Throughout this essay I will examine the relative merits of retributivism and deterrence theory as opposing means of justifying punishment, restricting retributivism to instances that invoke both positive and negative desert claims, excluding instances of what Mackie terms ‘negative retributivism’, which may appeal to claims concerning deterrence in justifying punishment. Although, as Tadros defends, deterrence theory and retributive notions of justice cannot be restricted to as simple a divide as consequentialist versus non-consequentialist reasoning, for the purposes of this essay I will define deterrence theory as primarily concerned with the consequences of punishment, and retributivism as with the intrinsic value of punishment. By making these distinctions I aim to briefly illustrate how the theories, taken in isolation independently of one another, fail to provide sufficient reason for justifying punishment. To achieve this I will look at retributivism’s and deterrence theory’s responses to the questions of who is legally punished, why they are punished, and how, respectively, and how these claims fall victim to moral puzzles which undermine the ability of each theory to provide a singularly satisfying account in justification of lawful punishment.
Concerning Why to Punish
In seeking to justify punishment, both theories must contend with the issue of defending a practice intended to inflict suffering as morally justifiable. For deterrence theorists, this is provided by the consequences of punishment, whereas for retributivists the punishment is intended to be justified in itself. By examining the criticisms levied against the merits of these, I will note how both theories are comparatively weak against the charges of abolitionism.
In the case of deterrence theory, much can be made out of an appeal to Bentham’s comment that: “If [punishment] ought at all to be admitted, it ought only to be admitted in as far as it promises to exclude some greater evil.” Punishment is instrumentally valuable insofar as it brings about an intrinsically better end, the most plausible being a reduction in crime. This appears to recognise the claim that causing suffering cannot be held to be intrinsically valuable, thus avoiding the charges of barbarism levied at retributive theory. Moreover, it is intuitively appealing to suggest that two moral wrongs, the act of the wrongdoer and the retributive wrongdoing of the state, must be justified by a long term moral benefit, rather than attempting to defend the two wrongs as somehow cancelling one another out. However, this consequentialist grounding provides significant troubles for the deterrence theorist with respect to the retributivist, of which I shall focus on charges of brutality within this section, and issues concerning permissiveness and proportionality in the following two.
Concerning brutality, as lawful punishment aims to deter, it exists primarily as a prudential reason for people to avoid committing crimes. In doing so, it can be argued that it fails to respect people as rational agents capable of responding to moral reasons against breaking the law. By this reasoning, a £100,000 fine could be considered an appropriate response to a murder provided that the fine could be demonstrated to successfully deter others. Yet in spite of being a form of punishment, this does not appear to be in line with our idea that punishment should convey a sense of moral condemnation regarding an act, particularly acts which are mala in se and should thus have strong moral reasons for being avoided. In these cases, it is significantly easier to intuitively defend the retributivist notion of ‘desert’.
For the retributivist, punishment holds intrinsic value. It is right to subject the murderer to a form of hard punitive treatment if that is what the wrongdoer in question ‘deserves’. While this argument has intuitive appeal, it appears to presuppose that the desire for punishment is morally appropriate, and not merely an emotive response to wrongdoing. I may desire revenge on a housemate for stealing my milk, but further arguments must be made to justify me stealing their cake in retaliation. Moore defends that vengeance should not be conflated with retributivist thought, as a wrongdoer should be punished regardless of if there is anyone seeking revenge. Yet importantly this leaves retributivism open to the charge of cruelty avoided by deterrence theory – the retributivist must still somehow square the issue of answering suffering with more suffering.
This issue is particularly salient given that under normal circumstances we accept the inverse of it, that people have a right to not be punished. As such, a punitive authority must be able to justify this instance of rights violation in inflicting suffering. For Dolinko, there is a key difference between someone morally deserving and others having a right to give it to them, which he illustrates using the example of two sons and their inheritance. In other words, desert must be connected to a further argument that wrongdoers deserve to suffer punishment by an appropriate punitive authority in particular, otherwise retributivism appears unduly cruel. Furthermore, I will return to the problem of what can constitute an appropriate punitive authority for the retributivist in the second part of this essay.
In either case, the reason for punishment appears to fail to adequately treat wrongdoers as rational and responsible human beings, possessing rights and being worthy of respect. This further underlies concerns with who we punish, which will be addressed in the second part of this essay.
Concerning Whom to Punish
In establishing why they punish wrongdoers, both theories implicitly note what they consider to be appropriate objects of punishment. Moreover, this can also be led to support secondary claims of who possesses the right to punish under each theory, posing contrasting benefits and criticisms for the proponents of each.
As it is concerned with greater, societal goods, deterrence theory can be led to endorse, if not a State, an overarching punitive authority aligned with the goal of crime prevention. Insofar as the authority acts in support of this end it can be argued as the justified arbiter of punishment. (SOMETHING) Despite the relative merits of this connection, this creates a problem for the deterrence theorist. If a State could prevent an act of terror through use of widespread unjust measures, it remains aligned with the goal of crime prevention, and thus under this interpretation the justified arbiter of lawful punishment, but simultaneously violates the expectation that a just arbiter use just means. This raises the aforementioned consequentialist issue of permissiveness in deterrence theory, which undermines not only who punishes, but who is punished.
In aiming at an intrinsically beneficial end, deterrence theory may not only permit but endorse evidently unjust punishments, including the punishment of the innocent and those not considered to be proper objects of punishment, if it supports the end. As such, people become mere means to the end of crime prevention, once more not respected as a human being. J.J.C Smart uses McCloskey’s example of a town that will suffer violent rioting unless a scapegoat is framed to argue that such a consequentialist conception of punishment is not overly removed from normal moral feelings on such matters, and that such a system of punishment may be considered more useful. While we may perceive it as somehow a ‘lesser of two evils’, in preventing the deaths of hundreds, even Smart does not go as far as to defend such a state of affairs as just. In defending lawful punishment, it would be remiss to shy from the moral implications of such injustice, and that the position of a deterrence theorist effectively renders the protection of an innocent against it dependent on whether their punishment contributes to the end of deterrence. This problem resurfaces concerning the excessive or disproportionate punishment of the guilty, which I will elaborate on in the final part of this essay. In contrast, retributivism’s focus on the agent provides a more palatable account, under which a certain degree of human dignity is defended.
In retributivism, the positive desert component draws the focus away from the potential ends of punishment to the agent. As it is what the agent ‘deserves’, a clear distinction can be drawn between the guilty, who deserve punishment regardless, and the innocent, who do not deserve punishment regardless. Wrongdoers are punished insofar as we recognise them to be rational beings who are capable of taking responsibility for their actions, and are made to take responsibility even if no further good is achieved by doing this. Yet unless further steps are taken, retributivism appears to struggle to justify the necessity of State intervention in lawful punishment.
Unlike with deterrence theory, there is no clear line connecting the act of punishment to the issue of the State, and no self-evident reason why punishment should not be meted out by the individual. On the one hand, Social Contract theorists have posited a transferral of the individual right to punish to the state as part of the contract, on the other, Duff, a Communitarian, has argued the State, speaking on behalf of the whole community, is the only proper punisher as only it can adequately communicate censure. However, this does not adequately explain why only the State may take an active role in the performance of agent based punishment, and both additions fall victim to different concerns about the authority and legitimacy of the State performing these actions.
Concerning How to Punish
With regards to proportionality, both theories fail to adequately justify a satisfactory combined cardinal and ordinal system of ranking punishment. With regards to deterrence theory, there is a distinct lack of any set standard of proportionality, while the doctrine of desert and proportionality central to retributivism is marked with issues concerning vagueness and its justification.
For the deterrence theorist, an appeal to Bentham’s stance that punishment be not groundless, inefficacious, unprofitable, or needless can be made in an attempt to limit the scope of punishment. Yet this nonetheless leaves the parameters for punishment excessively broad in a consequentialist framework – provided it is the most cost effective means of deterrence, any form of punishment may arguably be justified, even if it exceeds the limits of what is deemed appropriate. In a similar vein, retributivism draws issues from its initial standpoint which undermine its attempts to set proportionality.
Set as a key component of the theory of positive desert, inflicting disproportionate punishment is outlined by Gross as wronging the wrongdoer. However, it still remains the duty of the punishers to show that the proposed punishment is not disproportionate, and it may not be possible for them to meet this burden. This criticism presupposes that actual punishments may naturally exceed ‘true’ proportional punishments, given epistemic uncertainty, and that what follows is that a retributive commitment to proportionality leads to abolitionism. Moreover, retributivism fails in the same vein as deterrence theory to account for why we consider some punishments capable of being proportional, such as prison sentences or even the death penalty, whereas others including torture and forced sterilisation are not. If the right to be safe from harm is suspended in the act of punishment, why not other rights?
While in either case there is no reason to rule out an appeal to human rights as a limiting constraint on what punishments are deemed acceptable, both theories fail to provide adequate internal reasoning to support this, thus leading to the notion that comparatively the drawbacks of both theories require them to appeal to different elements in attempting to successfully justify lawful punishment.
Both retribution and deterrence theory start from mutually different standpoints, and as such experience nominally different benefits and criticisms. However, both of them fail to satisfactorily argue why and how a wrongdoer should be punished within their own theoretical framework, leading to further arguments such as Tadros’ Duty View, and Duff’s Communicative Theory.