Thursday, December 6, 2012

LD Jan/Feb 2013 Retribution Concepts

For part one of this series, click here.

Reining In the Topic

I think this is potentially a huge topic and finding a specific direction may be a bit difficult for debaters.  For example, when looking at the comparative advantages of rehabilitation versus retribution one may consider the resolution from the vantage point of society, the convict or the victim and find that each may have completely differing points of view which radically changes the framework of the debate.  Each of these points of view are completely legitimate in this debate.  Additionally, there are many differences in the kinds of criminals which also has potentially significant impact on the debate.  The advocacy for juvenile offenders will be quite different from adult offenders as well as citizens versus non-citizens.  Other factors to consider are the nature of the crimes themselves.  Should rehabilitation be valued in cases of child molestation, acts of terrorism or genocide? No matter whether your case focuses on the crimes or the criminals potential problem areas exist which can make the debate difficult and perhaps force you to justify your point of view as the one the judge should consider over all others.  Evidence will show the American system of criminal justice, is rife with problems.  On the one hand, the principle of due process seems moral and provides sufficient protection to guard against harming the innocent accused.  But once a person enters the penalty phase of the system, society extends little concern to them and much of our penal system is founded upon principles aimed toward punishment for wrong-doing and hoping the undesirability of prison-life is a deterrent to others.  Aff debaters will be forced to face deeply entrenched ideology in the minds of some judges, especially those who have been or are related to victims of crime themselves.

On Crimes and Punishments

Theories of criminal punishment can be found in two principle schools of thought.  The classical school of thought found in the works of Cesare Becarria (18th century) and expanded by Jeremy Bentham.
Internet Encyclopedia of Philosophy []:
"Beccaria develops his position by appealing to two key philosophical theories: social contract and utility. Concerning the social contract, Beccaria argues that punishment is justified only to defend the social contract and to ensure that everyone will be motivated to abide by it. Concerning utility (perhaps influenced by Helvetius), Beccaria argues that the method of punishment selected should be that which serves the greatest public good.

Contemporary political philosophers distinguish between two principle theories of justifying punishment. First, the retributive approach maintains that punishment should be equal to the harm done, either literally an eye for an eye, or more figuratively which allows for alternative forms of compensation. The retributive approach tends to be retaliatory and vengeance-oriented. The second approach is utilitarian which maintains that punishment should increase the total amount of happiness in the world. This often involves punishment as a means of reforming the criminal, incapacitating him from repeating his crime, and deterring others. Beccaria clearly takes a utilitarian stance. For Beccaria, the purpose of punishment is to create a better society, not revenge. Punishment serves to deter others from committing crimes, and to prevent the criminal from repeating his crime."

The positive school of thought championed by Cesare Lombroso and others in the mid-19th century are credited with creating a renaissance of sorts in criminology, shifting the focus toward a study of criminals and their behavior.  Many of Lombroso's theories have been scientifically discredited but the direction he influenced result in the idea that punishment should fit the criminal, not the crime.  This has generally resulted in criminologists trying to understand the causes of criminal behavior and if understood, perhaps there can be a means to reduce or eliminate the behavior.

Retribution, Retaliation or Vengeance?

The resolution uses the word retribution which brings different things to mind for different people and there will no doubt be attempts to link the meaning to retaliation or vengeance.  On an individual level, retribution, and retaliation are often synonymous, driven by an emotion need to seek revenge.  A well-ordered society does not tolerate vigilantism or revenge so seeks to control individual acts of retribution in favor of the non-impassioned criminal justice system.  Retribution by the criminal justice system is a sanction for wrong-doing and as such it is not an emotional reaction, nor personal and it is limited in proportion to the violation it penalizes.  Such retribution may also be viewed as a form of victim redress, that is, an attempt to repay the suffering of a victim of crime by causing the perpetrator to suffer a proportionate amount and as such can be seen as a form of "retributive justice" which serves to satisfy the societal desire for retaliation or vengeance.  Retribution by the criminal justice system, therefore, serves as a means for the state to control violence by reducing the desire for "street justice" or retaliatory violence.

Finckenauer 1988:
The instinct for retribution is part of the nature of man, and channeling that instinct in the administration of criminal justice serves an important purpose in promoting the stability of a society governed by law. When people begin to believe that organized society is unwilling or unable to impose upon criminal offenders the punishment they "deserve," then there are sown the seeds of anarchy - of self-help, vigilante justice, and lynch law. [Furman v. Georgia, supra, 408 U.S. 153 at 308, 92 S. Ct., at 2761 (Stewart, J., concurring)] (para 18).
This opinion made a number of provocative assertions: that there is such a thing as a retributive instinct in man; that channeling this instinct serves the utilitarian purpose of promoting stability; and that retribution and desert are synonymous.

Banks 2004:
Critics of retributionist theories of punishment argue that retribution is basically nothing more than vengeance. However, Nozick argues that there is a clear distinction between the two because “retribution is done for a wrong, while revenge may be done for an injury or harm or slight and need not be a wrong” (1981: 366). He also points out that whereas retribution sets a limit for the amount of punishment according to the seriousness of the wrong, no limit need be set for revenge. In this sense, therefore, revenge is personal whereas the person dispensing retributive punishment may well have no personal tie to the victim. As Nozick points out, “revenge involves a particular emotional tone, pleasure in the suffering of another” (1981: 367).

Retributive Justice

When retribution is under the responsibility of the state, it serves as a means to establish the rule of law and guard against the potential abuses of unrestrained personal vengeance.  Ideal retributive justice is impartial and restrained by the concept of just deserts; punishment in proportion to the crime; no more and no less.  It is an exercise of justice because it is proportional but it is backward-looking.

Maiese 2004:
Central to retributive justice are the notions of merit and desert. We think that people should receive what they deserve. This means that people who work hard deserve the fruits of their labor, while those who break the rules deserve to be punished. In addition, people deserve to be treated in the same way that they voluntarily choose to treat others[1]. If you behave well, you are entitled to good treatment from others.
Immanuel Kant uses a debt metaphor to discuss the notion of just desert. Citizens in a society enjoy the benefits of a rule of law. According to the principle of fair play, the loyal citizen must do his part in this system of reciprocal restraint. An individual who seeks the benefits of living under the rule of law without being willing to make the necessary sacrifices of self-restraint is a free rider. He has helped himself to unfair advantages, and the state needs to prevent this to preserve the rule of law.[2]
In cases of wrongdoing, someone who merits certain benefits has lost them, while someone who does not deserve those benefits has gained them. Punishment "removes the undeserved benefit by imposing a penalty that in some sense balances the harm inflicted by the offense."[3] It is suffered as a debt that the wrongdoer owes his fellow citizens. Retributive justice in this way aims to restore both victim and offender to their appropriate positions relative to each other.
Retributive justice is in this way backward-looking. Punishment is warranted as a response to a past event of injustice or wrongdoing. It acts to reinforce rules that have been broken and balance the scales of justice

Retribution and Deterrence

Some may consider that retribution for crimes promotes deterrence. That is, by knowing there is a penalty for committing a crime, one may be deterred from committing it.  Such a theory is forward-looking and views retribution as a means to the end of preventing future crime so holds to a utilitarian world-view.  When punishment is merely a response to past action it serves no utilitarian purpose.

Banks 2004:
Theories that set the goal of punishment as the prevention of future crime (deterrence) are usually referred to as utilitarian because they are derived from utilitarian philosophy. Past oriented theories (theories that focus on the past actions of the offender) are referred to as retributivist because they seek retribution from offenders for their crimes. The retributivist conception of punishment includes the notion that the purpose of punishment is to allocate moral blame to the offender for the crime and that his or her future conduct is not a proper concern for deciding punishment (Hudson 1996: 3)...

To utilitarian philosophers like [Jeremy] Bentham, punishment can be justified only if the harm that it prevents is greater than the harm inflicted on the offender through punishing him or her (Hudson 1996: 18). In this view, therefore, unless punishment deters further crime, it simply adds to the totality of human suffering. In other words, utilitarians justify punishment by referring to its beneficial effects or consequences. In this sense, utilitarian theory is a consequentialist theory that considers only the good and bad consequences produced by an act as morally significant (Ten 1987: 3)...

Those supporting the theory of punishment as deterrence distinguish between individual deterrence and general deterrence. Individual deterrence involves deterring someone who has already offended from reoffending; general deterrence involves dissuading potential offenders from offending at all by way of the punishment administered for a particular offense (Hudson 1996)...

Retributionists claim a moral link between punishment and guilt, and see punishment as a question of responsibility or accountability (Bean 1981: 14–15). Once society has decided upon a set of legal rules, the retributivist sees those rules as representing and reflecting the moral order. Society’s acceptance of legal rules means that the retributivist accepts the rules, whatever they may be; accepts that the rule makers are justified in their rule making; and claims that those who make the rules provide the moral climate under which others must live. Accordingly, retributivists cannot question the legitimacy of rules. They argue that retribution operates on a consensus model of society where the community, acting through a legal system of rules, acts “rightly,” and the criminal acts “wrongly” (Bean 1981: 17). It follows that the retributivist position makes no allowance for social change or social conditions, looking instead only to crime. Raising the issue of the social causes of crime or questioning the effectiveness of punishment are irrelevant considerations to a retributivist.

For a look at rehabilitation, click here for the next part of this analysis.


JAMES O. FINCKENAUER, Rutgers University, 1988, Justice Quarterly, Vol 5  No. 1

Criminal Justice Ethics: Theory and Practice
Cyndi Banks, 2008, chapter 5 proof copy.

Retributive Justice: Its Social Context
Neil Vidmar 2001

Retributive Justice, Beyond Intractability
Michelle Maiese, May 2004

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