Retribution v. just deserts

Forget what the offender deserves to have done to him. Concentrate on what the victim deserves to have done to the one who victimized him.

Cathy Young, in agreeing with my defense of retribution as one legitimate purpose of punishment, and several of my email correspondents, in disagreeing with it, make the natural jump from “retribution” to “just deserts.”

Natural, but, I think, not correct. They’re two distinct ideas.

“Just deserts” is offender-focused: What ought this person to suffer? The extreme version of this is Kant’s, who says that the offender is owed punishment and that it would be unjust to the offender to forgo it. It seems to me that the offender’s desert should place an upper bound on punishment inflicted for other reasons, but I don’t really see how it can operate as an independent justification, even putting aside all the complicated questions about free will and the integrity and continuity of personal identity. As George Bernard Shaw pointed out, punishment is injury, and human beings are not improved by being injured.

Retribution, by contrast, is victim-focused. Retributive punishment is a public demonstration that what was done to the victim was wrong, and that the victim was worth avenging. There’s some experimental evidence that punishing an offender actually improves the victim’s social status in the eyes of others; that’s one good argument for punishing “hate crimes” as such, in order to affirm that the victimized group is not, in fact, so socially marginal as to be unable to have its wrongs redressed.

One function of public justice is to displace private vengeance, which is by its nature capricious, likely to misfire, and capable of producing a Hatfield-and-McCoy spiral. But if public justice is to displace private vengeance, then public justice must be done. If Pinochet’s victims and their families are to be asked to refrain from hiring private thugs to smash his kneecaps, then the public owes it to them to handle Pinochet in court, no matter how old and harmless he now is.

Footnote One reader tries to make the consequentialist case for punishing Pinochet: it will deter future dictators. But this seems backwards to me; it is much more likely to deter future dictators from ceding power peacefully.

A stronger consequential case would be that punishing Pinochet will help reinforce the idea that tyranny is wrong, and thus make others in the future less willing to commit the crime of seizing tyrannical power and to facilitate its commission by others (as Henry Kissinger and Jeanne Kirkpatrick, for example, facilitated Pinochet’s tyranny). It is a perverse but pervasive fact about human nature that we tend to judge the wrongfulness of an act by whether, and how severely, it is punished. (Cognitive dissonance must be part of the explanation.) “The vulgar,” says Machiavelli, “judge only by appearances, and in the whole world there is nothing but the vulgar.”

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: