I’m currently reading a very interesting work by Deirdre Golash, The Case Against Punishment. One particularly rich chapter concerns retributivism, or the view that “it is the wrongness of the criminal act that justifies the imposition of punishment on the offender” (p. 49). Golash distinguishes two versions of retributivism: first, a version that centers on the victims of crime, and second, a version that centers on the justified anger of the community. I’ll address the second version in a later post, but let’s examine the first argument.
The first version of retributivism conceives of crime as an assertion of moral superiority by a criminal over the victim. Punishment, then, allegedly restores the moral equality of the criminal and victim by “deflating” the alleged moral superiority of the criminal. Of course, crimes cannot be literally taken back, but on this view the punishment does not respond to the harm of the crime itself (compensation does that) but rather the unequal status relation between criminal and victim that the crime asserts.
Golash notes that the assertion of moral superiority by the criminal could be interpreted in at least two ways. First, it could be an assertion that the criminal has some moral value X, relative to the victim’s true moral value V, where X > V, and where the criminal’s true moral value X’ = V. Second, it could be that the criminal’s true moral value X’ < V, because the crime degrades the criminal.
(We might worry about other possibilities too. What if the victim and the criminal are particularly vicious individual? That is, what if the victim’s value V < M and criminal’s value X’ < M, where M is some widely accepted moral standard? Does the relative assertion of superiority matter then? Is the real issue the assertion of superiority relative to some common moral standard?)
Let’s consider how exactly is it that punishment allegedly “undoes” the false assertion of moral inequality. What’s needed beyond compensation is something that restores the victim’s entire moral status. But the problem is that this “something” needn’t necessarily be punishment. Why couldn’t it be an apology, or a recognition of wrongdoing, or even compensation? Any of these actions could express evidence for the victim’s real moral status. What is specifically necessary about punishment?
Punishment is necessary to satisfy a victim’s desire that the criminal be deprived of liberty. Golash notes that the victim may describe her desire in other ways, such as a desire to deny his asserted superiority, or a desire to see him suffer, but there is no way to describe her desire without reference to causing the criminal to lose his liberty. She could not justify punishment if, for example, she desired “that the criminal suffer, but only so long as he doesn’t lose his liberty.”
But the desire to deprive the criminal of liberty needs justification because it violates the criminal’s prima facie right to liberty. It requires us to affirm that the victim’s desire is more important than the criminal’s right. And to affirm this, we would need to affirm that the V > X’, where X’ is the criminal’s true moral value. But the intended outcome was to show that V = X’, not that V > X’.
Nor could punishment, on this theory, be sufficient to assert the moral equality of criminal and victim, precisely because punishment asserts that the victim’s desire to deprive the criminal of liberty outweighs the criminal’s right to liberty.
What her argument shows is that punishment is neither necessary nor sufficient to reassert the equal moral status of criminal and victim. But consider the second account of the moral inequality asserted by crime, in which the crime gives false evidence for X > V, but true evidence for X’ < V. So if punishment asserts that the criminal has a lower moral status than the victim, it is justified by an account of crime whereby the criminal’s moral status gets reduced by the crime.
But as Golash points out, there are deeper problems with this second approach. Suppose the criminal is a kidnapper. If the criminal gains his new, lower moral status by virtue of the crime of kidnapping, is this moral status temporary or permanent? If it’s temporary and ends after the completion of his punishment, there is an asymmetry–we didn’t think that the victim regains his moral status when he’s released from the kidnapper’s control. And if it’s permanent, then there is no reason to end his punishment, ever. But no one believes that all punishments should be indefinite.
Golash notes that a defender of retribution might say that “the punishment makes a statement not about the [criminal], but about the value or validity of [the criminal’s] act” (p. 59). But if then there is another asymmetry–we say that crime expresses something about the victim, but punishment doesn’t express anything about the criminal. And the thought that crime expresses the moral inferiority of the victim was the original impetus to punishment in the first place. So, this asymmetry needs to be justified, and if it can’t be, then we’re in trouble.
However, there is one big objection available against Golash’s assertion that we have a prima facie right to liberty. Her assertion apparently assumes that a right to liberty is a right against deliberate interference. But what about a moralized conception of liberty, which is a right against deliberate wrongful interference? If liberty is moralized, then a criminal’s right to liberty isn’t violated or overridden by morally justified action.