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Hitting Retributivism Where It Hurts

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Abstract

Many philosophers think that, when someone deserves something, it’s intrinsically good that she get it or there’s a non-instrumental reason to give it to her. Retributivists who try to justify punishment by appealing to claims about what people deserve typically assume this view or views that entail it. In this paper, I present evidence that many people have intuitions that are inconsistent with this view. And I argue that this poses a serious challenge to retributivist arguments that appeal to desert.

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Notes

  1. In Hanna (2013: 42), I cite nearly a dozen philosophers who endorse the standard view or views that entail it. Olsaretti puts the view a bit differently. Here’s her version of the value clause: it’s intrinsically better if the person gets what she deserves. And here’s her version of the reasons clause: the person ought to get what she deserves, other things equal. I’ll discuss Olsaretti’s take on the value clause later. My take on the reasons clause is meant to accommodate a broader range of views, e.g., Feinberg’s (1970: 60) and Husak’s (2013: 11–13). I’ve put the view disjunctively because some desert theorists doubt that all claims about what people deserve have both of the stated implications. See Husak (2013: 11–12), Olsaretti (2003: 8), and Sher (1987: 6–8). Cf. Feldman and Skow (2015: Sect. 5).

  2. Desert also features significantly in debates about distributive justice. For recent discussions, see Feldman (2016), Feldman and Skow (2015), and Freiman and Nichols (2011).

  3. Cf. Alexander and Ferzan (2009: 6) and Berman (2008: 269). On the concept of a “desert base”, see Feinberg (1970) and Feldman and Skow (2015: S. 3).

  4. Compare Moore (1987: 180, 1993: 16) with Husak (2000: 997, 998, 2013: 12–17), for example.

  5. For recent discussions, see Hanna (2014), Tadros (2011: 73–87), and Wiegman (2017). For more references, see Boonin (2008: 93, n10).

  6. One of the most popular objections says that these claims mistakenly presuppose that we have free will. See Greene and Cohen (2004), Kelly (2009), Parfit (2011: 258–272), Pereboom (2013), Tadros (2011: 61–66), and Vilhauer (2009). Another objection says that claims like 2 are questionable either because our intuitions about what wrongdoers deserve are questionable or because our deontological intuitions in general are questionable. See Narveson (1974: 193), Greene (2008), and Wiegman (2017). Another objection says that claims like 2 misunderstand the relationship between desert bases and what people deserve. See Ezorsky (1972: xxiv–xxvi), and Tadros (2011: 68, 69, 73). Another objection says that claims like 2 are true only if wrongdoers know that they’re doing something wrong and they rarely if ever know this. See Rosen (2002) and Zimmerman (1997, 2002).

  7. Davis’s defense of (a) briefly considers just one objection to the value claim: that the intuitions for it have suspect origins (1972: 140). Moore (1987) addresses such objections at length.

  8. You might think that Davis is only assuming this: it’s intrinsically good when the guilty get what they deserve (thanks to George Sher for this worry). I don’t think that this is a good reading of Davis. And there are other retributivists who read him like I do (see below). But I won’t defend my reading. Instead, at the end of the paper, I’ll critically discuss versions of the retributivist argument that appeal to narrower claims like the one above.

  9. I’ve simplified Berman’s conclusion. See his paper (2008: 261–271) for details, which aren’t relevant here.

  10. The assumption is implicit. Berman confirms this in a later paper discussing Victor Tadros’s work: “[Tadros] appears to believe that a claim that some agent, A, deserves O on account of B is equivalent (or nearly so) to the claim that, given B, A’s getting O would be intrinsically valuable. That is, Tadros appears to reduce a claim about desert to a claim about intrinsic value. That too is a plausible and common view. (I have in past work assumed it myself)” (2013: 90; citing his 2008: 269). He explicitly says that this view and the other views about desert that he discusses are views about “desert generally, and not retributivist desert in particular” (ibid., 269).

  11. Here’s the view: “That A deserves O on account of B means (a) given B, that A experience O (or that O obtain for A) is better than that A not experience O (or that O not obtain for A); and (b) if there is any agent or institution, X, with responsibility over the relevant domain, then X has a duty of justice to cause O to obtain for A” (2013: 92).

  12. Candidates include Alexander and Ferzan (2009), Fischer (2006, 2013), Hurka (2001), Husak (2000, 2013), Kagan (2003), Kershnar (2000, 2001), Kleinig (1973), and Zaibert (2006, 2017).

  13. I excluded 50 participants’ responses from analysis. These participants either gave incorrect responses to comprehension questions or their completion time was so fast that it suggested that they paid insufficient attention to the cases and questions. All participants were 18 years of age or older and located in the US. Demographic data for the analyzed responses is as follows. Desert group: 56.3% male, 43.7% female, median age 31. Value group: 56.7% male, 43.3% female, median age 30. Reasons group: 55.9% male, 44.1% female, median age 31.5.

  14. I used Wilcoxon signed-rank tests to do the statistical analysis because the data was non-parametric. Here are the statistical details. Desert group 1.9% reported an intuition that Connor deserved his injury (Mdn = 1, Mean = 1.51), 67% reported an intuition that Ricky did (Mdn = 5, Mean = 5.06, T = 0, p < .001, r = − .60), and 83.5% reported an intuition that Mal did (Mdn = 6, Mean = 5.94, T = 0, p < .001, r = − .60). Value group 0% reported an intuition that it was intrinsically good that Connor was injured (Mdn = 1, Mean = 1.29), 29.8% reported an intuition that it was intrinsically good that Ricky was injured (Mdn = 2, Mean = 3.09, T = 52, p < .001, r = − .46), and 58.7% reported an intuition that it was intrinsically good that Mal was injured (Mdn = 5, Mean = 4.46, T = 15, p < .001, r = − .55). Reasons group 2.5% reported an intuition that there was a non-instrumental reason to injure Connor (Mdn = 1, Mean = 1.59), 10.2% reported an intuition that there was such a reason to injure Ricky (Mdn = 2, Mean = 2.38, T = 219, p < .001, r = − .34), and 76.3% reported an intuition that there was such a reason to injure Mal (Mdn = 6, Mean = 5.34, T = 26, p < .001, r = − .58).

  15. I’ve excluded 12 participants’ responses for the same reasons as in study 1. Demographic data for the analyzed responses are: 47.8% male, 52.2% female, median age 33. All were 18 years of age or older and in the US.

  16. Here’s more data. 58 participants reported intuitions for B&W, N&M, and either DEV or DER (51.3%). 52 reported intuitions for all of B&W, N&M, DEV, and DER (46%). 80 participants reported an intuition for B&W and 12 against (71% and 10.6%, respectively; Mdn = 5, Mean = 5.26). Of the 80, 62 reported an intuition for DEV (77.5% of the subsample, 54.9% of the entire sample) and 12 against (15% of the subsample, 10.6% of the entire sample). 78 participants reported an intuition for N&M and 15 against (69% and 13.3%, respectively; Mdn = 6, Mean = 5.01). Of the 78, 71 reported an intuition for DER (91% of the subsample, 62.8% of the entire sample) and 3 against (2.7% of the entire sample, 3.8% of the subsample). 22 participants reported intuitions against one or both of B&W and N&M (19.5%).

  17. Compare the formulations by Berman (2013: 92), Husak (2013: 11–12), and Olsaretti (2003: 4).

  18. Thanks to Noah Lemos for suggesting this response. Putting my representative argument in terms of the variant yields this:

    1. 1.

      When someone deserves something, it’s intrinsically better that she get it or there’s a non-instrumental reason to give it to her.

    2. 2.

      Wrongdoers deserve things that are bad for them, e.g., suffering or punishment.

    3. 3.

      So, it’s intrinsically better when wrongdoers get these things or there are non-instrumental reasons to give them these things.

  19. Here’s the reasoning. The variant view and the desert intuition jointly entail:

    It’s intrinsically better that Ricky sprained his ankle or there was a non-instrumental reason to make him sprain his ankle.

    This and the reason intuition jointly entail:

    It’s intrinsically better that Ricky sprained his ankle.

    This and the value intuition jointly entail the footnoted claim.

  20. I’ve excluded 14 participants’ responses for the same reasons as in studies 1 and 2. Demographic data for the analyzed responses are: 54% male, 46% female, median age 31. All were 18 years of age or older and in the US.

  21. I used Wilcoxon signed-rank tests to do the statistical analysis because the data was non-parametric. Here are the statistical details. 92.8% reported an intuition that it would have been better if Connor hadn’t been injured (Mdn = 7, Mean = 6.53) and 77.5% reported an intuition that it would have been better if Ricky hadn’t been injured (Mdn = 6, Mean = 5.66, T = 51, p < .001, r = − .48).

  22. Regarding the diversity of my sample population, research suggests that the data obtained via Mechanical Turk is of comparable quality to that obtained by traditional recruitment methods in the social sciences. See Buhrmester et al. (2011).

  23. Another argument defends the standard view by appealing to a fittingness analysis of desert. For critical discussion, see Berman (2013: 91, n 14) and Hanna (2013: 50–51).

  24. Here’s one way to do that. Consider a world where the conscientious fare deservedly well and the reckless deservedly poorly. Compare this with a world where the conscientious fare undeservedly poorly and the reckless undeservedly well. The first world seems better. This suggests that Ross’s argument can be put in terms of other desert objects. And it suggests that his argument can be reframed to cast doubt on the intuitions to which I’ve appealed.

  25. E.g., Berman (2013: 89), Hurka (2001: 7, 31), Kershnar (2000: 98–99), Pojman (1999: 291–292) and Zaibert (2017: 14–15).

  26. For illustration, see Feinberg (1970: 61–80), Kleinig (1973: 49–64), and Sher (1987: 6–8).

  27. This isn’t to suggest that intuitions about cases are decisive. Philosophers should reflect on them too and consider the possibility that they’re mistaken.

  28. Frieman and Nichols give an example: “competent speakers likely have the pre theoretical intuition that there is an abstract principle according to which a proper name has to come before any pronoun that is linked to it. But competent speakers also tend to have the pretheoretical intuition that the following sentence is well-formed: ‘before he went to the dance, John greased his hair’” (2011: 131).

  29. Thanks to Hailey Huget for this reply.

  30. Thanks to audiences at the College of William & Mary, Drexel University, the 6th UK Experimental Philosophy Group Conference at the University of Nottingham, the 8th Rocky Mountain Ethics Conference at CU Boulder, the 2015 Buffalo Experimental Philosophy Conference, the 3rd Annual Philosophers Cocoon Philosophy Conference at the University of Tampa, and the 2016 Pacific APA. Thanks also to several anonymous referees and to Hailey Huget, Kyle Scott, and Ariela Tubert, my commentators at RoME, PCPC, and the APA respectively.

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    Nathan Hanna

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Hanna, N. Hitting Retributivism Where It Hurts. Criminal Law, Philosophy 13, 109–127 (2019). https://doi.org/10.1007/s11572-018-9461-1

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