A victim (what is referred to as “society’s moral

A conversation. . .

 

Punishment is a way for society to restore the human dignity of the victim (what is referred to as “society’s moral outrage”). As individuals, when we are harmed, we typically experience anger as a reassertion of our sense of right. That is because it’s our way of saying “I matter and I reject the notion that X was fair.” Punishment through the criminal justice system is basically the way that we balance that need, as well as the way that society makes a collective statement about right and wrong. It’s usually incredibly important for society to do this, particularly in cases of crimes for which social mores might be at fault (i.e. rape) or for which underlying power dynamics might suggest that people matter more than others (i.e. white collar crime) or for which a justification for the crime, even if levied by only a fragment of society, might put the human dignity of the victim at issue (i.e. hate crimes or police shootings of minorities). Check out peace and justice stuff on collective violence and anger/forgiveness for more. Although there is a level of precariousness after collective violence that isn’t present after (most) ordinary crime, the same psychological elements are at play . . .

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Retributive justice has a good claim to being the most human/rights-respecting of all the considerations that criminal justice system (CJS) takes into account. The most influential penal theorist in this area is Andrew Von Hirsch, and he basically points out that only retributive justice (the idea that you should be punished if you “deserve” it) prevents your punishment from becoming contingent on morally arbitrary factors beyond your control.    For instance: the deterrence rationale suggests that we should punish someone society overwhelmingly believes is guilty, even if he/she is innocent. The social protection rationale suggests that we lock the socioeconomically disadvantaged in prison, even if their crimogenic factors are formed by circumstances beyond their control.   Retributive justice explicitly says that for “you” to be punished, the CJS needs to explain to “you” why you “deserve” punishment. IT is not good enough to point at social utility, to point outside you, when your rights are being taken away. Hence under retributive justice factors, “intrinsic” to your become important. Your choice and agency become crucial: to what extent where you genuinely “responsible” for that criminal act?

So while retributive justice is often taken to mean something like the lex tailonis, its modern form is really quite benevolent. If (alone) suggests that we are absolutely prohibited from punishing the innocent, that we punish the socioeconomically disadvantaged less than we might privileged groups, that we view carelessness with more leniency than we might malice (which is a good intuition pump), etc. A CJS without retributive element –which operates solely based on social protection + deterrence + rehabilitation – would be (essentially) strictly utilitarian, which is creepy.