By Seth Stancroff
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:
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.
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.
