In the philosophy of punishment, it is commonly assumed that the primary difference between the two main competing theories of punishment—i.e., retributivism and consequentialism—is that the former is backward looking whereas the latter is forward looking. However, I think this distinction doesn’t adequately capture the core difference between retributivists and consequentialists about punishment. My main concern is that while consequentialists must necessarily look partially to the future to determine how much an offender ought to be punished, they must also take several important backward looking considerations into account.
For instance, the severity of the crime itself is going to be relevant to how much an individual ought to be punished since more severe crimes are more costly to victims and society and hence more resources need to be expended to ensure these crimes are both deterred and prevented. Both the offender’s volitional control and his mental state at the time of the crime are going to be relevant as well. When it comes to the actus reus, we want to know whether the offender acted voluntarily rather than involuntarily, etc. In the case of mens rea, we want to know whether the offender acted knowingly or purposely rather than merely negligently or recklessly. Moreover, we will want to know whether the offender had a positive excuse or a justification for violating the law. In each of these instances, the backward looking considerations are going to shed light on the most appropriate punishment since they provide us insight into what is likely going to be necessary to deter and prevent similar crimes and to rehabilitate the offender in question. Similarly, the offender’s past criminal activity/record and past experiences with the justice system are relevant since these historical factors will give us insight into what to expect in the future.
Notice that all of these backward looking considerations focus on the offender and his crime. However, these are not the only backward looking considerations that will be relevant to the determination of punishment by consequentialists. In figuring out whether and how much to punish, the consequentialist must necessarily take broader backward looking social considerations into account as well. For instance, how much damage was caused by the offense? How were the victims impacted? How much public outrage did the offense generate once news of the offense made its way into the court of public opinion? Given a consequentialist approach to punishment, all of these broader backward looking considerations will be relevant.
Notice, too, that nearly all of these backward looking considerations play a central role for the retributivist as well. Indeed, the notion of moral desert that is essential to the retributivist theory seems to depend on precisely these kinds of considerations—especially the severity of the crime and the offender’s mental states at the time of the offense. But what then distinguishes retributivism from consequentialism? Adequately mapping the difference between the two views can’t be done simply by pointing to the well-trodden but overly general distinction between backward and forward looking considerations since the only backward looking consideration that is unique to retrtibutivism is moral desert.
However, it is unclear what justificatory work desert really does for the retributivist. After all, when retributivists make determinations of moral desert, which in turn fixes the amount of deserved punishment, they look at precisely the features of the offender and of the crime that consequentialists similarly take into consideration. So, what’s the essential difference between retributivism and consequentiualism given their overlapping focus on desert-relevant considerations? Given what I have said on this blog in the past about retribution and the purported intrinsic value of making the wicked suffer, I suspect readers of the blog know how I am inclined to draw the distinction. But before I say more about my own views, I thought I would check to see what y'all think first. Any thoughts?
p.s. Here is an interesting story about a prison in Norway which I think helps highlight the distinction between retributivists and consequentialists since the former will likely object to this kind of institution since it's not punitive enough and the latter will applaud it for its effectiveness.