Thom Brooks

Thom Brooks (Newcastle University), “On Retributivism,” with commentary by Michael David (Illinois Institute of Technology).  The paper, commentary, and reply can be found here.

Comments

[tnadelhoffer]

First, I wanted to say that I really enjoyed reading the paper and the subsequent exchange of ideas between Thom and Michael. To get the ball rolling, I want to focus on Thom's suggestion that retributivism turned out to be impracticable (not merely impractical) because desert attribution is fallible--i.e., we can never know whether we are actually giving the criminal what they deserve. Thom adopts this view for the broadly Hegelian reason that we can neither read the criminal's mind nor go back in time to the moment the criminal committed the act. As a result, we will at best only be making educated guesses concerning the criminal's actual guilt or desert. For this reason, Thom concludes that while we may from time to time mete out the precise amount of punishment a criminal happens to deserve, we can never know whether or not the person we are presently punishing is getting what they really deserve.

Michael's response can be broken into at least two distinct claims: First, Thom has set the epistemic bar unnecessarily and unrealistically high for punishment. Educated guesses will have to suffice when it comes to desert attribution just as they must suffice in every other domain of human judgment and activity. Second, Thom's point cuts both ways--i.e., the same objection can be levied against forward looking theories of punishment as well. After all, how can we know for certain whether a particular punishment or system of punishment will deter or prevent crime?

While I happen to share Thom's view that retributivism is impracticable, I hold this view for slightly different reasons. Thom first points out that according to retributivism people deserve suffering for committing acts that are explained in terms of the agent's salient beliefs, desires, and intentions. Hence in order to determine how much suffering an agent deserves, we would need to have access to his beliefs, desires, and intentions. But we do not have access to the psychological states of other agents. Therefore, we cannot determine how much suffering an agent deserves. On Thom’s view, in order for our desert attributions to be fully justified, we would need a kind of access to the mental states of others that we simply lack. And since we do not have such access, we can never know whether our judgments concerning desert are justified. While I think Thom has his finger on an interesting problem here, I am not sure I agree with his diagnosis. After all, on his view, so long as we could read the agent’s mind, we would be able to determine precisely how much suffering he deserves.

But what good would mind-reading do here? Even if I could somehow peer back in time and access the agent's beliefs, desires, and intentions, how would that help me figure out precisely what he deserves? Suppose I have infallible knowledge concerning another person's psychological states. How does that, in and of itself, help me know how much pain and suffering they deserve for stealing a candy bar? Or for robbing a bank? Or for invading a neighbor's privacy? Leave aside, for the moment, how we are going to figure out how much people deserve for committing crimes that are mala prohibitum--which pose problems for many retributivistic views. Let's focus instead just on crimes that are mala in se like theft, rape, and murder. How would the total transparency of the mind of a criminal help me determine in any precise manner how much pain or suffering he deserves for the commission of one of these crimes? It's unclear how the mental states of the agents alone are going to help here. What the retributivist needs is a formula that would enable us to plug in the mental states of the agent + a description of the moral or legal rule that was violated and that would produce as an output the amount of pain and suffering that would properly settle the score, pay the debt, etc. But this is precisely what the retributivist cannot give--namely, an account of how the internal relationship between an agent's mental states at the time of the crime and the amount of punishment he deserves is to be determined. Thom correctly points out that Michael's own preferred way of making this determination seemingly makes the relationship external and contingent (and perhaps even arbitrary) rather than internal in the way that the retributivist needs—something I hope to comment upon in a future post.

In short, I think Thom is correct that the retributivist is in trouble on both metaphysical and epistemological grounds. But I think the epistemological worry is more pressing than Thom lets on. It's not just that retributivism is impracticable because we happen not to be able to read other people's minds, it's impracticable because even if we could read other people's minds, we would still have no agreed upon standard for determining precisely how much suffering an individual deserves for acting in a way that happens to fall outside of the sphere of moral and/or legal acceptability. An eye for an eye only works when both people have eyes. Absent that kind of one on one correlation between harm and punishment, what standard are we going to use to make judgments concerning precisely how much suffering someone deserves for having violated a moral or legal rule. Simply insisting that they deserve no more and no less suffering than they caused won't do for two reasons. First, it does not tell us anything about what the decision procedure for desert attribution is going to look like. Second, the retributivist can't appeal to how much suffering an agent caused in determining what he deserves since this is a consequentialist consideration. Rather the retributivist must focus on how much suffering the agent in question intended or expected to cause. And what will an account of this look like? How do you even go about formulating such a thing? Even if we grant that someone deserves to suffer a lot for having intended to cause a lot of suffering, it’s hopelessly unclear how we are ever going to be able to figure out in any rigorous and non-arbitrary way precisely how much suffering is just enough and no more in every context. How much suffering is a lot, anyway? And if there is no clear way of spelling this out, how can we possibly spell out how much suffering someone deserves?

[John K. Alexander]

I have some comments regarding Thom Brooks very interesting and thought provoking article. These comments are made not having read the comments by Michael Davis, so if I go over what has already been said, I apologize.

1. If we, as a community following established and publicly recognized procedures for creating and implementing the parameters necessary for social stability, decide that if a person who does a should receive x, then what more do we need to have established in order to determine what a person deserves? I am reminded of wage negotiations as the paradigm for establishing what is just relative to some practice. Assuming no external compulsion to act, it seems reasonable to maintain that performing a certain action will result in another certain action being performed toward the person who performed the original action because we can presume that all persons implicitly agreed to this on the basis of their social role as citizen. (I am following Socrates’ argument in Crito)
2. Page 2: Re the 1st entailment re retributivism – it seems to me that the only entailment here is that we must punish those who a guilty of doing a crime that we catch and convict. I am sure that some people get away with performing crimes that will never be punished. This does not mean that the retributive concept of punishment is flawed. If we must punish all those who commit a crime, then all theories of punishment are flawed.
3. It is also important to remember that punishment does not denote a reciprocal relationship between ‘deserves’ and ‘wants’ such that if John deserves x then John wants x. There are many situations, not involving punishment, where a person gets what she deserves, but does want it. Grading or a demotion in rank and status as examples.
4. I am a bit unsure of the 4th entailment in that I am inclined to think that the value of the offense is not solely dependent on the act, but also includes some reference to how the act is perceived by the community re its established norms, values, and practices. For simplicity sake, stealing is wrong in the legal sense wherein punishment is relevant, simply because it violates the law prohibiting stealing that all have agreed to (re some idea of a social contract). The community itself can establish the severity of the punishment attached to stealing based solely on its perceived harm to the general good. “Proportionality” is a weird concept in that is seems to presuppose some independent standard that denotes the relationship between the act and the punishment, but this I think is misguided. “Proportionality” is simply what the community assigns to an act relative to what it values and seeks to protect and as such can be revised as the community’s standards change. “An eye for an eye, a tooth for a tooth” may very well pertain to the relationship between an act and its ‘proportional’ punishment, but, this relationship is established by the community not the action. As far as I can see, there is no ‘deserved in itself,” there is no “gold standard of ‘desert’ that we can assess” independent of the values assigned by society re the recognized practices for establishing those values. Furthermore, the concept of ‘severity’ as it pertains to the idea that the harm of a punishment exceeds the harm of the crime is also a community standard that can be revised.
5. I am confused as to what is being claimed by the statements, “We only punish deserving people. If there are no such persons, then retributivism cannot be implemented.” (p. 4) Is this only a claim re retributivism, or does it refer to any theory of punishment? I assume that we want to only punish people who commit crimes. I would like to think, maybe misguidedly, that even utilitarians do not want to punish people who did not commit a crime. It seems to me that any worthwhile theory of punishment must start with the minimum requirement that punishment be attached only to those who commit a crime.
6. I am also confused as to why we need to worry about the plurality of moral theories presenting a special problem for retributivism. There may be many differing moral theories, but retributivism is a legal theory of punishment that stands independently of any one moral theory. It is wrong to steal because stealing breaks the law regardless of how a moral theory may view stealing re stealing. Retributivism pertains to the relationship that we have as citizens to other citizens re the laws that have been legitimately put into place to insure social stability. It seems to me that a viable theory of retributivism would include the following:
1. People should be socially sanctioned only for actions they perform.
2. Punishment is a form of negative social sanction that pertains only to those who break the law.
3. In order for the law to have force and to be able to insure social stability, those who break the law should be punished.
4. Therefore, people who break the law should be punished.
5. The deserved punishment is determined by the standards established, following established, publicly recognized procedures that designate how we value the harm created by the action.
6. Any punishment established by following the established and publicly recognized procedures must be just.
7. Therefore, any person who breaks the law and is punished according to the established standards will be justly punished by getting what they deserve.

8. One last comment as this is getting way to long. I am not sure that consequences can be left out of how we analysis actions. The act of stealing x has the consequence to taking x, if x were not taken, then it would not have been stolen, in which case the act of stealing would not have taken place. This being the case, the action and the consequence are connected. It is the consequences of the action that make it good or bad so the retributivist must take this into account. Would we punish someone for performing an action that no one thought was wrong? A retributivist can maintain that the right punishment is the one that correctly identifies persons who performed certain actions and punishes them according to the established standards of punishment.

Thom; Thanks for a very interesting paper.

John K. Alexander

[Thom Brooks]

Response to Nadelhoffer
----------------------
First, it seems appropriate to have one response to Nadelhoffer and a second to Alexander. I will do that now.

Yet, before I begin, I must thank Thomas again for this fantastic and unique opportunity to discuss my work and what I hope others will view as an interesting project, no matter one's reservations.

In short, I entirely agree with his main point. I focus on the question of the problem of mind-reading for retributivists, for want of a better description. Nadelhoffer is right to claim, in essence, 'so what?'

Pure retributivists (as I've called them) make a classic claim. That is, if we want to know the value of justifiable punishment, we need to know the value of one's moral responsibility for some wrong (i.e., their desert for a crime). Problems arise when we are held culpable but not morally responsible, as well as when we are punished for breaking amoral laws. Putting this aside---all things being equal---if I know a criminal's desert x, then his punishment should be set to value x. I claim retributivists cannot do this...and even if we understand x broadly as a range of justifiable punishment, not merely strict equality.

Nadelhoffer rightly claims---so what?---even if I *could* know one's desert value x, this does not translate into x amount of punishment (pain/suffering/deprivation, etc.). It is all well and good to claim x = x (even if x = a range and not one value), but crime and punishment do not admit of this kind of measurement. Retributivism is impractical for more reasons than I acknowledge.

I am happy to concede.

Of course, one of the most fascinating things about Michael Davis's work---and I cannot reiterate how pleased I am to have him as a commentator, as difficult as it remains in adequately responding to his many points (many of which I accept as just criticisms)---is that he has a great model for working out how to link crimes and punishment together, a method I lecture on quite often.

My criticism of Davis's plan is not that it is uninteresting (it is one of the best) or unworkable (it is), but that it is not retributivist (although there are other reasons I disagree with his model).

In particular, it is not retributivist precisely along the lines that Davis acknowledges: retributivists recognize an *internal* link between the value of a crime and its punishment. This internal link is missing with his account. I made a mistake in not fleshing out this criticism much better in my original paper, although I hope it comes across better in my reply.

Finally, I also like the epistemological versus metaphysical point mentioned at the end of Nadelhoffer's remarks. This distinction with retributivism hadn't struck me until Mike Otsuka (and quickly afterwards by Jo Wolff) raised at an earlier airing of the paper. In essence, was I claiming retributivist desert didn't exist or that we couldn't know it. At first I was stumped.

I now only claim the epistemological point (perhaps because it is easier to argue, so out of laziness). Nadelhoffer is then right to jump in and ask 'well, Brooks, then what standard do they use?' I take it that retributivists would hold up some moral view as the gold standard. How do I determine how 'bad' things are? Well, have a peek at what one's moral theory tells you. Desert on this score is a kind of moral responsibility. Retributivists are in their glory when discussing mala in se crimes, not mala prohibita, for precisely this reason. However, with reasonable pluralism with regards to morality, it is beyond impractical to claim one moral standard as the gold standard by which we all judge the goodness/badness of actions. Bentham might have an answer to this question, but sentencing guidelines are not as straightforward. If we want to account for the picture of how things are, then not only is pure retributivism (or certainly any pure theory of punishment) unworkable, but retributivism more generally is unworkable. Talking about it in its purer, ideal form helps make plain general worries.

The upshot is that it is little wonder how often modern retributivists sell theories that look increasingly consequentialist and/or sensitive to consequences. It is little wonder because they need to do so in order to be acceptable. We need a better theory.

[Thom Brooks]

Response to Alexander
---------------------

Let me begin by offering my most sincere thanks John Alexander for his many perceptive and helpful points. I will try to grapple with a few of his main criticisms. I take these criticisms point by point:

1. [Suppose we have established and publicly recognized rules for determining desert. What's the problem here?]

Well, the worry would be that the *fact* you and I recognize this or that as evidence of desert x may simply be other than the fact that a criminal possesses desert x. For example, despite the full use of our courts (jury trial, appeal process, etc.) an embarrassing number of people have been falsely placed on death row. We get the desert of others wrong all the time---and that is simply on the issue of guilt vs. innocence. It is not on the more specific question of 'if guilty, how guilty?' for want of a better way of making the point.

2. [The fact that criminals are not always punished is not a reason to abandon retributivism, nor any other theory of punishment: whichever theory we use it will be imperfectly applicated.]

I agree. I suppose my point was simply to point out that pardons and mercy are not open to retributivists, contra what more and more retributivists are beginning to argue. A minor, but important point. However, if we want to accommodate mercy/forgiveness, I claim retributivism is not the theory we should use. Perhaps we agree on this.

3. [Where desert and wants do not cohere.]

I take this point, although unclear how it poses a challenge to my position in the paper---could you say a few more words about this?

4. [The worry is that 'the offence' is a product of both the act and established norms. I'm wrong to claim that retributivist punishment is aimed at one's intentions to the exclusion of established norms.]

I agree with this to an extent: for me, how society perceived the harm of acts helps explain the sentences it metes out (a point made by Hegel which I highlight in my reply).

The problem of using established norms when thinking about retributivism is this. If we punish someone determined solely by his desert (not coloured by our own views of him, his crime, etc.), then it seems external factors---such as established norms---are irrelevant. They do not determine what his retributivist punishment should be (resting on the internal 'reason' of what his desert is), although established norms may well help explain why we actually do what we do, whatever it is that retributivists prefer.

That said, the appeal for established norms is curious. One such norm is the widespread use of strict liability, such as with certain traffic offences. Here a norm contravenes desert. What is a retributivist to do? They claim we scrap the norm, ending strict liability. Norms and desert are fine when they cohere (perhaps in the 'gold standard' discussed in the paper and in my reply to Nadelhoffer above), but desert trumps when the two are in conflict.

5. My claim that "[w]e only punish deserving people" applies to all theories of punishment (at least ideally---Ellis makes a claim for how deterrent theorists can satisfy this). It is simply laying the foundation of what retributivism is and not (yet) meant to be a criticism of it.

6. [Why is moral pluralism a worry for retributivists? Isn't it a legal theory of punishment?]

My answer is in two parts:

(a) I claim pure retributivism rests on a gold standard. How can we determine proportionality of crime and punishment without a system of measurement, as it were? This measure is moral in nature: we determine one's desert (moral responsibility for a wrongful act).

The problem becomes the fact that many communities are morally pluralistic: they are not monistic. Which standard do we employ? The 'answer' seems to be conventional morality: a morality of all of us in general, yet no one in particular (and, I think, a false standard, not to mention a fiction). There is no one standard (not even conventional morality) we can rely to determine the 'fit' between desert value x and punishment value x. Pluralism in morality is a problem for retributivism.

(b) You are right to say retributivism can also be thought of in legal terms only. But here we most starkly see its inapplicability. We apply (as you note) 'social sanctions' connected to our general agreed upon conventions on dealing with wrongdoers: this is a separate and external matter from individual desert.

In addition, many sanctions/punishments are not connected to desert, such as cases of strict liability and mala prohibita crimes (to name only two).

The model you suggest is more plausible because it appeals to our intuitions about desert (we should punish the guilty) and gravity (sentences should be sensitive to their social contexts, as it were: an important point Hegel and others remind of us of). But it is not retributivist in anything more than a weak sense. How is it so in a weak sense? In all the ways it departs from the model I present in the paper. The more plausible our view, the less this view represents a strong version of retributivism.

8. [On consequences and retributivism]

Here Alexander notes that actions and consequences are connected. There is a difference between criminal attempts and 'following through', for want of a better phrase.

Why would a retributivist punish someone less than another for the same action where one was 'lucky' enough to fail? For example, killer A tries to kill person x with a gun. Killer A kills person x. Killer B tries to kill person y with a gun. Killer B attempts to kill, but gun jams. Person y lives. Should we punish them differently? They each tried equally hard, except one is more successful than the other.

I believe the retributivist would argue we should punish them equally. If we disagree with him, great: I don't want us to agree with retributivists.

The retributivist would argue this because the criminal desert is equal in both cases: what happens next is a product of moral luck.

On the question of punishing people that most/many of us do not think is wrong, there are a number of cases where this happens. We punish people for drug use. Many find this wrong. We punish (in terms of penalties) people who illegally park or speed. Many of us do not find this immoral. Some find prostitution anything but immoral. I disagree, but perhaps we can raise this too. We punish a number of crimes (with penalties and hard treatment) that we don't find immoral. This is a problem for the 'legal retributivist', if we call her this.

I doubt I have answered all of the queries adequately and I certainly welcome a response. It is very kind of you to take such care in reading my paper and providing the many(!) challenging criticisms: my paper will definitely improve as a result! Thanks!

[Thom Brooks]

P.S. For those interested in my original paper, it is accessible both at the top of this page and here: http://ssrn.com/abstract=857364

I criticize retributivism in my paper. For a glimpse of a working draft of a theory I would defend, please see my "An Idealist Theory of Punishment" found here: http://ssrn.com/abstract=869444

[John K. Alexander]

Reply to Brooks: Thanks Thom for taking the time to respond to my comments. I am enjoying this exchange.

1. I agree that a number of people are found guilty who turn out not to have done the action. This is not a failure of the system if the procedures and rules were followed. It is simply the price we pay for having an imperfect system. I believe that it was Brain Berry who pointed out that ‘imperfect procedural justice’ is defined in part by the occurrence of outcomes that turn out to be false but are still warranted given that the procedures that define the process were followed. We should correct these false outcomes as we find them, but this is not a flaw in retributive justice if the procedures and processes that define how we are to determine outcomes were fairly followed. To employ the distinction of Carnap between’ internal’ and ‘external’ issues, this seems to be an internal issue. You seem to be concerned with the ‘external’ question of whether or not retributivism is a warranted theory that we can use to explain and predict what we ought to do. As far as this question is concerned, as a retributivist I do think that innocent people do not deserve to be punished (that seems to be an independently true intuition that does to necessarily result in a retributive theory) and that, at least as far as the present system for determining guilt/innocence is concerned, retributivism provides the best framework for insuring the objective to punish those who a guilty and deserve to be negatively sanctioned because it focuses on the condition of being guilty as a necessary and sufficient condition for being punished. In short, some sort of retributivism best fits our intuition that only guilty people should be punished because it is the theory that focuses on the guilt of the person as a necessary and sufficient condition for being punished.
2. I am not sure that retributivism has to close out consideration of being pardoned or mercy and or forgiveness. I am a proponent of the idea that our linguistic practices (socially constructed) establish our moral and normative framework. Retributivism is a part of these practices. Another feature is the idea of redemption. If redemption is possible, then mercy and forgiveness must be available therefore one may be pardoned. Of course certain criteria for being pardoned must be met and although this is not the place to outline them, certainly at a minimum, one must be honestly contrite and admit that what one did was morally wrong and demonstrate though action that a change of attitude has taken place. So I do think that we can be consistently retributive in punishing the guilty while allowing for attitudinal changes that would led us to forgive and pardon the guilty party.
3. I admit that I am not sure how the idea of desert and wants relates to your thesis. My reason for bringing it up was simply to point out that a person may experience something they deserve that they do not want nor desire. If I remember correctly Plato argued against punishing people because they wanted to be punished because they deserved thing. My point is that we can deserve what we get even if we do not want it. For example, if a person smokes and gets cancer we can say, perhaps hard-heartedly, that he deserved it because of his life-style, but I doubt if he wanted to get cancer. If I enter into salary negotiations and get the salary that is agreed upon, then you can say that I am getting what I deserve as a result of the process. If I later find out that another person negotiated a higher salary for doing the same work as I, I cannot argue that I have been treated unfairly and that my salary should be increased. I am getting what I agreed too and therefore I am getting what I deserve. The same holds for punishment. If I steal and get caught I will be sent to prison. In an important sense I am getting what I agreed too by agreeing to live in the society that I am living in. But, it seems to me that if you are correct and that there are internal reasons, or some internal structure to the concept of desert, in desert that determine what is deserved then I should want what I deserve because I realize that I should get what I deserve and want what I deserve. I take as part of the internal theory of retribution that you are critical of, that part of being a person is tied up with the notion of desert. You cannot have one without the other. So if I want to be a person I will want what I deserve. I reject this because I reject the internal basis for determining the criteria that determines desert
4. As far as establishing ‘desert’ I do think that if we agree that x is the punishment for doing a certain action, then x is deserved by those who perform that action. I do not think there is anything more to it then that. This is certainly an ascription, not a description, of what constitutes dessert. I do not think there is any ‘gold standard’ that exists independently of what we ascribe that we can discover through a correct analysis of what is meant by the sentence ‘ Person B deserves x for doing a.’ We create, thru the establishment of rules and procedures, what constitutes what a person deserves. I believe that there is no internal issue re desert, they are all external relative to the societal norms and values that we utilize when establishing the processes and procedures that define human interaction. This is contrary to your position on what you think would constitute a sufficient retributive theory. I think that actions themselves are morally neutral, they are simply descriptive. Taking something is simply taking something. When we call it ‘stealing’ only after we ascribe a negative value to it that is not contained in the action, but refers only to the consequence of how it affects us re the harm it causes. We can certainly construct an idea of a society were stealing were a norm such that if one stole something and got away with it by meeting certain criteria such as holding on to it for a specified period of time without being caught, then it becomes the thief’s property. We just do not live in this type of society, but that does not rule out the logical consideration of such a society existing. It is thru the establishment of processes and procedures that follow from and are consistent with the norms and values that define society that the issues become internalized (in the Carnapian sense).

Thom claims: If we punish someone determined solely by his desert (not coloured by our own views of him, his crime, etc.), then it seems external factors---such as established norms---are irrelevant.

I have a tendency to think that I am maintaining that because desert is tied to external criteria, then ‘desert’ does not trump anything because there is no ‘desert’ in your sense of the term. You seem to be arguing that somehow for the retributivist the punishment is contained in concept that explains and defines the action such that if we understand the action we will understand what punishment it deserves because the ‘desert’ will be part of the concept. But, I reject, as a retributivist, the internal approach you argue that a retributivist is committed too so the external remain relevant because they in fact define what is deserved.

5. Thom claims: Here Alexander notes that actions and consequences are connected. There is a difference between criminal attempts and 'following through', for want of a better phrase.
Why would a retributivist punish someone less than another for the same action where one was 'lucky' enough to fail? For example, killer A tries to kill person x with a gun. Killer A kills person x. Killer B tries to kill person y with a gun. Killer B attempts to kill, but gun jams. Person y lives. Should we punish them differently? They each tried equally hard, except one is more successful than the other.
I believe the retributivist would argue we should punish them equally. If we disagree with him, great: I don't want us to agree with retributivists.
The retributivist would argue this because the criminal desert is equal in both cases: what happens next is a product of moral luck.
Response: Thom is committed to the position that the intention behind the act is the basis for determining desert. This follows from the internalist position that he has argued for. But, I reject the internal foundation so I also reject the reliance on determining the intention behind that action as having any basis for determining what one deserves. As a retributivist I am committed to the following:
1. We should punish only the guilty.
2. We determine guilt by following certain socially accepted procedures designed to insure the best possible outcome re finding only guilty people guilty.
3. We determine the punishment for the crime by agreeing to what the punishment for specific crimes should be.
It does not follow from these criteria that I have to determine the intention. I only need to focus on the action. Therefore, as a retributivist, I would not punish the two people the same because the actions were different. Also, I cannot separate consequences from actions; they are part of the actions. Therefore, when determining punishment I would argue that we believe that the person who actually killed another person should be punished more severely then one who tried to kill, but failed. This position is consistent with other theories besides retributivism, but I do think that a retributivist can argue for it also. The ‘desert’ is not equivalent in both cases because we can agree that the punishment for the two cases should be different.

Thom, again thanks for responding to my comments.
John A.

[Thom Brooks]

My most sincere thanks to John for what has been a terrific exchange: I cannot thank him enough for pushing me on these various points. Here is how I'll respond to each of his well-put points:

1.a. I agree that imperfect procedures do not damn any theory of punishment: if I have given that sense in my paper, I apologize. In fact, I have argued that retributivists who claim that capital punishment is unjustified because of racial discrepancies is not a retributivist argument *against* capital punishment. A retributivist might demand that if we're not putting sufficient numbers of, say, white murderers on death row, then we should seek to correct this balance. All should get what they deserve. That said, I do believe there are other arguments that are successful that retributivists could use (see my 'Retributivist Arguments against Capital Punishment', Journal of Social Philosophy 35(2) (2004): 188-97).

1.b. I don't agree that retributivism is the best system for determining how we punish or penalize. Given there are offences for which we agree that strict liability is justified and/or mala prohibita crimes are crimes, then retributivists immediately have a problem with the central role they give to moral responsibility/desert. My views on an improved view (in rough form) can be found here: http://ssrn.com/abstract=869444

2. I agree that a view to redemption/mercy is something we want to keep and defend in a justifiable theory of punishment. I also agree language has a role to play in this too. Perhaps then you are closer to Antony Duff's communicative theory of punishment than retributivism...? (And do see Duff's interesting paper on virtue jurisprudence in this conference...)

3. The desert and want idea makes more sense now: my sincere thanks for fleshing it out more for me. Your point seems to be that if desert and punishment are internally related, then it seems to entail that I should want my punishment: 'I realize that I should get what I deserve'. Hmmm. Some communicative theorists, like Duff, might say that ultimately this is what we aspire to in punishing: punishment is like penance and the criminal should deserve redemption. I'm not sure if I murder someone and get what I deserve in some objective sense, then it entails I desire it. Perhaps the self-conscious and reflective murderer will come upon this view. Perhaps that is what makes punishment just: a redeemed criminal should recognize his punishment as his, given to himself from his own actions and not imposed upon by others. I don't know. You don't seem to think this works and I think I agree. We may have to discuss this a bit more and it might be another problem for retributivism's internalism, if I've got this right.

4. On the gold standard worry I have. It seems to me we need a standard by which we assign values of bad to worse for *both* crimes and punishments that is commensurable for both crimes and punishments. If the kinds of value of one are different than those of another, we'll be mixing apples and oranges: desert and proportional punishment won't be linked in the way I've claim retributivism links the two.

Now John rejects this picture. He claims: 'Taking something is simply taking something'. What we call theft's 'harm' is contained only in 'the consequence of how it affects us re the harm it causes'. I am not unsympathetic to the claim, but here's the rub.

The fact is that (most) criminal acts have a mental aspect to them (the actus reus and mens rea) that is (often) necessary for them to be considered crimes. My mental state (baldly) at the time of taking something helps determine my guilt and punishment. Only in those rare cases of strict liability do actions count only as actions, our reaction to them a product of consequentialist concerns (public safety, etc.).

We may well reject this internalist picture: I certainly do for a justifiable theory. But I do not believe retributivism is itself justified. Interestingly, if we scrap its internal part, then we scrap its basic appeal. We punish the murderer severely not only on account of the fact of his action nor later consequences, but on account of his deliberate intentions. Intentions certainly matter for determining murder. One has desert when one has moral responsibility: you either have it at the time or one does not. We often talk of people deserving pain or glory on account of the manner by which they conduct themselves, not merely on the actions themselves. The law (beyond strict liability) looks inward to our intentions with criminal law. This is thought to be a legacy of classic retributivism. I think there's a better way of thinking about it than retributivism and you seem to think too that an external method would be more successful. Where we disagree seems to be on the notion of how 'retributivist' your position is. I've already suggested it appears closer to Duff's communicative theory, instead of retributivism. I don't want to make too much of it. In any event, the kind of theory I am criticising seems unable to respond. What you propose seems sensible and defensible enough, but arguably only to the extent that it largely breaks with the view I'm attacking. Your view seems to claim a notion of deserving for itself and proportionality, but it seems rested on language, social context, and encouraging redemption. I don't disagree. I just don't think that sounds very retribitivist.

5. I take your point on your three criteria for punishment. Worries I have are these:

5.a. If intentions do not matter, how does it account for the difference between manslaughter and murder? Negligence and recklessness?

5.b. Society comes up with what the appropriate punishments are. A classic/pure retributivist might say this. A person may well deserve death. The fact a society does not want to impose it does not mean the persons deserves a different crime, only that his society will punish him with a different crime.

5.b.i. Punishing someone to the degree *we* think he should receive is different from punishing someone because of what *he* deserves. Whether or not the punishment really does map onto the crime seems to be the whim of a society. Is that really a retributivist position? Or is it more Primoratz's punishment as language or a Hegelian-inspired view?

5.c. I take your point that a punishment and consequences should be linked. But for retributivism? The literature traditionally pits consequentialists (often selling deterrent/rehabilitation views) versus retributivists.

I suppose in the end I'd be keen to hear a bit more about the particular view you defend, irrespective of the claims for/against retributivism we've discussed thus far. One implication of my paper is that retributivism so conceived is a dead duck. I would enjoy thinking a bit more about how we might reinvent it.

As before, my sincere thanks for the helpful feedback!

Thom

[John K. Alexander]

Thom – this has been a wonderful experience for me. You have inspired me to read more on retributivism and other theories of punishment and to come to grips with understanding how we can explain and justify punishment. I would like to make a couple of final comments, for now:

If I understand Thom’s position correctly he is maintaining that retributivists need to take intentions as the focal point of determining desert. He writes: “Why would a retributivist punish someone less than another for the same action where one was 'lucky' enough to fail? For example, killer A tries to kill person x with a gun. Killer A kills person x. Killer B tries to kill person y with a gun. Killer B attempts to kill, but gun jams. Person y lives. Should we punish them differently? They each tried equally hard, except one is more successful than the other.
I believe the retributivist would argue we should punish them equally. If we disagree with him, great: I don't want us to agree with retributivists.
The retributivist would argue this because the criminal desert is equal in both cases: what happens next is a product of moral luck.”

I agree that this is the classical retributivist position and is certainly subject to Thom’s argument although I would agrue that there are two distinct actions here, not one whch therefore requires a different ascription of guilt. However even if I grant that there is only one action, I think that retributivists can meet Thom's objection by restructuring their approach to determining desert by simply denying that intentions are necessary and/or sufficient factors in determining who warrants being punished and that we should focus primarily on the action and the conditions (describable) that pertain wherein the action was performed. If intentions do in fact play the central role in determining desert, that Thom argues the retributivist must commit to, then we end up with the following paradoxical situations:
A. Jack and Jill both intend to earn PhD’s in Philosophy. Both of them take the same courses and get the same grades, but whereas Jill writes an outstanding dissertation, Jack get ‘writer’s block” and cannot finish his dissertation. If a person intention is the sole source of determining desert then both Jack and Jill should get their PhD’’s because their intentions were the same.
B. Jack and Jill are undergraduates at the same university. Jill intends to major in philosophy, takes the necessary courses and fulfills the necessary requirements for earning a major. Jack on the other hand does not intend to earn a major in philosophy, but ends up taking the same philosophy courses as Jill does and ends up fulfilling the requirements for a philosophy major. If intentions are the main focal point in determining desert, then Jill earns her major whereas jack must be denied his major.
I think that we can all agree that in situation A Jack does not deserve a PhD, but that in situation B he does deserve a philosophy major and the what Jack deserves is not based, at all, on his intentions, but solely on his actions. I think that we open ourselves up to the ‘intentionalist fallacy’ when we make any claims relating actions to intentions and trying to elevate intentions to a central role for determining either the actions meaning, or what a person deserves relative to the actions performed.

This is not to claim that intentions have no role, only that we do not, in fact, attach desert directly, and solely, to the intentions themselves, but to the actions (including their consequences) of moral agents. We may refer to intentions to determine the severity of the action, but we have already determined the central retributivist claim that punishment is deserved; we may be unclear as to the extent of the punishment deserved. Now, I agree with Thom that classical retributivism would agrue that the extent of punishment deserved is an internal issue, but in so far as I reject the ‘internalism’ thesis, I have to then defend the idea that we can determine guilt, desert and proportionality without reference to internal considerations and still remain retributivists.

This brings me to the last comment I wish to make (for now). Thom challenges me to articulate the position I would like to defend and here I must beg off. Thom’s paper has challenged me to think on issues I have not thought about in years. His paper and responses have encouraged me to undertake a reeducation regarding my position on punishment. I will have to read more of his papers, and some other’s papers, on this subject so that I can adequately (attempt) to meet this challenge. Maybe I will have something ready to submit to next year’s on-line conference. But for the time being let me conclude by saying that I am inclined to refer to my position as “constructive retributivism,” or I might even consider ‘retributive utilitarianism.’ I think that any adequately work out theory must be explained within the context of how concepts are developed and become part of our conceptual frameworks (schemas) that we utilize for understanding (explaining and predicting) and navigating the world we live in. I am inclined to argue that this is a constructive process wherein we learn to construct through our experinces of the world a workable, epistemically pragmatically based set of beliefs about how the world operates, in a descriptive, as well as prescriptive, sense. As such, any idea or belief that we have in a schema is revisable based on experience and utilizing the criteria of coherence and consistency as the basis for establishing truth.

I believe that one of our core beliefs re guilt and punishment is that we ought to only punish guilty people and that only guilty people can be punished (innocent people can be sent to jail, or put to death, but they are not being punished because they have not performed the action to which punishment is attached). There are two senses of guilt that we need to distinguish; 1) guilt meaning actually having the action, and 2) guilt meaning having been found to have done an action based on the available information (evidence) presented and analyzed according to established rules and procedures. In 1 if a person were guilty, we would punish only those who in fact did the action while in 2 we might end up punishing a person who did not do the action but was found guilty according to the rules, etc.

A second belief (or belief substructure) that I think is part of our core beliefs is that the system for determining quilt is an example of imperfect procedural justice that even though we seek to minimize the occurrences of wrongfully finding an innocent person guilty, we will still on occasion find a person guilty who is innocent even though all the rules, etc. have been followed. The classical retributivist is committed to 1, while a constructive retributivist (or retributivist utilitarian) would be committed to 2.

I need to provide an adequate defined and worked out conception of 1) guilt, 2) desert, and 3) proportionality that remains true to the essential features of retributivism, or restructure these features while retaining what is of importance in the retributive position. Thom is correct in asserting that classical retributivism is committed to a position characterized as he has done in his analysis. But, is this all that can be said in favor of retributivism? Not if we look at it through a different lenses, so to speak. And that is what I need to work out.

Furthermore, I think that within any set of beliefs about morality and punishment we find the three “considered judgments” that I mentioned in an earlier response:
1. We should punish only the guilty.
2. We determine guilt by following certain socially accepted procedures designed to insure the best possible outcome re finding only guilty people guilty. (imperfect procedural justice)
3. We determine the punishment for the crime by agreeing to what the punishment for specific crimes should be.

What I need to do is to work out in detail the implications of these three beliefs and show how they can be constructed into a position that would be recognized as being retributivist. Points 2 and 3 do not fit into a classical retributivist theory, so retributivism will have to be recast. I have to clearly answer Thom’s concerns raised in point 5 of his last response (as well as do a more detailed analysis of his paper(s) and other responses). I think that this can be done. Whether it ends up being a retributivist theory, or some other theory as Thom suggests it might be closer too, remains at this point an open question, but one I would never have asked myself without having tried to come to grips with Thom’s very interesting and thought provoking paper and his careful and thoughtful responses to my comments. On last point, I think that any adequate moral theory on punishment must be grounded in the retributivist idea that only the guilty should be punished and that other consideration, i.e., deterrence or rehabilitation, are at best secondary concerns. In an important sense of guilt re punishment we can only punish the guilty, an innocent person cannot be punished, although they can be harmed by the imperfect system. Whether we end up as retributivists remains to be seen.

I have truly enjoyed this exchange of ideas and I have greatly benefited from it. Once again Thom (and the on-line conference in general) has demonstrated that philosophy is, in an important sense, a communal activity and works best when collegial discussions on issues takes place. I look forward to continuing this discussion at a latter time.

John Alexander

[Thom Brooks]

My thanks again to John for this terrific exchange: I hope others have enjoyed reading it as well.

John makes two points and I'll respond to each in turn.

He first queries the use of desert, demonstrating cases which challenge our intuitions. I agree with him on each point (of course, I don't agree with retributivists on desert anyways). It is curious difference though: these examples above highlight entitlement to some kind of reward that may be 'deserved' on account of one's intentions. In the punishment literature, much of the ways we understand desert in positive senses to entitlement/rewards is absent in favour of deserving deprivations/punishment that is 'deserved' on account of one's intentions.

I agree with his analysis of the intentionalist fallacy: that we ought not relate actions to intentions as classic retributivists have traditionally done.

So on point one I believe we agree on items across the board, although he helps spell it out this worry regarding intentions I would do well to spell out more clearly in the next draft of my paper. For this I am very grateful.

This leads to a second, related point: what to do instead of intentions? In short, John's view seems very much like a kind of 'negative' retributivism: guilt is a necessary, but insufficient, justification of punishment. Instead, I prefer his characterization as more or less a kind of utilitarianism: after all, his three 'rules' are all sound, considered judgements (I prima facie have no object to) that have the appearance of a kind of rule-utilitarianism feel about it. Punishment must follow certain rules. If it doesn't, it is illegitimate.

Let me end on a suggestive note. See the following passages from British Idealists:

'[Punishment] is a disapproval founded on a sense of what is necessary for the protection of rights ... It is founded essentially on the outward aspect of a man's conduct, on the view of it as related to the security and freedom in action and acquisition of other members of society' (TH Green, Lectures on the Principles of Political Obligation, sect. 197).

'This view of the object of punishment gives the true measure of its amount. This is found not in the amount of moral depravity which the crime reveals, but in the importance of the right violated, relatively to the system of rights of which it forms a part ... The measure of the punishment is, in short, the measurement of social necessity' and this measure is a changing one' (James Seth, A Study of Ethical Principles, 305).

Society needs laws in order to regulate the conduct of its members to ensure its existence. It does not exist for itself, for the benefit of its members. Laws are justified when they bring satisfaction to citizens and allow the society to stay intact.

We punish crimes to the degree they pose a threat to the laws that bind people together. Murder is punished more severely than gum chewing because it poses a greater threat. Different societies will view threats differently: this difference is reducible to how they view threats.

Is punishment retributivist? For Green and other Idealists, punishment is retributivist, a deterrent, and reformatory: punishment is justified for the reasons stated above. If a reformatory approach does this best, it is justified and so on. In essence, so long as the necessity of the maintenance of a community that brings satisfaction to its members is passed, different approaches become justified. We also see a similar noise (about all theories of punishment stemming from this single justification) in Hegel's Science of Logic (see p 465).

If people would like to push me on these ideas, I'd be very happy to. In my mind, the Idealists are onto something here. They recognize the problem of using intentions and that laws are often not 'immoral'. There is more to the story, but it is a story worth sharing and one I hope to develop in the years ahead.

Thom