Our justice system relies on a mix of philosophical underpinnings. They include deterrence, incapacitation, utilitarianism, restoration, reformation, and rehabilitation. Foremost, though, I believe, 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.”
Retributive justice can sound harsh to some, yet it confers the most personal agency on the wrongdoer.
In a pure retributive model, the penalty is derived from the crime, not from an analysis of the defendant. The focus is backward-looking; he is punished for what he did. There is no attempt to assess the character of the defendant. There is no crystal-ball-gazing effort to predict whether the defendant will commit future crimes. The defendant is punished not because he is bad, not because he is broken, not out of vengeance. There is no judgment on his soul. He is not a clay for the system to mold. He is punished simply because he committed the crime. In this way, he retains agency.
Much of the time our current system follows, not a retributive model, but a rehabilitative one. Pre-arrest diversion, pre-trial services, treatment plans, problem-solving courts, probation, community corrections programs, and re-entry programs, are all elements of a rehabilitative model.
The rehabilitative model sounds benevolent, yet it can sometimes crush personal agency.
As C.S. Lewis wrote:
“of all tyrannies, a tyranny sincerely exercised for the good of its victims may be the most oppressive. It would be better to live under robber barons than under omnipotent moral busybodies. The robber baron’s cruelty may sometimes sleep, his cupidity may at some point be satiated; but those who torment us for our own good will torment us without end for they do so with the approval of their own conscience. They may be more likely to go to Heaven yet at the same time likelier to make a Hell of earth. This very kindness stings with intolerable insult. To be “cured” against one’s will and cured of states which we may not regard as a disease is to be put on a level of those who have not yet reached the age of reason or those who never will; to be classed with infants, imbeciles, and domestic animals.”
Personal agency is what is required for a criminal defendant to change his behavior. The most rehabilitative thing we can do is apply retribution for the crime, and allow the individual to choose what path to take from there.
Our current system, though rightly relying on a mix of rationales, more and more emphasizes rehabilitation. I suggest it should emphasize retribution instead. I plan many more articles on this topic. The purpose of this one has been to define retributive justice and to broadly contrast it with the rehabilitative approach. I hope you find it useful and come back for more.