Resolved: Rehabilitation ought to be valued above retribution in the United States criminal justice system.
IntroductionIn many respects, retribution may be the favored approach when dealing with crimes against society. It is certainly popular in the United States to react to perceived moral panics with calls for stronger enforcement and longer prison terms. In the wake of the so-called War on Crime, the Drug War, the touted depraved remorselessness of many youth crimes, resulted in one of the largest prison populations in the world. Politicians have discovered very early on, that tough stances on crime, win votes. Americans simply do not want to be bothered with or forced to care for those who fail to "follow the rules". My fear is, this mindset will find its way into the debate room, inadvertently carried in by the judge who has been or has relatives who have been victims of crime or who carries strong emotions condemning crime. Once when serving on a jury duty for a murder trial, I watched lawyers very carefully discover and remove potential jurors who carried such heavy biases. I was startled at the number of folks who harbored these sentiments and there was certainly no way to understand without questioning, such strong biases existed in such a widely diverse group of people. This reality plays well for Neg and suggests that a well-crafted, pragmatic advocacy could stir a certain Neg-biased pathos in some judges. Personally, I prefer a more philosophical approach to the resolution and would favor a debate about the concepts and potential of rehab and retrib to meet fundamental qualities deemed worthy by human beings. Still, all too often, I see judge's comments on ballots citing real-world, pragmatic reasons for decision which completely out-weigh the principles of philosophic, Utopian ideologies.
Whereas, the Aff must simply prove rehab "ought" to be deemed of higher value than retrib, Negative has a little more flexibility in how to frame a case. Certainly Neg may take the position retrib has greater value. That would be advocated by showing:
- Retribution has benefits that rehab cannot match;
- Retribution avoids disadvantages of rehab;
- Retribution has greater intrinsic worth than rehab.
These positions are very similar to the positions Aff will take in advocating their own point of view except, of course, they promote retribution.
One interesting and very practical position would promote the position that both are equally valuable. This is a very easy case to make, in my opinion, since both rehab and retrib serves different purposes in different circumstances. For example, in cases of poverty induced crimes or crimes of passion, education, counseling and other forms of rehab may yield better benefits for society than punitive retribution, Whereas, for other, particularly heinous or violent crimes, retribution better serves society. Since the resolution states rehab ought to be valued above retribution, Neg would do well to ask the question, "If I can show one example where retribution is favorable to rehabilitation, does Neg win?"
Blurring the MeaningsIn my analysis, titled Retribution Concepts I touch on the difference between retribution, revenge and retaliation and I feel it is important the Neg debater does not allow the terms to become indistinct unless it serves the purposes of the Neg case. I think it harms the Neg position, for example, to allow retribution to be equated with vengeance. By the same token, I think care must be exercised to not allow retribution to be limited by distinct forms of punishment. For example, it is not limited to only jail time or prison sentences. It also includes fines, custodial probation, and other kinds of forced obligations and this potentially blurs the lines between rehab and retrib. Consider this example. A person convicted of driving under the influence is ordered to attend a mandatory two-week safe driving school which emphasizes the dangers of impaired driving. Obviously, the sentence is punitive as it limits the liberties of the defendant, but at the same time it is rehabilitative since it is aimed at reorienting the mindset of the defendant toward making choices more in line with societal values. It seems, by blurring of distinctions between rehab and retrib, Neg can find significant case leverage. If Neg can convince the judge, that rehabilitation is another kind of retribution, Neg absorbs the values of rehabilitation and potentially kills the affirmative case. Both sides will need to be very selective about their definitions.
Is Retribution Good?I wonder about your answer to the question, is retribution good? Certainly if the form of punitive retribution used in the US, namely incarceration, is good, the US is reaping tons of benefit because we have more people behind bars, per-capita, than any nation on earth. At least that's one statistic I hear oft repeated. But is the good measurable in some real way? Are there lower recidivism rates, are future crimes deterred? Defining the good of retribution (and rehab) is not always easy. For sure, when crime rates decline politicians love to take the credit and claim their "get tough" stance on crime is the reason and they will link lower crime rates to swift and harsh retribution. However, the link may not be so cut and dry and Aff may be able defuse those arguments with a myriad of alternate causes which suggest there are other reasons for lower crime rates. Of course, Neg can also cite alternate causes, when Aff claims rehab reaps real-world benefits. This kind of refutation can be more difficult if the benefits and values derived from retribution are more abstract and so for this reason, I would encourage Neg to not focus on direct benefits which may have other causes, but focus on indirect or abstract benefits which still link to retribution theory but are much more difficult to refute. You will find a very good approach in the Flanders 2010 paper, "Retribution and Reform" cited below.
Values for the NegativeAgain, I am compelled to say that finding suitable values and criteria is sometimes problematic for debaters because of their approach to researching and writing cases. Generally, its not too difficult to be mindful of potential values when analysing a case but it is most helpful to be mindful of how the evidence you read will link to your value if at all. It is best, in my opinion to build the case with a value/criterion in mind because it is much easier than trying to retrofit a value/criterion into an already developed case. But I find, it is often unfruitful to select a set value prior to having done a thorough analysis and at least some research on definitions, concepts and philosophies. Here are just a few very obvious values for the Neg:
This would be justice in the Aristotelian, "giving each their due" sense of the meaning. Retribution theory is in fact a theory of justice which advocates administering punishment in proportion to the crime. Criteria for measuring the effectiveness of retribution in meeting the value of justice could be achieving deterrence (if the evidence is sound), maximizing utility and maximizing societal safety. The key is, finding the evidence which supports outcomes which promote the value being upheld.
While most people would not choose punishment for themselves, I feel most rational individuals would recognize that what is right (i.e. being moral) requires sanctions for doing wrong and this is addressed in the philosophies of Kant, Hegel and others.
There are many ways this value can be expressed: the common good, societal well-being, etc. These are the values which drive the establishment of the social contract.
Following are some arguments and various supporting sources (cards if you will) to support the Negative position in this case. As with the Affirmative side, I am presenting evidence from a limited number of sources. There are very many sources on the web which you will have no problem finding which cover the broad spectrum of retributive theory. Here are a few samples.
Arguments and Grounds
Philosophers such as Duff (in Walker 1991: 79) see the main benefit of punishment as the effect on the offender. They argue that punishment has the effect of restoring the offender to the community in the same way that penance restores a penitent to the communion of the church. Nozick sees retributive punishment as a message from those whose values are assumed to be correct and normative to someone whose act or omission has displayed incorrect and non-normative values (in Walker 1991: 81). Walker (1991: 81) explains that “man is a rulemaking animal,” and that rules and notions of rules are acquired during childhood. Rules, in the form of transactions involving promises, establish codes of normative conduct including “penalizing rules” that specify action to be taken against those who infringe the rules (Garfinkel in Walker 1991: 84–85). It follows that failing to penalize an offender for infringing the rules would itself be an infringement of those rules; thus, an unpunished infringement would create two infringements.
Another theory that attempts to justify punishment as a retributive act is that an offender should be viewed as a person who has taken an unfair advantage of others in society by committing a crime, and that imposing punishment restores fairness (Ten 1987: 5). Philosophers such as Herbert Morris, John Finnis, and Jeffrie Murphy subscribe to the unfair advantage theory. For example, Morris argues that the effect of criminal law is to confer benefits on society, because others are not permitted to interfere with areas of an individual’s life since certain acts are proscribed and prohibited. In order to gain the benefits of noninterference, individuals must exercise selfrestraint and not engage in acts that infringe the protected areas of the lives of others (in Ten 1987: 53). It follows that when a person violates the law but continues to enjoy its benefits, he or she takes an unfair advantage of others who follow the law. Punishment, it is argued, is therefore justified because it removes this unfair advantage and restores the balance of benefits and burdens disturbed by the criminal activity.
There is, however, an alternative tradition of retributivism. Borrowing from Augustine and Adam Smith, I defend a version of retributivism that construes punishment as a necessary step in checking our vengeful emotions. Augustine and Smith appear to recognize punishment’s tendency to become harsh and build this realization into their theories. Where some retributive theorists attempt to capture the good of the “right to be punished” or the value of “expressive condemnation,” Augustine and Smith explicitly warn against the dangers of excessive resentment. They seem keenly aware of the danger of believing that punishment promotes some good or articulates some right. It may be that positively viewing punishment makes us most prone to punishing in excess. The solution is not to abandon retributivism but to give retributivism more modest and more realistic foundations—foundations that help us guard against harsh punishment.
Whitman’s practical irrelevance thesis asserts that retributivism has nothing to say about the most pressing problems of American punishment. According to this thesis, retributivism is simply silent as to the harshness of punishment or involves models and assumptions about punishment and human behavior that are too abstract to be useful. Whitman’s argument is, at the very least, exaggerated. First, it is simply no longer true that retributivists have nothing to say about the “messiness” of the real world or do not speak about degradation or sadistic prison wardens. Even if that were true at the time Whitman wrote (which I doubt), it is not true today. The mountain of critical essays written by retributivists on the topic of shaming punishments surely presents a counterpoint to Whitman’s claim. Retributivists are responsible for the fact that Professor Dan Kahan’s proposal for shaming punishments as a form of “alternative sanction[s]” had only a brief moment in the sun. Furthermore, Professor Martha Nussbaum’s Hiding from Humanity puts to rest the notion that retributivism (a label Nussbaum accepts for her theory) has nothing to say about the dangerous emotions that drive punishment. Nor is it the case that retributivists are blind to inequality in personal capacities and circumstances. Professor Jeffrie Murphy addresses this issue in his classic essay on Marxism and retribution. Murphy claims that retributivism should be viewed as a social ideal until material conditions among people are roughly equal; only then can a society exist in which “crime itself and the need to punish” are fairly meted out. One may disagree with Murphy’s claims, but they do indicate the fallacy of the claim that retributivists simply assume that all people are equally autonomous.
Still, if some versions of retributivism seem practically obtuse, it may be because such theories should properly be considered ideal theories. In other words, these theories may provide an idealized picture to which our institutions should aspire. The theories are not properly criticized by the claim that the ideal does not match up with the real, because the ideal is supposed to show how much work is necessary to reach the ideal. An ideal that simply mirrors current conditions is no ideal at all.
Consider how Professor Herbert Morris’s “liberty” theory might be used to criticize our shameful prison conditions. Morris argues that the appropriate sanction for a criminal who has taken an extra liberty by breaking the law is the loss of some part of his liberty. If this is so, then a liberty-deprivation brand of retribution would be internally committed to better (or at least more humane) prison conditions. Prison should be used solely for the loss of liberty, not for the offender’s humiliation and degradation. Prison would then be no place for inhumane conditions, sadistic prison wardens, and the like. An offender who is punished with humiliation and degradation, in addition to his loss of liberty, is punished unjustly under Morris’s theory. When (abstract) retributive theory is applied to concrete circumstances, retributivism actually can make a practical contribution. It is no criticism of Morris’s theory to say that prisons now are not simply liberty-depriving. It is the point of Morris’s theory to show us that this is all they should be, ideally speaking. It is therefore not true that retributivism, as a theory, is practically irrelevant. Retributivism may be demanding, but that is different than claiming that it has nothing, in principle, to say about our problems. If anything, retributivism has too much to say—if only we would apply it correctly. We are too far fallen from the ideal. The way we treat prisoners inflames our resentment rather than curbs it. Our sentences are disproportionate on almost any reasonable conception of proportionality.
At bottom, retributivism is a philosophy of blame and just deserts, and these terms, however nice they may sound in the abstract, are translated as a prescription for, in Whitman’s words, “hard looks and hard consequences.” Sometimes, as the above quote intimates, Whitman phrases his objection in terms that imply, in effect, that retributivism itself is harsh. But many times, he claims that retributivism only tends to be heard as harsh whether or not it is actually harsh at bottom.
The first response to Whitman’s argument may simply be that philosophers are not responsible for the harms they cause indirectly, especially for harms that they did not intend to cause. How could they be? Philosophers cannot be blamed for how their ideas are used, especially if those ideas are quite opposed to what retributivism in its pure theoretical form would counsel. For example, some blame Nietzsche’s writings on the will to power as partly responsible for the rise of Nazism and Hitlerism. If these dark forces misread Nietzsche, which they probably did, surely it is not his fault. He was only philosophizing and perhaps, properly read, his ideas do not lend themselves to ideals of racial purity and the idolization of naked power.
We should also examine whether retributive philosophy is unfairly singled out. Are other theories really blameless in the harshness of American punishment practice? Certainly deterrence theory has always been able to justify indeterminately long sentences. If a certain length of sentence is not deterring the crime sufficiently, then there seems no reason on deterrence grounds not to punish those who commit that crime much longer and much harsher. In such a climate, stating that punishment is necessary to deter crime does not limit the length of a sentence. It also gives legislatures free reign to determine how long a sentence is necessary to achieve “optimal deterrence.” Rehabilitative justifications of punishment also suffer from this flaw. If someone is an inherently dangerous sex offender, why not simply detain him in prison forever? Indeed, the Supreme Court seems receptive to this type of argument, arguably having given Congress the authority to detain sex offenders indefinitely so long as the offender is deemed incurable. Rehabilitation theories seem to support the idea that we should imprison offenders for life if we view them as incurable. On this point, the retributivist may have the better argument that such treatment is harsh. It is unfair, according to the retributivist, to punish someone in excess of his desert based on a prior determination of his dangerousness rather than on his actual commission of a crime. Sex offenders (or anyone else) cannot be held past the sentence they deserve for their original bad act. At least when it comes to incarcerating sex offenders, the retributivist can, in theory, support the less harsh result. Rehabilitative and deterrence theorists cannot obviously support the same result. Indeed, these theorists may be in the same position as the retributivist theorist: They may intend mildness, but their theories will be interpreted as legitimating harshness in the form of long or indeterminate sentences.
Commonly, rehabilitation is criticized as treating criminal offenders as patients suffering from a disease or disability rather than as moral agents. Some rehabilitative theorists, at least those with the most radical agendas who wished to replace punishment with a system of therapy or hospitalization, spoke in exactly these terms. It seems fair to state that at least some rehabilitative theories orient us toward viewing criminal offenders as beings to be treated rather than as agents to be held responsible. At least this was the popular objection. Some rehabilitative theorists might balk at this extreme characterization, but it seems clear that theories about rehabilitation at least tend in this direction, or at the very least do nothing to prevent us from viewing criminal offenders in a potentially objectionable way. Moreover, rehabilitative theories espouse this view under the guise that punishment is a good thing for offenders and for society.
By claiming that retributivism can be oriented toward a certain result, I mean that some versions of retributive theory tend to encourage a certain attitude about punishment and the people who are punished, and at least do nothing to discourage that attitude. In many respects, my claim about retributivism’s orientation mirrors many of the objections made to the orientation of rehabilitationist theories of punishment. Rehabilitation, it was initially thought, led us to view punishment as maximizing a good; we were treating people, making them better, healing them rather than hurting them. But, the response was: while rehabilitationists may have thought that punishment was maximizing a good, their theory had an underlying orientation that led to a bad attitude toward offenders, an attitude that failed to respect offenders as agents.
When we punish the criminal by depriving him of liberty, we reestablish him as our equal, and in so doing, treat him with respect. We take seriously his status as a moral agent capable of answering for his wrongs. As Whitman summarizes: “[O]nly blame takes the offender seriously as a moral actor.” To cure the offender is to treat him as a patient, or as sick and needing to be managed and manipulated rather than as one to be held responsible. It is equally problematic to punish for the sake of deterring others because then punishment treats the offender as merely the means to ensuring the safety of others. This is why Hegel, following Kant’s lead and still in the grips of the Kantian picture, speaks of the prisoner’s right to be punished. To not punish, Hegel argues, is to deny the offender his right to be treated as an equal. For Hegel, the offender, who has autonomously chosen to break the law, has, at the same time, chosen to be punished. To fail to respect that choice is to fail to respect the offender’s right to choose.
As it happens, there is another, better narrative that we can construct about retributivism, one that gives flesh to the bare retributive idea without tending toward an unrealistic, ungrounded view of punishment. It is, in other words, a version of retributivism that is neither founded on a priori reasoning about the human subject nor extols the virtues of punishment. It is rooted, instead, in the relationship between punishment and human emotion. Under this version of retributivism, we need a theory of retributivism precisely because punishment is so fraught with “hot” feelings of vengefulness that threaten to make punishment harsh. This narrative is rooted in the same “messiness of society” that, according to Whitman, retributivists usually disdain. The fundamental orientation of this narrative is to avoid emotional excess in punishment—to avoid getting carried away when we punish, which we are apt to do if we focus on the good of punishment rather than its dangers.
We naturally tend toward extremes in punishment; we rarely know where to stop. The state, by exercising its legitimate power to punish, channels this resentment and simultaneously (and importantly) sets limits to it. The fundamental orientation of their retributivism is against harshness and for proportionality, at least in so far as that ideal is attainable.
In embracing this orientation toward punishment, this view of retributivism—especially as articulated by [Adam] Smith—fits neatly into a major strain of liberal thought, namely, liberal constitutionalism. Liberal constitutionalism avers that popular passions must be constrained by a system of rights or checks on political power embodied in a constitution. On certain fundamental matters, democracy simply cannot have the last word. Democratic passions must be checked, restrained, channeled, and, at the extreme, overridden. Typically, although not necessarily, this constraint is cashed out in terms of rights. Citizens have rights that protect them from the majority’s will.
Criminal Justice Ethics: Theory and Practice
Cyndi Banks, 2008, chapter 5 proof copy.
RETRIBUTION AND REFORM
CHAD FLANDERS, 2010
(Assistant Professor of Law, Saint Louis University School of Law; J.D. 2007, Yale Law
School; Ph.D. 2004, University of Chicago (philosophy))