]
There are two aspects to deterrence. Specific deterrence aims to discourage crime by punishing offenders for their transgressions and thereby convincing them that crime does not pay. General deterrence seeks to dissuade potential offenders from engaging in unlawful conduct by using the threat of anticipated punishment and by illustrating the unsavoury consequences of offending. Deterrence is clearly a forward-looking sentencing objective, focusing solely on preventing harm, by either punishing the offender or dissuading others who come to know of the punishment. For Jeremy Bentham, general deterrence was the primary good consequence of punishment:
General prevention ought to be the chief end of punishment, as it is its real justification. ... [W]hen we consider that an unpunished crime leaves the path of crime open, not only to the same delinquent, but also to all those who may have the same motives and opportunities for entering upon it, we perceive that the punishment inflicted on the individual becomes a source of security to all. That punishment which, considered in itself, appeared base and repugnant to all generous sentiments, is elevated to the first rank of benefits, when it is regarded not as an act of wrath or of vengeance against a guilty or unfortunate individual who has given way to mischievous inclinations, but as an indispensable sacrifice to the common safety.[57]
It is inordinately difficult to obtain information about the effectiveness of sanctions in deterring offenders from committing offences at the expiry of a sanction. Offenders may not re-offend for numerous reasons, apart from the fear of being subject to more punishment. The offending may have been a one-off in any event, a suitable opportunity to offend may not again present itself, or rehabilitation may have occurred.[58] The likelihood of recidivism is also reduced if the offender gets a job or simply ‘grows up’. Empirical evidence strongly supports the view that criminal behaviour is a young man’s endeavour. Studies in the United States have shown that the peak age for violent offences is 18, the peak age for property offences is 16 and the rate of offending typically declines at the age of 30.[59]
However, the evidence that is available supports the view that severe punishment (namely imprisonment) does not deter offenders: the recidivism rate of offenders does not vary significantly, regardless of the form of punishment or treatment to which they are subjected.[60]
In terms of analysing the evidence concerning the efficacy of general deterrence, there are two broadly different levels of inquiry. Marginal deterrence is directed at determining whether a direct correlation exists between the severity of the sanction and the prevalence of an offence. Absolute deterrence relates to the threshold question of whether there is any connection between criminal sanctions and criminal conduct.
There have been numerous attempts to ascertain if there is a connection between penalty levels and crime rate. There is no firm evidence that increasing penalty levels results in a reduction in crime. Following a comprehensive review of the available evidence, the report of a panel of the National Research Council in the US concluded that the research evidence that does exist regarding marginal deterrence is, overall, inconclusive:
We cannot yet assert that the evidence warrants an affirmative conclusion regarding deterrence. We believe scientific caution must be exercised in interpreting the limited validity of the available evidence and a number of competing explanations for the results. Our reluctance to draw stronger conclusions does not imply support for the position that deterrence does not exist, since the evidence certainly favours a proposition supporting deterrence more than it favours one asserting that deterrence is absent.[61]
In a similar vein, Franklin Zimring and Gordon Hawkins stated that:
Studies of different areas with different penalties, and studies focusing on the same jurisdiction before and after a change in punishment levels takes place, show rather clearly that the level of punishment is not the major reason why crime rates vary. In regard to particular penalties, such as capital punishment as a marginal deterrent to homicide, the studies go further and suggest no discernible relationship between the presence of the death penalty and homicide rates.[62]
In a more recent study it was postulated that an escalation in penalty level would result in an increase in offending behaviour. The well-publicised Crime (Serious and Repeat Offenders) Sentencing Act 1992 (WA) was targeted at reducing the number of high-speed pursuits involving stolen vehicles by significantly increasing the penalties for such offences. Following its introduction there was a substantial increase in the rate of offences (such as motor vehicle thefts) which were a trigger for high-speed pursuits.[63]
The news on absolute deterrence, however, is much more positive. There have been several natural social experiments where there has been a drastic reduction in the likelihood (perceived or real) that people would be punished for criminal behaviour. The key thing about these events is that the change happened abruptly and the decreased likelihood of the imposition of criminal sanctions was apparently the only changed social condition.
Perhaps the clearest instance of this is the police strike in Melbourne in 1923, which led to over one third of the entire Victorian police force being sacked.[64] Once news of the strike spread, mobs of thousands of people poured into the city centre and caused widespread property damage, looted shops and engaged in other acts of civil disobedience, including assaulting government officials and torching a tram. The civil disobedience lasted for two days and was only quelled when the government enlisted thousands of citizens, including many ex-servicemen, to act as ‘special’ law enforcement officers. The events of those two days were in complete contrast to the normally law-abiding conduct of the citizens of Melbourne. Other similar examples include the police strike in Liverpool in 1919 and the internment of the Danish police force in 1944.[65]
The results of these social observations also counter the argument that deterrence does not work because it only addresses those who do not need it: that is, law-abiding citizens.[66] It would seem that there are many citizens who would flaunt the law readily if they thought they could do so with impunity.
The view that there is a general link between punishment and the crime rate is also in accordance with econometric research which shows that there is an inverse relationship between the incidence of violent offences and the use of imprisonment, but that the length of imprisonment imposed is irrelevant.[67]
Thus, although deterrence does work, the evidence suggests that there is only a limited direct connection between crime and some penalty, and that there is no connection between crime and penalty level.
The critics are only partially right when they claim that there is little evidence to support the efficacy of punishment to attain the utilitarian objectives of sentencing. On the basis of the current empirical evidence, the objectives of incapacitation, specific deterrence and rehabilitation cannot be invoked by the utilitarian to justify punishment. Incapacitation is flawed since we are very poor at predicting which offenders are likely to commit serious offences in the future. There is nothing to suggest that offenders who have previously been punished are less likely to re-offend; thus, there is no basis for pursuing the goal of specific deterrence. Also, there are no far-reaching rehabilitative techniques which have proven to be successful. Even more telling is the fact that the goals of punishment and rehabilitation may be internally inconsistent.
However, experience shows that absent the threat of punishment for criminal conduct, the fabric of society would readily dissipate.[68] Crime would escalate and overwhelmingly frustrate the capacity of people to lead happy and fulfilled lives. Thus, while there is only one objective of punishment which the utilitarian can invoke, this is more than sufficient to justify the practice of state-imposed unpleasantness on those who violate the criminal law.
Despite this, there is insufficient evidence to support a direct correlation between higher penalties and a reduction in the crime rate. This means that while deterrence justifies punishing offenders, it is of little relevance in fixing the amount of punishment. This must be done by reference to other utilitarian ideals, and to this end the principle of proportionality is likely to be the guiding determinant.[69]
The most telling theoretical objection to utilitarianism is that it permits punishment of the innocent. A similar, if insensitive, illustration of this is H J McCloskey’s small town sheriff example:[70]
Suppose a sheriff were faced with the choice of either framing a Negro for a rape which had aroused white hostility to Negroes (this Negro believed to be guilty) and thus preventing serious anti-Negro riots which would probably lead to loss of life, or of allowing the riots to occur. If he were ... [a] utilitarian he would be committed to framing the Negro.[71]
A common utilitarian response to this dilemma is that such examples are impossible in the real world and, hence, need not be addressed.[72] Punishing the innocent may at times provide short-term benefits, such as securing social stability, but these are always more than offset by the likelihood of greater long-term harm as a result of the loss of confidence in the legal system and the associated loss of security to all members of the community who will fear that they may be the next person framed. However, with only a little imagination McCloskey’s example can be tightened, for instance, by introducing considerations that significantly reduce or totally obviate the possibility of disclosure, so that the only logical utilitarian conclusion is to punish the innocent.[73] Even if the process of modifying the examples appears to far remove them from the real world, it is still a situation which the utilitarian must address. As C L Ten notes, ‘fantastic examples’, as he labels them, which raise for consideration fundamental issues, such as whether it is proper to punish the innocent, play an important role in the evaluation of moral theories, since they sharpen the contrasts between them and illuminate the logical conclusions of the respective theories. In this way they test the true strength of our commitment to the theories.[74] Thus, fantastic examples cannot be dismissed summarily on the basis that they are ‘simply’ hypothetical.
The more promising utilitarian response is not to attempt to deflect or avoid the conclusion that there may be some extreme situations where utilitarianism commits us to punishing the innocent. Rather, it is to accept this outcome and to contend that, as horrible as this may seem on a pre-reflective level, it is not a matter which, on closer consideration, really insurmountably troubles our sensibilities to the extent that it would necessarily render flawed any theory which approves of such an outcome.[75] By drawing comparisons with other situations in which we take the utilitarian option, it is contended that punishing the innocent is not a practice which is necessarily unacceptable.
The view that punishing the innocent is the morally correct action in some circumstances is consistent with and accords with the decisions we as individuals and societies as a whole readily have made and continue to make when faced with extreme and desperate circumstances. We come to grips with the fact that our decisions in extreme situations will be compartmentalised to desperate predicaments and will not have a snowball effect, and serve henceforth to diminish the high regard we normally have for important individual concerns and interests. When we are between a rock and a hard place we do and should — though perhaps somewhat begrudgingly — take the utilitarian option. In the face of extreme situations we are quite ready to accept that one should, or even must, sacrifice oneself or others for the good of the whole.
For example, in times of war we not only request our strongest and healthiest citizens to fight to the death for the good of the community, but we often demand that they do so under threat of imprisonment or even death. Quite often they must battle against hopeless odds, in circumstances where we are aware that in all probability they will not return.[76] We compel them to give their lives, not because they want to, not because they are bad, but merely because we believe it would be good for the rest of us — classic utilitarian reasoning.[77] Faced with the reality of the decisions we do make in such horrible situations, the examples proffered against utilitarianism and the terrible things it entails, such as punishing the innocent, lose their bite. Horrible situations make for appalling decisions whichever way we turn, but when pressed we do make the utilitarian choice because of our lack of true commitment to any higher moral virtue. By opting for the utilitarian line we are soothed by the one saving grace: at least the level of harm has been minimised. When the good of many or the whole is under significant threat, we have no difficulty selecting certain classes of innocent individuals, whose only ‘flaw’ is their sex, state of health and date of birth, to sacrifice themselves for the rest of us. Their protests that they should not be compelled to go because it impinges on their civil, legal or human rights, such as the rights to life and liberty, or their desperate appeals to other virtues such as justice or integrity, fall on deaf ears. For this is serious stuff now — our lives (or other important interests) are at stake. Such appeals should be saved for rosier times.
The decisions we make in a real life crisis are the best evidence of the way we actually prioritise important competing principles and interests. Matters such as rights and justice are important, but in the end are subservient to, and make way for, the ultimate matter of significance: general happiness. Bad as it seems, ‘framing the Negro’ and imprisoning the innocent are certainly no more horrendous than the decisions history has shown we have made in circumstances of monumental crisis.
A pointed example is the decision by the British Prime Minister of the day, Winston Churchill, to sacrifice the lives of the residents of Coventry in order not to alert the Germans that the English had deciphered German radio messages. On 14 November 1940 the English decoded plans that the Germans were about to air bomb Coventry. If Coventry were evacuated or its inhabitants advised to take special precautions against the raid, the Germans would have known that their code had been cracked and the English would have been unable to obtain future information about the intentions of its enemy. Churchill elected not to warn the citizens of Coventry, and many hundreds were killed in the raid which followed. Their lives were sacrificed in order not to reveal a secret that would hopefully save many more lives in the future.[78] Significantly, such decisions subsequently have been immune from widespread or persuasive criticism. This shows not only that when pressed we do take the utilitarian option, but also that it is felt that this is the option we should take.
What we actually do does not justify what ought to be done. Morality is normative, not descriptive in nature: an ‘ought’ cannot be derived from an ‘is’.[79] Nevertheless, the above account is telling because of the forcefulness of the ‘punishing the innocent’ objection. Punishing the innocent, according to this objection, supposedly so troubles our moral consciousness that utilitarianism can therefore be dismissed. The outcome, it is argued, is so horrible that we are forced to say ‘there must be a mistake somewhere’. However, the objection loses its force when it is shown that punishing the innocent is in fact no worse than other activities we condone.
It has been pointed out that it is not only a utilitarian system of punishment that may permit punishment of the innocent:
Retributivists who advocate punishment are relevantly like utilitarians who sacrifice the welfare of innocents for the greater good, since retributivists are willing to trade the welfare of the innocent who are punished by mistake for the greater good of the punishment of the guilty. While never intending to punish the innocent, they nevertheless do not choose to withdraw their support for arrangements that have this result.[80]
There are several possible retributivist responses to this problem, although, in our view, none is convincing.
It is inevitable, given the fallibility of any institution, that any criminal justice system will at times inflict punishment on the innocent.[81] This difficulty could largely be circumvented[82] by increasing the number and level of safeguards in the criminal justice process. For example, the standard of proof could be raised from beyond reasonable doubt to, say, beyond any possible doubt; admissible evidence could be limited to direct observations of the relevant act; and a confession[83] could be made a mandatory precondition to a finding of guilt.[84]
However, such a response is only open to retributivists if ensuring that the innocent are not punished does not hinder the main retributivist aim. Radically increasing the number of legal safeguards in criminal cases could result in fewer guilty people being punished, and consequently an increase in the amount of crime.[85]
A common retributive response to the problem of punishing the innocent is that offered by Antony Duff, who denies that punishing the innocent is a concern for the retributivist, since, unlike the utilitarian situation, punishment of the innocent is not intended and occurs despite the aims of a retributive system of punishment.[86] The credibility of this response turns on the persuasiveness of the distinction between consequences which are intended and those which are merely foreseen.
Underpinning Duff’s argument is the doctrine of double effect, which provides that it is morally permissible to perform an act which has two effects, one good and one evil, where the following elements are satisfied: the good consequence is intended and the bad consequence is merely foreseen, the bad consequences are insignificant when compared with the good consequences, and those consequences occur almost simultaneously.[87]
The doctrine has a rich history and is frequently appealed to as a purported justification for acts or practices which produce foreseen undesirable consequences. For example, this is the reason why it is permissible, supposedly, to bomb an enemy’s ammunition factory in wartime, even though it will result in the certain death of civilians, and why it is justifiable to abort a foetus where this is necessary to save the mother and why self-defence is legitimate.[88] In the case of euthanasia, the doctrine is employed as a justification for alleviating pain by increasing doses of pain-killers, even when it is known that this will result in death, because the intention is to reduce pain, not to kill.[89]
The legal status of the doctrine is unclear. In R v Nedrick the House of Lords held that foresight, even of near certainty, was not the same as intention,[90] whereas in Hyam v The Queen Lord Hailsham was of the view that one who blows up an aircraft in order to obtain money intends to kill.[91] However, the courts have endorsed the doctrine in relation to euthanasia. In Airedale National Health Service Trust v Bland it was held that it is permissible to relieve suffering even if the measure incidentally shortens life.[92] This view has been endorsed in a number of cases.[93]
The moral significance of the doctrine of double effect is much in dispute. Jonathon Glover gives the example of a terrorist who, for the purpose of making a (legitimate) political protest, throws a bomb into a crowd and kills several people.[94] He correctly points to the difficulty in ascertaining whether the deaths are intentional or merely foreseen. The above examples illustrate that the inevitability of the deaths cannot be used to impute intention, for the doctrine provides that foreseen consequences which are certain need not be counted as intentional. Thus, the fact that the terrorist is possibly more certain to kill innocent people than the institution of punishment is to punish innocent people is irrelevant.
It is also beside the point that the institution of punishment does not aim to punish specific innocent individuals. For not only would the terrorist be pleased if no person were killed, but as far as he or she is concerned the crowd consists of random unidentified targets rather than particular, predetermined victims.[95] Thus, there appears to be no principled reason to maintain that the terrorist intends to kill, whereas the institution of punishment does not intend to punish the innocent: in both instances if the respective objectives could be achieved without the harmful by-products the agents would be pleased. This alludes to the central flaw in the doctrine of double effect: it is not possible to provide a general account of the distinction between what is intended and what is merely foreseen which applies in all circumstances.[96] It is illusory to claim that intentions are divisible along the lines of good and bad consequences of an act.
The preferable view is that there is no inherent distinction between consequences which are intended and those which are foreseen. We are responsible for all the consequences which we foresee but nevertheless elect to bring about. Whether or not we also ‘intend’ them is irrelevant. Underlying the doctrine of double effect, and the only coherent basis for distinction adverted to by the doctrine, is nothing more than the consequentialist view that it is permissible to do that which is ‘merely foreseen’ if the adverse consequences of the act are outweighed by the ‘intended’ good consequences.[97] Utilitarianism deals with the difficulties that are sought to be overcome by the doctrine in a far more comprehensible and straightforward manner. The reason that neither the doctor who administers a lethal dose of pain-killers nor the legal system which punishes the innocent (believed guilty) is blameworthy has nothing to do with the difficulty in determining what is intended rather than foreseen. It simply follows because in all the circumstances the good consequences outweigh the bad. Further, from the perspective of the innocent person who is punished, it certainly does not matter whether his or her punishment was intentional or merely foreseen: it hurts just the same. Notwithstanding this, an institution which causes such hurt is still morally justifiable, because it leads to a situation which is happier overall than that which results from the abolition of punishment.
In the end the motivation for the doctrine of double effect seems to be to provide a means for deontological theories which employ notions of absolute (or near absolute) rights to deal with the difficult, but inevitable, situations where there are conflicts between different rules or rights, or even different applications of the same rule or right.[98] The doctrine maintains absolutism by utilising the fiction of merely foreseen consequences and absolving liability for them.
There may yet be another way in which the retributivist may attempt to defend a system of punishment which, unfortunately but invariably, will result in the punishment of some innocent people. This adverts less crudely to the distinction discussed earlier regarding the identity of victims who are incidentally harmed as a by-product of what is thought to be a generally desirable act, and invokes the Kantian concept of means and ends.[99]
The nature of the distinction between the victims who are harmed intentionally and those who are harmed unintentionally is illustrated by the following example. It is necessary to build a bridge between two suburbs. Two different types of bridges are possible. If proposed bridge A is built, actuarial studies show that it is certain that two people will die during the construction. If bridge B is constructed, it is known in advance that a particular worker will die. It is contended that the utilitarian on this information alone would elect route B.[100] On the other hand, a powerful deontological argument can be made in favour of bridge A, because unlike in case B, no individual is being used simply as a means for a particular end. This follows from the fact that each person who is involved in the project or is in some way affected by it may too ultimately benefit from the project. For example, he or she may use the bridge or be paid a salary for working on its construction.[101] It may be argued that the terrorist example is analogous to situation B and the retributive system of punishment to situation A. Although the terrorist kills victims who are unknown to him or her, they are nevertheless specific people whose identity is ascertainable at the time of the act and they have no prospect of benefiting from the legitimate protest. This is not so in the case of a retributive system of punishment which unintentionally punishes an innocent person. The identity of the (innocent) ‘offender’ is not known at the time of conviction and sentence, and may never be known. Even though the innocent who are punished ultimately do suffer, they are part of a general practice through which they too may have prospered. In this sense, so the argument runs, they are not sacrificed for the good of the whole.
However, even putting to one side the difficulties associated with the means and ends distinction, this retributive approach to the dilemma is also unsatisfactory. At the time an innocent person is punished there is always at least one person who is aware of the injustice: the true offender. It is not the point that the system is oblivious to the innocence of the ‘offender’ at the time of conviction and sentence. If the system was really concerned with the unfairness it would have taken measures to avoid the predicament by implementing safeguards, of the type mentioned earlier, to prevent wrongful conviction.[102] By persisting with such a defence of their theory, retributivists are expressing either feigned concern or blissful ignorance. Even more generally, it is immaterial that the offender could have potentially benefited from the institution of punishment. If the offender did not, he or she is a victim of the institution, and it is unrealistic to expect meaningful solace to be attained through such unrealised potential: in any meaningful sense of the word, the innocent person is being sacrificed for the good of the whole. Thus, the retributivist is less equipped to deal with the problem of punishing the innocent than the utilitarian.
The other broader theoretical objection to utilitarianism, mentioned above, is that it is inconsistent with the concept of rights. This is a criticism of utilitarian theory in general, rather than being peculiarly applicable to the practice of punishment. Accordingly, this criticism is not challenged in detail at this point, save to mention that it has been argued that deontological rights-based theories are intellectually vacuous. Despite their dazzling veneer, they are unable to provide convincing answers to central issues such as: what is the justification for rights? How can we distinguish real from fanciful rights? Which right takes priority in the event of conflicting rights? It has been further argued that rights have a place in a utilitarian ethic and, what is more, it is only against this background that rights can be explained and their source justified.[103]
Accordingly, there are solid grounds to fend off the attacks that have historically proven so damaging to the utilitarian theory of punishment. This opens the door for utilitarianism to present itself again as the dominant justificatory theory of punishment. To capitalise on this opening, it is necessary to topple the prevailing theory. Against this background, it is argued that despite the perceived advantages of retributivism, all retributive theories have severe shortcomings and, ultimately, are unable to provide a coherent account of why criminals should be punished.
Utilitarianism and retributivism do not exhaust the range of justificatory theories of punishment. Hence, before tackling retributivism, some of these other theories will be discussed briefly.
Apart from the retributive and utilitarian theories, probably the most influential theory of punishment advanced this century is H L A Hart’s theory of punishment. Hart believes that it is untenable to proffer a theory of punishment which is either absolutely utilitarian or retributive; rather, a compromise is necessary. For Hart, the utilitarian aim of crime reduction provides the general justification of punishment (he terms this the ‘general justifying aim of punishment’), however, this is mitigated by the notion of justice (called ‘retribution in distribution’) which determines two aspects of punishment: who should be punished and how much they should be punished.[104]
This is ultimately the theory endorsed by the New South Wales Law Reform Commission, which felt that it is
impossible to identify among the varying philosophical approaches to punishment a dominant rationale which should or could rationally guide the reform of sentencing law ... The court must impose a sentence which emerges as a compromise between the competing factors, regardless of which punishment theory is currently in vogue.[105]
Hart’s prime reason for invoking the principles of justice to act as side constraints on the ‘general justifying aim’ is that he believes that the principles of justice, such as the proscriptions against sacrificing the innocent and punishing family members of offenders vicariously, cannot be derived from utilitarianism (or for that matter from retributivism). However, as is discussed above, ostensibly abhorrent practices such as punishing the innocent are not so shocking at the pre-philosophical inquiry that we ought to permit the intuitive unease stemming from them to trump principle. The utilitarian theory, in the end, soundly deals with such dilemmas. This being so, there is no reason (let alone justification) for expediently invoking external principles in order to appease our intuition. To do so would not only result in a loss of doctrinal coherency, but as with all compromise theories, leave one with little guidance on critical matters.[106] For example, despite the emphasis of Hart’s theory on the virtue of justice, he accepts that in ‘extreme cases’[107] it may be right to violate the principles of justice; however, no meaningful indication is given when such a point is reached. Ultimately, all theories must invoke a principle as being cardinal.[108] In light of this, the search for a single coherent theory of punishment should not be abandoned readily.[109]
Perhaps the most influential non-retributive contemporary theory of punishment is the ‘dominion’ theory advanced by John Braithwaite and Philip Pettit.[110] Their theory is consequentialist, but the utility which they believe ought to be maximised is not happiness, but what they term ‘dominion’. This is a republican concept of liberty where people are free from non-interference by others by virtue of the protection of the law and related social institutions, and where people enjoy equality before the law.[111] Braithwaite and Pettit believe that the sole objective of the criminal justice system is to maximise dominion. The only acts which should be subject to criminal punishment are those which violate the dominion of others. Punishment should only be imposed in order to promote liberty. This can be done via several different means, such as incapacitation and deterrence. However, in their view it is best done through shaming or censuring criminals. In contrast to von Hirsch’s theory,[112] reprobation is not an integral aspect of punishment, but has an instrumental role to the extent that it is useful in promoting observance of the law.[113]
The motivation for the switch from happiness to dominion appears to be essentially twofold. They feel that hedonistic utilitarianism accords insufficient weight to individual interests (thus, a measure is chosen which gives greater emphasis to the individual’s capacity for personal choice) and they believe that their theory circumvents the problem of punishing the innocent.[114]
As we have already seen, hedonistic utilitarianism is able to deal with the latter dilemma. Further, it has been argued elsewhere that hedonistic utilitarianism can answer the criticism that it cannot accommodate the separateness of persons.[115] Moreover, dominion is a poor substitute for happiness as the ultimate virtue which ought to be maximised. It is implausible to suggest that all important human interests are reducible to, or derivative from, dominion.[116]
Braithwaite and Pettit argue that interference with the dominion of an offender is only justified when he or she violates the dominion of another. Infringement of other interests (such as physical integrity) does not justify punishment unless dominion is also diminished.[117] However, as has been pointed out by Ten, good things do not always go together. Rape and murder certainly violate dominion, but expressing the wrongness of such crimes in terms of the violation of one’s dominion fails to capture adequately the force of the objections to such conduct. It is even more telling that Braithwaite and Pettit are unable to explain intelligibly why it is wrong to inflict pain and suffering on sentient beings that have no concept of dominion, such as animals. This is in sharp contrast to the hedonistic utilitarian: ‘the question is not, Can they reason? nor, Can they talk? but, Can they suffer?’[118]
These matters aside, the general thrust of the theory advanced by Braithwaite and Pettit is persuasive. The justification for punishment relates to forward-thinking considerations which are aggregative in nature. However, we believe that the utility which should be aggregated is the broader notion of happiness, as opposed to dominion.
We now turn to the main focus of this paper — critically evaluating retributive theories of punishment.
Most of the significant groundwork in the development of retributive theories has been undertaken in the philosophical context. While retributivism is an established legal concept, it has been subject only to superficial analysis in the legal arena. Although it is not uncommon for judges and legal commentators to advert to the concept, there is normally a pronounced lack of convergence regarding which version of retributivism is being invoked and an aversion to detailed discussion regarding the intricacies underlying the concept. In this domain the concept is normally tossed around with enormous generality and in the rare cases that a specific form of retributivism is considered, it often seems to be in ignorance of other competing versions. Thus, judges and legal commentators have contributed little of substance to the debate on retributivism. This is not, however, meant as a criticism of the judicial approach to sentencing.
Choosing a particular theory of punishment represents an important policy choice and is accordingly a matter for legislatures.[119] Given the reluctance of most legislatures to take a pointed stance in this regard, it is not surprising that the courts have at least tinkered with the issue of why it is that we do and should punish wrongdoers. Despite the relatively cursory analysis of retributivism by the courts, the judicial approach to the issue forms a useful backdrop to the foregoing discussion, if mainly to underline the nebulous and evolving nature of the concept. An overview of the courts’ approach to retributivism also shows that many of the major themes running through retributivism have, at some point and to varying extents, been recognised.
The crudest form of retributivism is intrinsic retributivism, or retributivism as vengeance. This has been acknowledged by the courts, though its reception has been mixed. It has been asserted that offenders deserve harm and that there is an element of revenge in sentencing. In R v Gordon it was said that:
Retribution, or the taking of vengeance for the injury which was done by the offender, is ... an important aspect of sentencing ... Not only must the community be satisfied that the offender is given his just deserts, it is important as well that the victim, or those who are left behind, also feel that justice has been done.[120]
A contrary view was taken in R v Wheatley: ‘[t]he relatives of the victims ought to approach this type of case not in the spirit of Old Testament morality, seeking vengeance, but rather in light of ordinary straightforward retribution’.[121] However, in R v Collins Tadgell J seemed to assume that revenge and retribution were equivalent:
What are we about when we say our task is to uphold the criminal law? We mean that we must implement it; but in doing so we must be sure that we are not concerned with the exaction of vengeance. The punishments that the courts impose are not primarily to be seen as retributive.[122]
In R v Sargeant[123] it was suggested that the lex talionis (the concept of an eye for an eye and a tooth for a tooth), which is often used interchangeably with intrinsic retributivism,[124] is misguided:
The Old Testament concept of an eye for an eye and a tooth for a tooth no longer plays any part in our criminal law. There is, however, another aspect of retribution which is frequently overlooked: it is that society, through the courts, must show its abhorrence of particular types of crime, and the only way in which the courts can show this is by the sentences they pass. The courts do not have to reflect public opinion. On the other hand courts must not disregard it.[125]
In a similar vein, in R v Roberts it was stated that:
At one time punishment was regarded in the light of vengeance or retribution against the wrongdoer and offenders were sentenced to be hanged for comparatively minor offences. This was an outgrowth of the old Biblical concept expressed in the words ‘eye for eye and tooth for tooth’. Retributive justice has faded into comparative insignificance in the present-day administration of criminal justice.[126]
The satisfaction theory of retributivism provides that punishing wrongdoers satisfies ‘the feeling of hatred — call it revenge, resentment, or what you will — which the contemplation of such conduct excites in healthy constituted minds’,[127] and thereby diminishes the prospect of harmful vendettas by victims and their associates, who may be tempted to exact their own revenge. It too has occasionally been endorsed by the courts:
One of the objects of punishment, and by no means the least important object of punishment, is to prevent, so far as possible, the victims of crime from taking matters into their own hands. It is no great step from private vengeance to vendetta, and there is no knowing where vendetta will stop.[128]
The version of retribution which has received possibly the greatest judicial support is denunciation.[129] Denunciation is a mark of public disapproval of criminal conduct.[130] It is a means by which the courts can maintain public confidence in the administration of justice[131] and reflect the moral sense of the community in the sentence.[132] In R v Nichols Lee AJ stated that in the case of serious crime, the court must show its denunciation of the crime committed: ‘[t]he moral outrage of the community must be taken into account’.[133] English courts have expressed similar sentiments, holding that one of the purposes in sentencing is ‘to mark the disapproval of society’[134] or ‘to mark the abhorrence which society feels for this type of attack’.[135]
In assessing the degree of community outrage the courts look not to actual community feeling, but rather to informed public opinion: ‘it would be discreditable for the law to seek to give effect to extremist views of those palpably disabled from a fair judgment by reason of prejudice, ignorance or other such factors’.[136] The public are assumed to have knowledge of the circumstances of the case and an appreciation of the range of penalties imposed in previous similar cases.[137]
The irrelevance of actual community sentiment to denunciation is highlighted by the fact that evidence of community feeling is not even admissible:
The evaluation of the criminality of the offence and whether imprisonment is called for is for the judge to determine upon the relevant evidence in relation to the crime. It is not a matter to be determined by reference to the views of others given directly in evidence or as hearsay, which views in any event may be based on wrong facts or facts not in evidence. ... [T]he extent of community abhorrence of a crime or type of crime is not a matter of evidence.[138]
Support for a denunciatory theory of punishment has not always coincided with an endorsement of retributivism. Denunciation has often been backed because it is felt that it will promote more fundamental objectives of sentencing, many of which sit more comfortably in a utilitarian ethic. For example, it has been contended that denunciation prevents crime by publicly declaring that criminal activity will not be tolerated. In R v McKenna it was stated that ‘a non-custodial sentence ... lacks the element of denunciation of the crime which is of vital importance in the case of laws designed to protect young persons and thus necessary if deterrence is to be achieved’.[139]
Denunciation has also been regarded as a means of satisfying victims[140] and maintaining public confidence in the criminal justice system.[141] It is also said to have a strong educative role. In R v Collins Tadgell J, quoting the words of Sir John Barry, stated that punishment ‘serves by its solemn procedures as a teacher of minimal standards of morality and behaviour; as an agency for the expression of public indignation and condemnation; and as a force operating to produce cohesion within society.’[142]
Reports by sentencing committees and the like have on the whole been far less supportive of the retributive cause than the judiciary. This may be largely due to the sweeping manner in which retributive theories have been considered by such bodies. The Australian Law Reform Commission provided that:
Retribution is a justification which provides that a person is to be punished for his or her wrongful acts simply because he or she deserves it. It is based on the ancient principle of an eye for an eye and a tooth for a tooth. Retribution in its pure form has very little application today.[143]
More recently, the New South Wales Law Reform Commission also failed to distinguish between different retributive theories and simply provided that ‘retribution is the notion that the guilty ought to suffer the punishment which they deserve’.[144] It stated that ‘just deserts [of the type adopted in some Australian jurisdictions] is merely a reflection of the common law principle of proportionality which places limits, in terms of the gravity of the offence in issue, on the severity of the punishment’.[145] The Canadian Sentencing Commission was quick to conclude that retributivism must borrow utilitarian arguments to address the issue of the justification of punishment convincingly.[146]
Such criticism lacks persuasive force as a result of its all-embracing treatment of retributivism. A convincing rejection of any theory requires, at minimum, an exploration of its distinctive features and supposed advantages and, where relevant, important modifications and subtleties.
It is to this task that we now turn. This requires a detailed consideration of the philosophical debate in this area, where dozens of different retributive theories have been advanced. It is not possible within the scope of this article to consider each of them meaningfully. With one exception, our focus is on those retributive theories which have proven to be the most influential.[147] Thus we consider von Hirsch’s theory, which is widely acknowledged as being responsible for the revival of retributivism. This is followed by a consideration of Duff’s theory, which picks up many of the themes discussed by von Hirsch. Finally, we discuss the unfair advantage theory of punishment which George Sher has recently attempted to revive.
Our starting point is the crudest and most straightforward version of retributivism: intrinsic retributivism. This has few contemporary adherents: retributive theories are now more ‘sophisticated’. Although few would consider intrinsic retributivism a tenable theory of punishment, in our view it merits detailed consideration because with a little adjustment it is ultimately the most persuasive retributive theory.
The paradigmatic and most basic retributive theory has been dubbed intrinsic retributivism.[148] This is the simple claim that punishment is justified because there is intrinsic good[149] in making wrongdoers suffer: ‘the principle that wrongdoers deserve to suffer seems to accord with our deepest intuitions concerning justice.’[150]
As individuals we have a wholly proper desire to seek revenge when wrongs are inflicted on us: as a society we demand that constituted authority punish those who unjustifiably inflict injury on others or otherwise act in ways we think are wrong. If other benefits are incidentally derived from making the wicked suffer, well and good; but those benefits must not be sought for their own sake.[151]
Intrinsic retributivism is commonly associated with the lex talionis: the concept of an eye for an eye, a tooth for a tooth, and so on. However, this is not necessarily the case, since intrinsic retributivism says nothing about the amount of punishment, which is a central feature of the lex talionis. Because the lex talionis is often expressed without further justification, it lends itself easily to the claim that wrongdoers deserve to suffer is a self-evident truth.
There is no question that the sentiment that the guilty deserve to suffer is widespread and extends beyond the parameters of legal punishment. If a wrong-doer suffers some accidental harm, for example, if a burglar breaks his or her leg breaking into a house, this is often described as ‘poetic justice’. We naturally feel that the good should prosper and, perhaps even more strongly, that the bad ought to suffer.[152] If a wicked person wins the jackpot, for example, we tend to think of this as being undeserved or unfair. Given that there is widespread support ‘among the people whose moral intuitions constitute the main data we have for settling questions of value’ for the assertion that wrongdoers deserve to suffer, it is very likely that that assertion is correct.[153] Thus, retributivists assert that the strong innate chord struck by the view that wrongdoers deserve to suffer is so strong that support from some more fundamental principle or instrumental goal is not necessary to substantiate it: the justification is self-evident. There are, however, several problems with this theory.
Ten suggests that the intrinsic retributivist faces the difficulty of explaining whether deserved suffering is influenced by past undeserved suffering. A ‘whole life view of suffering’ approach requires us to determine desert, not by merely focusing on the wrongdoer’s level of culpability for the particular offence, but rather by weighing all of his or her wrongs against the suffering experienced throughout his or her lifetime, which incorporates such things as undeserved suffering from social causes. On this basis it may be that the wrongdoer, as a consequence of social deprivation, may have amassed credits for suffering and accordingly ought not be punished for a particular crime.[154] However, this objection is not decisive. It looks to the quantum of punishment rather than the need for it and in this regard it is not an objection peculiar to intrinsic retributivism. Rather, it is a matter that must be addressed by all theories of punishment. Intrinsic retributivism makes one simple claim — wrongdoers deserve to be punished. It does not go on to provide how much they should be punished. Nor does it directly need to do so, as this can be dealt with by invoking other principles.
The fact that other principles may be needed to supplement the primary claim of a theory is not necessarily a shortcoming. No general theory of punishment provides clear cut answers to every aspect of punishment: this can be left to other subordinate principles. It is only where the subordinate principles that lead to the ‘appropriate result’ (in this case, that offenders from deprived backgrounds should be punished less severely) are not compatible with the primary claim of the theory that one gets into strife. However, the proposition that previous hardships sustained by an offender are relevant to the amount of punishment leaves intrinsic retributivism unscathed. First, it can simply be asserted that the whole life view of suffering is untenable. Moreover, the intrinsic retributivist could accept the whole life view of desert by extrapolating his or her primary claim to the effect that ‘punishment’ includes the pain naturally endured throughout life; thus, where an offender has suffered at least as much incidental hardship as is deserved by an offence, then no additional punishment is called for.[155] There are, however, several other more telling objections to intrinsic retributivism.
The first objection relates to the reliance on self-evident or intuitive ‘truths’. Reliance on such truths can only occur in the most limited of circumstances, since their persuasiveness is roughly commensurate with the incongruity of an assertion to the contrary. Given that there is no absurdity in the claim that wrongdoers do not deserve to suffer,[156] intrinsic retributivism is not self-verifying. While our feelings often incline us to respond favourably towards those who treat us well and wish harm on wrongdoers, such sentiments are not universal. That a person has broken the law or for that matter has behaved immorally does not compel any particular moral conclusions. We do not necessarily feel a pang of resentment towards those who drive too quickly, steal from shops or lie to others. Although we disapprove of speeding, shoplifting and lying, we recognise that it is a fact of life that such things occur and do not expect or demand that such conduct should always result in unpleasantness to the agent. Thus we are often indifferent when law-breakers go unpunished.
Even if the desire to punish wrongdoers is pervasive, this does not justify punishment, since truth does not necessarily follow consensus. This is the case with empirical and supposed normative beliefs. The widely held view that the world was flat did not make it so and widespread acceptance of slavery similarly did not provide a justification for it.[157] Similarly, even if we are so built that wrongdoing necessarily prompts a punitive impulse, it does not follow that intrinsic retributivism justifies punishment, any more than an innate sense of jealousy justifies locking up our partners. What is necessary from a normative theory is a justification of the relevant practice, not an explanation of it.
We frequently must set aside our natural human responses (for example, jealousy, lust, rage and anger) and adopt more considered and reflective dispositions, because of the harm which they cause. So too could it be argued with intrinsic retributivism. Of course, it could be countered that as a psychological matter, our make-up is such that it is not possible to react in a manner other than to punish wrongdoers: inferring, therefore, that it is wasteful even to consider (other) justifications for punishment, since there is no point in arguing against that which cannot be curtailed. This, however, is repudiated by the sheer number of counter-examples where people bear no animosity towards those who have violated their important interests. Indeed, there have been loud calls for the abolition of punishment.[158]
Even if it can be shown that punishing the guilty is an intrinsic good, it does not necessarily follow that punishment is justified. For as David Dolinko points out, an intrinsic good need not be a particularly important good or objective:
I have an itch; I scratch myself; the itching ceases. The cessation of the itching sensation, I believe, is an intrinsic good. Yet it is surely a quite unimportant good, and if for some reason I could not scratch myself without creating a high risk that innocent people would die, it would be unconscionable for me to scratch anyway on the ground that doing so would bring about ‘an intrinsically good state of affairs.’[159]
This emphasises the point that in evaluating the morality of any practice, consequences cannot be totally ignored. Followed to its logical conclusion, intrinsic retributivism entails that offenders should be punished even when no good comes from this. If it were positively established that, overall, punishment had bad social consequences (for example, because it increased recidivism and the overall crime rate), utilitarians would abandon punishment in preference for a more effective manner of dealing with offenders. In contrast, the commitment to punishment by intrinsic retributivists would remain unchanged.[160] It seems wrong to impose a harsher punishment if an offender could be reformed by a lesser sanction: ‘[r]etributive justice may be a very good thing, but the saving of souls is a much better thing’.[161] This criticism can be levelled at most retributive theories, since they do not rely on the effects of punishment for justification.[162] The criticism is particularly damaging with respect to intrinsic retributivism, where the only justification for punishment — even where the punishment would lead to disastrous consequences — is the mere impulse to punish.
Retributivists do not have to deny that consequences are totally irrelevant.[163] Thus, they could attempt to invoke consequentialist considerations to veto punishment, say, where no good at all would come from it. However, as with most compromises, this risks fatally destabilising the theory. It would be unclear at what point consequences become decisive. The retributivist also would be required to give a coherent account of why consequences matter only some of the time, otherwise, he or she would appear to be advancing not a moral justification of punishment,[164] but rather an expedient and disparate set of retorts in order to justify an existing intuition.
The source of the judgment that the guilty deserve to suffer is unclear. However the most likely origin is the desire for revenge.[165] It follows that, stripped bare, intrinsic retributivism amounts to the claim that offenders deserve to be punished because a wrong action naturally calls for revenge or a hostile response. This was a point acknowledged by Mackie, who claimed that retributive sentiments are an ingrained part of our moral thinking. He labels as ‘the paradox of retributivism’ the proposition that ‘on the one hand, a retributive principle of punishment cannot be explained or developed within a reasonable system of moral thought, while, on the other hand, such a principle cannot be eliminated from our moral thinking.’[166]
In order to resolve this dilemma, he relies on the distinction between beliefs and desires or feelings, and claims that retributive sentiments are desires or feelings, not beliefs, and that such feelings arise from the advantages to be gained through retaliatory behaviour.[167] It is natural to desire to punish wrongdoers, but our value system must look beyond such sentiments.
It can be argued that this analysis of intrinsic retributivism shows it to be the mere expression of the primitive desire to exact revenge, which emphasises reprisal above all else and that the main impact of its adoption as a rationale for punishment would be to desensitise and brutalise society. Viewed in this light, most have been prepared to dismiss intrinsic retributivism as an untenable theory of punishment.
At this point it may seem that the above account of intrinsic retributivism is too expansive and accords it more respect than is commensurate with its standing among contemporary theories of punishment. However, with some deft fine-tuning, it may be possible to revive the theory. In order for this to occur, the intrinsic retributivist must embrace the concept of revenge rather than seek to mask it, and also affirm that — despite the harsh veneer of the link with vengeance — revenge is in fact not only a natural but also an appropriate response to wrongdoing.
Indeed, over a century ago, Eugen Dühring claimed that the origin of the concept of justice lies in the notion of revenge, that the desire to retaliate against those who have done wrong occurs naturally, and that, ultimately, criminal justice is simply the public organisation of revenge.[168] Dühring also contended that the lex talionis should not be dismissed because it is too barbaric, but rather because it does not go far enough: more harm than that corresponding to the crime is necessary to restore equality, since the natural desire for revenge ‘does not limit itself to the magnitude of the offence: it normally goes further, and rightly so’.[169]
As to the nature of revenge, numerous explanations have been offered. Apart from Dühring’s description, revenge has also been explained as an attempt to regain one’s honour or social prestige[170] and an instinct which assists in the struggle for survival, since vengeful groups are supposedly less likely to be harmed by others.[171]
The claim that intrinsic retributivism stems from the desire for revenge can form the basis of an extremely coherent normative argument when coupled with the further claim that morality consists precisely of such retorts: desires rather than beliefs.[172] This, in our view, puts intrinsic retributivism in its best possible light. This interpretation of morality has a significant impact on the debate about intrinsic retributivism. If morality is ‘simply’ an expression of our feelings or desires, as many contemporary moral philosophers believe is the case,[173] then the fact that intrinsic retributivism stems from a desire (for revenge) as opposed to a (rational) belief is an advantage, not a drawback.
Even if we accept that moral judgments stem from desires, it is not the case that any desire will do. Certain desires are so repugnant that they are disqualified from forming the basis of normative prescriptions. The desire to kill or torture the innocent, no matter how pervasive, could not tenably be proffered as a normative justification for any action. To show that the desire for revenge is a candidate for moral recognition, it is first necessary to devise a test for distinguishing between desires that are morally relevant and those that are not, then it must be shown why the desire for revenge belongs to the former group. Non-cognitive theories of morality, such as emotivism and projectivism, have fared poorly in attempting to distinguish morally relevant desires from those which are irrelevant.[174] However, it is certain that one consideration relevant to determining the moral relevance of a desire must be the effect of implementing that desire.
In addition to this, as a general rule, our moral standpoint looks favourably upon expressions of feelings and desires that are likely to be welcomed by the recipients of these sentiments, such as feelings of love, compassion and respect. On the other hand, desires which prompt behaviour which is generally unwelcome are morally condemned. Given the measures most people take to avoid vendettas, it is obvious that the desire for revenge belongs to the latter group.
It has also been claimed that revenge is always misguided because no action can reconstruct the past; no deed can be annihilated.[175] Harming others does not eliminate one’s own suffering and revenge may even be self-defeating, since if it is satisfied it merely ‘increases the amount of suffering in the world’.[176] This view can be challenged on the basis that it wrongly assumes that revenge has a particular rationale which can be measured by the extent to which it promotes some more fundamental virtue, such as happiness, rather than being merely a fundamental desire, the aim of which is no higher than its own satisfaction. This response, however, runs head-on into the objection, outlined earlier, that a consequence of this theory is that punishment is justifiable even if it results in overall bad consequences.
The intrinsic retributivist could try to soften his or her position by asserting that what is being appealed to is ‘retribution’, not revenge. It is not exactly clear in what sense retribution is being used here; however, Robert Nozick advances five differences,[177] and Ten another one,[178] between revenge and retribution. Broadly, it is claimed that retribution is a manifestation of a reflective view that the guilty should be punished, as opposed to the expression of our primitive desire to punish wrongdoers. More specifically, it is claimed that:
However, in relation to the first four factors it is not clear that they do represent genuine differences and, even if they do, they are irrelevant for the purpose of this discussion. The effect of the last two factors is merely to weaken the case for intrinsic retributivism.
With respect to point (a) it is unclear why retaliation for something which is not a wrong (such as sneezing in public) is properly defined as revenge any more than it is retribution. More properly, it would seem to simply be a case of misplaced anger. Likewise regarding point (d), which highlights the fact that retribution is supposedly more targeted than revenge: once again it is not clear why harm directed at a person who is not a wrongdoer is not more appropriately defined as misplaced anger, rather than revenge. In any event, the disadvantages of revenge as a foundation for intrinsic retributivism do not concern the possibility of punitive measures against people other than wrongdoers.
Consideration (b) focuses on the purported distinction between retribution and proportionality, but this link is more hypothetical than real, since retribution is primarily concerned with why we should punish, not how much. Point (c) is also not significant. No sentencing system has yet been able to provide consistency in sentencing;[185] not even those loosely based on retributive ideals. Also, consistency is not the primary objective of sentencing. A consistent sentencing system which pursues flawed objectives simply perpetuates pre-existing injustice.
Points (e) and (f) are more significant, but only because they underline why retribution forms an even less tenable foundation for intrinsic retributivism than revenge. Point (e) charges that revenge is normally meted out by the aggrieved party, unlike retribution which is administered by another party.[186] In this way retribution is dispensed in a more controlled and measured fashion which eliminates some of the more unpleasant features of private revenge. Nevertheless, the problem here is that however one elects to prop up intrinsic retributivism, the claim that punishment should be administered by the state does not follow from intrinsic retributivism: even if it shows that the guilty deserve to suffer, it cannot support the claim that the suffering should be deliberately inflicted on wrongdoers by the state.[187]
Furthermore, once the desire for revenge is renounced as the basis for intrinsic retributivism, its most alluring aspect (the apparent pervasiveness of the desire at its core) is lost, since it cannot be asserted as convincingly that there is a universal desire for retribution. This is the point made in (d) and is supported by the apparent disinterest of many victims of crime in the outcome of the prosecution of the offender.[188] The statement that wrongdoers deserve retribution lacks the emotive appeal of the assertion that they deserve revenge.
The upshot of the above discussion is that retributivists are put to the task of justifying the link between punishment and wrongdoing, beyond merely asserting the appropriateness of the connection. There have been numerous attempts at establishing such a link; we shall consider three of them.
According to von Hirsch, the principal justification of punishment is censure: that is, to convey blame or reprobation to those who have committed a wrongful act.[189] Von Hirsch thinks that censuring holds offenders responsible and accountable for their actions and in this way, because offenders are given an opportunity to respond to their misdeeds by acknowledging their wrongdoing in some form, it recognises their moral agency.[190]
For von Hirsch, there is a second justification for punishment, namely, to prevent crime.[191] He believes that human nature is such that the normative reason for compliance must be complemented with a prudential one, otherwise ‘victimising conduct would become so prevalent as to make life nasty and brutish’.[192] He states that ‘it is the threatened penal deprivation that expresses the censure as well as serving the prudential disincentive’.[193] Although he believes that deterrence is not a sufficient reason for punishment, he claims it is a necessary one: ‘if punishment has no usefulness in preventing crime, there should ... not be a criminal sanction’.[194] Instead, other means should be adopted to express censure.
As such, von Hirsch is clearly a consequentialist in part since his theory of punishment is contingent upon punishment having a deterrent effect. However, he attempts to water down the consequentialist tag by asserting that although general deterrence is a necessary precondition for punishment, it is not sufficient and indeed only serves as a secondary justification.
Before considering von Hirsch’s theory in detail, it is worth noting that there are good consequentialist reasons which support his thesis that censure or condemnation of the criminal is a proper response to crime. Condemning criminal activity stigmatises such conduct and serves to discourage future criminal acts. Von Hirsch’s challenge is to provide reasons for censure which do not rely on the good consequences which follow from blaming criminals.
The most general point made by von Hirsch in defence of his theory is that responding to wrongdoing by reprobation ‘is simply part of a morality that holds people accountable for their conduct ... It is addressed to the actor because he or she is the person responsible’.[195] The assertion that blaming people may hold them accountable for their misdeeds does not provide a normative justification for punishment, but rather only identifies the function of blame. The link between blame and accountability provides no better answer than intrinsic retributivism to the question of why we should blame wrongdoers. To address this von Hirsch identifies the ‘positive moral functions of blaming’.[196]
Von Hirsch asserts that the benefits flowing from censure are threefold. First, censure addresses the victim: ‘[c]ensure, by directing disapprobation at the person responsible, acknowledges that the victim’s hurt occurred through another’s fault’.[197] This recognition, however, need not come in the form of blame directed at the offender; a mere declaration to the victim that his or her suffering was caused by the wrongful actions of another would presumably suffice. The fact that von Hirsch requires the further step (that the offender is told of his or her wrongdoing) indicates that there are also other goals at work here.
To this end, the satisfaction theory of punishment provides two reasons why blaming and punishing offenders is desirable. Recognising the victim’s unfair fate pleases the victim and an institutional system of punishment also serves to quell the desire for socially harmful vendettas which may otherwise be unrestrained.[198]
It is essential to note that both these considerations are consequential in nature.[199] Of course, there is normally nothing wrong with this unless, like von Hirsch, one happens to be, at least primarily, a non-consequentialist. Another narrower problem with closely aligning the justification of punishment with the interests of the victims is the large array of victimless offences, or offences where there is no discernible victim.
The second positive function of blaming, according to von Hirsch, is that it addresses the criminal. The criminal is conveyed the message ‘that he culpably has injured someone, and is disapproved of for having done so’.[200] This holds the offender responsible for his or her actions. However, as we have mentioned earlier, even if we accept this, von Hirsch is still no closer to drawing the link between punishment and crime: it is still an open question why we should blame the offender. There is no intrinsic merit in telling people that they have done the wrong thing. Even if it is felt that there is some benefit in this, it merely justifies the conveying of such a message, not the further step of imposing an unpleasantness.
Von Hirsch, possibly in an attempt to diffuse the obvious counter that the link between punishment and crime can only be made by introducing consequentialist considerations, states that censure does not aim to change the criminal’s moral attitudes or elicit any particular response: censure ‘is not a technique for evoking specified sentiments’.[201] He also thinks that censure provides the criminal with an opportunity to respond (for example, by making an effort at improved self-restraint or an acknowledgment of wrongdoing) and that he or she is expected to respond: if the criminal does not respond positively to censure this would ‘itself be grounds for criticizing him’.[202] However, if the goals of punishment do not include the promotion of moral development, the source of such an expectation is unclear: it is as if it pops up from nowhere. Expectations, as opposed to hopes, are grounded in obligations, which in turn are derived from (voluntary or inadvertent) participation in goal-orientated practices or transactions. Obligations occur because they are necessary to facilitate the objectives of the relevant practice or transaction. There is an obligation (and hence an expectation) that each party to a contract will honour his or her promises, otherwise the purpose of the agreement will be defeated; government officials are expected to provide individuals who may be adversely affected by their decisions an opportunity to be heard on the matter, otherwise the objective of natural justice would be frustrated. More generally, we should not deliberately harm others, because this violates important moral goals. Von Hirsch’s suggestion that we do not censure in order to reform the criminal but that we expect such reform to result from censure is merely a sophistical attempt to introduce consequentialist considerations (attitudinal reform and behavioural change).
Von Hirsch goes on to advance two other reasons in support of his claim that censure does not aim to alter the values of wrongdoers and hence does not have a consequential foundation. First, he points out that there is no attempt to seek information about the wrongdoer’s ‘personality and outlook, so as to better foster the requisite attitudinal changes. ... The condemner’s role is not that of mentor or priest’.[203] However, the fact that there is no positive concerted attempt to discover the particular mental processes of the criminal hardly means that there is no attempt to encourage attitudinal and behavioural reform. Advertising, political campaigns and pressure groups bear testimony to this. The reason that we do not attempt to find out the intricate workings of each individual whose behaviour we seek to influence is that we make certain assumptions about human behaviour. One is that people respond to reason, another is that they can be moved by emotive pressure, and another is that they try to avoid punishment.
Von Hirsch’s second basis for claiming that censure does not aim to achieve moral improvement is that blame is supposedly appropriate even where it is apparent that it will have no effect on the offender’s outlook: for example, where the offender is already repentant or is stubbornly defiant. However, von Hirsch provides no reason why blaming in such circumstances is appropriate, as opposed to just being a waste of time.[204] Admittedly, censure is the ‘authoritative expression of the condemner’s ethical judgment’.[205] However, as David Adams points out, if blaming is justified solely by the condemner’s desire to express it and is only ‘something we are strongly moved to do, without any further (instrumental) purpose’, this leaves us with the question of why ‘we are justified in building such responses [to crime] into the institution of criminal punishment.’[206]
The third and last positive function of censure is that it supposedly addresses third parties and provides them with reasons for desistence from crime; blaming conveys the message that the relevant conduct is reprehensible, and should be eschewed.[207] Von Hirsch concedes that this reason is partly consequential,[208] but denies that it is purely consequential by asserting that ‘the censure embodied in the prescribed sanction serves to appeal to people’s sense of the conduct’s wrongfulness, as a reason for desistence’,[209] as opposed to an attempt to portray that the conduct is wrong, ‘for those addressed (or many of them) may well understand that already’.[210] At the core of von Hirsch’s argument is the paradigm consequentialist goal of desistence. Tinkering with the means employed to facilitate this aim cannot alter the fundamental character of the goal: whether one trains a dog with treats or a stick, in the end the (consequential) goal is the same — to have an obedient pet.
Thus, it emerges that what von Hirsch calls the ‘positive moral functions of blaming’[211] are simply the ‘positive consequences of blaming’.
Von Hirsch accepts that criminal sanctions are too severe to be justified by the need for censure alone. Censure on its own only justifies the expression of blame, not the further step of imposing hard treatment. To justify the need for hard treatment, von Hirsch expressly calls into play the goal of deterrence, which to him is a secondary purpose of punishment. He thinks that hard treatment provides prudential reasons for desistence, which supplement the normative reason supplied by censure.[212]
The critical point here is that the concept doing all the hard work is the utilitarian flagship of deterrence. Von Hirsch attempts to distance himself from a core reliance on deterrence by stating that a primarily consequentialist account for punishment and blaming is inappropriate. He contends that it would permit neutral sanctions, which provide for hard treatment but no censure and, hence, fail to recognise the wrongfulness of criminal behaviour.[213] Thus, the door would be left open for fining offenders instead of prescribing criminal responsibility and criminal sanctions to criminal conduct.
However, this fails to recognise the good utilitarian reasons that exist for ascribing moral blame to criminal behaviour. Empirical studies have revealed that normative issues are closely linked with compliance with the law. People do not merely obey the law because it is in their self-interest to do so, but also because they believe it is morally proper to do so.[214]
Von Hirsch believes that it is ‘evident enough’[215] that punishment conveys blame or reprobation, but he accepts that the crucial issue regarding the justification of punishment is ‘why should there be a reprobative response to the core conduct with which the criminal law deals?’[216] He further accepts that punishments hurt.[217] This being the case, to justify punishment on any ground one must invoke sound moral reasons. However, von Hirsch, and this is the most serious flaw in his theory, fails to address the issue of why his censuring account of punishment is morally justifiable (apart from the utilitarian reasons from which he seeks to divorce himself). He in fact ‘argues ... within, rather than for a desert-based or (broadly) retributive justification of punishment.’[218] Such an approach will not sway the unconverted and we must move on.
Thus, von Hirsch is unable to provide a rationale for censure and punishment which does not ultimately invoke consequential considerations. Despite this it is still understandable that his theory strikes a responsive chord with so many. His theory is not ostensibly consequentialist and urges the intuitively appealing principle of proportionality as the main sentencing consideration.[219]
Duff advances another communicative theory of punishment. He believes that the main aim of punishment is ultimately to integrate offenders back into the community: punishment aims to induce repentance (the remorseful acceptance of guilt), self-reform, reparation (the repairing of a damaged relationship with the rest of the community by genuine recognition of the wrong)[220] and finally, reconciliation.[221] Punishment, he argues, is a means through which we engage in a punitive dialogue with the offender. Duff believes that criminal sanctions serve to bring ‘the criminal to recognise the wrongfulness of her past conduct; to induce the kind of pain which flows from an understanding of the condemnation which they express’.[222] The criminal is then reconciled with the community by expressing his or her repentant understanding through being punished.[223]
Duff states that punishment also communicates to the rest of the community the wrongfulness of criminal conduct and to victims it represents an ‘authoritative disavowal of such conduct’.[224] However, these purposes are merely subsidiary; punishment is essentially a means of engaging in a punitive dialogue with the offender ‘which aims to persuade (but not to coerce or manipulate) her to recognise and repent that wrong, and thus to restore her relationship with her victim and with the community’.[225]
Thus, while Duff’s theory has many similarities with von Hirsch’s account of punishment, there are several points of divergence. Both theories emphasise the censuring aspect of punishment, but whereas von Hirsch claims that punishment merely aims to give offenders external (prudential) reasons for desistence, Duff is far more ambitious, claiming that through punishment we should aim to alter the moral sentiments of offenders. The other main difference between the theories is Duff’s insistence that punishment is not coercive.
The educative and cohesive function of punishment has received some judicial support. In R v Williscroft[226] Adam and Crockett JJ cite Sir John Barry with approval:
The aims of punishment are often classified as retributive, preventive, deterrent, and reformative, but this classification is plainly an oversimplification. It ignores or leaves inarticulate, for example, other purposes which the criminal law serves by its solemn procedures as a teacher of minimal standards of morality and behaviour; as an agency for the expression of public indignation and condemnation; and as a force operating to produce cohesion in society.[227]
The supposed non-coercive nature of punishment is central to Duff’s theory. He contends that punishment aims to communicate to the offender the condemnation of his or her conduct and seeks for the offender to
condemn himself, and to modify his future conduct accordingly; and thus to persuade him not merely to obey the law, but to accept its justified demands and judgments. Punishment, like moral blame, respects and addresses the criminal as a rational moral agent: it seeks his understanding and his assent; it aims to bring him to repent his crime, and to reform himself, by communicating to him the reasons which justify our condemnation of his conduct.[228]
At first glance it may seem that Duff’s account is essentially consequentialist. By aiming to reintegrate criminals back into the community he concedes that his theory has a forward-looking purpose. However, he contends that his theory is retributivist for several reasons. For Duff, the purpose of punishment is ‘logically rather than contingently related to the “means” by which it is to be achieved’.[229] Even though punishment aims at reforming and rehabilitating criminals, Duff asserts that this does not amount to a consequentialist justification, since the aim lies in its internal, not instrumental, ability to promote reform and rehabilitation, which can only be achieved by bringing the criminal to ‘recognise and suffer for her wrong-doing’.[230] Duff also denies that his theory is consequentialist because although our reasons for maintaining a system of law and punishment relate to the prevention of crime and the good of the community, we do not merely use criminals as means to achieve these ends since ‘the law addresses citizens as rational moral agents, seeking their assent and understanding’.[231] According to Duff, it follows that the pursuit of rehabilitation through punishment is justified even if there is no hope of reformation, since punishment in these circumstances still expresses a proper moral concern for the offender.[232]
A significant shortcoming of Duff’s theory is that it lacks practical relevance. He admits that the sanctions which are typically imposed by our penal system are unlikely to achieve repentance, reform, reparation and reconciliation,[233] and that the concept of punishment he propounds is only justified and appropriate in an ideal society and legal system.[234]
In order for punishment to be justified, he believes that the criminal must be a responsible agent and accountable to those holding him or her to account. For Duff, this requires that the law that the offender has broken embodies the ‘values of a community in which she participates, and to whose values she is or should be committed. That is, she must be a citizen of whom it can properly be said that she has an obligation to obey the law because it is her law’.[235] Duff goes on to claim that the law must be justified by regard to a common moral good, otherwise crimes which are not destructive of morality and punishment cannot aim to restore the offender to the common good and the community. This does not require each law to be morally sound, since ‘we can still owe it to our fellow-citizens to obey even an imperfect system of law, so long as it can be adequately ... justified to us in the relevant moral terms’.[236] For offenders to be properly answerable to society it is also necessary that they have been treated as fellow citizens and accorded the concern and respect which is owed to all citizens.[237]
Duff rightly points out that these preconditions do not exist in our social and legal system. He claims that our laws cannot be justified by reference to the common good because of our general failure to accord all citizens the concern and respect that they deserve. This, he believes, provides disadvantaged offenders with the strongest moral basis for resisting punishment: ‘not because their actions are justified, not because they ought to be excused, but because we lack the moral standing to condemn them’.[238] Duff appreciates that his ideal is far short of the real world and he suspects that it may be so contrary to human nature that it may not be worth striving towards, since this may destroy our society entirely.[239]
The telling point to emerge here is that in our community, according to Duff, punishment is not justified. Duff’s ideal setting is so far removed from the community in which we live that his theory could be disregarded on this basis alone, especially as Duff, while not an abolitionist, fails to advance an alternative account of what is an appropriate response to crime. However, Duff’s theory raises many interesting issues concerning punishment and it would be remiss prematurely to reject all aspects of his theory: occasionally, things that are worth doing, are worth half doing.