## 1. The Appeal of Retributive Justice



The appeal of retributive justice as a theory of punishment rests in
part on direct intuitive support, in part on the claim that it
provides a better account of when punishment is justifiable than
alternative accounts of punishment, and in part on arguments tying it
to deeper moral principles.



Many share the intuition that those who commit wrongful acts,
especially serious crimes, should be punished even if punishing them
would produce no other good. Consider, for example, being the
sentencing judge for a rapist who was just convicted in your court.
Suppose that he has since suffered an illness that has left him
physically incapacitated so that he cannot rape again, and that he has
enough money to support himself without resorting to criminal
activities. Suppose that this suffices to ensure that there is no need
to deter or incapacitate him to prevent him from committing serious
crimes in the future. Suppose, in addition, that you could sentence
him to spend his days on a tropical island where he has always wanted
to go, and where he will spend most of his days relaxing and pursuing
his interests. You can, however, impose one condition on his time
there: he must regularly report to a prison to be filmed in prison
garb, and these videos will be posted online, sending the message that
he is serving hard time for his crimes. As long as this ruse is secure
from discovery, it could meaningfully contribute to general
deterrence. But even if the goods normally cited by consequentialists
to justify punishment--incapacitation and deterrence--are
achieved, is that the sentence he should receive? Many share the
intuition that there is still some reason to want him to be punished
more harshly (see Moore 1997: 98-101).



Not only is retributivism in that way intuitively appealing, the
primary alternative, consequentialist theories of punishment that
focus on deterrence and incapacitation, seem to confront a deep
problem. They have difficulty explaining a core and intuitively
compelling feature of retributivism, namely the widely shared sense
that it is always or nearly always impermissible both to inflict
punishment on those who have done no wrong and to inflict
disproportionately large punishments on those who have done some
wrong. (Some respond to this point by adopting a mixed theory,
according to which retributivism provides a necessary condition for
punishment, but consequentialist considerations provide the reasons to
punish. For more on such an approach see
 section 3.3.)



Both of these sources of retributivism's appeal have clear
limits. The direct intuition can be challenged with the claim that it
is merely the reflection of a morally dubious psychological propensity
to feel an excess of what Nietzsche, in the *Genealogy of
Morals,* called *ressentiment*,



> 
> 
> a witches' brew [of] resentment, fear, anger, cowardice,
> hostility, aggression, cruelty, sadism, envy, jealousy, guilt,
> self-loathing, hypocrisy and self-deception. (Moore 1997: 120)
> 
> 
> 



And the argument that retributivism justifies punishment better than
consequentialism presupposes that punishment is justifiable (for
criticism of this premise, see Golash 2005; Boonin 2008), and that
there are no alternatives that are better than both (for three
alternatives, see Quinn 1985; Tadros 2011; Lacey & Pickard
2015a).



To respond to these challenges, retributive justice must ultimately be
justified in a larger moral context that shows that it is plausibly
grounded in, or at least connected to, other, deeply held moral
principles. Only in this way should its intuitive appeal be regarded,
in reflective equilibrium, as morally sound. For a discussion of the
prospects for deeper justification, see
 section 5.


## 2. Background Concepts



Two background concepts should be addressed before saying more about
retributive justice: (1) punishment, and (2) the sorts of wrongs for
which punishment might be thought deserved.


### 2.1 Punishment



The entry on legal punishment 
discusses this concept in depth. The following discussion surveys five
elements of punishment that are central for the purpose of
understanding retributivism.



First, punishment must impose some sort of cost or hardship on, or at
the very least withdraw a benefit that would otherwise be enjoyed by,
the person being punished. This is often denoted "hard
treatment".



Second, the punisher must inflict hard treatment intentionally, not as
an accident, and not as a side-effect of pursuing some other end. For
example, while sending a criminal to prison often has foreseeable
harmful effects on the criminal's family, retributivists would say
that those harms do not constitute punishment, not unless they are
purposely inflicted as part of the punishment for the crime.



Some critics of retributivism reject this limitation as an appeal to a
"definitional stop", which they say is illicitly used to
avoid having to justify the costs of the practice (Hart 1968:
5-6; Christopher 2002: 879-880). The worry is that
retributivists will seek to justify only the purposeful infliction of
hardship on wrongdoers, and will ignore the overall costs of the
practice. But there is no reason to think that retributivists
generally ignore the need to justify the negative effects of
punishment on the innocent (see
 section 4.5).
 The retributivist's point is only that the intentional infliction of
hard treatment has to be justified in a different way than the
collateral damage that may befall either the criminal or the innocent
as a result of punishing the former.



Third, the hardship or loss must be imposed in response to an act or
omission. It is a confusion to take oneself to be
"punishing" others for some facts over which they had no
control (Mabbott 1939). One need not be conceptually confused to take
oneself to have reason to intentionally inflict hard treatment on
others because of some trait that they cannot help having. One might
want to oppress others on the basis of some trait they cannot help
having, such as their ethnicity or physical appearance. Doing so would
presumably be immoral, but it need not be conceptually confused. What
would be confused is thinking that one is inflicting
"punishment". (It is, however, not a confusion to punish
one person more harshly than another on the basis of traits over which
they have no control.)



Fourth, the act or omission ought to be wrongful. One can make sense
of punishing another for an act that is not wrong (see Tadros 2016:
ch. 17; Cornford 2017). But as a normative matter, if not a conceptual
matter, such punishment is to be avoided if possible. (For arguments
that it is possible for a well-developed legal system to generally or
always avoid knowingly punishing acts that are not wrongful, see Duff
2018: chs. 2 and 7; Walen forthcoming).



Fifth, it is best to think of the hard treatment as imposed, at least
in part, as a way of sending a message of condemnation or censure for
what is believed to be a wrongful act or omission (Feinberg 1970; for
a retributive theorist who rejects this element, see Berman 2012:
143). This element too is a normative matter, not a conceptual one.
One can certainly make sense of punishment that is simply a response
to wrongful or unwanted behavior--a response aimed at deterring
such behavior or simply imposing suffering for a wrong done. But
insofar as one thinks of punishment as aimed at moral agents, there is
reason to use it to communicate to wrongdoers (and to victims of their
wrongdoing as well as potential future wrongdoers) that their wrongful
acts or omissions are indeed wrongful and that the hard treatment that
they receive is a morally justified response to their wrongdoing (Duff
2018: 295).


### 2.2 The relevant kinds of wrongs



Not all wrongdoing justifies a punitive response. Which kinds of
wrongs can be morally fitting bases for punishment is a much-debated
topic (Shafer-Landau 1996: 289-292; Husak 2008; Asp 2013),
beyond the scope of the present entry. Nonetheless, a few comments may
be helpful.



The paradigmatic wrong for which punishment seems appropriate is an
intentional or knowing violation of the important rights of another,
such as murder or rape. It is almost as clear that an attempt to do
the same is a proper basis for punishment, though how to define the
concept of an attempt is highly contested (Duff 1996; Alexander,
Ferzan, & Morse 2009: ch. 6; Yaffe 2010). The more tenuous the
connection to a rights violation, and the less culpable the mental
state, the more controversial punishment for an act or omission
becomes. This raises special problems for purely regulatory (*mala
prohibita*) offenses (for a critical discussion of *mala
prohibita* offenses, see Husak 2008: 103-119; Duff 2018:
313-322) and for the punishment of negligent acts (for criticism
of punishing negligent acts, see Alexander, Ferzan, & Morse 2009:
ch. 3; for a defense of punishing negligent acts, see Stark 2016: chs.
7 & 8).



An important dimension of debate is whether all moral wrongs are at least
presumptively a proper basis for punishment (Moore 1997: 35-37),
or whether only a subset of moral wrongs are a proper basis
punishment. One prominent way to delimit the relevant wrongs, at least
for state punishment, is to say that only *public* wrongs may
be the basis for punishment. (Duff 2018: 75-87; Duff &
Hoskins 2017 [2019]: SS2; for a criticism of Duff's view of
public wrongs, see Tadros 2016: 120-130).



Another important debate concerns the "harm principle"
(see Mill 1859: ch. 1). It is often said that only those moral wrongs
that cause harm can properly serve as the basis for punishment. But
the harm principle, on any of a number of interpretations, is too
restrictive to be consistent with retributive justice, which, unlike
the harm principle, calls for giving the wrongdoer his just deserts
even if no other good (such as the prevention of harm) should follow
(Tomlin 2014a). (For a short survey of variations on the harm
principle and their problems, see Tadros 2016: 102-107.)



It is important to keep in mind that retributive justice is
not limited to liberal moral and political philosophy. Retributive
justice may also be deemed appropriate by illiberal persons and inside
distinctly illiberal organizations (Zaibert 2006: 16-24).
Illiberal persons and groups may also make a distinction between
wrongs that call for punishment and those that do not, but they will
not draw the distinction in the same way that liberals would.


## 3. Range of Meanings and Uses



This section starts with a brief note on the etymological origins of
"retributivism". Most prominent retributive theorists have
converged, however, on the second of the meanings given below:
"positive retributivism". Some argue, on substantive
grounds, for a limited variation on retributivism: "negative
retributivism". Other limited applications of the idea are
picked up by "limiting retributivism" and
"communicative retributivism". After surveying these
limited versions of retributivism, I turn to three ideas that are
sometimes confused with retributivism: *lex talionis*,
retrospective criminal justice, and sublimated vengeance.


### 3.1 Etymological meaning of retributivism



As Didier Fassin (2018: 47) explains: 



> 
> 
> *retribution ...* comes from Latin *...
> retribuere* [which] is composed of the prefix *re-*,
> "in return", and *tribuere*, literally "to
> divide among tribes". 
> 
> 
> 



Fassin's point is that the root meaning traces to a tort-like
idea, that when members of one tribe harm members of another, they
have to pay compensation to keep the peace.



Seeing the root idea in this way helps to highlight a peculiar feature
of the modern idea. There is something morally straightforward in the
older idea that if members of one group harm members of another, then
the harmed group could demand compensation. There is something at
least mysterious, however, in the modern thought that an individual
could owe *suffering punishment* to his fellow citizens for
having committed a wrong. How does his suffering punishment "pay
his debt to society"?



Important as it is to recognize this question, it is also important to
recognize that the concept of retributive justice has evolved, and any
quest for its justification must start with the thought that the core
of the concept is no longer debt repayment but deserved
punishment.


### 3.2 Positive retributivism



Positive retributivism, or simply "retributivism",
involves both positive and negative desert claims. The positive desert
claim holds that wrongdoers morally deserve punishment for their
wrongful acts (see
 section 4.6
 for a discussion of the deontic and consequentialist dimensions of
this). This claim comes in stronger and weaker versions. For example,
Michael Moore (1997: 87) writes: "Retributivism ... is the
view that punishment is justified by the desert of the
offender". Jeffrie Murphy (2007: 11) is more pluralistic,
writing: "[A] retributivist is a person who believes that the
primary justification for punishing a criminal is that the criminal
deserves it". A retributivist could take an even weaker view,
that there is *some* intrinsic positive value in punishing a
wrongdoer for his wrongful acts, apart from any other consequences
that might arise from doing so. (For a discussion of three dimensions
of strength or weakness for a retributive view, see Berman 2016).



This positive desert claim is complemented by a negative deontic
claim: Those who have done no wrong may not be punished. This
prohibits both punishing those not guilty of wrongdoing (who deserve
no punishment), and punishing the guilty more than they deserve (i.e.,
inflicting disproportional punishment).



Of course, the innocent will inevitably sometimes be punished; no
human system can operate flawlessly. And retributivists should not
duck what it means to commit such a mistake: it wrongs the innocent
person. But this is not a fatal problem for retributivists. It does
not imply that they risk acting *impermissibly* if they punish
people. Permissibility is best understood as an action-guiding notion,
not one tied directly to what is objectively justifiable (Scanlon
2008: 47-52). As an action-guiding notion, it must make use of a
relevant standard of proof. If the right standard is met--the
"beyond a reasonable doubt" standard has recently been
called into question (Laudan 2011, but see Walen 2015)--then
punishers act permissibly, even if they unwittingly punish the
innocent (see also Schedler 2011; Simons 2012: 67-69).



Most contemporary retributivists accept both the positive and the
negative desert claims. Illustrating with the rapist case from
 section 1:
 he may not be punished more than he deserves for the rape he
committed, but he deserves a reasonably harsh sentence for his rape
and he ought to be given the sentence he deserves, even though he is
already incapacitated and he need not be punished in any serious way
to contribute to general deterrence.


### 3.3 Negative retributivism



What has been called "negative" (Mackie 1982),
"minimalist" (Golding 1975), or "weak" (Hart
1968: ch. 1) retributivism is the view that only something similar to
the negative component of retributivism is true. It is the view that
wrongdoers forfeit their right not to suffer proportional punishment,
but that the positive reasons for punishment must appeal to some other
goods that punishment achieves, such as deterrence or incapacitation.
Wrongdoing, on this view, is merely a necessary condition for
punishment. The desert of the wrongdoer provides neither a sufficient
condition for nor even a positive reason to punish (see also Mabbott
1939; Quinton 1954).



Of these three labels, negative retributivism seems the most apt, as
it picks up the idea that wrongdoing *negates* the right the
wrongdoer otherwise would have not to be punished. The alternative
labels also risk confusing negative retributivism with the thought
that the reasons to punish given by positive retributivism can be
quite weak. Differences along that dimension should not be confused
with a position that denies that guilt, by itself, provides any reason
to punish.



Negative retributivism is often confusingly framed as the view that it
is impermissible to punish a wrongdoer more than she deserves. (Hart
1968: 236-237; Duff 2001: 12; Lippke 2015: 58.) If desert
provides a limit to punishment, then it must be deserved up to that
limit. But there is a reason to give people what they deserve. Yet
negative retributivism is offered as the view that desert provides no
reason to punish. This contradiction can be avoided by reading the
negative limit in terms of proportional forfeiture without referring
to desert.



The line between negative retributivism and retributivism that posits
a weak positive reason to punish may seem unimportant. A negative
retributivist holds that the justification for punishment must come
completely from its instrumental value. A positive retributivist who
thinks that the reasons provided by desert are relatively weak may say
that most of what justifies punishment comes from the same
instrumental bases. For both, a full justification of punishment will
be "mixed", appealing to both retributive and
consequentialist ideas (Garvey 2004: 449-451).



Nonetheless, there are three reasons it is important to distinguish
the two, and taken together they speak in favor of positive
retributivism. First, negative retributivism seems to justify using
people merely as a means (within retributive limits) for promoting the
greater good (Duff 2001: 13). The thought that punishment treats
wrongdoers as they deserve to be treated addresses this problem.



Second, a positive retributivist can distinguish different parts of
the all-things-considered justification for punishment. She can say,
as Moore does (1997: 87), that *the* justification for
punishing another, the thing that makes an act punitive rather than
merely an act of using or incapacitating another, is that the person
deserves to be punished for a wrong done. She can also take note of
the fact that punishment has its costs (see
 section 4.5),
 and she can cite the consequentialist benefits of punishment to
outweigh those costs. Still, she can conceive of the significance of
these consequentialist benefits as merely offsetting the
consequentialist costs, not as providing a justification for the act
qua punishment. This is not an option for negative retributivists.



Third, it is not clear whether forfeiture theories that do not appeal
to desert can make sense of the proportionality restrictions that are
central to retributivism (Duff 2001: 14-16). Indeed, the
proportionality limits of a pure forfeiture model, without desert, may
be quite different from the limits implicit in the notion of deserved
punishment. A pure forfeiture model arguably would limit hard
treatment only to ensure that penalties strike a fair balance between
the claims of individuals not to have to bear them and the claims of
the state to take effective measures to promote important public ends.
All the concerns with the gravity of the wrong seem to go missing
(Walen forthcoming). To cite the gravity of the wrong to set
proportionality limits seems to presuppose some fundamental connection
between the gravity of the wrong and proportional punishment (see
 section 4.4).
 That connection is naturally picked up with the notion of deserved
punishment. If one eschews that notion, it is not clear how to make
the connection.


### 3.4 Limiting retributivism



"Limiting retributivism" is not so much a conception of
retributivism as it is retributivism with the addition of skepticism
about our ability to make any but the most general statements about
proportionality (see N. Morris 1982: 182-87, 196-200;
Frase 2005: 77; Slobogin 2009: 671). It is, therefore, a view about
how much influence retributivism can have in the practice of
punishment. Consequentialist considerations, it is proposed, should be
consulted to fill in the gap left by the supposed vagueness of
proportionality. For example, while murder is surely a graver crime
than robbery, the range of acceptable punishment for murder may
overlap with that for robbery. If so, a judge may cite the
importance of incapacitation to sentence a robber who seems likely to
be a recidivist to a longer sentence than a murderer who, for whatever reason, seems to pose little danger to others in the future.



This view may move too quickly to invoke consequentialist
considerations. Even if our ability to discern proportionality
constraints is crude in absolute terms, comparative proportionality
may leave relatively little leeway with regard to what punishments are
morally defensible in a given jurisdiction (Robinson 2003; von Hirsch
& Ashworth 2005: 180-185; von Hirsch 2011: 212; and section
2 of the supplementary document
 Challenges to the Notion of Retributive Proportionality).
 Nonetheless, insofar as the constraints of proportionality seem
inherently vague, retributivists may have to make some sort of peace
with the thesis of limiting retributivism.


### 3.5 Communicative retributivism



Communicative retributivism is another variation on retributivism,
this time embracing skepticism that the hard treatment element of
punishment is itself deserved. What is left then is the thought that
censure is deserved for wrongdoing, but that hard treatment is at best
justified either instrumentally, for deterrence or incapacitation, or
to give meaning to the censure (see Duff 2001: 29-30, 97; Tadros
2011: ch. 5). Insofar as retributive justifications for the hard
treatment element of punishment seem inadequate--see
 section 5--this
 may be the best default position for retributivists.


### 3.6 *Lex talionis*: Payback as response in kind



*Lex talionis* is Latin for the law of retaliation. It connects
to the original retributive notion of paying back a debt, and it
specifies that the debt is to be paid back in kind. It is reflected in
the Biblical injunction (which some Biblical scholars warn should be
taken symbolically, not literally) to take "an eye for an eye, a
tooth for a tooth" (*Exodus* 21: 23-25;
*Leviticus* 24:17-20). Kant also endorses, in a somewhat
different way, this notion of punishment. Invoking the principle of
equality for punishment, Kant writes: 



> 
> 
> whatever undeserved evil you inflict upon another within the people,
> that you inflict upon yourself. (1797 [1991: 141]) 
> 
> 
> 



Thus, he who steals 



> 
> 
> deprives himself (by the principle of retribution) of security in any
> property.... [and if] he has committed murder he must die. (1797
> [1991: 142])
> 
> 
> 



*Lex talionis* provides a controversial principle of
proportionality (for more on *lex talionis* as a measure of
proportional punishment, see section 2 of the supplementary document
 Challenges to the Notion of Retributive Proportionality).
 But while retributive justice includes a commitment to punishment
that is proportional to the crime, it cannot be reduced to a measure
of proportionality (Moore 1997: 88; Husak 2019).


###  3.7 Retrospective criminal justice



It is commonly said that the difference between consequentialist and
retributive theories of punishment is that the former is prospective,
looking to the good that punishment may accomplish, while the latter
is retrospective, seeking to do justice for what a wrongdoer has done.
That is *a* difference between the two, but retributivism
should not be reduced to the claim that it is punishment in response
to a past crime. Other theories may refer to the fact that wrongdoers
have already done something in virtue of which it is proper to punish
them without thereby being retributivist. See, e.g., Quinn 1985 (it is
rational to threaten people with punishment for crimes, and that
rationality is transmitted to punishment if they commit crimes);
Tadros 2011 (criminals have a duty to endure punishment to make up for
the harm they have caused).


### 3.8 Sublimated vengeance



Retributivism has also often been conflated with revenge or the desire
for vengeance. But the two concepts should not be confused. Robert
Nozick drew five distinctions between the two, including that revenge
is personal but retribution is not, and that



> 
> 
> [r]evenge involves a particular emotional tone, pleasure in the
> suffering of another, while retribution either need involve no
> emotional tone, or involves another one, namely, pleasure at justice
> being done. (1981: 367)
> 
> 
> 



These imply that even if no one wanted to take revenge on a wrongdoer,
there could still be a retributive reason to punish her (Moore 1997:
89; for a skeptical take on these distinctions, see Fassin 2018:
36).



These distinctions do not imply that the desire for revenge plays no
motivational role leading people to value retributive justice. Perhaps
retributive justice is the sublimated, generalized version of the
thirst for revenge. The two are nonetheless different. As George
Fletcher wrote (2000: 417), retributivism "is not to be
identified with vengeance or revenge, any more than love is to be
identified with lust".


## 4. Range of issues



This section will address six issues that arise for those trying to
make sense of retributive justice: (1) the nature of the desert claim
and questions it raises; (2) the proper identity of the punisher; (3)
the normative status of suffering; (4) the meaning of proportionality;
(5) the strength of retributive reasons; and (6) whether retributivism
should be thought of as a consequentialist or deontological
theory.


### 4.1 Desert



Desert has been analyzed into a three-way relationship between the
person who deserves something, what she deserves, and that in virtue
of which she deserves it. These can usefully be cast, respectively, as
the desert subject, the desert object, and the desert basis (Feinberg
1970; Berman 2011: 437). A fourth dimension should also be noted: the
person or persons who can appropriately give, or have a duty to give,
the desert subject what she deserves. I call these persons desert
agents. They raise a distinct set of issues, which are addressed in
 section 4.2.



Before discussing the three parts of desert, it is important to
address the idea that desert is fundamentally a pre-institutional
notion. As Joel Feinberg wrote: 



> 
> 
> desert is a moral concept in the sense that it is logically prior to
> and independent of public institutions and their rules. (Feinberg
> 1970: 87) 
> 
> 
> 



Accordingly, one challenge theorists of retributive justice often take
themselves to have is to show how the criminal justice system can be,
at least in part, justified by claims that wrongdoers deserve
punishment in a pre-institutional sense. For more on this, see
 section 4.5
 and
 section 6.


#### 4.1.1 The desert subject



Retributivism presents no special puzzles about who is the desert
subject: the wrongdoer. What may be particularly problematic for
retributivism is the claim that certain kinds of persons (children or
the insane) or entities (states or corporations) can or cannot deserve
punishment. The fundamental issues are twofold: First, can the subject
be responsible for wrongdoing? Second, does the subject have the
mental (or information processing) ability to appreciate the
punishment as conveying condemnation for a wrong done, rather than
seeing it simply as hard treatment? Small children, animals, and the
insane may lack both abilities, but a person who is only temporarily
insane might lack one ability but not the other. (For contrasting
views about punishing artificial persons, such as states or
corporations, see French 1979; Narveson 2002.)


#### 4.1.2 The desert object



The desert object has already been discussed in
 section 2.1:
 punishment. There is, of course, much to be said about what
punishments are deserved for what wrongs. I highlight here two issues
that are particularly salient for retributivists. First, is the
question of whether the retributivist can justify inflicting hard
treatment in addition to censure--see
 section 3.5
 and
 section 5.
 This is tied to the normative status of suffering, which is discussed in
 section 4.3.
 Second, is the challenge of identifying proportional
punishments--discussed in
 section 4.4.



One more matter should be mentioned under the heading of the desert
object: namely the idea put forward by some retributivists, that
wrongdoers have a "right to be punished" such that not
punishing them wrongs them (Hegel 1821; H. Morris 1968). It is
important to be clear about what this right is. It would be ludicrous
to hold that an executive wrongs a wrongdoer by showing her mercy and
pardoning her. What is meant is that wrongdoers have the right to be
treated as the kind of being who can be held responsible and punished,
rather than as sick or dangerous beasts.


#### 4.1.3 The desert basis



The desert basis has already been discussed in
 section 2.2:
 a certain kind of wrong. The focus of the discussion at this point is
on two puzzles about the existence of a desert basis. The first puzzle
concerns how humans, given the fact that our choices are grounded in
our brain activity, and that our brains are parts of the physical
world, can have the sort of free will necessary to *deserve*
punishment at all. The second puzzle concerns why, even if they
deserve punishment, that fact should make it permissible for anyone to
take on the role of giving them the punishment they deserve.



The laws of physics might be thought to imply that we are no more free
and responsible for our "choices", and therefore no more
capable of deserving punishment, than any other physical object, be it
a falling tree or a wild animal. One can resist this move by arguing
that while we are physical beings, most of us have the capacity to
weigh reasons for and against particular options, and to
choose--these being the key abilities for being responsible
agents who can *deserve* punishment if they choose to do wrong
(Fischer and Ravizza 1998; Morse 2004; Nadelhoffer 2013). But this
invites the reply that even in normally functioning adults the
attribution of responsibility for choices is an illusion (Smilansky
2000). Upon closer inspection, the agent dissolves and all we are left
with is a brain responding to stimuli in a way fully consistent with
the underlying physical laws (Kelly 2009; Greene & Cohen 2011;
Vihvelin 2003 [2018]). See the entry on 
 compatibilism for a survey 
 of a range of possible responses to this argument.



Assuming that wrongdoers can, at least sometimes, deserve punishment,
the next question is: why think others may punish them just because
they are deserving? David Dolinko (1991) points out that there is a
difference between someone morally deserving something and others
having a right to give it to her. In one example, he imagines a father
who (perversely) gives his reprobate son almost everything in his
will, and leaves his loving and respectful son a pittance. We may
believe that the loving son *deserves* to inherit at least half
of his father's estate, but that would not entitle anyone to take
property from the other son to give to him (1991: 544). Putting the
point more generally, desert by itself does not justify doing things
that otherwise would violate rights. Moreover, since people normally
have a right not to suffer punishment, desert alone should not justify
punishing them.



The most promising way to respond to this criticism within a
retributive framework is to distinguish two kinds of desert: desert
that corresponds to a view about what would be a good outcome, and
desert that concerns rights (Hill 1999: 425-426; Berman 2008:
271-281). Dolinko's example concerns the first kind of desert.
But insofar as retributive desert presupposes forfeiture of the right
not to be punished, it is unsurprising that there should be some
agents who have the right to mete it out. Who they are is the subject
of the next section.


### 4.2 Who may punish?



Assuming that wrongdoers deserve to be punished, who has a right to
inflict the punishment? Who, in other words, are the appropriate
desert agents? One might start, as Hobbes and Locke did, with the view
that in the state of nature, the victim has the right to punish, and
that the reasons for creating a state include reasons for potential
victims to transfer that right to the state (Hobbes 1651: chs. 14
& 18; Locke 1690: ch. 9).



One worry about this sort of view is that it could license vigilante
punishment. Social contract theorists can handle that by emphasizing
that people not only delegate but *transfer* their right to
punish, retaining only a vestigial right to punish in the case of
minor punishments, such as would be doled out outside the criminal
justice system, or if the state fails or is unable to act.
Communitarians like Antony Duff (2011: 6), however, object to even a
vestigial right to vigilante punishment. Duff sees the state, which
speaks on behalf of the whole community, as the only proper punisher,
at least in the context of crimes (For an even stronger position along
these lines, see Hegel 1821: SS102).



Others take a different view about vigilantes, namely that
*anyone* is *pro tanto* entitled to punish a wrongdoer.
Some forfeiture theorists hold that restrictions on the right to
punish someone who has forfeited her right not to be punished arise
only as a matter of political morality (Wellman 2017: 30-31). It
is hard to see why a desert theorist could not take the same position.
Indeed, some retributivists think that what vigilantes do should at
least count against the total punishment someone is due (Husak 1990:
441-442; but see Kolber 2013 (discussed in section 3 of the supplementary document Challenges to the Notion of Retributive Proportionality)
 for a challenge to the logical implication that vigilantes
"punish").



Even if the state normally has an exclusive right to punish criminal
wrongdoing, questions arise whether it is permitted to punish if it
sustains or fails to address important social injustices (from
distributive injustice to the denial of civil and political rights to
socially disempowered groups). (For an overview of the literature on
this, see Ewing 2018).



Finally, can the wrongdoer herself be her own punitive desert agent?
Can she repent and voluntarily take on hardships, and thereby preempt
others' right to punish her? Duff has argued that she cannot unless
she has also suffered public criticism and social ostracism--and
even then, such informal punishment should be discouraged as a
substitute for formal punishment (Duff 2001: 118-120).


### 4.3 Moral puzzles of suffering



Retributive justice normally is taken to hold that it is intrinsically
(or non-instrumentally) good that wrongdoers suffer hard treatment at
the hands of punishers. But as Hart put it, retributive justice



> 
> 
> appears to be a mysterious piece of moral alchemy in which the
> combination of the two evils of moral wickedness and suffering are
> transmuted into good. (Hart 1968: 234-235)
> 
> 
> 



Moreover, some critics think the view that it is intrinsically good to
inflict suffering is "barbaric" (Tadros 2011: 63) or
"morally repugnant" (Scanlon 2013: 102).



The core retributivist response to these criticisms has to be that it
is neither absurd nor barbaric to think that the normative valence of
suffering might sometimes be positive. But even if that is correct,
one must also ask whether suffering itself is valuable or if it is
only the suffering of punishment that matters, and whether the
suffering should be understood in terms of objective deprivations or
subjective suffering.


#### 4.3.1 The variable normative valence of suffering



Retributivists think that deserved suffering should be distinguished
from non-deserved suffering. While the latter is inherently bad, the
former, at least if inflicted by a proper punitive desert agent, is
inherently good (Hegel 1821: SS99; Zaibert 2018: chs. 2 & 3;
Alexander & Ferzan 2018: 184-185). Just as grief is good and
morally valuable when a loved one has died, so suffering might be good
and morally valuable when experienced by a wrongdoer, especially if
experienced in a way that is appropriately connected to having
committed a particular wrong. Of course, it would be better if there
were no occasion to inflict suffering, but given that a wrong has been
committed, inflicting deserved suffering in response is better than
not doing so. (For another example of something with a variable
normative valence, see Kant's doctrine of the highest good: happiness
in proportion to virtue. Kant 1788 [1956: 115].)



Victor Tadros (2013: 261) raises an important concern about this response to Hart's objection, namely that if a person were already suffering, then the situation might be made better if the person engaged in wrongdoing, thereby making the suffering valuable. One way to avoid this unwanted implication is to say that the negative value of the wrong would outweigh any increased value in the suffering, and that the wronging is still deontologically prohibited, even if it would somehow improve the value picture (see Alexander & Ferzan 2018: 187-188). But this reply leaves intact the thought that something valuable nonetheless occurs if a suffering person commits a crime: her suffering at least now fits (see Tadros 2015: 401-403). Insofar as retributivists should find this an unwanted implication, they have reason to say that suffering is valuable only if it is meted out for a wrong done. This connection is the concern of the next section.


#### 4.3.2 Suffering in the abstract versus suffering through punishment



Some retributivists take the view that what wrongdoing calls for is
the wrongdoer's suffering, whatever causes it. As Mitchell Berman
writes (2013: 87), "the dominant retributivist view" is
"that what wrongdoers deserve is 'to suffer'"
(see also Zaibert 2013: 43 n.19; but see Kleinig 1973: 67, discussing
the value of *imposing* suffering). Even though Berman himself
does not quite embrace that view, he embraces a close cousin, namely
that a wrongdoer deserves that her life "go less well [than it]
would have otherwise gone" (2013: 104).



There is something intuitively appealing, if one has retributive
intuitions, about the thought that it is better if a
wrongdoer--especially one who has committed serious
wrongs--lives miserably than if she lives happily. There is
something galling, if one feels the retributive impulse, in the
thought that she might "get away with it". Nonetheless, it
is important to distinguish the thought that it is good to punish a
wrongdoer so that she does not "get away with it", from
the thought that it is better that she suffer than that she live
happily, even if the suffering is not inflicted by punishment. The
latter thought may draw on the same emotional wellspring as
retributivism. But a retributivist--at least one who rejects the
fantasy that God inflicts such suffering as a matter of cosmic
justice--should not base her conception of retributivism on
it.



If retributivism were based on the thought that wrongdoers' suffering
is good in itself, then punishment is not necessary as a bridge
connecting the suffering and the individual bad acts. If the
connection between individual bad acts and suffering is lost, then
retributivists are left with the need to keep a whole-life ledger of
good and bad acts, for which they want a person to have the
appropriate amount of whole-life happiness or suffering (Ezorsky 1972:
xxvi; Tadros 2011: 68). But the idea of tracking all of a person's
good and bad deeds, and all of her happiness or suffering, and aiming
to align them is problematic. It suggests that one could bank good
deeds and "earn the ability to commit misdeeds with
impunity" (Alexander 2013: 318). Such banking should be
rejected, even though it is plausible that performing heroic deeds
after having committed a wrong mitigates the punishment deserved.


#### 4.3.3 Subjective suffering or measures expected to cause suffering



Adam Kolber, no retributivist, argues that retributivists cannot
ignore the subjective experience of punishment.



> 
> 
> To be retributively punished, the person punished must find the
> punishment aversive and the severity of the punishment is at least
> partly a function of how aversive he finds it. (2009: 215)
> 
> 
> 



Kolber continues:



> 
> 
> Retributivists who fail to consider variation in offenders' actual or
> anticipated experiences of punishment are not measuring punishment
> severity properly and are therefore punishing disproportionally.
> (2009: 215; see also Bronsteen et al. 2009: 1068-1072)
> 
> 
> 



Yet, as Kolber points out, accommodating such variation would be
intuitively problematic for retributivists. It would call, for
example, for short sentences for those who would suffer a lot in
prison and for extra harsh treatment for those who find prison easy to
handle. This is a far cry from current practice. (For retributivists
who agree and think the practice should be reformed, see Alexander
& Ferzan 2018: 199.)



Many retributivists disagree with Kolber's claim that the subjective
experience of suffering of particular individuals should be a
significant concern for them. As Andrew von Hirsch and Andrew Ashworth
put it:



> 
> 
> What makes punishments more or less onerous is not any identifiable
> sensation; rather, it is the degree to which those sensations
> interfere with people's legitimate interests
> 
> 
> 



--interests people generally share, such as in



> 
> 
> freedom of movement, choice regarding ... activities, choice of
> associates, privacy, and so on. (von Hirsch & Ashworth 2005: 147;
> see also Gray 2010; Markel & Flanders 2010)
> 
> 
> 



But this response, by itself, seems inadequate. Surely Kolber is right
that the subjective experience of punishment as *hard*
treatment is part of its point, and that variation in that experience
is something that needs to be justified.



A second way to respond to Kolber's argument is to reject the premise
that retributivists must justify imposing greater subjective suffering
on some rather than others *as a matter of retributive
justice*. As was pointed out in
 section 2.1,
 punishment must be intentional; what results as a mere side-effect of
punishment is not itself part of the punishment. Retributivists can
intend to impose punishments that will generally be experienced as
more severe--for example, longer prison terms or more austere
prisons--the more serious the wrong for which they are imposed,
knowing but not intending that different people will experience the
same term in the same prison differently.



The retributivist can then justify causing excessive suffering in some
people--too little suffering is less objectionable--if three
conditions obtain:


1. the punishment that leads to it is itself deserved,
2. the importance of giving wrongdoers what they deserve--both
the intrinsic importance in terms of retributive justice and the
extrinsic importance in terms of other goods, such as deterrence and
incapacitation thereby achieved--is sufficiently high to outweigh
the bad of excessive suffering, and
3. the problems with eliminating excessive suffering are too great
to be overcome without excessive costs to other morally important
ends.



These conditions call for a few comments. First, the excessive
suffering in condition (b) should be incidental excessive suffering.
If it is suffering that is intentionally inflicted to achieve some
other end, then it will be as hard to justify as punishing the
innocent. Second, there is reason to think these conditions often
obtain. Focusing only on the last condition, there are at least four
reasons to think it obtains: individual tailoring of punishment 


1. invites gaming the system;
2. would be perceived by some as unfair because those who claim to
be extra sensitive would seem to be given undue leniency, and that
would lead to resentment and extra conflict;
3. would undermine predictability, which would arguably be unfair to
people contemplating a crime in the same way that *ex post
facto* increases in punishment are considered unfair; and
4. would likely lead to abuse of power.



(For responses to an earlier version of this argument, see Kolber
2019: 584-586.)



It might also often be less problematic to cause excessive suffering
than it may at first seem if people are to some degree responsible for
their own hypersensitivity--compare Rawls's thought that people
are responsible for their own preferences (Rawls 1975 [1999:
261]).



That said, the state *should* accommodate people who would
suffer extreme trauma from normal punishments. For example, someone
who is extremely sensitive to the cold should be given extra clothing
and blankets or a space heater. But that does not imply that the
punishers should try, in general, to tailor the subjective experience
of suffering to be proportional to the crime.


### 4.4 Proportionality



Retributive justice holds that it would be unjust to punish a
wrongdoer *more* than she deserves, where what she deserves
must be in some way proportional to the gravity of her crime.
Inflicting disproportionate punishment wrongs a criminal in much the
same way as, even if not quite as much as, punishing an innocent
person wrongs her (Gross 1979: 436).



One might wonder how a retributivist can be so concerned with
disproportionately punishing while also tolerating the known
infliction of excessive suffering (see
 section 4.3.3).
 But there is an important difference between the two: an agent
inflicting punishment may come to know that a particular individual is
suffering more than most would from a particular punishment, but she
should see that as just an unfortunate side effect of inflicting a
proportional punishment; she must aim, however, at inflicting only a
proportional punishment.



The possibility of punishing *less* than deserved is also
normatively significant, but it provides a much weaker constraint.
First, it does not seem to *wrong* anyone in particular (see
Duus-Otterstrom 2013: 472-475). One might think that the
victims of crime are wronged if wrongdoers are not punished. But the
view that it wrongs victims not to punish wrongdoers confuses
vengeance, which is victim-centered, with retributivism, which is
agent-centered: concerned with giving the wrongdoer the punishment
*she* deserves (see Paul Robinson's 2008 contrast between
vengeful and deontological conceptions of deserved punishment).
Second, it is clear that in any criminal justice system that allows
plea-bargaining, intentional deviations below desert will have to be
tolerated. Russell Christopher (2003) has argued that retributivists
cannot accept plea-bargaining. But he bases his argument on a number
of unsound assumptions, including that "[r]etributivism imposes
an absolute duty to punish culpable wrongdoers whenever the
opportunity arises" (2003: 101), and that punishing a wrongdoer
less than she deserves violates her "right to punishment"
(2003.: 128-129). Both of these have been rejected above.
Christopher correctly notes that retributivists desire to treat
equally culpable people alike (2003: 131). But this could be simply
because they desire to give people the treatment they deserve in some
non-comparative sense (Alexander and Ferzan 2018: 181), not because
they care about equality per se.



This leaves two fundamental questions that an account of
proportionality must address: how should we measure the gravity of a
wrong, and how can a punishment be "proportional" to it?
These are addressed in the supplementary document:
 Challenges to the Notion of Retributive Proportionality.


### 4.5 Strength of retributive reasons



How strong are retributive reasons? As was argued in
 section 3.3,
 even if they are weak, the presence of positive desert makes a
difference to the justification of punishment. It might affect, for
example, how one understands the forfeiture of the right *not*
to be punished. It is a separate question, however, whether positive
desert carries much weight in establishing an all-things-considered
reason to punish.



To be more precise, there are actually two ways the strength or
weakness of retributive reasons can be significant. It may affect
whether an individual wrongdoer should be punished, even if no
instrumental good (primarily deterrence and incapacitation) would
thereby be achieved, assuming that the institutions for punishment are
in place. But it may also affect whether institutions of punishment
should be established, even if no instrumental goods would thereby be
achieved. It may be relatively easy to justify punishing a wrongdoer
by appeal to positive desert, even if her punishment yields no
instrumental benefits, if the institutions of punishment are already
up, running, and paid for (Moore 1997: 100-101; Husak 2000:
995). It is another matter to claim that the institutions of
punishment, given all their costs, can be justified by positive desert
alone. The point of saying this is not to suggest, in the spirit of
Hart (1968: 9) that the justification of institutions of criminal
justice should be purely consequentialist. The retributivist sees
desert as a reason for setting up the institutions as well as for
punishing the individual wrongdoer (Moore 1997: 154). The point is
merely that one should be clear about just what one is assessing when
weighing costs and benefits.



The primary costs of establishing the institutions of criminal
punishment are:


1. Financial: (according the U.S. Bureau of Justice Statistics,
states spent over $51 billion on corrections in 2015) with
corresponding opportunity costs (that money could have been spent on
schools, medical research, infrastructure, or taxpayer refunds, to
name only a few alternatives);
2. Errors (convicting the innocent, over-punishing the guilty, and
punishing those who deserve no punishment under laws that
overcriminalize);
3. The risk of the abuse of power (political and other forms of
oppressive uses of the criminal justice system); and
4. Collateral harm to innocents (e.g., the families of convicts who
lose the support from those who are punished). (See Husak 2000 for the
first three.)



It is implausible that these costs can be justified simply by the
importance of punishing wrongdoers as they deserve to be punished. The
only plausible way to justify these costs is if criminal punishment
has large instrumental benefits in terms of crime prevention (Husak
2000; Cahill 2011; Lippke 2019).


### 4.6 Retributive consequentialism versus retributive deontology



Retributivism seems to contain both a deontological and a
consequentialist element. Its negative desert element is
deontological. It is a conceptual, not a deontological, point that one
cannot punish another whom one believes to be innocent
 (section 2.1).
 But it is a deontological point that an avenue of justification for
hard treatment is opened up, making permissible what might otherwise
have been impermissible, if that person is guilty and therefore
forfeits her right not to be so treated.



Insofar as retributivism holds that it is intrinsically good if a
legitimate punisher punishes the guilty, it seems to have a
consequentialist element as well. This good has to be weighed against
other possible goods to decide what it would be best to do (Cahill
2011). Thus, most retributivists would accept that it is justifiable
to forego punishing one deserving person if doing so would make it
possible to punish two equally deserving people, or one more deserving
person--as happens on a regular basis in plea-bargaining (Moore
1997: 157-158; Berman 2011: 451-452; see also
 section 4.4).



Berman (2011) has argued that retributivism can appropriately be
understood not just as having a consequentialist element, but as
having an instrumentalist element, namely that punishment is a
valuable tool in achieving the suffering that a wrongdoer deserves.
But he argues that retributivism can also be understood as
non-instrumentalist if the desert object is punishment, not suffering.
It would be non-instrumentalist because punishment would not be a
means to achieving the good of suffering; it would be good in itself.
As argued in
 section 4.3,
 punishment, not suffering, should be thought of as the proper
retributive desert object, and thus the instrumentalist conception
should be rejected.


## 5. The Question of Justification



The principal focus of concern when it comes to justifying
retributivism is justifying its desert object. The question is: if we
can assume that the institutions of punishment can be justified all
things considered, can we justify the claim that wrongdoers deserve
censure and hard treatment?



Censure is surely the easier of the two. It respects the wrongdoer as
a responsible agent to censure her, and it respects the victim (if
there is one) to stand up for her as someone whose rights should have
been respected. The core challenge for justifying retributivism, then,
is justifying the claim that hard treatment is equally deserved.



As Michael Moore (1997: 106) points out, there are two general
strategies for justifying retributive hard treatment: (1) showing how
such treatment "follows from some yet more general principle of
justice that we think to be true", and (2) showing that it fits
with a theory of punishment that "best accounts for those of our
more particular judgments that we also believe to be true".
These will be handled in reverse order.


### 5.1 Conformity with our considered judgments



The argument here has two prongs. First, most people intuitively think
that it is important to punish wrongdoers with proportional hard
treatment, even if no other good would thereby be brought about.
Second, there is no reason to doubt that these intuitions are
reliable.



It seems clear that the vast majority of people share the retributive
intuition that makes up the first prong (Moore 1997: 101). Consider
again the example of the incapacitated rapist mentioned in
 section 1.
 The intuition is widely shared that he should be punished even if
doing so is expected to produce no consequentialist good distinct from
him getting the punishment he deserves.



The weakness of this strategy is in prong two. One might suspect that
retributive intuitions are merely the reflection of emotions, such as
a thirst for vengeance, that are morally dubious. They may be deeply
grounded in our species as part of our evolutionary history, but that
fact by itself is insufficient to consider them morally
reliable--compare other deeply engrained emotional impulses, such
as tribalism, that are clearly morally problematic (Bloom 2013).
Moreover, the label "vengeance" is not merely used as a
pejorative; a retributive or vengeful response to wrongdoing has to
confront moral arguments that it is a misplaced reaction. Foremost
among these is the argument that we do not *really* have free
will--see
 section 4.1.3.
 Respect for the dignity of wrongdoers as agents may call for
censuring them when they do wrong, and with requiring them to make
reparations when those can be made. It is unclear, however, why it
calls, in addition, for hard treatment. Rather, sympathy for
wrongdoers as products of their biology and environment seems to call
for mercy and forgiveness (for a contrary view, see Levy 2014).



Moore (1997: 145) has an interesting response to this sort of
criticism. He turns to the first-person point of view. He imagines
that he has committed some horrible violent crime, and then says that
he hopes his response "would be that I would feel guilty unto
death". As a result, he hopes that he would *welcome*
punishment for having committed such a crime. Moore then turns the
table and says that one should resist the "elitist and
condescending" temptation to withhold that judgment from others
(1997: 148).



This is a rhetorically powerful move, but it is nonetheless open to
four objections. First, it presupposes that one can infer the
propriety of the third-person reaction of blame and punishment from
the first-person reaction of guilt and self-punishment. But
there are things a person should do to herself that others should not
feel equally free to do to her (Duff 2007: 383; Zaibert 2018:
94-95). Second, it may reflect only the imagination of a person
who has committed no such serious crimes, rather than the insight of a
person who knows what it is like to have committed a serious crime and then
tried to come to terms with himself. Third, it equates the propriety
of feeling or inflicting guilt with the propriety of adding punishment
to guilt. But why is guilt itself not enough (see Husak 2016:
59-60)? Fourth, one can question whether even the reaction of
guilt is a morally sound one. Might it not be a sort of sickness, as
Nietzsche (1887 [2006: 60]) put it, "bad conscience, ...
the will to self-violation".



Consider what Jeffrie Murphy (2007: 18) said, as a mature philosopher,
looking back on his own efforts to justify retributivism:



> 
> 
> [M]y enthusiasm for settling scores and restoring balance through
> retributive justice may in part have been extensions of what Nietzsche
> called "a soul that squints"--the soul of a
> shopkeeper or an accountant. If I had been a kinder person, a less
> angry person, a person of more generous spirit and greatness of soul,
> would robust retributivism have charmed me to the degree that it at
> one time did? I suspect not.
> 
> 
> 



The point is not to say that this first justificatory strategy fails.
It is to say that it does not obviously succeed. The notion of
retributive justice would be on sounder footing if this justification
were supplemented by a theoretical justification for punitive hard
treatment that ties it to a more general set of principles of justice.
Doing so would help dispel doubts that retributive intuitions are the
crabbed judgments of a squinty, vengeful, or cruel soul.


### 5.2 Fairness and free riding



Arguably the most popular theoretical framework for justifying
retributivism in the past fifty years or so has been Herbert Morris's
(1968) appeal to fairness. The argument starts with the thought that it is to our mutual
benefit to live in society, and that to be in society, we have to
accept certain limits on our behavior. It then continues with this claim:



> 
> 
> If a person fails to exercise self-restraint even though he might
> have... he renounces a burden which others have voluntarily
> assumed and thus gains an advantage which others, who have restrained
> themselves, do not possess. (1968: 33)
> 
> 
> 



It concludes with the thought that his unfair advantage should be erased by "exacting the
debt" (1968: 34). This is done with hard treatment.



Though influential, the problems with this argument are serious. First,
it is unclear that criminals have advantages that others have
forsaken. Suppose someone murders another in a moment of anger,
triggered by a minor offense. Does he get the "advantage"
of getting to express his anger? What if most people feel they can
express their anger sufficiently in such situations by expressing it
in words? Then it seems that the only advantage he has is being able
to express his anger violently. But if most people do not, at least
not upon reflection, wish to do that sort of thing, then he is not
renouncing a burden that others too wish to renounce.



Even if there is some sense in which he gains an advantage over
others, such as the advantage of being free to use violence, what
would then be the proper measure of bringing him back in line? To see
the problem, compare how "far ahead" such a murderer is
likely to get to how "far ahead" someone might get by
economic fraud. Fraud may produce a much greater advantage, but we
normally think that violence is the greater crime. (Davis 1993
challenges this framing of the advantage gained, suggesting the right
test is the value a crime would find at an auction of licenses to
commit crimes; Shafer-Landau 1996: 303 rejects this solution as
equally implausible.)



More problematically yet, it seems to be fundamentally missing the
point to say that the crime of, for example, murder is, at bottom,
free riding rather than unjustly killing another. (For these and
related criticisms, see Braithwaite & Pettit 1990: 158-159;
Dolinko 1991: 545-549; Murphy 2007: 13-14.)



An alternative interpretation of Morris's idea is that the relevant
benefit is the opportunity to live in a relatively secure state, and
the wrong is not the gaining of an extra benefit but the failure to
accept the burdens that, collectively, make that benefit possible.
Punishment then removes the benefit that the wrongdoer cannot fairly
lay claim to, having shirked the burden that it was her due to carry
(see Westen 2016). This interpretation avoids the first of the
problems outlined above. But it still has difficulty accounting for
the thought that a crime such as murder is not fundamentally about
free riding. Moreover, it has difficulty accounting for proportional
punishment in a plausible way. Presumably, the measure of a
proportional punishment would be something like this: the greater the
shirking of one's duty to accept the burdens of self-restraint, the
larger should be one's punishment. But how do we measure the degree of
shirking? By the harm one causes or risks causing, by the benefit one
receives, or by the degree to which respecting the burden shirked
would have been burdensome? Only the first corresponds with a normal
retributive notion of punishment, but this alternative reading seems
to point to one of the latter two meanings as the measure of unjust
gain. In addition, this view seems to imply that one who entered a
secure society from some sort of failed state, and who has not yet
benefited from the secure state, cannot be punished if she commits
violent criminal acts in the secure state. This is quite an odd
implication, though one that a social contract theorist might be
willing to accept.



For another attempt to develop a better Morris-like view, making the
wrong the undermining of the conditions of trust, see Dimock 1997: 41.
For a criticism, see Korman 2003. For an attempt to build on Morris's
idea, translating the basic wrong into flouting legitimate, democratic
law, see Markel 2011.


### 5.3 Vindicating victims by defeating wrongdoers



Jean Hampton tried to improve upon the unfair advantage theory by
focusing on the idea that what wrongdoers (at least those who have
victims) do is an affront *to* the victim, not just to the
whole community. Her view is that punishment must somehow annul this
affront. As she puts it:



> 
> 
> If I have value equal to that of my assailant, then that must be made
> manifest after I have been victimized. By victimizing me, the
> wrongdoer has declared himself elevated with respect to me, acting as
> a superior who is permitted to use me for his purposes. A false moral
> claim has been made... The retributivist demands that the false
> claim be corrected. The lord must be humbled to show that he isn't the
> lord of the victim. ... [R]etributive punishment is the defeat of
> the wrongdoer at the hands of the victim (either directly or
> indirectly through an agent of the victim's, e.g., the state) that
> symbolizes the correct relative value of wrongdoer and victim. It is a
> symbol that is conceptually required to reaffirm a victim's equal
> worth in the face of a challenge to it. (Murphy & Hampton 1988:
> 125-126)
> 
> 
> 



This theory too suffers serious problems. First, why think that a
wrongful act seriously challenges the equal moral standing of all? It
may imply that the wrongdoer thinks of himself as above either the law
in general or his victim in particular. But he's simply mistaken.
Unless there is a danger that people will believe he is right, it is
not clear why there is a pressing need to correct him.



Second, even if the message is offensive in a way that calls for
correction, why isn't the solution simply to reaffirm the moral status
of the victim, to censor the wrongdoer, and perhaps to require the
wrongdoer to make compensation? The answer may be that "actions
speak louder than words". Perhaps some punishment may then be
necessary to show that we really mean it when we say that he was
mistaken. But why wouldn't it be sufficient to inflict "the
punishment"--whatever that is--to reinforce the point?
It's unclear why the punishment should rise above some baseline-level,
in proportion with the gravity of the wrong, to show that "we
mean it".



Third, the message of equality through turning the tables seems
peculiar. If the victim, with the help of others, gets to take her
turn being lord, it is not clear how that sends the message of
equality, rather than simply the message that *this* particular
wrongdoer lost in the competition to be "lord".



Fourth, Hampton seems to have fallen into a trap that also was a
problem for Morris, namely substituting one wrong for another. The
wrong of being raped is not the *message* that the rapist
sends; it is the rape. (For variations on these criticisms, see
Dolinko 1991: 551-554; for Hampton's replies to her critics, see
Hampton 1992.)


### 5.4 Communication theories



Antony Duff (2001 and 2011) offers a communication theory according to
which punishment is necessary to communicate censure for wrongdoing.
It might be objected that his theory is too narrow to provide a
justificatory framework for retributivism generally, because it is
framed as a theory for *legal* punishment, meted out by a state
that governs a community of equal citizens. (The same applies to the
similar theory developed by Markel 2011.) But arguably it could be
extended to any community.



Putting the narrowness issue aside, two questions remain. The first is
whether it is constructive for the sort of community that Duff strives
to preserve to condemn wrongdoers. As Lacey and Pickard (2015a) put
it, stigmatizing offenders with condemnation alienates them from
society (and they are likely alienated already) and undermines their
potential to see themselves as eventually redeemed. To this worry,
Duff may be able to respond that the form of condemnation he has in
mind is nothing more than treating wrongdoers as responsible for their
criminal acts.



But this then leads to a second question, namely whether Duff's
theory can account for hard treatment. As Duff raises the issue:



> 
> 
> Censure can ... be communicated by "hard treatment"
> punishments ...--by imprisonment, by compulsory community
> service, by fines and the like, which are burdensome independently of
> their censorial meaning...: but why should we choose such methods
> of communication, rather than methods that do not involve hard
> treatment? (Duff 2013)
> 
> 
> 



One answer he gives is that:



> 
> 
> [P]enal hard treatment [is] an essential aspect of the enterprise of
> moral communication itself. Punishment, on this view, should aim not
> merely to communicate censure to the offender, but to persuade the
> offender to recognize and repent the wrong he has done, ... and
> to make apologetic reparation to those whom he wronged. [The] hard
> treatment aspects [of his punishment], the burden it imposes on him,
> should serve both to assist the process of repentance and reform, by
> focusing his attention on his crime and its implications, and as a way
> of making the apologetic reparation that he owes. (2013)
> 
> 
> 



The problem, however, as Duff is well aware, is that it is not clear
why "hard treatment [is] a *necessary* aspect of a
communicative enterprise" (2013, emphasis added). Indeed, Lacey
and Pickard (2015a) suggest that hard treatment actually interferes
with the communicative enterprise.



One might think it is enough for retributivist accounts of punishment
if hard treatment *can* constitute an important part of
communicating to both the wrongdoer and the rest of the community the
censure that the wrongdoer deserves. The worry, however, is that it
may not suffice to say that hard treatment is one possible method of
communicating censure. Given the normal moral presumptions against
imposing suffering on others, it may be necessary to show that censure
alone, unaccompanied by extra suffering, *cannot* be fully or
properly communicated. This may be very hard to show. Though the
possibility that the value of suffering may depend on the context in
which it is experience or inflicted--see
 section 4.3.1--may
 lighten the burden of proof.


## 6. Conclusion



Retributive justice has a deep grip on the punitive intuitions of most
people. Nevertheless, it has been subject to wide-ranging criticism.
Arguably the most worrisome criticism is that theoretical accounts
of why wrongdoers positively deserve hard treatment are inadequate. If
they are inadequate, then retributive justice provides an incomplete
theory of punishment, one that at most explains why wrongdoers deserve
censure. Even the idea that wrongdoers forfeit the right not to be
suffer proportional hard treatment might be better explained by appeal
to other explanations of why hard treatment (1) is instrumentally
valuable, and (2) is consistent with respect for the wrongdoer.



The question is, what alternatives are there? Consider, for example,
the proposal to replace moral desert with something like institutional
desert, i.e., desert based on what the institution prescribes without
appeal to a prior notion of moral desert. According to this proposal,
a wrongdoer cannot reasonably complain that institutions that threaten
punishment if she does wrong, and then follow through on the threat if
she is duly convicted of wrongdoing, treat her unjustly (Quinn 1985;
Hill 1999; Finkelstein 2004; Bedau & Kelly 2010 [2019: SS4]).
Surely there is utility in having such institutions, and a person
would normally have a fair chance to avoid punishment--with the
rare exception of false convictions--simply by avoiding
wrongdoing. Nevertheless, this sort of justification of *legal*
or *institutional* desert cannot straightforwardly explain the
proportionality limit that forms such a core part of the intuitive
appeal of retributive justice. To explain why the law may not assign
whatever punishments the lawmakers reasonably conclude will produce
the best effects overall, the idea of retributive justice may be
essential.



This limitation to proportional punishment is central to
retributivism. The negative desert claim holds that only that much
punishment may be inflicted, and the positive desert claim holds that
that much punishment, but no more, is *morally deserved* and in
that sense respectful of the wrongdoer. Unless one is willing to give
up on the idea that morality imposes a proportionality limit and on
the importance of positive moral desert for justifying punishment up
to that point as respectful of the individual--both intuitively
difficult to give up--there is reason to continue to take notion
of retributive justice, and the project of justifying it,
seriously.