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Retribution is perhaps the most intuitive — and the most questionable — aim of punishment in the criminal law. Quite contrary to the idea of rehabilitation and

Retribution is perhaps the most intuitive — and the most questionable — aim of punishment in the criminal law. Quite contrary to the idea of rehabilitation and distinct from the utilitarian purposes of restraint and deterrence, the purpose of retribution is actively to injure criminal offenders, ideally in proportion with their injuries to society, and so expiate them of guilt. Why Is Retribution Used? The impulse to do harm to someone who does harm to you is older than human society, older than the human race itself (go to the zoo and watch the monkey cage for a demonstration.) It's also one of the most powerful human impulses — so powerful that at times it can overwhelm all else. One of the hallmarks of civilization is to relinquish the personal right to act on this impulse, and transfer responsibility for retribution to some governing body that acts, presumably, on behalf of society entire. When society executes retribution on criminals by means of fines, incarceration or death, these punishments are a social expression of the personal vengeance the criminal's victims feel, rationally confined (it is hoped) to what is best for society as a whole. Of course there are more sophisticated ways of thinking about retribution, and it's a good idea to be familiar with them since a judge (and that other kind of judge, the criminal law professor) is unlikely to accept "because it's a natural impulse" as justification for retribution in punishment. And with good reason. Is Retribution Ethical? While "it's natural" tends not to carry much weight in the criminal law, "it's morally right" can. Moral feelings and convictions are considered, even by the criminal law, to be some of the most powerful and binding expressions of our humanity. In binding criminal trial juries to restrict guilty verdicts to situations of the highest certainty, "beyond a reasonable doubt" is also often described as "to a moral certainty." It is to their moral feelings of what is truly right that jury members are asked to look before delivering a verdict. It's perhaps not too much of a stretch, then, to argue that it's morally right to make criminals suffer as their victims have suffered, if that's the way one's moral certainty points. No matter what one's moral feelings are about inflicting deliberate harm on a human being, the majority of the U.S. citizenry still holds that it's right to exact retribution on criminal offenders, sometimes even to the point of death. This is almost certainly true of the majority of victims, and their loved ones, for whom equanimity becomes more and more difficult depending on the severity of the crime. What rape victim does not wish to see her attacker suffer? What parent does not hate the one who killed their child? The outrage that would result from leaving these passions for revenge unsatisfied might be seen as a dramatic failure of the entire criminal justice system. It's a good argument for retributive justice, then, that in this world public vengeance is necessary in order to avoid the chaos ensuing from individuals taking revenge into their own hands. And, until the moral certainty of a majority of society points towards compassion rather than revenge, this is the form the criminal law must take.

syshum 6y ago
>>the purpose of retribution is actively to injure criminal offenders, ideally in proportion with their injuries to society Eye for an Eye leaves everyone blind. Further I have always taken issue with the concept of "injury to society", I am an individualist so to me society is just a bunch of individuals working under voluntary cooperation Criminals injure an individual not society, thus any restitution is owed to individuals not society at large >>The impulse to do harm to someone who does harm to you is older than human society, older than the human race itself Granted however the entire purpose of civilization, especially western civilization is to become greater than are base instincts, to allow reason and logic to rule over emotion. Civilization to me is not a conduit to "relinquish the personal right to act on this impulse, and transfer responsibility for retribution to some governing body" as no one has a personal right to act in retribution, and since no one has that right they have no ability to transfer that right to the governing body. The only ethical use of force is in defense, imitation of force is always unethical Fines should be in service to restitution, including a "pain and suffering" fine which is often viewed today as "punishment" but in reality is restitution for the victim(s). The problem is we have removed the concept of restitution from the criminal system and leave it to the domain of civil law almost exclusively with a few exceptions (normally property crimes) Incarceration should be about rehabilitation and/or removal from society as a defense not retribution. The Prison system should be humane, where inmates would not be physically abused by other inmates or guards, not be subjected to systematic physical or psychological abuse, should be provided basic nutrition, and health care, etc This can not be said to be true for the US prison system today It should also be a place to get mental health treatments, and even learn new skills or other methods to return as a productive member of society >> the majority of the U.S. citizenry still holds that it's right to exact retribution on criminal offenders This highlights why I will never support a direct democracy. Mob rule almost always the worst outcome >>This is almost certainly true of the majority of victims Which is why we separate victims from being judge and jury, emotional responses are not good for civilization >>What rape victim does not wish to see her attacker suffer? What parent does not hate the one who killed their child? Many, it is not uncommon for victims to want to see their attacker isolate, not not be able to hurt them or anyone else again. I believe it would be uncommon for victims to advocate torture, abuse or suffering. People that maintain this desire past a grieving or shock period psychologically are probably not far removed from the criminals they are waiting to abuse. >>until the moral certainty of a majority of society points towards compassion rather than revenge, this is the form the criminal law must take. No, I neither agree that the majority of society points to aggression nor agree that even if it did then that is the form society must take. As I said before mob rule is almost never the correct outcome. If you look back in history you will see all kinds of atrocities committed due to statements like the one you just made "Well the people demand it so we must do X". The concept of human rights and equality demands we reject retribution as the basis of criminal justice

syshum 6y ago

>>the purpose of retribution is actively to injure criminal offenders, ideally in proportion with their injuries to society Eye for an Eye leaves everyone blind. Further I have always taken issue with the concept of "injury to society", I am an individualist so to me society is just a bunch of individuals working under voluntary cooperation Criminals injure an individual not society, thus any restitution is owed to individuals not society at large >>The impulse to do harm to someone who does harm to you is older than human society, older than the human race itself Granted however the entire purpose of civilization, especially western civilization is to become greater than are base instincts, to allow reason and logic to rule over emotion. Civilization to me is not a conduit to "relinquish the personal right to act on this impulse, and transfer responsibility for retribution to some governing body" as no one has a personal right to act in retribution, and since no one has that right they have no ability to transfer that right to the governing body. The only ethical use of force is in defense, imitation of force is always unethical Fines should be in service to restitution, including a "pain and suffering" fine which is often viewed today as "punishment" but in reality is restitution for the victim(s). The problem is we have removed the concept of restitution from the criminal system and leave it to the domain of civil law almost exclusively with a few exceptions (normally property crimes) Incarceration should be about rehabilitation and/or removal from society as a defense not retribution. The Prison system should be humane, where inmates would not be physically abused by other inmates or guards, not be subjected to systematic physical or psychological abuse, should be provided basic nutrition, and health care, etc This can not be said to be true for the US prison system today It should also be a place to get mental health treatments, and even learn new skills or other methods to return as a productive member of society >> the majority of the U.S. citizenry still holds that it's right to exact retribution on criminal offenders This highlights why I will never support a direct democracy. Mob rule almost always the worst outcome >>This is almost certainly true of the majority of victims Which is why we separate victims from being judge and jury, emotional responses are not good for civilization >>What rape victim does not wish to see her attacker suffer? What parent does not hate the one who killed their child? Many, it is not uncommon for victims to want to see their attacker isolate, not not be able to hurt them or anyone else again. I believe it would be uncommon for victims to advocate torture, abuse or suffering. People that maintain this desire past a grieving or shock period psychologically are probably not far removed from the criminals they are waiting to abuse. >>until the moral certainty of a majority of society points towards compassion rather than revenge, this is the form the criminal law must take. No, I neither agree that the majority of society points to aggression nor agree that even if it did then that is the form society must take. As I said before mob rule is almost never the correct outcome. If you look back in history you will see all kinds of atrocities committed due to statements like the one you just made "Well the people demand it so we must do X". The concept of human rights and equality demands we reject retribution as the basis of criminal justice