Retribution in Criminal Justice

Retribution in Criminal Justice

Margaret R. Holmgren (2012). Forgiveness and Retribution: Responding to Wrongdoing. Cambridge University Press.

The dominant philosophical justifications for punishment are typically to be found either in retributive theory, which advocates retribution and just deserts, and/or in utilitarian theory, which advocates incapacitation, deterrence and rehabilitation. While the latter is designed to prevent future offending, the former is most concerned to respond to past offences (Lacey 1988).

Retribution features prominently in western notions of criminal justice because it is often accepted as the most fundamental human response to crime and deviance. It is 'natural' to resent and to retaliate against any harm done. The moral order can only be restored by inflicting pain on the guilty.

Maimon Schwarzschild (2002). Retribution, Deterrence, and the Death Penalty: A Response to Hugo Bedau. Criminal Justice Ethics 21 (2):9-11.

Retribution concentrates on the detection and sanctioning of the criminal act that has already occurred. It is not interested in the future conduct of offenders or in crime prevention. It holds that an individual who deliberately violates the rights of others should and must be punished. The act of punishment restores the moral order that was breached by the wrongdoing. If an individual has been found guilty of a crime, it is not only possible to punish him or her but it is also necessary to do so. This focus disentangles criminal and youth justice systems from the world of welfare and social problems. Rather, the system is rationalized by concentrating on its core task - identifying young offenders and inflicting punishment.

Seumas Miller (2009). Retribution, Rehabilitation, and the Rights of Prisoners. Criminal Justice Ethics 28 (2):238-253.

Retribution has gone through something of a revival since the 1970s, particularly in the USA and the UK. Partly in critique of rehabilitation/correctional strategies, it was argued that any wrongdoing should be met with a sanction proportionate to the severity of the offence. Justice is served when the guilty are given their 'just deserts' - that is, they are punished according to the gravity of their offence within a system of commensurate penalties. He advocated that the following (neoclassical) concepts be at the centre of contemporary penal philosophy:

Proportionality of punishment to crime, or the offender is handed a sentence that is in accordance with what the offence deserves.

Determinacy of sentencing and thus an end to indeterminate, treatment-oriented sentences.

An end to judicial, professional and administrative discretion.

An end to disparity in ...