Justice: retribution or deterrent?

In this forum, issues of justice often come up, so I figure it's worthwhile to dedicate a thread to discussion of the issue in a more general ethical context.

There are two main views within ethics of criminal justice:

1. Retributive justice: The primary purpose of justice is to punish those who commit crimes. It is inherently good that criminals be punished in a manner proportional to or appropriate for the crime. The fact that this discourages people from committing crimes, while good, is secondary to ensuring that no crime goes unpunished. A crime ought to be punished, even if the punishment is ineffective (or even counterproductive) in deterring further crime.
2. Deterrent justice: The primary purpose of justice is to prevent crimes from being committed. It is an unfortunate necessity that crimes generally be met with punishment, for otherwise there won't be enough to deter people from committing crimes. However, it's never inherently good to punish someone, and a lighter sentence with the same deterrent effect should be preferred. A criminal ought to be let off without punishment if no punishment would effectively deter further crime.

Individual views usually fall somewhere between these two extremes. I hope I've described both positions fairly and accurately. (I've tried to avoid making a Straw Man out of the retributive position.)

My personal views are entirely on the side of deterrent justice. To me, the consequences of an action are all that matter, so preventing further crime is the overriding concern of justice. It can't be right to punish someone just out of some notion of "justice" when it doesn't actually prevent harm from coming to someone — especially since a punishment is by its nature harmful to the person being punished. (If it's not, I would classify it as treatment — such as therapy or intervention of some sort — rather than punishment.) It might seem distasteful to let someone off with a light sentence or no punishment at all, but it's sometimes still the right thing to do.

What are your views?

I think the nature of some crimes require retributive justice; murder, for instance. You can't exactly deter a murder that's already taken place. And, well, you can't exactly give back the life or pay a monetary compensation like you could if you stole something. Deterrents are more effective I think with less severe crimes. (Also, I would include compensatory in there as an option, in the cases where monetary worth can be established and the criminal can be made to pay back the victim.)

I think there's another aspect to the justice system - justice as rehabilitation. The reason you punish people is so that they learn not to do that again, and the end goal is to take in criminals and turn out useful members of society.

Ah, perhaps I wasn't entirely clear: by deterring crimes, I mean deterring people (either the same person or others) from committing similar crimes in the future. In the case of murder, there has to be a punishment for it to prevent others from trying the same thing.

For crimes such as theft, I think having to give monetary compensation is often appropriate, and it should be viewed as a (generally lesser) punishment. It can be analyzed in the same way, as either retribution or a deterrent.

Yes, I agree. That's an aspect I strongly believe in, even though I didn't talk about it much. I guess it's sort of a part of deterrence, though, since rehabilitating people makes them less likely to commit crimes.

edited 25th Nov '11 7:32:31 PM by Enthryn

I do think retribution should be a legitimate factor (among others!) in a justice system. I think this is owed to the victims. And as such, I think retribution does also produce good consequences - a bit of closure to the victims maybe, while OTOH if they got mistreated and whoever did that gets away with it totally free, then this most likely will make them feel even worse. And I think it really are the victims who should be considered first.

That being said - retribution should be just one factor among many indeed. For example, despite my position on this, I do think the prison system should primarily serve rehabilitation, and not punishment (but also the latter - just not primarily so).

I just cannot get behind that. As far as I'm concerned, retribution is just a sub-type of sadism, and the justice system should be about discouraging people from hurting others in the name of sadistic pleasure, not facilitating it.

It's more of treating justice as an intrinsic good rather than doing it for retribution.

I've thought about the balance between justice, deterrence, and rehabiliation quite a bit, and it's really interesting to ask, what's the real purpose of the current justice system?

The death penalty is considered retributive, but is often considered a fair punishment for the crimes that's on the table for. (Murderers, traitors, etc.) The fact is is that justice is in some measure intrinsically retributive. To what degree it is is up to the jury and lawmakers (since you can't apply the death penalty where it's illegal, as well as other forms of punishments). Deterrence is also inherent in the idea of justice; whether through retribution or rehabilitation you let the criminals know there's some sort of consequence for their actions that they probably won't like.

I've come to view criminal justice as something akin to fouls in basketball: if you can't follow the rules, you're going to be warned a few times, and if you still can't play by the rules, or show a blatant disregard for them, you're out of the game, and then out of the stadium.

Functional membership in any society requires a modicum of respect for the principles upon which that society is to operate, and the concept of justice must go beyond the individual and his acts, in order to maintain functionality within society. Retribution can give satisfaction to the victims or to concerned spectators, and punishment can act to deter, but those are both, while worthwhile in their own ways, secondary benefits.

What is done in the name of justice is done to prevent the undermining of civil order. Criminal acts of the individual are nullified by compensation (including some punishments), actively prevented by detention, and brought to a permanent halt by life imprisonment and execution. Although it is only fair to give warnings, to allow opportunities for amendment and self-correction, and to provide those who have erred with ample chance, freely and of their own volition, either to harmonise with, or to remove themselves from, a given society, the ultimate end of justice is to remove from society those who simply will not exist within it.

edited 25th Nov '11 10:29:23 PM by ekuseruekuseru

As I've mentioned elsewhere, I don't believe in justice per se—I just want to prevent further crimes. This means rehabilitation, exile, life imprisonment, or death (of which exile seems to have gone out of style, and death is too permanent to risk applying to someone who's been falsely convicted.) Rehabilitation, if successful, will produce a useful worker who can add to society, and thus is better than life imprisonment—again, if successful.

edited 25th Nov '11 11:21:42 PM by feotakahari

Can't you just call that your idea of justice? This is like the difference between "hard" and "soft" determinism...

I figure that rehabilitation would include sentences that do not permanently remove the criminal from society - things like fines, community service, temporary imprisonment, etc. Well, even if they don't re-enter society as a productive individual, it's giving them the opportunity to self-exile before committing another crime.

edited 26th Nov '11 2:47:50 AM by ekuseruekuseru

Retributive justice seems not only conceptually baffling, but also practically unfeasible to me. How is anyone going to be able to even estimate what someone "deserves" as a punishment for a misdeed?

In order to be able to do so, one would need to have a full understanding of the life history of the person and, more in general, of whatever biological or sociological phenomena beyond his/her control influenced their actions, and to what degree, and so on. In brief, you'd have to be able to see the very souls of people and directly judge their status.

Otherwise, your "punishment" might well be a worse act of injustice than whatever it was trying to punish...

edited 26th Nov '11 3:28:10 AM by Carciofus

Well, that really depends. There'd be a line of thought that violating the rights of others should be taken as forfeiting one's own rights... The right to one's property, freedom or life, for instance. From there, punishment necessarily tends towards the arbitrary, for the very reasons that you have listed. But need it be about matching the punishment to the crime in the first place? As you've said, this is unrealistic. A system with set sentences for set crimes would be the most acceptable. Most wouldn't call it just to hand out death penalties for stealing an apple, or to give a mass murder twenty-four hours on house arrest, but it would seem that once things are taken to a certain approximate degree, retributive justice is more qualitative than anything else, and this works just as well with set punishments in place.

Well, that is technically possible, but then it seems grossly unjust to me.

To make a pretty typical example, let's say that I steal some food from the supermarket — it's not that I need to do that, and I have more than enough money for paying for my food: I just like the thrill, nothing else.

Let's say that someone else steals the same things, but only because they are trying to get some food to their children — it was not the best choice, and there are lawful ways in which they could have gotten some aliments, but they were not aware of it.

Now, suppose that we get caught. Do we really deserve the same punishment? Because from where I stand, it seems to me that I'd deserve a few days in prison, at the very least, while the other person only deserves a stern talking to and then some social assistance.

edited 26th Nov '11 3:39:49 AM by Carciofus

& : That's why we, y'know, have trials and mitigating circumstances? Because justice is a far more tricky business than just filing in a crime on one side and pulling out of the other side a standardized sentence?

edited 26th Nov '11 4:02:07 AM by Sable

In a sane society, the first shoplifter would get punched then kicked out of the store, then banned for a year.

The second shoplifter wouldn't exist, because getting food wouldn't be a hassle for nobody. 'S long as there's rich fucks with money, it's intolerable to have anybody go hungry.

edited 26th Nov '11 4:07:06 AM by SavageHeathen

Well, yes, but the point is that it's impossible for anybody to know all those extenuating circumstances.

Retributive justice is simply an appeal to emotion, trying to paint the criminal as a sort of punching bag that the victims can take out everything they feel on. On the other hand, deterrent justice tries to place everyone as equal human beings.

And because someone will bring it up, I believe that the death penalty should be reserved for cases where the behavior and nature of the crime indicate extreme sadism or psychopathy.

edited 26th Nov '11 4:05:56 AM by ElderAtropos

Dubious. That's finding and providing evidences, and any lawyer worth his salt will be able to find proof of most of recognized mitigating circumstances, such as in your case, poverty. Of course, you always have trickier cases with harder to find evidence, but that seems hardly a reason to say we "never" know all the circumstances.

On the debate of distributive v retributive, I'm firmly on the side of distributive. Justice should be about serving the community, not about exacting bloody revenge, even in an "official" way.

There's no real reason why "bad people" should suffer for the sake of suffering, because they did something bad. That's essentially just to satisfy societies lust for revenge. Not that I wouldn't enjoy seeing them suffer, but anyway... There's really no justifiable reason.

Punishment should always be for two reasons: Rehabilitation and threat prevention. Rehabilitation, as in, trying to make the bad man good (this is hardly done in prisons, though). Threat prevention, as in, keeping that serial killer from killing some more. There's absolutely no value in these people suffering for the sake of suffering.

Of course, it must be noted that punishment itself also "scares off" people from committing crimes. I mean, assuming it's not something like killing a human being, most people would become at least minor criminals if they know/think they're not going to get caught and punished for their crimes. See: Piracy.

Now this might seem like Captain Obvious but the idea that criminals being punished for the sake of punishment being "justice" is seemingly quite the healthy idea in many peoples minds. Especially Murricans.

edited 26th Nov '11 4:25:16 AM by Excelion

About exiling - I agree it's out of favour (in Western countries) but it does crop up in some forms. Political dissidents are often sent into exile (though they tend to go to the USA rather than from it!) Folks with uncertain/no US citizenship are returned to their origin countries. I remember reading that this is causing a lot of trouble in cntral/southern America because many that are sent away are gang members accustomed to violence and with no support. Not justice of course, but it is a deterrent in that the criminal isn't committing crimes - in your area. He's doing 'em elsewhere.

Or just look at the Karma Houdini trope. That people won't consider a story's ending happy unless they see the villain suffer . . . that just never ceases to baffle me.

Then again, in some cases it's not 'punishment for the sake of punishment', it's 'punishment because s/he plans to continue his/her evil elsewhere'.

That confuses me, too. If punishment is just suffering for its own sake, then I'd rather we let them go 'unpunished'.

But, let's try another example. Someone murders their husband/wife after years of emotional and physical abuse. There is no evidence of the abuse but the murderer's word... and even if there was some evidence, how can any judge fully understand the state of mind of the murderer to judge whether or not they 'deserve' the death penalty, or jail, or nothing?

^ I'd advocate some manner of punishment, as a way of demonstrating to society at large that the law is inescapable. However, I'd only advocate a light punishment for a murderer whose killing could be considered a fluke—for instance, in the case of the abuse, it's unlikely that the killer will harm anyone who doesn't harm her/him.

(There's an interesting story on this subject, involving a man who throws people off an overcrowded life raft to prevent it from sinking. I wish I could remember the name . . .)

edited 26th Nov '11 4:49:45 AM by feotakahari