Retributivists

One single unifying feature of criminal justice theories is that the imposition of punishment is necessary to the enforcement of criminal law (Walker 1991: 3) Despite this consensus, theoretical perspectives differ in their approach to the quantification of punishment (Garland 1997). This essay will explore the classical tradition that gave rise to notions of retribution as an appropriate basis for the determination of punishment, taking into account the views of influential theorists such as Beccaria, Bentham and Kant. It will examine notions of utilitarianism underlying classicism and consider the role of proportionality in retributivism as well as addressing the rise, decline and ultimate re-emergence of retributist theories of punishment.

During the pre-Enlightenment period, crime was believed tobe a manifestation of evil. It was viewed in a somewhat contradictorymanner as an individual’s defiance against authority exercised as amatter of choice and as the manifestation of inherent evil emanatingfrom within the individual against which he was powerless to resist(Einstadter and Henry 1995). The application of the law was arbitraryand unequal, reflecting Kantian notions that the right to inflictpunishment was solely vested in the sovereign who was answerable to noother person or body. Kantian views also permeated approaches topunishment, which were corporeal and extreme, as this was seen as thevengeance of the sovereign that could be legitimately visited uponthose who contravened his decrees (the law). Ultimately, then, forKant, punishment was retribution for crime.

The harshness of this system led to a movement dedicated to thefurtherance of systems of justice that was based upon certainty,consistency and fairness. Social contract theories emerged that werebased upon the notion that the individual abdicated his rights ofpersonal sovereignty to the State in return for its protection. Thisconferred upon the State the right to limit and control behaviour. Theunderlying basis of such theories was notions of utilitarianism such asthat propounded by Bentham. Utilitarianism is founded upon a beliefthat people are motivated to act to maximise their pleasure and toavoid pain. As such, individuals should be free to behave as theychoose and the State is only justified in interfering with theirautonomy in order to protect others (or the State more generally) fromsuffering harm (Beccaria 1764). In other words, a person’s behaviourcould only be curtailed by the State if his pursuit of pleasure wasinterfering with that of another person or was threatening thewell-being of the State (as this would interfere with the pursuit ofhappiness of the other members of society) (Von Hirsch 1976).

Classical theories of punishment are based on utilitarianism. A pureform of utilitarianism would reject the notion of punishment as a formof vengeance as epitomised by the biblical sentiment of &lsquoan eye for aneye, a tooth for a tooth’ as excessive and brutal punishment is viewedas unworthy of civilised society. Instead, borrowing somewhat fromKant (albeit it in a modified and moderated form), classical theoriesformulate principles of punishment to ensure that the pain imposedwould outweigh the pleasure of successful wrongdoing. This inherentlyincorporates notions of proportionality as a way of reconciling theseemingly incompatible notions of retribution and utilitarianism.

One of the leading proponents of this classical view was Beccaria whobelieved that the punishment visited upon the offender should beproportionate to the harm that had been done to society but that itshould not go beyond that which was necessary to ensure that thecriminal did not reoffend. He believed that excessive punishment wascounterproductive that if a person knew that the punishment for arelatively minor crime was severe, he would be tempted to commit agreater number of crimes or more serious crimes to make the punishmentmore worth the risk. This view was influential in the limitation ofthe capital punishment to the most serious crimes if a personcommitting robbery knew that he would be sentenced to death if he werecaught, he might consider that it was beneficial to kill the victim(and any other witnesses) as the punishment was no greater than thatfor robbery. Although Beccaria’s views were based upon notions ofretribution and proportionality, there was also evidence of theinfluence of the deterrent value of punishment. He believed thatpunishment should deter not only individuals (by ensuring the pain ofpunishment outweighed the pleasure of the crime) but also others whowere contemplating engaging in similar criminal conduct.

The limitation of pure classical theories such as the propounded byBeccaria is that they were based upon proportionality to the extentthat they based the punishment on the harm caused to society but didnot include any consideration of the circumstances of the individualwho had committed the crime. The determination to imposed punishmentthat was proportionate to the harm caused meant that no differentiationwas made between first time offenders and recidivists, for example, orbetween adult offenders and children or between the sane and thoselacking in mental capacity. This initially lead to the emergence of amodified form of classical theory, hence the term &lsquoneoclassicism’, thatadvocated that there should be differential sentencing to reflect therelative blameworthiness of such offenders. This was followed by arise in positive criminology that saw crime as a symptom of someunderlying disturbance in an individual’s pathology hence leading to aview that crime could be &lsquocured’ if the root problem was addressed inthe offender.

The limitations of classical theories based upon utilitarianism andretributionism and the rejection of a uniform approach to punishmentbased upon the nature of the harm in favour of approaches which tookinto account factors individual to the offender. These theories werebased, to a greater or lesser extent, upon notions of consequentialismwhich means that any particular action (i.e. approach to punishment)can be justified by its outcome (reduction or prevention of crime).

However, increasing moves towards individuality in sentencing lead tomoves against consequentialist approaches to punishment and thus to there-emergence of retributionism and a just desserts approach tosentencing (Von Hirsch 1976). The influence of various theorists canbe seen in the re-emergence of retributionism. For example, one of thestrongest arguments against utilitarian systems of punishment that wasasserted by consequentialists was that it would justify the impositionof punishment on a person who was known to be innocent. This isbecause utilitarianism believes that the interests of the individualare subordinate to the interests of society (as it is based on notionsof the greatest happiness for the greatest number of people) thus if acrime occurred that provoked moral outrage in the community, such asthe murder of child, and a riot was likely unless the perpetrator wasapprehended, utilitarianism would justify the arrest, conviction andpunishment of an innocent man in order to calm society and protectpublic order. Rawls rejects consequentialist criticism ofutilitarianism as justifying &lsquotelishment’ (his term for the knowingpunishment of the innocent in the interests of society) as nonsensical(Rawls 1955: 151). Rawls advocates a return to a system of punishmentbased upon proportionality, arguing that this would be the positionadvocated by all individuals as epitomising fairness and justice ifthey were unaware of their position in society and were constructing asystem of punishment from behind a &lsquoveil of ignorance’ (Rawls 1972).He used this construct to support his condemnation of telishment as noindividual would ever condone this as they cannot be sure that it wouldnot happen to them. From behind the veil of ignorance, individualsapply reason to the question of a just approach to sentencing and theinevitable answer is proportionality that the punishment should fitthe crime. This is reflected in the advancement of so-called justdesserts theories, a form of retributivism (Von Hirsch 1996). This isbased the understanding that only those guilty of crimes may bepunished and that punishment must be commensurate (proportionate) tothe gravity of the crime and the culpability of the offender(Braithwaite and Petite 1990). Accordingly, the assessment ofproportionality based upon a combination of harm and the individualcircumstances of the offender overcomes the criticisms levelled againstearlier manifestations of retributivist theories of punishment.

Other theorists advocated a return to retributivism and proportionalitybut with a different purpose. For example, Duff advocates an approachbased upon &lsquorestoration through retribution’ in which offenders shouldsuffer retribution for their crimes but that the essential purpose ofpunishment should be restoration (Duff 2002). As the ultimate purposeof punishment is restoration, the retributive element of punishmentmust inevitably be proportionate as a disproportionate sentence willinvoke resentment and could lead to further offending.

It is clear that proportionality is an essential component ofretributivist theories of punishment, although there is some divergenceamongst theorists as to why it is such an important feature and thatsuch theories, despite a period of dormancy, have re-emerged as theappropriate basis for the formulation of sentencing policies.

Bibliography

Braithwaite, J. and Petite, P., (1990) Not Just Deserts: a RepublicanTheory of Criminal Justice, Oxford: Oxford University Press

Duff, R.A. and Garland, D., (1994) A Reader on Punishment, Oxford: Oxford University Press

Duff, R.A., &lsquoRestorative Justice and Punitive Restoration’ in Lode, W.,(ed.) (2002) Restorative Justice and the Law, Cullompton: WillanPublishing

Einstadter, W. and Henry, S., (1995) Criminological Theory: an Analysisof its Underlying Assumptions, Fort Worth: Harcourt Brace Publishing

Garland, D., (1991) Punishment and Modern Society: a Study in Social Theory, Oxford: Clarendon Press

Garland, D., &lsquoOf Crimes and Criminals: the Development of Criminologyin Britain’ in Maguire, M., Morgan, R. and Reiner, R., (eds.) (1997)Oxford Handbook of Criminology, 2nd ed., Oxford: Oxford University Press

Garland, D., (2001) Culture of Control: Crime and Social Order in Contemporary Society, Oxford: Oxford University Press

Hudson, B., (2003) Understanding Justice: an Introduction to Ideas,Perspectives and Controversies in Modern Penal Theory, 2nd ed.,Buckinghamshire: Open University Press

Von Hirsch, A., (1976) Doing Justice, Oxford: Oxford University Press

Von Hirsch, A., &lsquoGiving Criminals their Just Desserts’ in Maguire, M., (eds.) (1996) Criminological Perspectives, London: Sage Publications

Von Hirsch, A., &lsquoProportionate Sentences for Juveniles: How DifferentThan for Adults’ Punishment and Society (2001) vol. 3, no. 2, pp.221-236

Walker, N., (1991) Why Punish? Theories of Punishment Reassessed, Oxford: Oxford University Press