Assessing Retributivism

Having answered some concerns with Immanuel Kant's particular version of retributivism, let us consider a variant of it. Although some of the concerns, such as the one regarding proportional punishment, are similar between Kant's retributivism and the new version of it, the replies to these concerns in this chapter will focus on the notions of proportional punishment and desert, and will, I trust, enable us to make better sense of the nature of retributivism and its plausibility. In light of the previous chapter which set forth and evaluated some of the basics of a Kantian theory of retributive punishment, and in light of various definitions of “retributivism” which John Rawls and some others provide, it is important now to set forth and defend a version of retributivism that seems to withstand some of the most important objections to it. In congruence with the first desideratum of a theory of punishment stated in Chapter 2, I shall define “retributivism” as that theory of punishment which advocates the hard treatment by the state (through an institutionally approved system of due process) of an offender because the guilty offender deserves it, based on her degree of responsibility and in proportion to the harm caused by her wrongful act, omission, or attempt. As Richard Burgh argues, “Justice, in other words, not only requires a principle of desert, but also requires a principle of proportionality between the gravity of the offence and the punishment deserved.”¹Considerations of social utility might in some cases figure into the sentencing of criminals, though they need not. On this view, the state has a right and a duty, but not a perfect duty (as Kant argues), to punish criminals. This version of “positive retributivism,” however, is not inconsistent with the principle of “negative retributivism,” namely, that innocents ought never to be punished in that such punishment is a violation of the proportional punishment of offenders. Indeed, my version of retributivism gladly embraces both positive and negative retributivism.