Retribution and status

I wrote previously about retributive justice, broadly describing what it is and contrasting it with the rehabilitative model. This article is about status as the fundamental rationale for retributive justice.

The retributive model is the best criminal justice model because it reflects our evolutionary development, both as individuals and as a society. In the book, The Status Game, author Will Storr argues that like all living organisms, humans are driven to survive and reproduce—to propagate our genes. As a tribal species, our personal survival has depended on being accepted into a community. Once accepted into the community, we are driven to rise within it—to increase our status.

Status is deadly important. In his book, 12 Rules for Life, psychologist, Dr. Jordan Peterson describes the perils of low status. He argues that humans organize in hierarchies and compete for status within them. When a human loses a status battle, he experiences a decrease in serotonin levels in the brain. He loses out on opportunities, and he feels bad about it. And for good reason. Socio-economic status is correlated with all-cause mortality, meaning, the lower your status, the more likely you are to die from anything and everything. It is vital, existential even, to avoid low status. Increased status has historically meant, and continues to mean, better access to better mates, more and better food, and greater safety for ourselves and our offspring. The higher our status, the better able we are to survive and reproduce.

The retributive justice model squares with this evolutionary development. Retribution is concerned with status. First, the status of the crime victim. When a person is victimized, he or she suffers a status injury, in addition to whatever physical or property damages occur. As legal theorist Jeffrey Murphy writes in his book, Forgiveness and Mercy:

“One reason we so deeply resent moral injuries done to us is not simply that they hurt us in some tangible or sensible way; it is because such injuries are also messages—symbolic communications. They are ways a wrongdoer has of saying to us, ‘I count but you do not,’ or ‘I can use you for my purposes,’ or ‘I am here up high and you are there down below.’ Intentional wrongdoing insults us and attempts (sometimes successfully) to degrade us—and thus it involves a kind of injury that is not merely tangible and sensible. It is moral injury, and we care about such injuries.”     

This is why crime victims have an instinct to “punch back.” We want to immediately regain status by settling the score. Of course, people going around settling scores vigilante-style is not a functional model for justice. The retributive justice model is more controlled. By applying retribution, the state is “punching back” on behalf of the victim. This is a tangible demonstration to the victim, and to the world, that the victim has status, and that the victim’s status should not be diminished by the wrongdoer.  

The retributive model is concerned with the status of the wrongdoer as well. The criminal has harmed his victim, and society, and is punished for that by the state. As such, the criminal suffers a status injury himself. The punishment, though, is both a status injury and a pathway back to the offender’s place in the community hierarchy. As Morris B. Hoffman writes in The Punisher’s Brain:

“For retributivists, punishment is a kind of moral exchange that inheres in the social contract. The wrongdoer, having lost his social standing by defecting, must now suffer his punishment as the price for returning to the social fold.” 

The drive for status is powerful, and for good reason. The retributive model of criminal justice recognizes the fundamental importance of this powerful drive and provides benefits to crime victims, criminal defendants, and society. No other criminal justice model harnesses evolutionary forces in this way. As such, criminal policy should tilt toward retribution.

This article is the second in a series about retributive justice. Future topics will include the evolution of third-party punishment, retribution and drug crimes, a fuller contrast with the rehabilitative model, and a proposal for reforming the criminal justice system in a retributive mode.