by Mark D. White (ed.). New York: Oxford University Press, 2011. 272 pp. Cloth $95.00. ISBN: 9780199752232.
Reviewed by Whitley Kaufman, Department of Philosophy, University of Massachusetts Lowell. Email: Whitley_Kaufman [at] uml.edu.
Just a generation or so ago, the retributive theory of punishment was dead; today it is arguably the dominant theory of punishment among both academics and policymakers. Yet despite its dominance, we have no good theory as to why retribution is a morally justified response to criminal wrongdoing. In short, retributivism is a hot topic, and it is heartening to see high-quality scholarly treatments like the present subject of review. Mark White has put together a series of thoughtful essays from some of the leading voices in the field. The critical commentary I provide below on many of these essays should be taken as an attempt to enter into dialogue with the various views, and by no means as a negative judgment on the quality of the volume. The difficulties that I see in the various arguments in this volume are a reflection of the very difficulty of the problem being set out: how can we make sense of why it is permissible to respond to a wrong by inflicting suffering on the wrongdoer? It remains an unanswered question, and this is just why we need more books like this one.
R.A. Duff has long been one of the most eloquent and powerful defenders of the “communicative” theory of punishment. But, as Duff acknowledges (p.16), the theory has always struggled to explain why it should involve the infliction of suffering (i.e., punishment), rather than just a declaration of the wrongness of the crime. Here Duff suggests that “words may not be enough” to “give social force” to the criminal’s “apology” (pp.17-18). The notion of “social force” is however either far too murky to explain punishment, or else if taken in some more concrete sense (e.g. deterrent or rehabilitative effects), causes the theory to collapse into a consequentialist theory. Either way, the communicative theory still lacks a convincing rationale.
Cahill suggests that though the present state of criminal theory is “ambiguous,” it “seems to hold the promise of a potential emerging consensus,” in the form of a “mixed” theory of punishment that reconciles the consequentialist and the retributivist theory (p.25). This “emerging consensus” is news to me, and seems to be a product more of wishful thinking than reality (Cahill signals his uncertainty by incorporating a remarkable five distinct qualifications in the sentence – “ambiguous,” “seems,” “promise,” “potential,” and “emerging”). I have written elsewhere on why the “mixed theory” of punishment will not work (Kaufman 2008); not only are the two theories contradictory and unreconcilable, but it is not even clear whether either of the two is morally justifiable. While I am sympathetic to “pluralist” approaches in law and ethics, there is a danger that the rubric “pluralist” can be used as an evasion of [*13] the serious theoretical difficulties. No one for example would propose a pluralist theory reconciling evolution and creationism.
Markel also defends the communicative theory of punishment, and in addition claims that punishment has “expressive” functions as well (p.53). Markel has a very different approach than Duff, emphasizing how punishment helps “secure the regime of equal liberty under law” (id.). How this account is to work however remains unclear. Markel insists that only by punishing the wrongdoer does the state “convey respect” for the wrongdoer and allow her to “express remorse” (p.51). But how can locking someone in a jail convey respect, rather than the opposite? Markel’s view gets dangerously close to the surprisingly common but implausible view that the state is punishing wrongdoers reluctantly but out of a concern that otherwise criminals might feel disrespected. This view gets things entirely backwards: it is the state that desires to punish, and the criminal to avoid punishment.
Gaus attempts to apply game theory to explain the evolutionary origins of the disposition to punish. The account, ingenious as it is, suffers from serious problems. First, the highly simplified models of game theory provide little confidence that they can effectively model reality even in the abstract, let alone in our almost complete ignorance of the environmental conditions when punishment is supposed to have evolved. Indeed, work by Martin Nowak has resulted in precisely opposite results, that punishment is not an effective means to secure group cooperation. Second, even if the account were true, it would only create a new, overwhelming objection: the retributive theory would turn out to be utilitarian after all, and hence morally unjustified.
Jeffrie Murphy, having long been an important defender of retributivism, expresses sensible cautions here about the dangers of self-righteousness in punishment, even if the retributive theory is correct (he does not attempt to present here an account of just why retribution might be justified, though the reader can refer to his other writings).
Holtman’s essay attempts another defense of a mixed theory, though under the vague rubric of “civic respect.” She relies heavily on the “unfair advantage” theory of punishment, a theory widely rejected for reasons well presented by both Murphy (p.98) and Johnson(p.159). Holtman also relies on a caricatured view of retributivism, one which is focused on “guilt and proportionality,” though just why it is a problem to focus on these two key ideas remains unclear. She claims that her theory is “multifaceted and nuanced” (p.125), but this seems an admission that, as with all pluralist accounts of punishment, the various elements are never fully reconciled by the notion of civic respect. We all want to “respect” wrongdoers, but how does making them suffer do so rather than just the opposite?
White’s chapter defends a non-absolutist form of retributivism that he calls “pro tanto retributivism,” such that punishing the guilty is not an absolute and uncompromisable duty, as some retributivists seem to have believed. White also criticizes the idea that retributivism can be translated into a maximizing theory. On both counts, [*14] White gives a very sensible and convincing argument.
Johnson’s essay is the most ambitious one in the volume. She hopes not only to explicate Hegel’s theory of punishment, but to show how it can provide a new and wholly successful theory of why punishment is justified. Her explanation of Hegel’s famously obscure theory is helpful, though it only confirms suspicions that the theory is not a useful one. To accept it would require numerous obscure metaphysical commitments, such as the idea that that a crime corresponds to a “negative infinite judgment” (p.148), that social relationships constitute a form of “recognitive loop” (p.151), and that punishment is the “annulment of three negations” (p.159). Nor does it help that Johnson relies mostly on metaphors to explain these concepts (in one case, using a rare triple mixed metaphor: the criminal “cuts himself off from” the “loop” that “underpins society”! (pp.151-52)). Hegel’s theory of crime is oddly abstract, logical, and even linguistic; one searches in vain for the nature of the crime as a physical assault on a human being, rather than as an attack on the abstract legal order. And this makes one wonder why physical punishment is warranted, rather than a purely verbal or logical “annulment” of the wrong. Johnson holds that the physical harm is a mere side effect of the punishment (p.160). But there is no obvious reason why these physical “side effects” are in any way necessary; why not have a legal judgment of guilt, but without physical punishment? Why wouldn’t a purely formal annulment of the crime suffice?
Tunick presents an interesting discussion of the problem of entrapment and how to reconcile it with retributivism. His account is however marred by a serious confusion about the nature of retributivism. He says: “I have appealed to a version of retribution that is consequentialist in seeing the point of our criminal justice system as preventing harm” (p.185). But what distinguishes retributivism from consequentialism is precisely that the former insists that punishment does not aim at any future effects, while the latter insists that punishment is justified only with reference to future effects such as crime prevention. To miss this point is to misunderstand the very nature of the debate.
DeGirolami convincingly argues that the “choice of evils” defense cannot be reduced to utilitarian goals, but that there is an essential retributive element to it.
Lippke addresses the difficult problem of how a retributivist should make sense of proportionate sentences in the case of a criminal with multiple offenses. He presents a balanced and reasonable solution, which allows for a sensible form of pluralism in which multiple competing (but not contradictory) goals have to be reconciled.
Brooks argues that a retributivist should reject the death penalty, since we can never be certain about the guilt of the murderer. The problem with this view is that uncertainty exists in all criminal cases, not just death penalty cases. Brooks equally contends that death is different, in that once administered, it cannot [*15] be remedied. But that is also true of all punishments; once five years of the person’s life is taken away, it cannot be given back. The proper response to the extreme case of death, it seems, is to insist on extra procedural safeguards in death penalty cases, just as we already do.
Let me reiterate my strong recommendation for this book, notwithstanding my respectful disagreements with the positions of many of the contributors. We need more books like this, given the importance and the difficulty of the issue at stake. My one global complaint would be that the contributors do not seem to take seriously enough the difficulty of justifying retributivism, and each author seems confident that his/her own view provides the answer, even though there are wildly different theories of how retribution can be justified, from communicative and expressive theories to Hegelian logic. Further, there is no representative of the abolitionist position, that retribution is positively unjustified. I disagree with the abolitionists, but at the same time their voice needs to be heard, especially given that we still lack a convincing account of why retribution is justified. In any case, this is a fine volume with a broad range of issues raised on the crucially important question of retributive punishment. Anyone interested in this topic will benefit from reading the book.
Kaufman, Whitley. 2008. “The Rise and Fall of the Mixed Theory of Punishment,” International Journal of Applied Philosophy 22 (1): 37-57.
Nowak, Martin, and Roger Highfield. 2011. Supercooperators: Why We Need Each Other to Succeed. New York: Simon & Schuster.
© Copyright 2011 by the author, Whitley Kaufman.