Looking Forward and Backward

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.

 

Comments

[V. Alan White]

I'll hazard to say that world-views about values of justice play a significant role here. If you are a retributivist, then you usually weigh injustice on a grand scale (think Kant) where libertarian-style choice places evil on the back of particular choices at particular times against the justice of the universe weighing good against evil on some equally universal basis. Thus retribution focused on individuals makes sense in balancing the universal scale of justice. But if you are a determinist compatibilist, then there is (usually) no grand-scale weighing of justice. There is instead fine-grained focus on what can be said to be evil (on some more limited social scale of evaluation of good and evil) and correctable with the right causal means.

So I think retributivism and deterrence views are conceptually articulated by world views about what constitutes justice. And theism probably plays a major practical role in who adheres to which.

To be clear: I am not (though once was very strongly) a theist. I saw the light.

[Dan Speak]

When I find myself losing my grip on how a thoroughgoing consequentialist account of punishment is supposed to work, it usually has something to do with proportionality and targeting. So, Thomas, you say:

"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." And then you ask:

"So, what’s the essential difference between retributivism and consequentiualism given their overlapping focus on desert-relevant considerations?"

I don't think I have an especially crisp or illuminating answer here but in the spirit of "what y'all think?", I am tempted to make a point of the internal limits on punishments established by basic desert. So, I take (and like) your point about the overly narrow assessment of consequentialism as attending only to forward-looking considerations. But what backward-looking (but consequentialist) considerations could impose a strict boundary against punishing the innocent or torturing to death those who break the speed limit?

(These are sincere questions, btw. I don't mean them to be deflationary).

[Thomas Nadelhoffer]

Alan,

That's an interesting point. I do, however, want to make a simple observation--namely, that balancing the scales of justice happens not to be a backward looking consideration. The unbalancing has already occurred in the past as the result of the offender's act. If I am to balance the scales, so to speak, by punishing the offender, presumably this is going to happen during the course of the punishment. In the event of a lengthy incarceration, for instance, the rebalancing could take a life time. If this is right, then it speaks to my original suggestion--which is that that the forward vs. backward looking distinction is not up to the task of distinguishing between retributivism and consequentialism about punishment. Before, I was focusing on backward looking distinctions that are important to consequentialists. You've provided a forward looking consideration that's important to retributivists.

[Thomas Nadelhoffer]

Dan,

I take it the easiest way to address your question is to draw a further distinction between the different kinds of consequentialism about punishment. Most of the objections you mention--e.g., punishing the innocent or instituting disproportionate punishments--have focused on deterrence models. After all, one can always imagine a situation, however fanciful, where punishing an innocent or executing a jay walker will deter the crime in question--i.e., when the benefits of punishment, however unjust or extreme, will outweigh the moral costs. However, I don't think other versions of consequentialism are similarly subject to the these well-trodden worries. For instance, if I am a preventive or rehabilitative theorist, it's harder to see how punishing the innocent or torturing the jay walker would make any sense. My main goal in both cases is to look to the past to get a sense of what will be required moving forward to prevent the offender from engaging in similar behavior in the future. So, punishing the innocent people won't make any sense on these views since they need to neither be prevented from repeating offenses nor do they need to be rehabilitated. Similarly, I can't imagine a circumstance where torturing someone would be the only means of keeping him from jaywalking in the future, so it simply won't be necessary on a preventive/rehabilitative model. But notice, too, that this kind of model will be even more concerned with backward looking considerations than deterrence-based consequentialist models since the primary focus of these latter views is deterring more generally--i.e., they focus exclusively on the general welfare whereas preventive/rehabilitative views focus nearly exclusively on the individual offender.

[Dan Speak]

Super helpful, Thomas.

Now I'm wondering if there are resources within consequentialism itself that can explain a preference for the preventive/rehabilitative applied principally to individuals over a preference for deterrence applied more generally.

[Thomas Nadelhoffer]

Dan,

For me, I prefer preventive/rehabilitative models partly because they have the desired consequence of helping me to avoid some of the more common objections to consequentialist theories of punishment--e.g., the problem of punishing the innocent. However, it is unclear that they allay critics' worries about proportionality in other contexts. For instance, if a retributivist thinks that an offender deserves ten years in prison for his offense--that is, ten years in prison represents the deserved amount of suffering--but it turns out that rehabilitating the offender could take either much less time or much more time, then the rehabilitative theorist is going to be committed to giving the offender less/more suffering than he deserves, at least as desert is defined by the retributivist. Of course, the same can be said about parole, but that is a story for another day.

The same issue will arise for the preventive theorist I think. So, while I do think that the rehabilitative/preventive models are the most plausible consequentialist theories of punishment, they don't avoid all of the retributivists' objections. They do, however, avoid the infamous "problem of punishing the innocent"--which is often used as the go to objection to consequentialist theories of punishment more generally. I have more to say on this front, but it will have to wait till later as I am out the door for now. In the meantime, thanks for your helpful questions!

[Dan Speak]

Sorry about this, Thomas. It feels like you are being forced to give me a little primer on punishment theory here, but I really do hope my questions can help. So I'll keep going.

I took your initial question to be "what justificatory work does desert really do for the retributivist that the consequentialist can't get from appropriate backward looking reasons?" I'm worried (and as you note, this is a boiler plate worry) that the consequentially grounded backward looking reasons can't block counterintuitive targeting and lack of proportionality. Your appeal to the distinction between deterrence theories on the one hand and rehabilitative/preventive theories on the other is helpful here, I think. But can't this distinction only be as helpful as the ground the consequentialist has for preferring the second to the first? In your last comment I understand you to be saying that your own preference for the rehab/prevention model comes from a desire to avoid the innocence objection. But will that work? In order to vindicate the consequentialist account of punishment more generally, your reasons for preferring one model over the other would have to be justifiable in consequentialist terms, I'm imagining. That's what I can't see is provided by your argument so far. In addition, you grant that proportionality is still a problem, even under a rehab/prevention models.

So, I suppose I'm just re-asserting my original answer to your initial question about what work desert is doing in retributivist theories that can't be done by backward-looking consequentialist considerations. It does the work of grounding our intuitive judgments about targeting and proportionality-- grounding them, as it were, in the deeper metaethical commitments of the theory itself.