Saturday, April 24, 2010

Social Retribution and Justice discussing criminal justice philosophy, it was brought to my attention that I had been ignorant of the larger debate surrounding retributive justice.  In further reading, I was stopped dead in my tracks.  I'm now having a very difficult time wrapping my head around the arguments for retribution.  Although they're seeming unavoidable.

Noah Millman sums up the argument for retribution, which he refers to as "satisfaction" thus:
Satifaction. A crime is a harm – to the individual victim, but also to society, and arguably to God – that must be retributed. Fit punishment means exacting a consequence upon the malefactor proportionate to the offense, satisfying the offended that they are “even.” This is usually not presented as a consequentialist argument, but there is an implict consequentialism in any version that does not invoke the deity, in that the reason why the offended party must be satisfied (in general, even if not in every individual case) by public justice is that otherwise confidence in public order will be undermined, and recourse will be made increasingly to private justice, or vendetta. (Versions of the argument that invoke the deity may also be consequentialist if your theology takes at face value the many biblical assertions that offense to God risks His wrathful response.)
While it was easy for me to see how punishment for a violent crime would involve emotion and thus retribution, what then about crimes, such as auto theft, where the emotional impulse isn't as strong, yet damage is clearly done?  If justice is solely based on social protection, deterrence, and rehabilitation, how do you determine rehabilitation?  You could easily see a murderer rehabilitated in less time than a mere thief.

So, how do you get the punishment to fit the crime, without resorting to the concept of social retribution and "just desert" - ideas I still find very squishy and problematic?  What is interesting is one can see how appealing they are to the right, for a number of reasons.

The first is the emphasis on traditional social order.  The individual act is not just seen as having consequences between victim and actor, but for the larger social order, which is defined by the codified response.  Ironically, this seems the base argument for hate-crime laws, which tend to be frowned on by the right, yet exists to emphasize the special perniciousness of the crimes on the social order.

The second is, as Hector referenced, the emphasis on free agency. Conservatism is built on the acceptance of contra causal free will.  If one believes that man has free agency, then it is much easier to embrace the idea of retributive justice.  While the two are not dependent on each other, they do support one another.  What contra causal free will is basically saying is that one knows both all of their impulses to act and then all of the consequences of their actions.  Obviously this is absurd, and the argument will be that not all impulses and consequences must be known.  But what then to make of the fact that everyone has different levels of this type of knowledge - which one can broadly call "consciousness"?  And since the degree to which one is conscious of their impulses and consequences is determined by their environment and biology, we end up with an argument for determinism.

Retributive justice is much easier to embrace if one feels the actor had full awareness of the context in which the crime was committed: both their impulse and consequences.  Thus if one "knew full well" that they should not have acted, yet did so anyway - violating the social order, then any demand for retribution is really justified.  I think this is where you find so many on the right edging closer to the totalitarian concept of harsh sentencing.  California's "three strikes" law is predicated upon this impulse: if you knew it was wrong you shouldn't have done it, thus you accept whatever punishment, no matter how harsh.  The obvious problem with this is that it overlooks the fact that certain populations tend to be overrepresented in the criminal population, pointing to a social imbalance in impulse/consequence consciousness.  Basically the determinist argument.

Yet I'm still stuck with the concept of social retribution in the first place.  What does it mean to "repay one's debt to society"?  Certainly, if someone stole my car, I would want to see them punished.  But why?  People ought to be deterred - if laws were not punished there would obviously be more criminal behavior.  And society ought to be protected.  But what to make of my desire for "justice"?  I'm very skeptical of my own emotions.  I would prefer there to be some more objective reality upon which to base social policy.

I wonder, however, if there isn't an easier solution: what if punishment is based on a reasonable level of deterrence?  While I understand this would be difficult to determine, it doesn't seem much more so than determining punishment based on the squishy notion of social debt.  My guess is that punishments would line up pretty well.  A minor offense might be deterred by a minor punishment, while a major offense would require something more severe.

Of course, the failing here would be in determining "reasonable deterrence".  Some people are simply not going to be deterred.  Yet there is just as much flaw in the concept of social debt.  How is it that certain demographics end up owing so much more social debt - especially considering that the worse life circumstances are, the more likely one is to offend.  In that sense, society should forgive the offense, considering them even!  The harshest punishment should go to those who have benefited most from society, and thus owe the most.

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