Focused Summary — Justice and Retribution

In the HiPhi Nation podcast episode entitled Justice and Retribution, Barry Lam discusses the criminal justice system with several experts, who, from personal experience and academic studies, have differing views of the purposes and goals of the criminal justice system.

Lam first introduces Marilynn Winn, whose decades-long prison sentences for repeated shoplifting trapped her in an endless cycle until she was able to appeal to a certain judge whose compassion freed her and enabled her to begin an organization called Women on the Rise in Atlanta, Georgia (1–3). The aims of this organization thus far have been to: 1) decriminalize certain activities that do not cause public harm, such as possessing marijuana in small quantities or jaywalking; 2) make it illegal to require job applicants to disclose their criminal history; 3) create something in between police and jails — something like “prearrest diversions” that aid those suffering from addictions, the homeless, or those in sex work instead of just sending them to jail; and 4) make sure that police officers conduct prearrest diversions when possible— something that was implemented so successfully in Atlanta that the Atlanta City Detention Center (ACDC) reduced their prisoners from around 700 per night to approximately 70 (4–5).

Essentially, Winn’s organization promotes prison abolition, the underlying principle of which is that prisons do not effectively lower crime or actually help people. Instead, Winn believes that criminals should be treated with help and compassion. However, there are those who believe that criminals deserve punishment or some kind of pain, rather than compassion, free education, housing, and medical care (5). These people are known as retributivists, since they hold that crime needs to be proportionally responded to with punishment, which is the just desert of criminals.

One of the underlying differences between the two views is connected to responsibility and free will. Gregg Caruso, another guest on Lam’s podcast, says that we are never morally responsible for what we do. We did not choose our parents, our schools, or really who we are. We do not have free will, according to Caruso, a self-described “free will skeptic” (6). Additionally, it may be that retributive justice is shown to be empirically ineffective in actually reducing crimes and that more emphasis should be placed on prevention, rather than dealing with crimes after they have already been committed.

Retributivists, such as Kimberly Ferzan, believe that we should be consistent when talking about free will — if we refuse to blame people for factors beyond their control that created the conditions in which they committed a crime, we also cannot praise people for things that they did well or heroically, since the conditions which enabled those actions were also outside of their control (8). The idea of retributivism rests on the moral idea that people are responsible without necessarily being in control of all the factors that made them them. Michael Moore, another retributivist, says that we presuppose the agency of others and at least believe that they have “enough” free will in order to provide a rationale for assigning agency (9).

Another element of this rationale for retributivism is connected to human emotions, specifically guilt (10). In some ways, guilt is a self-applied retributive justice, and criminal justice may be an external extension of this internal guilt. It is usually accepted that feeling resentment, anger, hostility, and hatred toward criminals is valid, and maybe even virtuous. In some sense, through criminal punishment, the state is virtuously ensuring that guilt (and the extension of it) is meted out. However, non-retributivists counter this, noting that mercy and forgiveness are also virtues — ones that the state should carry out in society (10). Mercy is not necessarily antithetical to justice.

Another relevant question in this discussion is whether or not the state, specifically the U.S. government, has the standing and entitlement to punish (13). This is something that Victor Tadros discussed in his article that we read last week. For example, if the role of government is to ensure equality and fair distribution of resources (which, notably, is a big assumption), and it fails to do so, then it may be, in some way, complicit in the crimes of those affected by the injustice, and therefore, may lose standing to punish those criminals.

Another way to clarify the distinctions between retributivism and non-retributivism is to see retributivism as focused on innocence and guilt as well as freedom and agency, whereas non-retributivism is focused on the level of risk, such that a potential criminal and actual criminal could be treated in the same way if the threat they pose is equal (13).

In the end, there are staunch supporters on both sides of the retributive justice question and compelling arguments on each side. In some ways, the empirical (and therefore mostly consequential) support for non-retributivism on one side seems to stand in conflict with the retributivist view that emphasizes the moral duty to punish and hold people responsible. Which perspective people hold depends on the ideals that they value and their views on free will, among other things.

Lam, Barry. (2020). Justice and Retribution. Hi-Phi Nation. S4:E8.

Please note: all in-text citations are from the transcript of the podcast provided via the link above since I did not keep up with the time stamp of each section that I quoted/paraphrased.

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