Punishment, Consequentialism, and the Appeal of Retribution

Why do we punish? Philosophical justifications for punishment have traditionally fallen into two broad categories: Retribution and consequentialism.

Retributivism looks backwards towards historical wrongdoings, and justifies punishment as what the perpetrator ‘deserves’ given the nature and degree of the transgression committed. Retributive punishment intrinsically values ‘just deserts’, and is indifferent as to whether punishment will have any positive effects in the future.

Consequentialism, on the other hand, is future-directed: It views punishment as justified to the extent that is achieves a desirable outcome for society. The particular desired outcome varies, but goals have included:

– Deterrence of offenders through the experience of punishment;
– Rehabilitation of offenders through treatment during punitive measures;
– Social protection through incapacitation of dangerous offenders;
– The upholding of the legal system;
– Moral education of society at large.

In assessing the support for these theories of punishment, an interesting tension arises between people’s (and policy-makers’) stated preferences and their measured intuitions.

Advocating for retribution-based justice is now taboo amongst policy-makers and politicians: The UK’s Criminal Justice System’s website writes that ‘[t]he purpose of the Criminal Justice System… is to deliver justice…by punishing the guilty and helping them to stop offending, while protecting the innocent”; President Obama earlier this year urged Palestinians and Israelis to “act with reasonableness and restraint, not vengeance and retribution” in order to achieve a “peaceful solution”. This explicit rejection of retribution is mirrored in psychological studies; when asked to provide justifications for punishment, people frequently report a motivation to deter future crimes (Ellsworth & Ross, 1983; Vidmar & Miller, 1980).

When studies assess behaviour rather than stated preferences, however, it seems that humans may be more innately retributivist than we might like to think.

In a study conducted by Jonathan Baron and Ilana Ritov (1993), participants were asked how best to punish a company for producing a vaccine that caused a child’s death. Some were told that a fine would incentivise the company to manufacture a safer product, while others were told that a fine would discourage the company from making the vaccine, and as there were no alternatives on the market, would ultimately lead to more deaths. Most participants were indifferent about this distinction, and wanted the company fined heavily, regardless of the consequence.

In his 2006 study, Kevin Carlsmith presented participants with different information relating to a crime, and found that 97% were drawn to retribution-related information over deterrence-related information. John Darley et al. (2000) similarly found that punishment decisions were highly sensitive to the retribution-related criteria and that participants largely ignored the likelihood of reoffending.

These studies, however, were not able to isolate how much people value retribution alone, because usually punishment both inflicts damage (satisfying the retributive motive) and communicates a norm violation (satisfying the deterrence motive).

A new study by Molly Crockett et al. (2014) solved this problem and isolated retributive motives by examining how much people will pay to punish another person, even when that other person will never know they have been punished (See above for the full study: Essentially, a player could ‘punish’ another defective player by paying to diminish the defector’s financial reward. The punished party, however, is not made aware of their financial position until the end of the game, and cannot know whether anything has been deduced as ‘punishment’.)

“Hidden” punishment, by definition, cannot deter future norm violations, but was nevertheless used by both victims and observers of victims. These findings provide unambiguous behavioural evidence that people are willing to invest personal resources in pure retribution without the possibility of deterrence.

In many cases, of course, the feelings that motivate a desire for retribution may be admirable – such as moral outrage and sympathy and compassion for the victims – but, as Paul Bloom writes, “on many issues, [feelings such as] empathy can pull us in the wrong direction. The outrage that comes from adopting the perspective of a victim can drive an appetite for retribution”.

If we care at all whether a punishment results in lives saved or lives lost, we cannot subscribe to retribution as a guiding principle of justice, however much our intuitions want us to.

To say we have an innate taste for retribution is not, then, to say we should indulge it. It is rather to say that in punishment, as in all areas of social policy, careful reflection, empirical data, and impartial scholarship are always likely to be better decision-making tools than amateur analysis and intuition.

 

References:

Baron, J., & Ritov, I. (1993). Intuitions about penalties and compensation in the context of tort law. In Making Decisions About Liability and Insurance (pp. 17-33). Springer Netherlands.

Carlsmith, K. M. (2006). The roles of retribution and utility in determining punishment. Journal of Experimental Social Psychology, 42(4), 437-451.

Crockett, M. J., Özdemir, Y., & Fehr, E. (2014). The value of vengeance and the demand for deterrence. Journal of Experimental Psychology: General, 143(6), 2279.

Darley, J. M., Carlsmith, K. M., & Robinson, P. H. (2000). Incapacitation and just deserts as motives for punishment. Law and Human Behavior, 24(6), 659.

Ellsworth, P. C., & Ross, L. (1983). Public opinion and capital punishment: A close examination of the views of abolitionists and retentionists. Crime & Delinquency, 29(1), 116-169.

Vidmar, N., & Miller, D. T. (1980). Socialpsychological processes underlying attitudes toward legal punishment. Law and Society Review, 565-602.

2 Comments

  1. Genuinely brilliant article. Think I also read recently about a study which demonstrated a preference amongst participants for punishment even where there was demonstrably no social purpose.

    This is particularly relevant to some of the tantrums I’ve been throwing on behalf of my fellow prison lawyers, who, as a result of recen funding cuts are on the brink. I am quite convinced that the assistance we provide inmates ha long term social benefits; enfranchisement goes hand in hand with progress. We are unique in that we act as fiduciaries rather than as dual carrot and stick providers. Even the paternalistic medical profession has its role subverted when it comes to prisoners, as confidentiality is not presumed.

    The Secretary ofState for Justice Chris Grayling was nonetheless able – despite heroic objection in the House of Lords and elsewhere – to push through reforms which now deprives prisoners of assistance once given to them. At every opportunity he repeated the mantra ‘we need to maintain public confidence in the system’. The High Court, hearing a challenge against the cuts, essentially said ‘we don’t know if these cuts will save money, but it’s not really our business. It’s a political issue’.

    Which brings me back to the subject of your article. Matthew Parris made an impassioned plea in the Times recently, to pay attention to the state of our prisons. Many have made similar pleas over the years. I wonder if the desire for retribution, as the above studies seem to suggest, is natural in all of us. The question is, does identifying that this is a shared problem equip us to rally support from a largely indifferent public? I think it does!

  2. Immanuel Kant

    January 15 at 7:35 am

    This disappoints me.

Leave a Reply

Your email address will not be published.

*

3 + 1 =


© 2017 Natalie Cargill

Theme by Anders NorenUp ↑