Just Say No to Retribution

Abstract

Retribution has become increasingly popular, among both legislators and scholars, as a rationale for punishment. The proposed revision of the Model Criminal Code adopts this newly fashionable standard and abandons its previous commitment to rehabilitation. The concept of retribution, however, is too vague to serve as an effective principle of punishment. It is sometimes defined as a requirement that the criminal be "paid back" for the harm he inflicted, but this is a virtually empty metaphor, since prison time has very little to do with repayment. A second definition of retribution involves desert, but the term is both over- and under-inclusive with respect to criminal punishment. Retribution does have a core meaning, however; it inevitably involves the idea of morally condemning the offender. The difficulty is that moral condemnation is entirely inconsistent with the premises of the modern administrative state. Modern governments are supposed to be instrumental - we want them to meet our needs, not to generate their own moral systems. It might be argued that a retributive standard responds to the people's morality, and more specifically to their anger at the criminal. But modern government is supposed to serve people's needs, not their passions, and our own Constitution is based on this exact ethos. In addition, retributive discourse is likely to exacerbate one of the most serious problems in American criminal justice, which is the over-use of imprisonment, particularly for non-violent offenders. The principles of punishment that should be adopted in place of retribution are rehabilitation and proportionality. Proportionality involves a relative ranking of crimes and punishments, so that the most severe punishments are imposed for the most serious crimes, and milder ones are used for less serious crimes. It would forbid the two California sentences that the Supreme Court just upheld against an Eighth Amendment challenge, where a person who stole $399 worth of golf clubs, and another who stole $150 worth of videotapes, received sentences of 25 years to life. Retributivists often adopt proportionality as their own means for establishing a punishment scale, but this only illustrates the emptiness of retribution as a concept. If retribution means anything, it is that we have some fixed idea about the amount of punishment a particular criminal deserves or should be paid back with, not that punishments should be determined by their relationship to other punishments. In fact, proportionality is an independent principle. While it is inconsistent with the concept of retribution, it serves as a complementary principle to rehabilitation.