Abstract
This article seeks to reveal, conceptualize, and analyze a trend in the development of the retributive theory of punishment since the beginning of the 21st century. We term this trend “retributarianism.” It is reflected in the emergence of retributive approaches that through expanding the concepts of censure and culpability extend the relevant time-frame for assessing the deserved punishment beyond the sentencing moment. These retributarian approaches are characterized by the individualization of retributivism. On one hand, retributarianism shares with classic retributivism the rhetoric of justice, a focus on the moral evaluation of the severity of the offense, and the primary importance ascribed to maintaining proportionality. On the other hand, it shares with utilitarianism the possibility of taking into account, in addition to the severity of the offense, the offender’s personal circumstances, with a future-oriented perspective that also considers developments subsequent to the commission of the offense. This article analyzes the emergence of retributarianism, suggests possible explanations for its development, and assesses its possible implications for penal theory and policy.
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Notes
The centrality of retribution (usually as part of the limiting retributivism account) is prominent in many common law jurisdictions such as United States, England and Wales, Israel, Finland, and Sweden (von Hirsch 2017). A different question involves the gap between the academic “dominant retributivist impulse” and laypersons’ moral intuitions (Yankah 2015: 458).
See, for instance, Husak’s view of “retributivism” as a collective term that refers to any theory of punishment that affords a central place to desert in the justification of punishment (Husak, unpublished paper). According to his view, even if retributivists identify desert by reference to an offender’s past offense, they need not be construed to insist that persons should always be given, all-things-considered, what they deserve.
Moore (1997: 153), for example, argued that “Retributivism is the view that we ought to punish offenders because and only because they deserve to be punished. Punishment is justified, for a retributivist, solely by the fact that those receiving it deserve it.”
Tonry (1994) called von Hirsch and Ashworth’s approach “strong proportionality,” as opposed to limiting retributivism.
Some retributivists argued that prior convictions are irrelevant to the offender’s culpability and therefore should not be considered in sentencing, while others accept that prior convictions may increase an offender’s culpability. For a discussion, see Roberts (2010).
Although some doubt the characterization of the communicative approach as a retributive theory, the accepted view identifies this approach at least as a non-utilitarian theory—one that reflects retributive values in a broad sense (Roberts and Maslen 2015). Duff (2001: 21) has described his theory as a “species of retributivism” because it justifies punishment as an intrinsic response to committing offenses. At the same time, Duff (2004: 87) admitted that the communicative theory combines both retributive and future-oriented goals, and therefore it is not purely retributive, or, as he put it, “a ‘third way’ between retributivism and consequentialism.” Zaibert (2002) has described it as similar to a mixed theory.
For an argument that prison violates the communicative principles, see Cochrane (2017).
Smith (2016) also argues that considering post-offense conduct, such as apology, can make retributivism fairer and more consistent in the same way that considering pre-offense conduct, such as premeditation, provides a more holistic and accurate view of the wrongness of the past offense (see also Roberts and Maslen 2015).
As Ashworth (2017: 486) noted: “… proportionality theory did not fail to produce penal moderation, because it was not implemented as intended.”
Zaibert (2016: 108), however, argued that there is no sufficient evidence to show that Americans have been influenced by philosophers and legal scholars, as what “ordinary people, or politicians understand by ‘retributivism’ is often different from retributivism as a philosophical doctrine.”
Empirical studies of public opinion show that, although people tend to support retribution in principle, and to justify strict punishment based on it, they frame the actual punishment according to utilitarian considerations in the case at hand (see Ristroph 2006: 1310).
Brown v. Plata, 563 U.S. 493 (2011).
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Acknowledgements
The authors are grateful to Samuel Baron, Ariel Bendor, Antony Duff, Shachar Eldar, Arnold Enker, Malcolm Feeley, Doug Husak, Ruth Kannai, Chris Kutz, John Pratt, Julian Roberts, Gil Rothschild-Elyassi, Leslie Sebba, Yoram Shachar, Jonathan Simon and the anonymous reviewers for helpful comments on earlier drafts of this paper. The authors have contributed equally to this article. The views and opinions expressed in this article are solely those of the authors.
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Dancig-Rosenberg, H., Dagan, N. Retributarianism: A New Individualization of Punishment. Criminal Law, Philosophy 13, 129–147 (2019). https://doi.org/10.1007/s11572-018-9460-2
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DOI: https://doi.org/10.1007/s11572-018-9460-2