Retribution, The Limits Of Punishment, And The Question Of Unenlightened Motives

Cells of the prison on Alcatraz Island. Posted to Flickr by marine_perez; used under Creative Commons licence.

In last week's New Yorker, the classicist and political scientist Danielle Allen has a searing personal history essay about her cousin Michael, who enters the criminal justice system as a result of minor crimes at age 15, gets derailed in life, and ends up dead -- murdered at a young age.

You should read the whole piece. It is a heartbreaking personal story and also a commentary on race, culture, and the concept of punishment in the contemporary US. Like many young black children, Michael confronts a series of obstacles. Like many young black men, when he gets into trouble, his crimes are punished in ways that are wildly disproportionate.

As Allen explains, among other things Michael was caught up in a serious of specific criminal justice policy changes, motivated by general societal fears and ideas about what the concept of punishment is for. In 1994, eighteen months before Micheal got into trouble, California's Three Strikes and You're Out law had gone into effect: three felonies means twenty-five years to life or a plea deal. In 1995, panic over rising carjackings had led the state to lower the age at which a teenage can be tried as an adult for that crime to 14 years old. Micheal tried to steal a car; the prosecutors found a way to charge him with four felonies based on what the police said were spontaneous confessions at the hospital after he got shot by the car's owner.

From a philosophical point of view, Allen says that California legislators had not only given up on prison as rehabilitation, they had also given up on the idea of prison as retribution. Retribution, as she says, "limits how much punishment you can impose." "Anger drives retribution," she says. "When the punishment fits the crime, retribution is achieved, and anger is sated; it softens."

The policy on carjacking was not about retribution, it was about deterrence. It was driven by fear, and the crafters of the policy were focused on aggregate crime statistics. As Allen says, "The target of Michael’s sentence was not a bright fifteen-year-old boy with a mild proclivity for theft but the thousands of carjackings that occurred in Los Angeles." This is dehumanizing, and wrongly puts the massive burden of society's problems onto a young man's shoulders.

From a philosophical point of view the question about punishment as deterrence versus punishment as retribution often occurs in the context of the debate over ethical theories that are "consequentialist" -- in which we should aim at the production of the most well-being overall -- versus theories that are "deontological" -- in which we should follow certain rules and respect certain specific values.

It is partly because I agree with Allen's perspective on the problems of "aggregative" moral reasoning that I am not a consequentialist; as I've written about, I believe in justice and other values, and I think these values put constraints on our behavior. One of those constraints would concern the appropriate limits of punishment. 

The theoretical debate between consequentialism and deontology is massively complex, and I can't hope to contribute something to that debate here. But I would like to comment on the mood, tone, or quality of motivations associated with retribution versus deterrence.

In my experience, retribution is sometimes informally regarded as a problematic concept, arising from base and unworthy emotions. It is associated with motives that are thought to be low, unenlightened, and uncivilized.

We evolved to have retributive moral judgments, so the thinking goes, because back in the day, evolutionarily speaking, punishing was needed to keep community members in line. But we thinking people should rise above these base motives. Once we know our aim or goal is to make the world a better place, we don't need base motives like anger or retributive judgements. Instead we can cooly calculate which action will have the best effect, and simply do that. Deterrence is seen as "helping" while retribution is seen as abusive.

I once joined a multi-disciplinary audience listening to a speaker talk about ethics and robots. You want your robots to do good things and not bad things, but what does that mean? There was a general sense that the robot-makers wanted to answer the question with consequentialism: do the things that will bring about well-being overall. Aggregate.

In discussion, I tried to explain what seemed to me the importance of moral responsibility, and the inchoate sense I had that moral responsibility was something we do, and should, ascribe to humans. It matters why things are the way they are and who made them that way. Maybe the choices of robots could be tracked back to creators, so that a person would take responsibility for the choices the robot made.

The other people present really did not agree with me -- especially the computer scientists and engineers. They suggested that "moral responsibility" sounded like I wanted to punish people. And wasn't retributive punishment so barbaric? Who needs it? If you're being constructive and positive, you focus on the future. You want good results. Who cares why things are the way they are, except insofar as it's useful for thinking how they should be?

If we'd had more time, I would have tried to explain how, far from being barbaric and unenlightened,  responsibility and retribution fit into what I see as a human way of interacting, that values and respects people for themselves, for who they are, as individuals -- that aggregating people is more like managing them than caring about them.

I realize this brief foray into the cultural moods of retribution and deterrence does not settle the theoretical issues in debates over moral philosophy. But I was so moved by Allen's way of bringing out the potential humaneness of the retributive point of view -- how, far from being base and uncivilized, that framing encourages us to see individual people as worthy of respect, and forces our attention to the limiting of what counts as an appropriate punishment.