Retribution and drug crimes

This is the fourth installment in a series on retributive justice. In the first piece, I defined the retributive model and contrasted it with other justice models, particularly the rehabilitative model. In the next piece, I described how the retributive model recognizes the evolutionary status drive in humans, and harnesses it to the benefit of crime victims and criminal wrongdoers. The third installment continued the evolutionary development theme by describing third-party punishment. Here, I will apply the retributive model to drug crimes.

Retribution in the criminal justice system can and should be applied in drug crimes, though the rationale for doing so is not immediately apparent. Retribution is easiest to accept when applied to direct victim crimes such as murder, rape, battery, robbery and burglary. When a criminal physically harms a person or their property, there is a primal instinct for retaliation and retribution by the victim and by others on behalf of the victim. This retributive instinct is not as strong when it comes to drug crimes, making its application less intuitive. There are, however, sound bases for applying the retributive model to drug offenses.

Jean Hampton, co-author of the book Forgiveness and Mercy, argues that there are two bases for retributive theory: (1) punishment as a defeat, a status injury; and (2) punishment as indicating value through protection. Both apply in drug crimes.

First, the status injury. Almost universally in the United States, legislatures, elected by the people, have decided that drug possession and use should be criminalized. This represents a sophisticated, third-party punishment model that I discussed in a previous installment in this series. You can read it here. Third-party punishment evolved as a mechanism to reinforce cooperation among groups of humans. The evolutionary basis for third-party punishment is that when the group prospers, the individual is more likely to prosper. Thus, the group is incentivized to punish behavior detrimental to the group, and thereby the individuals within it, even if the behavior has no direct victim, such as drug offenses.

Criminal drug laws signal that society condemns drug abuse. This should be no surprise. Drug abuse is terribly damaging to individuals, those around them, and the community at large. Formalizing the condemnation of drug abuse into criminal laws with punishment creates a status difference between drug offenders and non-offenders. Drug offenders, in breaking the law, incur a status injury.

Some people object to this status differential and call it a stigma. There are calls to remove the stigma of drug abuse. It is the stigma, though, the status injury, that is the most important component. Status injuries are powerful. As I described in a previous piece on this topic, humans are acutely sensitive to status. Exacting a status injury on someone sends a message that their behavior is not tolerated. Keep in mind here that under the retributive model, deterrence is not the goal. Deterrence may result, and that is good, but it is not the aim of retribution. The aim of retribution is to inflict the status injury or defeat, to create the status differential as an expression of the group’s values. Criminal laws against drugs do this effectively.

Hampton’s second basis is that punishment indicates value through protection. Retributive punishment signals, to the offender and the community, that the person being punished is valuable to society, and that the group and the individual would be better off if the wrongdoer corrected his behavior. The corrective mechanism, which is the punishment as a status injury, provides an incentive for the offender to change his behavior. Along with this incentive, suffering through the punishment gives the drug offender a path back to their prior status in society. True and lasting status is earned, not conferred. It is earned through meaningful suffering. Retributive model punishment provides that meaningful suffering through which the offender can earn regained status. Through this incentive and pathway process, the group is attempting to protect its valuable resource, the offender.

Despite there being a sound foundation for applying the retributive model to drug crimes, not all are convinced. Some argue drug possession and use should not be criminalized at all. They say that the issue of drug abuse is a medical issue. Others, while accepting that drug possession and use are properly criminal, argue that they are victimless crimes and should be addressed by rehabilitation not punishment. Neither of these arguments withstands scrutiny.

The rehabilitation model purports to provide mechanisms for drug abusers to change behavior. In my experience, though, such rehabilitative efforts do not work. Perhaps one day science and technology will progress to the point where a significant portion of drug abusers can be effectively and consistently rehabilitated through medical interventions. That does not currently exist. And, the reality is that it will never exist for the majority of criminals. Over fifty percent of crime is committed by sociopaths, for whom there are no known effective psychiatric interventions. In fairness, it should be noted that the retributive model will not work on sociopaths, either. The difference is that retribution is not caught up in the outcome in the way the rehabilitative model is. The retribution is simply applied, and it is up to the offender to change or not.

To the second point, drug offenses are not victimless. On the contrary, the drug abuser is a victim, those around him are victims, and society at large is a victim. Drug abuse also drives or is at least a contributing factor in most of the direct victim crimes.

The rehabilitative model does not work well because it is fundamentally at odds with reality and human nature. It does not recognize the damage done by drug abuse. It seeks to remove the stigma rather than create a status injury. It confers victim status on the offender rather than the offender earning regained status. It incentivizes perpetual victimhood. And it provides no pathway back to prior status through meaningful suffering.

Punishment, on the other hand, as delivered by the retributive justice model, recognizes the victims, dignifies the offenders, signals their conduct is wrong, provides incentive for change, and offers meaningful suffering as redemption.    

Thus, retribution is properly applied to drug crimes. Though not as obvious as direct victim cases, the rationale for the retributive model is present for drug offenses. A more retributive approach to drug crimes would benefit society as well as drug abusers. When we are thinking about how to deal with drug crimes in our communities, we are best served by applying the retributive model when possible.