Rage and Retribution

By Seth Stancroff

What do emotions have to do with justice? A lot, it seems, when we survey the events of recent weeks in the USA. Here I call upon the so-called ‘moral sentimentalists,’ who argue that emotions play a leading role in our determinations of what is morally right and wrong, and of whom many believe that emotions are the primary source of moral knowledge.

It seems to me that moral sentimentalism has much to say when it comes to strong emotional responses to issues of injustice and criminal punishment. These responses, when viewed through the sentimentalist lens, might change the ways we view theories of just punishment.

Indeed, I would argue that emotional reactions to issues of injustice, and the sentimentalist analysis of these reactions, should indeed influence the ways we think about punishment and moral justifications for it. Specifically, the sentimentalist view might suggest that retribution (as opposed, for example, to deterrence, rehabilitation, or incapacitation) is well-suited to honour the feelings of those harmed by injustice.

In other words, while retributive justice is often criticised as being uncivilised and vindictive, retribution is perhaps uniquely able to acknowledge the pain and suffering that arises from injustice.

Consider the recent cases of Ahmaud Arbery, an unarmed 25-year-old black man who was shot and killed by Gregory and Travis McMichael, a former police officer and his son (both of whom are white), on 23 Februrary 2020, and George Floyd, an unarmed 46-year-old black man who was murdered by a white police officer, Derek Chauvin, on 25 May 2020.

These incidents have come to serve as reminders of the violent racism that persists in the United States. Floyd’s case, in particular, illustrates the deep-seated racism that plagues police officers and informs policing practices. Arbery’s is reminiscent of the horrifying and relatively recent period in U.S. history when extralegal killings of black people by white vigilantes were common.

Both of these tragedies have rightly sparked disgust and outrage. Those protesting Arbery’s murder gathered holding signs stating, ‘We will get justice.’ Arbery’s mother said, 'I want all hands involved in my son’s murder to be prosecuted to the highest … my son died, so they should die as well.' Floyd’s murder has motivated widespread protests in cities around the world, with activists demanding justice and proclaiming, ‘No justice, no peace.’

These incidents—as well as many other cases in which black individuals have been killed by police or other white offenders—suggest that often, our first instincts are not to turn to deterrence, rehabilitation, or some other conception of punishment. Anthony Walsh and Virginia Hatch, in an article for the New Criminal Law Review in 2018 entitled, ‘Capital Punishment, Retribution, and Emotion: An Evolutionary Perspective,’ capture this well:

‘A retributive punishment justification is the only justification associated with deep emotions related to social concern. When people hear of some vicious criminal act, they become angry, outraged, and disgusted, and their first inclination is to want to exact some sort of retribution; it is highly unlikely that their first thoughts should be of deterrence or rehabilitation.’

The murders of Ahmaud Arbery and George Floyd highlight two features of emotional responses to injustice and the retributive urge:

1. When people hear about these acts of injustice, the kinds of punishments they seek for the offenders are indeed retributive. Impassioned calls such as 'Justice for Floyd,' and 'My son died, so they should die as well,' while perhaps understandable, do not imply an appeal to deterrence, and certainly not rehabilitation. These statements suggest that those who committed such crimes should be punished as a result of their injustices. They should be subjected to some harm because of the harms they caused.

2. The kinds of punishments for which many ask hinge heavily on the notion of desert, or the extent to which the offenders are deserving of punishment. Of course, retribution is the theory of punishment most concerned with desert. Deterrence, rehabilitation, and incapacitation are not the first ideas that come to mind in cases like these. Instead, many imagine that Derek Chauvin, as well as those who murdered Ahmaud Arbery, deserve to be punished.

All of this is to say that, although certain criticisms of retribution may be warranted, it is important to recognise that the theory occupies an important space within societies’ sensibilities and moral intuitions surrounding justice and punishment. If it is indeed the case, as the moral sentimentalists argue, that morality and emotions are closely tied, then emotional responses to injustice, and the retributive urges that accompany them, should not be deemed morally irrelevant.

While state-sanctioned punishment certainly should not be motivated by rage and vindictiveness, it is important to see that, in some cases, retributive urges will be strong and understandable. Although there are other theories that take more utilitarian and dispassionate approaches to punishment, it seems that they may not explicitly acknowledge the suffering caused by acts of injustice. Retribution, at the very least, honours this kind of pain.

Rage and Retribution

by Anonymous

What do emotions have to do with justice? A lot, it seems, when we survey the events of recent weeks in the USA. Here I call upon the so-called ‘moral sentimentalists,’ who argue that emotions play a leading role in our determinations of what is morally right and wrong, and of whom many believe that emotions are the primary source of moral knowledge.

It seems to me that moral sentimentalism has much to say when it comes to strong emotional responses to issues of injustice and criminal punishment. These responses, when viewed through the sentimentalist lens, might change the ways we view theories of just punishment.

Indeed, I would argue that emotional reactions to issues of injustice, and the sentimentalist analysis of these reactions, should indeed influence the ways we think about punishment and moral justifications for it. Specifically, the sentimentalist view might suggest that retribution (as opposed, for example, to deterrence, rehabilitation, or incapacitation) is well-suited to honour the feelings of those harmed by injustice.

In other words, while retributive justice is often criticised as being uncivilised and vindictive, retribution is perhaps uniquely able to acknowledge the pain and suffering that arises from injustice.

Consider the recent cases of Ahmaud Arbery, an unarmed 25-year-old black man who was shot and killed by Gregory and Travis McMichael, a former police officer and his son (both of whom are white), on 23 Februrary 2020, and George Floyd, an unarmed 46-year-old black man who was murdered by a white police officer, Derek Chauvin, on 25 May 2020.

These incidents have come to serve as reminders of the violent racism that persists in the United States. Floyd’s case, in particular, illustrates the deep-seated racism that plagues police officers and informs policing practices. Arbery’s is reminiscent of the horrifying and relatively recent period in U.S. history when extralegal killings of black people by white vigilantes were common.

Both of these tragedies have rightly sparked disgust and outrage. Those protesting Arbery’s murder gathered holding signs stating, ‘We will get justice.’ Arbery’s mother said, 'I want all hands involved in my son’s murder to be prosecuted to the highest … my son died, so they should die as well.' Floyd’s murder has motivated widespread protests in cities around the world, with activists demanding justice and proclaiming, ‘No justice, no peace.’

These incidents—as well as many other cases in which black individuals have been killed by police or other white offenders—suggest that often, our first instincts are not to turn to deterrence, rehabilitation, or some other conception of punishment. Anthony Walsh and Virginia Hatch, in an article for the New Criminal Law Review in 2018 entitled, ‘Capital Punishment, Retribution, and Emotion: An Evolutionary Perspective,’ capture this well:

‘A retributive punishment justification is the only justification associated with deep emotions related to social concern. When people hear of some vicious criminal act, they become angry, outraged, and disgusted, and their first inclination is to want to exact some sort of retribution; it is highly unlikely that their first thoughts should be of deterrence or rehabilitation.’

The murders of Ahmaud Arbery and George Floyd highlight two features of emotional responses to injustice and the retributive urge:

1. When people hear about these acts of injustice, the kinds of punishments they seek for the offenders are indeed retributive. Impassioned calls such as 'Justice for Floyd,' and 'My son died, so they should die as well,' while perhaps understandable, do not imply an appeal to deterrence, and certainly not rehabilitation. These statements suggest that those who committed such crimes should be punished as a result of their injustices. They should be subjected to some harm because of the harms they caused.

2. The kinds of punishments for which many ask hinge heavily on the notion of desert, or the extent to which the offenders are deserving of punishment. Of course, retribution is the theory of punishment most concerned with desert. Deterrence, rehabilitation, and incapacitation are not the first ideas that come to mind in cases like these. Instead, many imagine that Derek Chauvin, as well as those who murdered Ahmaud Arbery, deserve to be punished.

All of this is to say that, although certain criticisms of retribution may be warranted, it is important to recognise that the theory occupies an important space within societies’ sensibilities and moral intuitions surrounding justice and punishment. If it is indeed the case, as the moral sentimentalists argue, that morality and emotions are closely tied, then emotional responses to injustice, and the retributive urges that accompany them, should not be deemed morally irrelevant.

While state-sanctioned punishment certainly should not be motivated by rage and vindictiveness, it is important to see that, in some cases, retributive urges will be strong and understandable. Although there are other theories that take more utilitarian and dispassionate approaches to punishment, it seems that they may not explicitly acknowledge the suffering caused by acts of injustice. Retribution, at the very least, honours this kind of pain.

When the Punishment Does Not Fit the Crime

By Seth Stancroff 

Do many capitalist societies today impose relatively harsher punishments for crimes committed by individuals of low socioeconomic status? If so, how does this fact affect popular theories of just punishment?

It would seem that many of these theories (such as retribution, deterrence and rehabilitation) must fail when applied to these societies. That this really is the case can be illustrated with a simple example:

Two individuals commit the exact same crime in the same American city: they both crash into parked cars while driving under the influence of alcohol. Both of these crimes result in the exact same amount of damage, the levels of intoxication are the same between the two offenders, and this is the first offense committed by either person. 

However, one of these individuals is a high-powered businessman and the other is a middle-aged, relatively poor single woman with no living relatives and two young children. Both individuals are arrested and brought to the police station where they are put in jail with bail set at $5,000. The man immediately bails himself out and hires a team of experienced defense attorneys. 

The single mother, on the other hand, is too poor to post bail herself and knows no one who could help her. Because she is forced to sit in jail for the weeks preceding her trial, she loses both of her jobs which had been the only sources of income for her family. When the trials roll around, the man’s attorneys convince the judge and jury that he should not be held responsible for his action, and he is given only a fine. However, the publicly-appointed defense attorney for the woman, perhaps too over-worked to have been able to consider her case carefully, fails to offer any convincing defense on her behalf. She is sentenced to three years in prison.

I think it should be clear that in this case, the theory of retribution fails to offer a legitimate justification of punishment. Because the offenders in the story are given extremely different punishments for the same crime, at least one (or both) has been given a punishment that, morally speaking, breaks from the jus talionis, or “eye for an eye” principle and thus does not serve any kind of true retribution. In this case it is likely that both punishments would be considered morally inappropriate. One on hand, the woman in the example is punished before she is even found guilty of a crime by being forced to stay in jail as a result of her inability to post bail. On the other, the wealthy man is given a more lenient punishment only because of the resources to which he has access.

How about deterrence? Jeremy Bentham asserts that “General prevention ought to be the chief end of punishment, as it is its real justification.” Turning back to the example offered above, it becomes clear how Bentham’s deterrence model fails to justify punishments in capitalist societies in which punishments are functions of economic class. The man’s punishment in the hypothetical case would challenge Bentham’s idea that punishments should prevent future crimes from being committed because it would surely allow other wealthy people in the society to think that as long as they can hire expensive attorneys, they will be able to behave recklessly without much consequence. On the whole, a deterrence theory of punishment would not be able to explain how, for wealthier people who get relatively lenient punishment, those punishments have any deterring effects.

Finally, the rehabilitation theory maintains that punishment should include measures aimed at reforming offenders. That is, in giving punishments, societies should keep in mind the ways in which the punishments will allow offenders to change themselves or be changed so they can peacefully re-enter society. Plato conceives of punishment in such a way; he imagines that to suffer punishment is to suffer some good, and evading punishment is often a worse path to go down. Interestingly, it seems that when punishment practices are functions of class, wealthier people who can pay their way out of punishments are actually deprived of opportunities to reform. The man in the above example surely should have had a chance to think about the harms he caused through his crime, and would, for rehabilitation theorists, have been made better off had he had such opportunities.

All this paints a rather dismal picture of punishment and the attempts to morally justify it in the real world. But what would happen if certain measures were put in place in these capitalist societies that guarantee a fair system of punishment? For example, what if cash bail were determined in a manner proportional to the offender’s income (or simply abolished)? What if every defendant were required to use state-appointed attorneys, and what if implicit biases against poorer people were accounted for? It seems that if all these kinds of issues could truly be taken care of (and whether this is even possible is certainly up for debate), punishment would perhaps not exist as a function of economic class.

However, even if all this came to pass, it still would not mean that society’s response to crime would escape the influence of socioeconomic status. That is, even if the processes surrounding punishment were made completely just and equal, the social and economic inequalities that can lead individuals to commit crimes would still exist. This fact alone would still lead to sections of the population committing certain kinds of crimes in greater proportions than others, and being punished for it. For this reason, it seems that before punishment can truly become morally justifiable in capitalist societies, the social circumstances that lead individuals into confrontations with those institutions as well as the institutions surrounding punishment also have to be made just.

When the Punishment Does Not Fit the Crime

by Anonymous

Do many capitalist societies today impose relatively harsher punishments for crimes committed by individuals of low socioeconomic status? If so, how does this fact affect popular theories of just punishment?

It would seem that many of these theories (such as retribution, deterrence and rehabilitation) must fail when applied to these societies. That this really is the case can be illustrated with a simple example:

Two individuals commit the exact same crime in the same American city: they both crash into parked cars while driving under the influence of alcohol. Both of these crimes result in the exact same amount of damage, the levels of intoxication are the same between the two offenders, and this is the first offense committed by either person. 

However, one of these individuals is a high-powered businessman and the other is a middle-aged, relatively poor single woman with no living relatives and two young children. Both individuals are arrested and brought to the police station where they are put in jail with bail set at $5,000. The man immediately bails himself out and hires a team of experienced defense attorneys. 

The single mother, on the other hand, is too poor to post bail herself and knows no one who could help her. Because she is forced to sit in jail for the weeks preceding her trial, she loses both of her jobs which had been the only sources of income for her family. When the trials roll around, the man’s attorneys convince the judge and jury that he should not be held responsible for his action, and he is given only a fine. However, the publicly-appointed defense attorney for the woman, perhaps too over-worked to have been able to consider her case carefully, fails to offer any convincing defense on her behalf. She is sentenced to three years in prison.

I think it should be clear that in this case, the theory of retribution fails to offer a legitimate justification of punishment. Because the offenders in the story are given extremely different punishments for the same crime, at least one (or both) has been given a punishment that, morally speaking, breaks from the jus talionis, or “eye for an eye” principle and thus does not serve any kind of true retribution. In this case it is likely that both punishments would be considered morally inappropriate. One on hand, the woman in the example is punished before she is even found guilty of a crime by being forced to stay in jail as a result of her inability to post bail. On the other, the wealthy man is given a more lenient punishment only because of the resources to which he has access.

How about deterrence? Jeremy Bentham asserts that “General prevention ought to be the chief end of punishment, as it is its real justification.” Turning back to the example offered above, it becomes clear how Bentham’s deterrence model fails to justify punishments in capitalist societies in which punishments are functions of economic class. The man’s punishment in the hypothetical case would challenge Bentham’s idea that punishments should prevent future crimes from being committed because it would surely allow other wealthy people in the society to think that as long as they can hire expensive attorneys, they will be able to behave recklessly without much consequence. On the whole, a deterrence theory of punishment would not be able to explain how, for wealthier people who get relatively lenient punishment, those punishments have any deterring effects.

Finally, the rehabilitation theory maintains that punishment should include measures aimed at reforming offenders. That is, in giving punishments, societies should keep in mind the ways in which the punishments will allow offenders to change themselves or be changed so they can peacefully re-enter society. Plato conceives of punishment in such a way; he imagines that to suffer punishment is to suffer some good, and evading punishment is often a worse path to go down. Interestingly, it seems that when punishment practices are functions of class, wealthier people who can pay their way out of punishments are actually deprived of opportunities to reform. The man in the above example surely should have had a chance to think about the harms he caused through his crime, and would, for rehabilitation theorists, have been made better off had he had such opportunities.

All this paints a rather dismal picture of punishment and the attempts to morally justify it in the real world. But what would happen if certain measures were put in place in these capitalist societies that guarantee a fair system of punishment? For example, what if cash bail were determined in a manner proportional to the offender’s income (or simply abolished)? What if every defendant were required to use state-appointed attorneys, and what if implicit biases against poorer people were accounted for? It seems that if all these kinds of issues could truly be taken care of (and whether this is even possible is certainly up for debate), punishment would perhaps not exist as a function of economic class.

However, even if all this came to pass, it still would not mean that society’s response to crime would escape the influence of socioeconomic status. That is, even if the processes surrounding punishment were made completely just and equal, the social and economic inequalities that can lead individuals to commit crimes would still exist. This fact alone would still lead to sections of the population committing certain kinds of crimes in greater proportions than others, and being punished for it. For this reason, it seems that before punishment can truly become morally justifiable in capitalist societies, the social circumstances that lead individuals into confrontations with those institutions as well as the institutions surrounding punishment also have to be made just.