On May 17, 12:35 pm, "Kingo Gondo" gmail.com>
wrote:

So your proposing a particular "Retributive Theory of Punishment" and
I was wondering if you could justify it with a few sentences. Here is
a presentation of the political philosophy view;

The Individual & the Poliical Order
An Introduction to Social & Political Philosophy
-Norman E. Bowie & Robert L. Simon
http://www.amazon.com/exec/obidos/tg/detail/-/0847687805/

2. - The Retributive Theory of Punishment

One of the major classical retributive theorists is Immanuel Kant. It
is useful to begin with his theory because it contains most
propositions that retributivists defend and because it is so
uncompromising. The basic propositions of Kant's theory are the
following:

1. Punishment can be inflicted only on the ground that a person has
committed a crime.

2. Judicial punishment can never be used merely as a means to promote
some other good for the criminal.

3. If a person commits a crime, that person ought to be punished. In
fact, it is immoral if the criminal is not punished.

4. The degree and kind of punishment are determined by the crime
committed.

One should note that to Kant the commission of a crime is a sufficient
condition for the infliction of punishment. Kant's comment in this
regard might be considered by some as quite shocking:

Even if a civil society were to dissolve itself by common agreement of
all its members... the last murderer remaining in prison must first be
executed so that everyone will duly receive what his actions are worth
and so that the bloodguilt thereof will not be fixed on the people
because they failed to insist on carrying out the punishment...

Those guilty of a crime must be punished if justice is to be done.
Some retributivist theorists, but not Kant, give proposition 3 an
additional twist. They argue that criminals not only ought to be
punished, but indeed have a right to be punished. Sometimes this is
expressed by saying that the criminal has willed punishment or that he
has contracted for it. One way of explaining this proposed condition
is to take the overall perspective of the present book. We view
political institutions as means for implementing individual rights and
for resolving conflicts of rights. Presumably individuals concerned
with these rights would choose to live in such a society as we have
described. However, in accepting the benefits of such a society,
justice requires that one accept its obligations as well. Thus, there
is a sense in which the criminal has willed punishment and indeed even
has a right to it. Hence, we add yet another item to our list of
propositions that retributivists might hold.

5. If a person commits a crime, the person has a right to be punished.

Our list of five propositions indicates that retributivists may come
in many forms and share the label "retributivist" with varying degrees
of enthusiasm. A less extreme retributivist would defend fewer
conditions. Our interest is not the verbal one of deciding how many or
what propositions one must uphold if he is to be called a
retributivist. Rather we wish to discuss the plausibility of the
retributivist conditions to discover if any are acceptable. Since
proposition 5 is not an essential element of contemporary
retributivist views, we omit it from our discussion.

Acceptance of the first two propositions of the retributivist theory
is essential if penal institutions are to be considered just. The
first condition requires that a person be found guilty of a crime
before being punished. The second condition requires that punishment
be meted out in response to the crime and not inflicted simply to
promote the good of the criminal. The first condition rules out the
use of punishment (perhaps of innocent persons) simply to benefit
society. It also protects persons from preventive detention and from
any other device that would in effect punish them before a crime was
actually committed. The second condition protects a criminal from
imprisonment, beyond the terms of his sentence, on the grounds that
continued imprisonment is in that criminal's best interest.

Condition 3 is also acceptable so long as it is understood that
condition 3 does not make punishment obligatory. What condition 3 does
is to say that it creates a presumption that punishment is appropriate
or justified without having to show that any given instance of
punishment also promotes utility. If a person makes a promise, he or
she ought to keep it. However, sometimes the obligation to keep a
promise must yield to a higher moral obligation. As it is with
promisekeeping, so it is with punishing.

Proposition 4 brings the utilitarian-retributivist conflict into sharp
focus. The utilitarians argue that the amount of punishment should be
determined by consequences and hence the amount of punishment should
only be great enough to provide deterrence. The retributivists have
another answer, which goes back at least to Aristotle. Aristotle
argued that the purpose of legal justice was to right wrongs. For
Aristotle, this meant the reestablishment of a kind of equality. A
crime has upset the moral order and the punishment is designed to
equalize the offense and set the moral order right. In this way one
can speak of the punishment fitting the crime. This equality condition
has also found expression in the popular notion of "lex talionis," an
eye for an eye, a tooth for a tooth. Despite the expression "an eye
for an eye," the equality condition is seldom interpreted to mean that
there should be some kind of exact equality. Although you could punish
a murderer by taking his or her life, many crimes can't have
equivalent punishments-embezzlement, contract violation, and often
libel to name but a few. The point of the equality conditon is that
more serious crimes should be punished more severely. An embezzler who
steals $1,000,000 should not get a less severe sentence than a
shoplifter who steals a coat worth $100.

We reject this retributivist proposition on two grounds. First, we
object on practical grounds. In many cases the determination of
equality is practically impossible. Consider crimes whose chief evil
consequences are at least partially psychological, e.g., libel,
slander, blackmail, even kidnapping-and perhaps rape. How are these
crimes to be equalized? In fact, the legal system has established an
elaborate system of fines and terms of imprisonment, which however
justifiable on other grounds, seems artifical and ad hoc if justified
on grounds of equalizing the harm done or of reestablishing equality
in the moral order. Nor is the practical difficulty simply the problem
of developing a good yardstick. Consider murder. One retributivist
answer is that equalization entails the legal execution of the
murderer. But what is equalized? To execute the murderer is to have
two dead persons instead of one. The moral order has not been
reestablished, unless one simply assumes that morality supports this
kind of retributivism.

The murderer example brings home a significant point. The fact is that
crime does upset the moral order and that in a significant sense the
injury can never be undone. There is no way the moral indignity can be
erased. Nonetheless, there is a sense in which the infliction of
punishment must be equal: Given due allowance for the proper exercise
of judicial discretion, similar kinds of crimes should be punished
similarly.

Finally, retributivism places additional constraint on utilitarian
considerations of punishment. Punishment should be appropriate for the
crime. For example, a hard to detect but minor crime should not be
punished harshly even should it be true that only a harsh penalty
would have deterrent effect (due to the low probability of getting
caught).

In summary we disagree with the retributivists that the state must
punish criminals and we disagree with the retributivist on how the
amount of punishment a criminal deserves is to be calculated. However,
we agree with the retributivists in maintaining that the state has a
right to punish criminals, that a person should only be punished if
found guilty of a crime, and that punishment can never be used merely
as a means for improving the criminal. Moreover, punishment must be
appropriate to the crime and consistently applied throughout the
criminal justice system.

We are now able to show how radically bur point of view on punishment
differs from those who propose treatment rather than punishment as the
appropriate response in dealing with criminals.

Recent emphasis in the social sciences, especially criminal psychology
and penology, has been on the rehabilitation of criminals rather than
on measurements of guilt, responsibility, and the notion of making
criminals pay for their crime. The tendency has been to drop all talk
of punishment and to speak only of treatment. Crime is considered a
type of disease, like malaria or smallpox. The criminal is isolated
from society until cured.

But the blurring of the distinction between crime and illness,
punishment and treatment, is extremely unfortunate for many reasons.
First, surrendering the language of guilt and punishment threatens
human rights. How we talk does make a difference. Once crime is
treated as a disease, it is easy to leave the term of treatment
indefinite. Presently, one serves a fairly definite term for the crime
of armed robbery. However, if committing armed robbery is like being
afflicted with malaria, one is cured only when a group of specialists
representing the state say one is cured. The danger to civil liberties
presented by such a practice should be obvious.

Moreover, the favorable connotations of treatment make it easy for the
state to abuse treatment. Since treatment is supposed to be humane,
there is a temptation to avoid taking seriously the rights of the one
being treated. The procedural safeguards of the criminal trial are not
part of the operating procedures of hospitals. In this regard, it is
instructive to note that it is common practice in the Soviet Union to
commit dissident intellectuals to mental institutions as punishment
for their intellectual heresies. By calling such people mentally ill,
one may "treat" them without even the pretense of a fair trial.

Yet another danger is that those who emphasize the benefits of
treatment have a propensity to "treat" people before a crime is
actually committed. After all, if someone has a disease that manifests
itself in a propensity to commit antisocial acts, shouldn't that
person be treated at the earliest opportunity? Somehow the fact that
the person has not actually committed the crime for which he is being
"treated" gets lost in the shuffle.

Finally, the proportional relation that now exists between a crime and
punishment would be lost if crimes were treated like diseases. As
Herbert Morris has pointed out:

With therapy attempts at proportionality make no sense. It is
perfectly plausible giving someone who kills a pill and treating for a
lifetime within an institution one who has broken a dish and
manifested accident proneness. We have the concept of "painful
treatment." We do not have the concept of "cruel treatment."

A second reason to avoid blurring the distinction between crime and
illness, punishment and treatment, focuses on the loss of individual
responsibility that such a view presupposes. We usually do not blame
one for becoming sick. Illness is something that happens to someone;
it is not something that one does. By viewing crime as a disease, one
implicitly adopts a model that denies human responsibility for crime.
On this point, those who utilize the therapy model for treating
criminal behavior are at one with those who view crime as caused by
society rather than by the individual criminal. An example of this
latter view appears in the writings of Benjamin Karpman. He says:

It is our basic tenet that the criminal is a product of a vicious,
emotionally unhealthy environment in the creation of which he had no
hand and over which he had no control. In so far as society has done
nothing or not enough to alleviate the developing anti-sociality of
the child, it may truly be said that it deserves the criminals it has
and that the criminal is society's greatest crime.

This is not the place for us to argue the merits of the claim that
human beings have free will. It is a presupposition of nearly all
moral philosophy that human beings are at least responsible creatures.
Surely one's background does have important ramifications on how
people behave. In some cases of criminal action, we might agree that
one's background is a decisive causal factor. However, in many cases
we believe people are responsible for their actions. To treat them in
any other way would undermine their self-respect and sense of human
dignity. We can illustrate our point by again quoting from Herbert
Morris:

Alfredo Traps in Durrenmatt's tale discovers that he has brought off,
all by himself, a murder involving considerable ingenuity. The mock
prosecutor in the tale demands the death penalty "as reward for a
crime that merits admiration, astonishment, and respect." Traps is
deeply moved; indeed, he is exhilarated, and the whole of his life
becomes more heroic, and, ironically, more precious. His defense
attorney proceeds to argue that Traps was not only innocent but
incapable of guilt, "a victim of the age." This defense Traps disavows
with indignation and anger. He makes claim to the murder as his and
demands the prescribed punishment-death.

Perhaps those remarks are sufficient to indicate why we reject the
views of those who seek to substitute therapy for punishment and the
views of those who would deny individuals all responsibility for their
actions. In a just state, failure to obey the law is prima facie
evidence that the lawbreaker is being unfair to his fellow citizens.
He is not willing to play by the rules when they work out to his
disadvantage. When faced with such acts of law breaking, an
institution of punishment that respects individual liberty and whose
rules for determining guilt and innocence are in accord with
democratic procedures and the demands of justice is certainly
justifiable. There is nothing ipso facto immoral about punishment. The
rules of punishment reflect essentially political decisions. The
social sciences, by investigating the effects of various rules of
punishment on recidivism, deterrence, and so forth, may help us to
make enlightened rather than unenlightened decisions. Whether the
rules are just depends upon whether the rules conform to the canons of
justice. The rules are also constrained by what we shall call the
retributivist rule of legal justice: Punishment may be inflicted only
on those guilty of committing a crime.

For similar reasons we have grave doubts about the moral legitimacy of
suggestions for preventive detention. The idea behind preventive
detention is to incarcerate people before they actually commit a
crime. Consider the following scenario: An adult man is observed to
daily lurk about the elementary school playground. Police obtain his
identity, and on the basis of information obtained about him, he fits
the profile of a child molester. To prevent his harming a child, he is
incarcerated. The man's incarceration is a paradigm case of preventive
detention.

There are less paradigmatic examples. Some have argued that persons
who are likely to commit crimes if they are out on bail should be
denied bail. In this case, the person has been charged with a crime;
the person has done something-at least prima facie. But the person is
being denied bail on the basis of what might be done. Others have
argued that juveniles who are likely to be repeat offenders should be
jailed rather than released to parents or guardians.

In other words, preventive detention involves incarcerating persons
because they are likely to commit crimes even though they have not, or
jailing persons for a crime for which others who commit the same crime
have not been jailed on the grounds that the person who is jailed is
more likely to commit additional crimes. In both cases, persons are
being jailed for what they are likely to do rather than for what they
have done.

We believe that the same arguments which apply against punishing the
innocent apply here. However, that does not mean that we should stand
idly by and allow persons to be victimized. Society may encourage
potential child molesters to seek treatment so that they will not
commit a crime. Society may keep the potential child molester under
surveillance. Society should provide speedy trials and police
protection for victims and witnesses. There is much that can be done
without preventive detention. However, justice may have costs. Despite
the protections outlined above, on occasion the failure to use
preventive detention will mean that some people will be harmed who
otherwise would not have been harmed. Perhaps this is one of those
cases where there is a genuine conflict between justice and utility
and we come down on the side of justice. As we said before, punishment
may be inflicted only on those guilty of committing a crime.

In summary, the following propositions concerning punishment seem most
defensible.

1. No one can be punished unless found guilty of committing a crime.

2. The rehabilitation of criminals should not be confused with the
punishment of criminals. The rehabilitation of criminals should have
deterrence as one of its goals. All compulsory rehabilitation must be
confined to the term of the criminal's sentence.

3. The amount of punishment is determined by the judicial system. More
serious crimes should usually receive more severe punishments. The
effectiveness of various punishments on deterrence should also play a
major role in determining the amount of punishment.

4. If the rules for the infliction of punishment are to be just they
must be in accord with the principles of justice as outlined in
Chapter Four and with the principle of legal justice (1) above.

Not all instances of law breaking fit this violation-of-fairness
model. In the next section we consider civil disobedience, an example
of law breaking that those who practice it claim to be just. This
special kind of law breaking deserves special attention and it is to
this topic that we now turn.

The Individual & the Poliical Order
An Introduction to Social & Political Philosophy
-Norman E. Bowie & Robert L. Simon
http://www.amazon.com/exec/obidos/tg/detail/-/0847687805/