Retributivism is bunk

We teach students in law school that criminal punishment and sentencing serve purposes that fit into three categories: utilitarian (deter the convicted person from doing it again, deter others, for example), rehabilitative (force sobriety, reflection, etc.), and retributive.

The latter function, whose noun form is retributivism, supposedly goes something like this: When a person commits a crime, which by definition is (or should be) a moral wrong on a scale that requires a societal response, the moral universe becomes out of balance. You, the criminal, have made a withdrawal from the universal bank account (of what – karma?) and now, to get things back into balance, you’re going to have to make a deposit – in the form of your own suffering, right up to the requirement, in capital cases, that you pay with your own life.

The fatal flaw with this view – and this flaw is a rather obvious one, I would say – is that one does not achieve balance by loading more and more onto one side of the scale.

What retributivists seem to want – and let’s grant them that this is an acceptable goal on their part – is a kind of return to the mean. When the balance has gone negative, we must bring it back to positive. When we’ve moved too far east, we must bring ourselves back west a bit. We all fly on the same spiritual airplane, and if the moral center of gravity slides too far in one direction, we’re all going to wind up at the same metaphysical crash site.

The problem, of course, is that retributivism, which is at its core a response to violence (psychological, moral, or physical), usually proposes more violence. To cage a human being or to pillory and roast or to kill on behalf of the state – these are not means that bring us back from a state of violence toward some state of grace; they are, rather, means that keep moving us farther and farther away from a state of grace and more and more irretrievably toward a state of chaos.

If the solution to up is down and the solution to cold is warmth and the solution to left is right, then how is the moral solution to harm the infliction of more harm – more of the same? It’s ludicrous. Even when one “steers into a skid” because one is too far to the right on an icy highway, the goal is ultimately to course correct back to the left, not to accelerate one’s arrival at the right-side ditch.

If there is too much weight behind a plane’s intended center of gravity, the solution isn’t to move even more weight behind it. That’s what retributivism does, and that’s one reason we so often spiral and nose-dive into madness rather than restoring ourselves to equilibrium.

None of this is to say that violence is never warranted. It surely is, as when it is necessary for the preservation of the self or others against intolerably destructive forces. But preservation is a utilitarian goal (it is practical), not a retributivist goal.  That certainly doesn’t make violence moral or sane; it just makes it, sometimes, useful.

But where it is not necessary – as, for example, as it is unnecessary as we mete out consequences for criminal behavior – it seems more animal instinct than accumulated wisdom to employ or indulge it.

-bb

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