Retributive Justice
A compilation of the entire series
Over the course of the last several months, I have published a series of articles on the retributive model in the criminal justice system. The final installment went out last week. I thought it might be useful to collate the series into one long piece so everything could be found in one place. The following is that final product.
Introduction
Our justice system relies on a mix of philosophical underpinnings. They include deterrence, incapacitation, utilitarianism, restoration, reformation, and rehabilitation. Foremost, though, should be the principle of retribution, often referred to as retributive justice.
Retributive justice requires that when a person commits a crime, he is punished, and that the penalty be proportionate to the crime. Under this theory, any social utility the punishment has is merely a byproduct of the criminal’s sentence, not a goal of the sentence itself.
Nineteenth century philosopher, Immanuel Kant, argued, as a moral proposition, that retribution is the only form of punishment a court should consider. He wrote in Metaphysics of Morals, that:
judicial punishment can never be used merely as a means to promote some other good for the criminal himself or for civil society, but instead it must in all cases be imposed on him only on the ground that he has committed a crime.
Retribution, because of its emphasis on punishment, can sound harsh to some. However, as this essay will show, it is grounded in human nature and is an evolutionary building block of civilized societies. Its application in the criminal justice system confers benefits both to the defendant and to society at large. It can be applied to all crimes, and writ large, it can serve as a model for reforming our entire criminal justice system. Let’s begin, though, with retribution’s evolutionary grounding.
Retribution and status
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 the individual and his or her 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 damage occurs. 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 individual evolutionary forces in this way.
The retributive model also harnesses collective evolutionary forces, as seen in the development of third-party punishment.
Third-party punishment
Third-party punishment is a deeply rooted human instinct, as illustrated by the following story:
The boy was whining to his dad for a toy, and the dad was getting upset. I have a memory of watching this play out in line with my mom at the grocery store. I wasn’t much older than the whining boy. Suddenly, the dad hit the little boy, open-handed and very hard, in the chest. The boy collapsed and started crying, and the dad dragged him off. I was scared, but I also wanted to grab the nearest solid object and work the dad over. I didn’t do anything, of course, because I was a kid myself, but the instinct I had to hit the dad was powerful. I suspect you have felt that instinct yourself. It is the human instinct for third-party punishment.
There are a few systems for controlling behavior through punishment that have evolved in humans. First-party punishment is the punishment we give ourselves when we know we have done wrong. It is our guilty conscience. Second-party punishment is when a direct victim retaliates against the person who has wronged him. Third-party punishment is when the punisher is not the direct victim, but is punishing on behalf of the victim or on behalf of the group. The retributive theory in criminal justice relies on third-party punishment.
To put it a different way, first party punishment is conscience. Second-party punishment is retaliation. Third-party punishment is retribution.
Third-party punishment, it appears, is uniquely human. Animals, even social animals like apes, have not evolved third-party punishment in the way that humans use it. It is also a human universal. Third-party punishment has been observed in every human society ever studied.
Though third-party punishment is ubiquitous, it is somewhat confusing from an evolutionary perspective. As a general rule, traits evolve in humans only when individual benefit outweighs individual cost. A person administering third-party punishment receives no direct individual benefit. He is also incurring, sometimes extreme, individual costs. He is putting himself at risk of retaliation from the person he is punishing. He is also risking ostracization from the group if he is unjustly punishing the wrongdoer.
Yet, third-party punishment has evolved. The prevailing theory about why, despite the uneven tradeoff for individuals, is based on ideas of group evolution. Human societies have evolved as large-scale social organizations. Survival of the fittest applies to individuals, but it also applies to groups. The fittest groups, those that survive, are the groups that are best able to cooperate and work toward the common good of the group.
Third-party punishment evolved in humans, it is believed, to reinforce group fitness. Within a group, it is in each individual’s self-interest to cheat and steal. If an individual can cheat others and steal more for himself without getting caught, then he will retain a disproportionate share of the group’s resources. This, of course, is destructive of the group. First-party punishment, the guilty conscience, acts as a check on this. If we had only first-party punishment, though, a guilty conscience would likely be overridden by the benefits gained from cheating and stealing. Second-party punishment provides more deterrence. A thief risks detection and retaliation from his victim, but that requires the victim to find out the crime, identify the perpetrator, and have the ability to effectively retaliate. Third-party punishment, however, provides the most comprehensive deterrence for the cheating thief. With third-party punishment, the wrongdoer must worry about detection from every member of the group. In addition, he cannot rely on the victim being unwilling or unable to retaliate. The group will seek retribution, and no matter how strong the thief may be, the group is stronger. This creates a powerful incentive to cooperate because the risks of running afoul of the group are too high.
From this perspective, third-party punishment does have an evolutionary individual benefit. If the group is healthy, strong and protected, then the individual is safer and more secure, and therefore better able to propagate healthy genes, i.e., his kids and grandkids are more likely to survive and flourish in a healthy group.
In his book, The Punisher’s Brain, Morris Hoffman writes:
It might not be an exaggeration to claim that we didn’t really become civilized until we became willing to punish each other for generalized wrongs to each other. That willingness allowed us to rely with more confidence on the promises we gave to each other, which in turn allowed us to make delayed promises, which gave us trade, divisions of labor, and economies of scale.
Inter-group cooperation and group fitness, then, is vitally important to the development of human societies. And we have developed very sophisticated third-party punishment mechanisms. In modern America, third-party punishment is delegated to democratically elected legislators, law enforcement officials, prosecutors and judges. Citizens have conferred on the people filling these roles the power to make laws, to create penalties, and to enforce those penalties against violators. These powers are spread among various individuals who are electorally accountable to the people as a means of checks and balances on this special power. The checks and balances and democratic processes generally convey legitimacy and acceptance by the citizens, even the wrongdoers.
Through such sophisticated processes, third-party punishment has been consistently applied across time and cultures not just to victim crimes, but also to crimes that do not have a direct victim. The best example is drug crimes. Although drug crimes result in no direct victim, drug use is detrimental to the fitness of the group, and is, therefore, disfavored and punished by the group.
Over the last several years, the pendulum has swung in the direction of being more lenient toward crime, particularly drug crime. This cuts against our instinct for third-party punishment as a tool to reinforce group cohesion and fitness. This instinct has deep-seated evolutionary roots. Human societies have long understood what we seem to be forgetting today. As an example, also taken from Morris’s The Punisher’s Brain, the ancient Hindus mythologized the development of third-party punishment this way:
This is how punishment arose to protect the moral law, for punishment is the eternal soul of dharma. Brahma performed a sacrifice in order to create, and as happiness prevailed, punishment vanished. A confusion arose among men: there was nothing that was to be done or not to be done, nothing to be eaten or not to be eaten. Creatures harmed one another and grabbed from one another like dogs snatching at meat; the strong killed the weak, and there were no moral bounds. Then Brahma said to Siva, “You should have pity on the good people and abolish this confusion.” Then Siva created punishment, which was his own self.
In this scene, the deity Siva is the embodiment of third-party punishment. Siva was activated here specifically to bring cohesion to the group, to improve group fitness. Siva is also the expression of the instinct that lives inside each of us to punish a wrongdoer even when we are not the victim, or just when our group is generally harmed. It is the desire I had, even as a kid, to hit the dad because he hit the child.
Third-party punishment has deep evolutionary roots. So deep, in fact, that it is a universal human instinct. Criminal justice theories that ignore this instinct will always feel amiss. The retributive theory of criminal justice not only acknowledges this instinct, it is the real life application of the instinct. In this way, retributive theory is the most satisfying, it is the most effective, and it is the most just rationale for criminal punishment.
Retribution and drug crimes
With such a deep-seated, evolutionary grounding for retributive theory, it can be applied throughout the criminal justice system. 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 an application of the third-party punishment instinct. Relying on this instinct, 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 described previously, 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. In fact, our entire criminal justice system is in need of reform to a more retributive approach. The next section shows why that is needed and how it would work.
Just punishment
To make the case for reforming our criminal justice system to a retributive model, we must begin with defining the system’s core function. The core function of the criminal justice system is to punish. Because this sounds harsh, some people are uneasy with it. However, as the previous sections elucidate, punishment is embedded in human nature, and it is foundational to the development of civilized societies. Like it or not, punishment is central to criminal justice.
Our current criminal justice system, though, tilts heavily toward rehabilitation. The rehabilitative criminal justice model focuses on delivering treatment and does so for the explicit purpose of changing the behavior of the offender. In contrast, the retributive model delivers punishment solely because the offender broke the law. It exacts a status injury on the offender signaling the disapproval of the group. The punishment is designed to be proportionate to the crime not tailored to the offender. While behavior change may be a happy externality of the retributive model, it is not the aim.
The two models are in sharp conflict, and the rehabilitative model pulls the system away from its core function. It is very difficult for an organization to perform well on tasks outside of its core function. It is also difficult to do well on more than one function at a time.
To illustrate, by embracing rehabilitation, our criminal justice system attempts to provide social work and psychological and medical services. To state the obvious, lawyers are not trained or suited to do these things. Court bureaucracies have ballooned to include large probation departments, community corrections programs, pre-trial services programs, and problem-solving courts. On these tasks, judges, prosecutors, and defense attorneys spend less time analyzing the law and arguing in court, tasks they are good at and only they can do, and more time managing social work-like case plans.
The current model is also financially inefficient. Lawyers are expensive. Many of the roles judges, prosecutors and defense attorneys have taken on can be done by social workers, case managers, therapists or psychologists, who are much cheaper than lawyers. You can hire four social workers for the cost of one lawyer.
In addition, we inefficiently and expensively use jail and prison space. In the rehabilitative model, sentences must be long enough to incentivize treatment, as well as long enough for the treatment regimen to be completed. This frequently leads to longer sentences for offenders when they fail at the treatment programs. In the retributive mode, the incentives are reversed. Punishment must be narrowly tailored and proportionate to the offense. The result is shorter incarceration periods for most offenses, which would be more cost effective.
Narrowing the criminal justice system to its core function does not mean that rehabilitation is not important. It does mean, however, that those services would need to be provided by someone else. The added benefit is that someone else would do a better job of providing them.
Removing rehabilitation from the criminal justice system would decrease the use of local jail treatment programs, pre-trial services operations, problem-solving courts, and probation departments. Stripping these things from the current system would free up vast resources.
While I do not have hard numbers, it is safe to say that tens of millions of dollars are spent in Indiana every year on court run rehabilitation programs and jail facilities. That is enough money to have a substance abuse and mental health treatment facility in every community. Under a retributive model, the criminal justice system would not partner with such a facility. It would not supervise treatment operations. It would simply punish the offender for his actions, then refer him to the treatment center.
A treatment center like this would be accessible. People could voluntarily walk into one for help. It should be free to those who cannot afford it. Further, Indiana already has robust civil commitment statutes that could continue to be used. Police or concerned family members could still petition the court for involuntary commitment. By freeing up resources in the criminal justice system to fund treatment facilities, we could actually create adequate bed space to meet the demand. Mental health and substance abuse patients would interact with doctors, psychiatrists, psychologists, therapists and social workers, instead of judges, prosecutors, defense lawyers and corrections officers. The lawyers would practice law, the doctors would practice medicine, and the social workers would practice social work.
Some may object to this approach by arguing that it requires the coercive intervention of the criminal justice system to get people to go to treatment. I disagree. I believe that conditioning treatment on the threat of punishment corrodes the human dignity and personal agency necessary for change. Also, the two processes undermine one another. A judge tells an offender that if he fails at treatment he will go to jail. Then, the offender goes to treatment where he is told that relapse is a part of recovery. The core functions are contradictory. Further, there is no evidence that the threat of jail improves treatment outcomes. And finally, if coercion is necessary, that power may be applied through the civil commitment statutes without involving the criminal justice system.
Handling crime and rehabilitation is hard. The criminal justice system should not be attempting both at the same time. We would be better off separating the treatment system from the criminal system. This would allow the criminal justice system to focus on its core function of delivering punishment
Conclusion
The closer we can get to the retributive model in our criminal policies, the better outcomes we will see for our communities. This is because retribution is foundational to our evolutionary development as individuals and as a society. It is the most satisfying and the most effective criminal justice model. The principles of retribution can be applied across the full spectrum of crimes, including drug crimes. This is the case even though the application to drug crimes is less intuitive than it is for direct victim crimes. In fact, stripping our current criminal justice system of the other rationales, including the rehabilitative rationale so prominent with drug offenses, would make the system more responsive and more effective. As policymakers contemplate changes to the criminal justice system, and as judges and lawyers exert influence on the system, they should take the retributive approach at every possible stage.