Abstract
This paper proposes a retributive argument against punishment, where punishment is understood as going beyond condemnation or censure, and requiring hard treatment. The argument sets out to show that punishment cannot be justified. The argument does not target any particular attempts to justify punishment, retributive or otherwise. Clearly, however, if it succeeds, all such attempts fail. No argument for punishment is immune from the argument against punishment proposed here. The argument does not purport to be an argument only against retributive justifications of punishment, and so leave open the possibility of a sound non-retributive justification of punishment. Punishment cannot be justified, the paper argues, because it cannot be demonstrated that any punishment, no matter how minimal, is not a disproportionate retributive response to criminal wrongdoing. If we are to hold onto proportionality—that is, proportionality as setting a limit to morally permissible punishment—then punishment is morally impermissible. The argument is a retributive argument against punishment insofar as a just retributive response to wrongdoing must be proportionate to the wrongdoing. The argument, that is, is concerned with proportionality as a retributive requirement. The argument against punishment is set out on the basis of a familiar version of the ‘anchoring problem’, according to which it is the problem of determining the most severe punishment to anchor or ground the punishment scale. To meet the possible criticism that we have chosen a version of the anchoring problem particularly favourable to our argument, various alternative statements of the anchoring problem are considered. Considering such statements also provides a more rounded view of the anchoring problem. One such alternative holds that the punishment scale must be anchored not just in the most severe punishment, but in the least severe punishment as well. Other alternatives hold that it is necessary and sufficient to anchor the punishment scale in any two punishments, neither of which needs to be the most or least severe punishment. A further suggestion is that one anchoring point anywhere along the punishment scale is sufficient, because it is possible to ‘project’ from such a point, so as to determine the correlative punishments for all other crimes, and so derive a complete punishment scale. Finally, the suggestion is considered that one can approach the issue of a punishment scale ‘holistically’, denying any distinction between anchoring and derived (or ‘projected’) punishments.
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Notes
Or perhaps, more specifically, requiring hard treatment over and above the minimal, unavoidable element involved in condemnation or censure. Tasioulas claims that ‘[e]ven purely formal censure constitutes hard treatment, since condemnation is meant to be experienced as unwelcome, a bringing up short of the wrongdoer, a drawing attention to, and denunciation of, his moral wrong-doing’ (2006: 295). He thus refers to ‘the hard treatment…entailed by the most lenient means of communicating censure’ (2006: 296). Likewise, Feinberg observes that ‘[r]eprobation is itself painful, whether or not it is accompanied by further “hard treatment”’ (1965: 400, emphasis added).
On the other hand, though condemnation ‘is meant to be experienced as welcome, a bringing up short of the offender [etc.]’ (emphasis added), it is not hard treatment unless it is so experienced. The wrongdoer may totally ignore the censure, or just laugh at it. As Duff notes (though not specifically in relation to this point), censure ‘can be expressed by a formal conviction, or by a purely symbolic punishment that burdens the offender only insofar as she takes its message of censure seriously’ (2001: 82, emphasis added).
The contrast is with determinative proportionality, according to which it is likewise morally impermissible to impose a punishment on an offender that is less severe than is proportionate to the seriousness of the offender’s crime. See, for instance, von Hirsch (1985: Chap. 4).
The word ‘punishment’ is generally used here rather than ‘penalty’, even though the latter may sometimes seem more natural. There is no intention to allude to Feinberg’s distinction between punishment and ‘mere penalties’ (1965: 397). Feinberg thanks Dr. Anita Fritz for alerting him to this distinction (at n. 3).
Braithwaite and Pettit call this the ‘anchoring point’ problem, and conclude: ‘[t]he simple fact is that retributivism cannot supply a unique non-arbitrary way of translating a scaling of crimes into recommendations for levels of sentences’ (1990: 149–150). See also Shafer-Landau (2000: 191), Kaufman (1973: 57), Gardner (1958: 120–121), Walker and Padfield (1996: 111–112), Galligan (1981: 164), Benn and Peters (1959: 188), Kleinig (1973: 116), von Hirsch and Ashworth (2005: 142).
‘Punishing crime Y more than crime X expresses more disapproval for crime Y, which is warranted only if it is more serious. Punishments should thus be ordered on the penalty scale so that their relative severity reflects the seriousness-ranking of the crimes involved’ (von Hirsch and Ashworth 2005: 140; von Hirsch 1993: 18).
And presumably, it should be added, a proportionately larger space. In fact, this would be better expressed as the requirement simply that ‘penalties…be…spaced to reflect the relative…spacing of the crim[es]’ (von Hirsch 1993: 39). This formulation of the sub-requirement is preferable to von Hirsch and Ashworths’ explicit formulation of it. While the latter requires that where X, Y and Z are crimes and ‘Y is considerably more serious than X but only slightly less so than Z’, there be a larger space between the punishments for X and Y than between the punishments for Y and Z, it does not specify how large this difference should be. The simplified ‘spacing’ sub-requirement captures the intuition about ordinal proportionality that the difference in the size of the spaces should reflect the difference in the size of the spaces between X and Y and between Y and Z. This simplified sub-requirement appears to be what von Hirsch in fact intended by the ‘spacing’ sub-requirement: see, for instance, his comment that ‘[s]pacing…depends on how precisely [the] comparative gravity [of crimes] can be calibrated’ (von Hirsch 1993: 18).
Kleinig makes a similar point, stating that ‘[n]ot only do we order deserts, but also (partially) the intervals between them’ (1973: 116).
This sentence is also quoted in n. 8 above.
As pointed out in n. 8 above, this is not provided in von Hirsch and Ashworths’ statement in the text at that n.
See text at n. 5.
Or consider Shafer-Landau’s example: ‘[i]f our criminal code includes fifty offences, ranked according to severity, and fifty punishments, ranging by one-year increments from a ten-year to a sixty-year incarceration, proportionality [i.e. ordinal proportionality] can readily be satisfied. But few will think that the mildest criminal offence should be met with a ten year deprivation’ (1996: 307–308).
That is, on the assumption—but see Part Three—that two anchoring points, and more specifically, these two anchoring points, are required.
On scepticism about reliance on moral intuitions, see for instance Shaw (1980), Singer (1974) and Raz (1982).
It may be objected that without reliance on some intuitions, no normative problem can be solved. While being concerned not to become embroiled in controversial questions of moral methodology, more particularly, of the proper place of moral intuitions in developing a moral theory, it must be made clear what the relevant point is. It is not that moral intuitions about anchors are especially suspect. Rather, it is that getting the anchors right—properly anchoring a punishment scale—is crucial given their fundamental role in determining a sentencing scale. A very heavy justificatory burden is therefore borne by whichever moral intuitions are relied upon to determine these anchors.
von Hirsch 1985, 44 n and Kleinig 124.
It may be pointed out that the general problem of anchoring a punishment scale arises with any attempt to establish a scale of rewards and penalties based on past behaviour. For instance, even if a lecturer is confident about how he ranks a group of student essays, how can he know that any paper deserves a particular grade? (Von Hirsch raises this example at 1992: 78, but the following discussion is quite independent of his.) Perhaps every student’s mark should be moved up—or down. (This may be precisely what happens when the marks of different markers are ‘standardised’.)
However, there is an important difference here. Marks are purely conventional, have only relative meaning. Grading is an exercise in ordinal proportionality, and the anchors, if they exist at all, are either a matter of convention, or explicitly specified (e.g. 5% of students to receive H1’s, 10% H2A’s, and so on). If every student receives an H1, then an H1 is devalued—unless some case is put forward for the class having been especially good in the year in question, an exception to the class generally. (It is another matter if students always receive an H1, year in and year out.)
That marks are purely conventional is not to deny, of course, that good marks may lead to consequential tangible benefits, such as prizes, scholarships and improved employment opportunities.
With punishment, however, the hard treatment that is suffered is not conventional, but real. It has to be justified in its own right. The student who receives a poor mark is not in the same position as the recipient of punishment in that consequential harms need not follow (the student may turn to some quite different pursuit where his previous marks are irrelevant). This is not to deny, of course, that he may be effectively punished, for instance, by (if he wishes to continue with his studies) being required to take the subject again, or do remedial work.
See n. 1.
See the quotation from Tasioulas in the first paragraph of n. 1.
See the qualification in the second paragraph of n. 1.
von Hirsch (1993: 36). Von Hirsch seems to assume that a penalty scale is to be anchored through these two penalties.
von Hirsch (1993: 38–39), referring to Kleinig (1973: Chap. 7). Kleinig himself says, in the example he puts forward (which restricts possible penalties to imprisonment): ‘[l]et us suppose that offensive language is the most trivial wrong, and that 1 day’s imprisonment is the lightest penalty that we can effectively inflict’ (1973: 118).
Kleinig (1973: 119), cf. 118: ‘…unless there are two points of correlation it will be impossible to remove all arbitrariness…’. Von Hirsch says: ‘[i]f one has decided what the penalty should be for certain crimes, then it is possible to fix the sanction for a given crime, X, by comparing its seriousness with the seriousness of those other crimes’ (1993: 18–19; cf. von Hirsch and Ashworth 2005: 141–143).
If the assumption that the crimes are equally spaced is dropped, and it is held instead that there are different spaces between A and B, B and C, and C and D, then there should likewise be proportionately different spaces between a and b, b and c, and c and d.
The stipulation of equal spacing excludes candidates where the non-anchored punishments differ, for instance, eight, seven, three and two years’ imprisonment respectively. See n. 23.
But see Kleinig (1973): 119, n. 22 above and the accompanying text, where Kleinig says that ‘at least two points of contact are needed if all arbitrariness is to be removed’ (emphasis added).
See text at n. 21 and n. 21 itself.
Perhaps one should add: ‘possessing no more element of hard treatment than is necessary to communicate the censure’. But see n. 1, first paragraph.
As Lucia Zedner pointed out to the authors, this is recognised by retributivists in the promotion of equality of impact over formal equality before the law. This concept stood behind the introduction of unit (or day) fines in many European jurisdictions (Ashworth 2010, Chap. 7: ‘Equality before the Law’, esp. 253). On the subjective experience of punishment, see Kolber (2009), and for brief discussion, Vincent (2010: 92).
Likewise, a period in prison for a juvenile offender may be more burdensome than the same period for an adult offender (and not least, because the opportunity costs are greater). See Zedner (1998: 173).
‘Determined’ is preferable to ‘anchored’ here. The suggestion that every sentence be individually anchored, it may be objected, is a contradiction in terms, since the very notion of anchoring presupposes that some punishments are not anchored, but derived from the punishment or punishments that is or are anchored.
References
Ashworth, A. (2010). Sentencing and criminal justice (5th ed.). Cambridge, UK: Cambridge University Press.
Benn, S. I., & Peters, R. S. (1959). Social principles and the democratic state. London, UK: George Allen and Unwin.
Braithwaite, J., & Pettit, P. (1990). Not just deserts. Oxford, UK: Oxford University Press.
Duff, A. (1999). Punishment, communication and community. In M. Matravers (Ed.), Punishment and political theory (pp. 48–68). Oxford, UK: Hart.
Duff, A. (2001). Punishment, communication and community. Oxford, UK: Oxford University Press.
Feinberg, J. (1965). An expressive theory of punishment. Monist, 49, 397–423.
Fish, J. M. (2008). An eye for an eye: Proportionality as a moral principle of punishment. Oxford Journal of Legal Studies, 28, 57–71.
Galligan, D. J. (1981). The return to retribution in penal theory. In C. F. H. Tapper (Ed.), Crime, proof and punishment: Essays in memory of rupert cross (pp. 144–171). London, UK: Butterworths.
Gardner, G. (1958). The purposes of punishment. Modern Law Review, 21, 117–129.
Kaufman, W. (1973). Without guilt and justice: From Decidophobia to autonomy. New York, USA: Peter H. Wyden, Inc.
Kleinig, J. (1973). Punishment and desert. The Hague, Netherlands: Nijhoff.
Kolber, A. (2009). The subjective experience of punishment. Columbia Law Review, 109, 182–236.
Raz, J. (1982). The claims of reflective equilibrium. Inquiry, 25, 307–330.
Sadurski, W. (1985). Giving desert its due. Dordrecht, Netherlands: Reidel.
Shafer-Landau, R. (1996). The failure of retributivism. Philosophical Studies, 82, 289–316.
Shafer-Landau, R. (2000). Retributivism and desert. Pacific Philosophical Quarterly, 81, 189–214.
Shaw, W. (1980). Intuition and moral philosophy. American Philosophical Quarterly, 17, 127–134.
Singer, P. (1974). Sidgwick and reflective equilibrium. Monist, 58, 490–517.
Tasioulas, J. (2006). Punishment and repentance. Philosophy, 81, 279–322.
Van Ness, D. (1995). Anchoring just deserts. Criminal Law Forum, 6, 507–517.
Vincent, N. (2010). On the relevance of neuroscience to criminal responsibility. Criminal Law and Philosophy, 4, 77–98.
von Hirsch, A. (1985). Past or future crimes: Deservedness and dangerousness in the sentencing of criminals. New Brunswick, USA: Rutgers University Press.
von Hirsch, A. (1990). Proportionality in the philosophy of punishment: From ‘why punish?’ to ‘how much?’. Criminal Law Forum, 1, 259–290.
von Hirsch, A. (1992). Proportionality in the philosophy of punishment. Crime and Justice, 16, 55–98.
von Hirsch, A. (1993). Censure and sanctions. Oxford, UK: Clarendon Press.
von Hirsch, A., & Ashworth, A. (2005). Proportionate sentencing. Oxford, UK: Oxford University Press.
Waldron, J. (1992). Lex talionis. Arizona Law Review, 34, 25–51.
Walker, N., & Padfield, N. (1996). Sentencing: Theory, law and practice (2nd ed.). London, UK: Butterworths.
Wood, D. (2010). Punishment: Nonconsequentialism. Philosophy Compass, 5, 470–482.
Zedner, L. (1998). Sentencing young offenders. In A. Ashworth & M. Wasik (Eds.), Fundamentals of sentencing theory (pp. 165–186). Oxford, UK: Clarendon.
Acknowledgments
We thank Kat Brazenor, Angela Hendley-Boys, Zach Hoskins, Bruce Langtry, Alice Muhlebach, Laura Schroeter, Lucia Zedner and the Journal’s anonymous referees for useful comments and helpful suggestions. Earlier versions of the paper were presented at conferences of the American Law and Society Association, the Australian Society of Legal Philosophy and the North American Society of Social Philosophy. The financial support of the Australian Research Council is gratefully acknowledged.
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Roebuck, G., Wood, D. A Retributive Argument Against Punishment. Criminal Law, Philosophy 5, 73–86 (2011). https://doi.org/10.1007/s11572-010-9109-2
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DOI: https://doi.org/10.1007/s11572-010-9109-2