Justice and Retribution
S1: This ad free podcast is part of your slate plus membership from from Maryland was introduced to state punishment at 17 when she was convicted of shoplifting in Georgia back during that time.
S2: Prison wasn’t anything like what it is now. It was Chenggang.
S1: Punishment on the chain gang for disobedience consisted of taking black women and hanging them upside down by their feet in the sun. White women were treated better. Then there was the box, which was solitary confinement with a hole in the floor for you to relieve yourself.
S2: My mindset was I would never, ever come back here again. I know what change game is now, but unfortunately that didn’t happen for me.
S3: They didn’t have G.D. at that time. If you had a baby, you couldn’t go back to school being Blagg, being a woman, having a record. When I told the truth, I couldn’t get a job interview. Then I started to lie. I’ve had 18 jobs. And when they found out that I had a background, I was terminated.
S4: So each time I’m terminated, I go back to what I did, which was Shocklee.
S5: I would get caught again. It was like a cycle of every four to five years. I was in prison. So I can roughly say 40 years of my sixty nine years. I was in and out of the system.
S1: By the last time Marilyn has sent before a judge for the final time in 2007 for shoplifting, she had 30 felonies in six prison terms on her record. With Maryland well into her 50s, she decided to advocate for herself.
S2: Well, you know, Barry, I used to play out because I knew I stole the thing and I plead out because I wanted to get out right away. They offered me five years. I said, I’m not going to take the five years as a year. But look at your record. I decided that I’m going to have this conversation with this judge. I’m just not going to let them send me back. Yeah, I stole the jury. And if I had kept one of those 18 jobs, I would be retiring. I lied to work. I didn’t lie to steal. And I had that conversation with Judge Love while to love it. I will never forget it.
S6: I sit at home and get my Social Security statement, and I gave it to the judge. And this is what I need you to look at. I’m a person where all I need is a job and access day at the system. But society has fixed it. So I cannot get that job. The barriers are up and I have to let. And I told him, I say, when you send me back this time, if you send me back, I’m gonna come back and I’ma do the same damn thing. There’s nothing else for me to do but shoplift or steal or have you want to call. It is embarrassing to me to stand before you.
S2: Each time I get caught is humiliating and degrading.
S7: Do you actually think that I like this? I don’t. I hate it with a passion. I would much rather be working, but due to the laws of society, that didn’t happen for me. And it won’t happen for me. Listen, somebody like you can support me into getting a job and that put me in prison. The family clicked and he agreed to it.
S8: After 40 years wasted in cycles of crime and punishment at the age of 57, Marilyn finally got to work at a steady job, a job that led today to her changing the city of Atlanta and with some hope, changing the world.
S9: From Slate. This is hyphenation philosophy in story form this season. Crime and Punishment recording from Vassar College. Here’s your host, Barry Lamb.
S10: Today on our final episode of our series on Crime and Punishment, we’re going to ask a question that’s been hanging over the series this entire time. Why punish? It’s very easy to see the injustice of punishment for the innocent and what it’s excessive. But it’s another to see injustice when punishment is inflicted on the guilty. The violent. The truly harmful. But many people do see it. And their response is to abolish the single American institution officially sanctioned for punishment. Prisons, there are a variety of philosophies underlying the movement. Some people think all punishment is based on a mistake and outdated and false understanding of human nature. Others think punishment is fine in principle, but a government can lose its moral standing to punish. And America has lost that standing long ago in response to the growing cries to abolish punishment. There are the champions of retributive justice who defend the right of the state to punish wrongdoers on the grounds that that’s what justice is. All sides get their hearing today on our season finale.
S8: Justice and retribution.
S6: Hyphenation return after these messages.
S1: If anyone knows about what’s involved in abolishing prisons, it’s Merrilyn, when do you consider yourself a prison abolitionist?
S3: I do.
S2: My name is Marilyn Wynne and I am one of the co-founders and executive director of Women on the Right, Georgia. And that is the organization led by formerly incarcerated Women of Color.
S1: Prison abolition from Maryland is the mission to make other people’s lives take a different path than the one she was forced through for 40 years. And no one knows more about abolishing prisons than Marilyn because she’s actually in the process of abolishing one. It’s called the Atlanta City Detention Center, or AC DC. And it’s a jail with a perverse history.
S2: AC DC was called A Decade of Street Jail when we was granted the opportunity to host the Olympics. The city say, oh, we want to beautify the city of Atlanta so we don’t tear down all these projects and we don’t be a nice apartment and then we don’t bring everybody back.
S1: That didn’t happen, according to Marilyn. When Atlanta displaced people from the housing projects to build new, nicer looking apartments, they prohibited people with criminal records from applying to live there. People who had otherwise lived in the affordable, subsidized places these apartments were replacing. They even prohibited spouses and family members with criminal records from living there on pain of evicting the whole family.
S2: Those people became instantly homeless. And that’s when the crime rate went up. So then they say, well, what, we’re going to do it all these homeless people. So they said, oh, we don’t build a new jail. A larger jail during the Tamo Olympics. We don’t take all the people of our street and put them in. And so that’s what they did. They’d be an amnesty and detention center.
S1: The center is a 14 storey high building in downtown Atlanta. It houses people detained for traffic violations, failures to pay a ticket. Disorderly conduct. Possession of marijuana. Sex work, shoplifting. Crimes like that. According to Maryland at the time, she wanted to abolish AC DC, the annual budget was thirty two and a half billion dollars and a jail about 700 people a night.
S3: I’ve been to AC DC two is where I’ve seen the most abuse, two or three officers beating a person at one time. That was the reason in my heart.
S1: I wanted it close and the steps she took are a lesson in Decatur narration.
S2: We start looking at low hanging fruit. We start looking at ordinances that people were being arrested for most. So we started attacking those ordinances.
S1: Step one, decriminalize what you can. In this case, crimes that don’t serve a useful public safety function. Crimes that other cities do quite well at. Not enforcing like jaywalking. Spitting on the sidewalk. Standing in the way of a driveway. The kind of crimes that were, frankly, chickenshit, there were the crimes that served as pretext for stop and frisk and then jailing people on other charges.
S11: And this eventually included possession of small amounts of marijuana, which they changed from an arrestable offence to a seventy five dollar ticket out of the 81 ordinances.
S5: We were able to have any one of those removed from the books and we did bandbox step to make it illegal in the city to require job applicants to state their criminal history for hiring.
S11: The result is an increase in employment and decrease in property crime for people who were once discriminated against. Step three, please. Something in between police and jails.
S5: We have what we call a pre arrest version, and that is collaboration with the Atlanta State Police that if you feel like Maryland would benefit from a program instead of taking her to jail, you’re calling someone from three risk diversion sex workers who are picked up, those who suffer addiction, those with mental health disorders or those who are homeless, are placed into the custody of community sponsored programs that are housed free people and most importantly, give police a way to log that.
S12: They’ve placed somewhat into pre arrest diversion so they get credit on the job for something other than a successful arrest.
S5: The police would do the paperwork. They will call someone from our office. The first thing we do, if they are homeless, they become housed that day. And if they relapse, they are not at the program. If they go to jail on a night out program to actually the judge calls someone from my office and say, we got one of your folks, you need to come and get it.
S1: Was it hard to get Atlanta PD on board with all of this?
S3: Yes, yes. To be honest with you, there is still some of them that are not on board. They still think people need to be in jail.
S2: We do go back and forth with them. Even now, we get the arrest records. We was getting them or we looking at this person right issue to call on occasion to say this person should have been not in jail. So we start calling their commanders.
S3: So why is this person continued to lock people up for this crime right here? They shouldn’t be calling us.
S1: Step four, be such a pain in the ass to police commanders that they ask their line officers to do pre arrest diversion when they can. In a matter of two years, the work of Maryland’s organization dropped the incarceration rate at the jail from 700 people a day to about 70.
S2: So it does not make no sense for our city to spin dirt to but bamming in Dallas to run a jail for 70 people.
S5: The jail is the base. We made it a point that everything we do, we don’t take away from the jail. So we all starve the beast.
S13: I mean, the other side of this is that you’re helping solve a crime problem.
S5: Yes, we’re helping solving a crime problem. Crime rate really hasn’t went down.
S4: The underlying principle of Maryland’s prison abolitionism is a principle she has herself lived through.
S13: Cages don’t work. They don’t lower crime and they don’t help the people who are in them become better citizens when they’re out. Instead, respond to wrongdoing with compassion and help.
S4: And the reduction in crime in public danger will follow.
S13: Sometimes people respond by denying the facts. They think that contrary to all evidence of the last 40 years, prison and the permanent collateral consequences they impose actually improve lives.
S4: But once they get past the willful ignorance, the typical response is moral, not empirical.
S13: The opponents think that people who do bad things deserve some kind of pain as payback, maybe not excessive pain, but some kind of pain.
S8: They think that it’s an injustice to let bad people who do bad things go free. And it’s even more of an injustice to give them benefits. They didn’t like a free education, housing and medical treatment. This kind of justice is called retributive justice. And it’s contrary to Maryland’s entire approach. Even she thinks so.
S1: What do you think of the idea that some people deserve to be punished?
S2: Some people deserve to be punished? I don’t think people deserve to be fined. We got people with all types of illnesses. We don’t know what they are. But we have people that are doctors and psychiatrists and all those things. They know what they are.
S1: So it’s just not true. It’s not true that people deserve to be punished. That’s just not right.
S3: No matter who they go is something else that they need is a service.
S14: My name’s Greg Caruso and I teach at SUNY Corning.
S1: Greg Caruso is a philosopher and criminal justice reformer who has been advocating for the exact approach to crime that animates Marilyn Wynn’s activism.
S14: The goal for me is to treat it more like a public health approach to criminal behavior and look at the inequalities that cause crime again, racism, sexism, educational inequity, those kind of factors combined with preventative measures. So like in the public health arena, the Centers for Disease Control, the EPA, the Food and Drug Administration, their primary function is preventative. The CDC will only use quarantine after it’s failed in its primary function.
S1: For someone like Greg Caruso, the analogy between disease and crime is almost perfect. We do not treat the people who spread disease as being at fault and deserving of punishment. Rather, we’re supposed to use the government’s resources to prevent a spread. And when that system fails, we use quarantine or shelter in place in ways that are not punitive. They’re not punishments. Punishments are the purposeful infliction of harm or burdens. For the sake of condemning a wrongdoer. Quarantines are supposed to be the least intrusive and burdensome situations we can impose on people to contain the spread of a harm. Quarantines don’t take place in prisons, but at home or hotels with luxuries, medical care and sometimes even income provided. And we only do it for as long as is needed to contain the spread. Caruso thinks we should treat all crimes as diseases in this way. Because he thinks that all punishment, whether by the state or by any person, is morally illegitimate.
S14: Well, if you ask why punish this individual, one answer you may give is that they deserve it. And that’s what is called a backwards looking justification. It says we want retribution. This individual did an immoral act and they deserve to suffer for the wrongs they’ve done.
S1: Deserving something is very basic to retributive justice. When you deserve something, people ought to see that you get it, not because it’s good for you or good for society or good for anything else. Giving people what they deserve is intrinsically good. It’s a part of justice. Even if what they deserve is punishment. And that is what Greg Caruso denies, that anyone ever deserves punishment.
S14: So I’m a Freewheel skeptic. I believe that who we are, what we do is ultimately the result of factors beyond our control. And because of this, we’re never morally responsible for our actions in that basic desert sense.
S15: Lots of cultures and traditions have been playing with this idea for a long time. Humans don’t have free will and beings without free well are no more responsible for their actions as anything else in nature, non-human animals, rocks, natural disasters or diseases. The argument goes that the concepts of being at fault, to blame or responsible are human fictions, things we would never apply to anything else that does bad things in nature. Caruso argues for this conclusion with a thought experiment.
S14: So say a team of scientists engineered this individual’s life from the moment of conception. We’ll pick the zygote and the sex cells and then after birth, they control every aspect of the individual’s life, like The Truman Show. The kid goes to school with who is their first grade teacher, who appears on the stage at a life or all engineered by the scientists. And their sole purpose in doing all of this, let’s say, is that that person robs a liquor store on their 21st birthday and they’re really good at what they do. They know all the determinates. They know how to influence the psychology of the person. And just as planned, this person robs a liquor store on their 21st birthday.
S1: Kouroussa thinks that we should all think that this person who is trapped in the circumstances of their birth and upbringing by scientific design is neither free nor to blame for robbing that liquor store.
S16: Whatever the appearance that they had, a choice is a fiction.
S13: Once we know the totality of circumstances, the liquor store robber is absolved of responsibility and undeserving of punishment. Well, that thought experiment isn’t really a thought experiment. Everything that causes criminal activity in the real world is just like the manipulating scientists in the thought experiment.
S14: You didn’t choose your sex cells. You didn’t choose your zygote. You had no control over who your parents were. You had no say over who you went to first grade with and who your second grade teacher was.
S17: In fact, almost none of the criminal genic factors are things within your control. Childhood poverty and abuse, the presence of firearms and weapons growing up in a community of criminal activity.
S18: And if our intuitions are in the first case, the agent isn’t free. Your intuitions in the second should follow. That it’s not free.
S17: Caruso’s conclusion is that any justification for punishment based on thinking that someone deserves it is mistaken. No one deserves anything because no one is responsible for any of the things they do. It’s the most radical and revisionary way to deny the legitimacy of punishment. What’s left, then, are justifications for punishment on the grounds that it’s good for other reasons.
S19: What do you think about the idea that retributive punishment happens to be a good way of rehabilitation?
S14: Also, I just think that’s an empirical question and I think it’s false. When you look at the way it’s been executed in the United States, we actually have one of the highest rates of recidivism in the developed world. So seventy six point, I think it’s six percent of prisoners will be rearrested within the first five years of release. We do nothing to make them better while they’re in prison. We deprive them of educational opportunities. We don’t provide them with drug counseling. We don’t provide them with mental health care. If you can’t compare that to the Norwegian system, just as an analogy, they have one of the lowest incarceration rates, but also one of the lowest recidivism rates. And one of the main differences is that their whole purpose is rehabilitation and reintegration.
S18: So even if you didn’t agree with my views on free, well, there are practical problems with retro activism. There are indications that it doesn’t serve society well. It doesn’t serve victims well. And the fact that was one of the largest studies done recently of victims, about three thousand participants on what victims actually want from the criminal justice system. They want to see more funding and more money spent on rehabilitation. They want shorter prison sentences. They want focus on prevention instead of punishment, because most victims tend to want to prevent other people to go through what they went through. And they often understand that the retributive approach doesn’t necessarily achieve that.
S20: Suppose that all these numbers are accepted by every tributed.
S21: This doesn’t retributive this believe that giving someone what they deserve, they’re deserving punishment just trumps all of these kinds of considerations.
S18: The retributive ist would not be motivated or moved by cost arguments or even in certain cases, empirical claims about the effectiveness. Do retributive this as I don’t care. I don’t necessarily care whether it prevents others from committing murders. I don’t care if it helps deter crime. I don’t care if it makes this individual a better person moving forward. It’s a backward looking at account and they justly deserved to suffer for the wrongs they’ve done. They killed my loved one. I want to see them die. Let’s say.
S22: We’ll return to the rest of hyphenation after these messages.
S1: I hope you’ve enjoyed the season of hyphenation. It was made possible by the Widing Foundation through its public engagement fellowship in the humanities. And by many ongoing patrons of the show, like Carrie PFEG Door, Allison O’Halloran, the Greenberg family and Scott Evely. It’s also been made possible by our Slate plus members who have gotten a bonus episode for every episode this season. This week’s bonus is a long form conversation between me and Kimberly for Farzad, where we talk about what it would mean to divide the criminal justice system into two distinct institutions. One for preventing crimes. The other for punishing them. I also wanted to recommend a new podcast that you might like if you happen to be a fan of philosophy and philosophers. Friend of the show and all around, brilliant guy Karen Satya, who teaches philosophy at M.I.T., has a new show called Five Questions, where he sits down for 20 minutes a week and asks a practicing philosopher. Five questions not about their work, but about their lives, their deepest fears, their most frightening moments. That’s five questions with Kieran Satya. You can find it anywhere you get your podcasts. Now back to the show.
S23: I think the first question is, are you going to be a desert skeptic across the board?
S1: Kimberly Fauzan is a legal philosopher, formerly of the University of Virginia, now at the University of Pennsylvania. She considers herself a card carrying retributive history.
S23: We tend to think that when people do good things, that in fact they deserve praise and for good things to happen to them. What do you think of retributive ism is a question about do you think that good people deserve good things to happen to them and bad people deserve bad things to happen to them? One question is, can you have one without the other? Philosophically, I think people who do bad things deserve to have, you know, harm befall them.
S1: Most retributive vests. I’ve talked to don’t think the issue of free will is relevant for criminal responsibility. How could it be? They say how could the legitimacy of an entire society’s legal system rest on an academic question that has spawned two thousand years worth of discussion among Philo Jones and philosophers to no progress and no conclusive answer? Instead, criminal punishment rest on some version of the view that you can be responsible for your actions without being in control of all the things that made you who you are. If people don’t have free well, then the people we admire and esteem like Michael Jordan or Oprah Winfrey would be equally without free will. Their actions and achievements are mere products of their gifts from nature and their social and historical circumstances. The retributive ist wants to argue that none of this makes us admire or esteem them less or think they are less deserving of praise and wealth. And so they argue in Greg Caruso’s case. But the same is true of people who do bad things. The guy being manipulated his whole life to rob the liquor store is responsible for robbing it. He wasn’t coerced. He wasn’t insane. He wasn’t in voluntarily intoxicated. He did what he wanted and he identified with the action he took. That’s enough to deserve to be punished for doing the deed.
S23: The example that I frequently use is one that Victor Tadesse uses in a paper, which is, you know, Hitler is on an island and you have the power to make it rain or to make it sunny and you’ve got to push one button or the other. And I think it should be raining on Hitler’s island. I think most people think it should rain on Hitler’s island. And Tojo’s thinks it should be sunny on Hitler’s island because Hitler’s life is already gone so badly by virtue of being Hitler. And I think that’s a bit of a reductio on the anti retributive best position.
S24: We do presuppose agency of human beings.
S1: Michael S. Moore is a leading philosopher today who advocates retributive justice.
S24: You can’t be retributive just unless you think human beings are free enough in some sense that they can have the agency that makes them responsible. What matters for agency is what you can cause, not what causes you to cause.
S11: It’s a kind of concession to the skeptic about freedom of the well. We really don’t have control over what we want, what drives us or the circumstances that make us succeed or fail. Who knows why some people have the desire to win six NBA championships while others want to shoot up a nightclub. And yes, Michael Jordan happened to grow up in a country with basketball coaches, scouts and an NBA while mass shooters happened to live in a country with easily available and legal assault rifles. None of that is they’re doing. But for a retributive test like Michael S. Moore, you don’t have to be in control of these things to be responsible for your actions. Responsibility is a matter of whether you set your mind to do something and then did it. It isn’t a matter of all the social, psychological and historical facts that explain why you set your mind to do it in the first place. The law and we the people are right and philosophers like Greg Caruso are wrong.
S25: Michael Jordan deserves praise. Mass shooters deserve blame. He can’t be a skeptic about punishment by being a skeptic about free will. Moral responsibility just doesn’t work like that.
S1: If you ask retributive ests how they know that a person deserves punishment, how they can be so sure that justice is about retribution rather than something else. They tend to cite something quite surprising. Human emotions. The emotions form the basis of how retributive us argue that their view is the morally correct one. They have a view that the emotions aren’t just their feelings, but is rather intelligent judgments.
S24: There’s a rationality to the emotions. They can tell you things that you must believe to be true.
S1: In particular, focus on what the emotion of guilt is telling you to be true. Every time we feel it, every time it’s correct to feel it, when it’s something we expect the morally righteous and virtuous person to feel. It’s telling you that you deserve to be punished if you feel guilty.
S24: And if it’s virtuous to feel guilty, then you are guilty. And as my Jewish friends say, to be guilty is, of course, if you understand guilt to suffer.
S1: What is guilt, but retributive justice applied to yourself? You’re imposing emotional suffering on yourself as payback for the wrong that you’ve done. The retributive US thinks that the criminal justice system is and should be an extension of this feeling. All you need to accept is that if it’s okay for you to punish yourself with guilt, it’s also OK for the people you’ve wronged to punish you with their moral emotions, anger, resentment and indignation, moral hatred.
S24: It’s really good that you hate criminals because they’ve violated the moral norms that you cherish. You should hate them.
S26: That’s the core of justice and perhaps the core of all of morality. Aaron Kelly is professor of philosophy at Tufts University and a critic of retributive justice.
S27: The idea that we ought to blame people who’ve done something wrong is at the core of our ethical life.
S26: The way that we identify injustice and immorality, according to the retributive list, is by consulting are blaming emotions. What makes us guilty, angry or resentful? What is the righteous emotion we should feel toward people who do wrong? But these emotions are telling us what justice is. Then, of course, our justice system should be one that respects them and acts on them. When anger, guilt and resentment are the right feelings to have. The retributive, it says that that’s when the law should step in on our behalf and punish people for the injustice they’ve done to us. Interpersonal moral justice should be the guide to criminal justice.
S1: Philosopher Aaron Kelly thinks that one of the mistakes the retributive US makes is assuming that all of us carry around guilt, anger and resentment toward wrongdoing and that these emotions are the uniquely rational and virtuous responses to people who have done wrong. What if they’re not? What happens to the criminal justice system then?
S27: I don’t think that a reasonable response to criminal lawbreaking has to involved the moral attitude of blame. I think if someone lets you down or mistreats you, you could respond in a resentful and blaming fashion or you could seek understanding. You could try to repair the relationship. You could choose to forgive them. You could help the person to understand why they’ve done what they’ve done and find a new way to relate to each other that’s more healthy. There are lots of moral options for responding to wrongdoing, mistreatment, disappointment, problems in our interpersonal life.
S1: And if that’s true of interpersonal life, why can’t it be true of criminal justice? Why does justice mean dishing out the state equivalent of anger and resentment rather than the equivalent of forgiveness and mercy? It’s a question we need to ask a retributive ist.
S19: One way to put the objection is something like this. It might be true that guilt is virtuous in certain circumstances. But forgiveness or not feeling guilty or be self forgiving or something like that is also virtuous. And in the third person case, it’s probably even more plausible. And anyways, the idea is, why should the state be in the business of dishing out the part of our moral emotions that goes with virtuous guilt versus like some moral enlightened state like forgiveness and something like that?
S24: Aaron, is supposing that mercy is a virtue. That’s a conventional view. Retributive us. Don’t think so. Mercy is antithetical to retributive justice.
S1: Michael Moore’s argument is that in interpersonal life, when we blame each other, we don’t actually think it’s a virtue for people to forgive without a good reason for doing so. If someone who is wrong, do you really does have an excuse or is under real hardship or has extenuating circumstances that make you blame them less? Then you shouldn’t punish them anymore. But not because forgiveness or mercy is a virtue, but because they don’t actually deserve it.
S24: Don’t confuse that with mercy. That’s just a judgment of lessened responsibility. True mercy. Mercy, where someone has no justification and no excuse for a culpable bit of wrongdoing is not the business of the state because it’s not the business of anyone.
S26: So far, the critics of retributive ism have been targeting the legitimacy of punishment everywhere. It’s not even justified in everyday life, they say, because of free will or because we should never be angry or resentful, but rather forgiving and constructive with the people who do us wrong in everyday life. They’re going big with the abolition of punishment. With criminal justice being just the small part of the larger abolitionist project. But there are critics who are far less revisionary. They think blame and punishment in everyday life are fine. It’s just something the state the United States is not entitled to do.
S19: You argue that the state’s inability to lessen the social injustice, maybe even a perpetuation of the social injustice, removes it from having any moral position to punish retributive Lee.
S28: If the state puts people in a position where it seems reasonable to break the law, then it’s in a weak position to blame people for doing those very things. So the idea is that the authority of the state to blame criminal wrongdoers is undermined when the state has had a role in creating the conditions that lead people to find crime attractive as an option for meeting their needs, protecting themselves.
S19: In fact, you even use that as an argument against the legitimacy of policing practices.
S28: When you have a group of people who don’t receive the ordinary benefits of a system of law, yet are burdened by the practice of law enforcement, the law loses legitimacy in the eyes of people it doesn’t protect but is willing to burden.
S13: For Kelly, the state is only in a position to dish out punishment when it has fulfilled its other duties of justice, things like fair distribution of economic resources and opportunities, equal protection under the law. If the state fails to do this, then punishing criminals like a dictator, punishing an associate for a murder he ordered.
S20: Society is not in a moral position to punish people for crimes. It sets up. The view of justice that’s emerging from the anti retributive east is one where punishment and deserve play no role in what we do to people who commit crimes.
S12: The state’s only role is protection and prevention.
S27: The state could have a rationale for enforcing the criminal law that’s based on reasons that all people have some stake in, namely the importance of protecting our basic rights from other people’s intrusion, from violence, from people’s transgression against our interests, retributive. It’s a non retributive US alike. Share that interest. And that’s enough. That’s all we need in order to uphold a criminal law standard. We don’t need to take the further step of saying and the people who commit crimes are blameworthy for doing so. And that’s why they should be punished.
S19: What would the difference in manifestation be between retributive ism and this alternative? Concretely, with respect to see like sentencing, what would be a difference in its treatment of human beings?
S27: Whereas the retributive system counts the harm to the offender as a point in favor of punishment. If we get rid of the judgment of desert, we don’t have that pressure in favor of punishment. And we’re left with thinking. What good are we accomplishing by punishing people? Are we making our rights more secure?
S13: Another thought experiment, a person, let’s say a 50 year old accountant, kills her elderly parents out of revenge after years of being mistreated by them. What should be the state’s response? Those interested only in prevention and protection will need to assess the threat that this person poses to the rest of her family.
S20: The public at large, and maybe whether letting this person go free would increase the rate of other murders. That assessment could very well fine. But there’s a very low risk, given the age of the defendant, the very specific circumstances and people she targeted.
S13: Moreover, whatever the risk, it can easily be mitigated by something short of prison therapy or ankle monitoring.
S20: Prevention and protection require you to proportionate response to the actual threat level the individual poses. And it requires you to do the least harm necessary to avert a threat.
S1: But it’s a different story with desert.
S12: If a person deserves a punishment, it doesn’t matter that the punishment is harsher than necessary to avert the threat. In fact, the level of threat the person poses shouldn’t matter at all. What you deserve is proportionate to how heinous the state finds your crime, not proportionate to the kind of threat you pose.
S1: So in this hypothetical. Protection and prevention says ankle monitoring. Retributive ism says a decade or two in prison.
S20: Having a purely protective and preventive regime of criminal justice is frightening to the retributive us because it means that the government can’t distinguish between people who deserve government intervention in their lives and those who do not. Kimberly Frozen. University of Pennsylvania.
S23: Why would you ever wait for crime? So there are some studies that say three year olds who throw temper tantrums are much more likely to commit violent offenses as adults. Why wouldn’t we then lock up three year olds? As a matter of pure incapacitation, there would be no reason why we would necessarily have to wait until they commit an offense.
S1: The retributive ist cares a lot about innocence and guilt, fault, a no fault. That’s why you would never lock up a three year old. But for someone who only cares about prevention and protection. It’s like innocence or guilt, but level of risk that matters. A person who merely has a high potential to commit a crime and a person who has already committed a crime should be treated the same way if their level of threat were the same. To the retributive us, that’s scary and very disrespectful to people. You can’t treat people who haven’t done anything yet as though they’re destined to be wrongdoers needing state intervention. A retributive justice system will recognize that even though you are a high threat, it will not intervene until you deserve it, until you’ve exercised your agency to actually do something wrong.
S29: It won’t use any force to stop you. Only on its prediction of the wrong you’re likely to do. Retributive justice. The argument goes, is more respectful of your freedom and agency. You have the right to be a risky human being. The cost is that we have the right to punish you for taking advantage of that respect.
S8: It’s very important, then, to a retributive test for the government to have the moral legitimacy to blame and punish. Because they can’t accept the criminal justice system that’s only preventive and protective.
S13: Michael S. Moore concedes to Aaron Kelly that this legitimacy is something the state can lose.
S24: State actors have a duty to render justice to their citizens, but sometimes they lose the standing to be the enforcers of that duty because they’re such corrupt violators themselves. You can imagine states so unjust that they’ve lost the right to give people what they deserve in a society that is distributed fully as unjust as ours. We know the opportunities not to be criminal do very by the great three criminogenic factors abuse of drugs and alcohol, wealth and education. And if you deprived of those that the last, to no surprise, you have less opportunity in the rest. And someone like Aaron Kelly would say so if you have a distributed, fully unjust society, you have lost the right to punish. I just don’t think those conditions are so debilitating that you say to an intentional rapist or murderer. Gee, it’s just not your fault. I don’t think that for a moment the difference between retributive tributaries like myself and critics like your and Kelly are a difference as to where we are on that threshold. I think we have a reasonably just society, less so the last three years than the previous, but nonetheless, just enough that we haven’t lost the right to give people what they deserve through our legal institutions.
S30: Punishment abolitionists have a diagnosis of what they think has gone astray in American criminal justice, retributive s on the other hand, like that, our justice system is a retributive one. They think that’s what all justice systems should be like. So what do they think the problems lie? Yeah, not an attribute tourism, that’s for sure. Instead, the problem lies in proportionality. Punishment is good. Too much of it is not.
S21: Too many people are being punished disproportionate to their deserts where they’re being punished for things that weren’t morally wrong to start with. So they didn’t really deserve punishment. So we should not be putting people in jail for being mules the way that we do in the drug trade. Retributive isn’t actually properly applied, would limit what we can punish because it limits what you should prohibit.
S23: I think that the we ought to criminalize everything. We want to stop. There ought to be a law. And once you violate that law, you deserve punishment just as a complete misunderstanding of retributive ism, which really looks to moral wrongdoing and culpability as necessary for punishment. So there’s nothing that makes that torches and pitchforks wielding people. There’s nothing about retributive ism that entails any of that.
S21: You can be quite gentle, retributive us, and think that people don’t deserve much punishment. We could be one of those people that cuts prison population to a hundred thousand and still be good tributaries. Just depends on where you are in terms of how much punishment is proportional.
S1: It started out this series trying to figure out what I should think about punishment. Well, we have so much of it and whether I think it should exist at all. I used to think that retributive ism wasn’t about justice, but vengeance. It’s the state’s way of channeling our collective bloodlust for revenge and hatred of people into a system of rules, procedures and justifications to give vengeance an air of legitimacy.
S16: But no retributive us. I spoke to is particularly bloodthirsty. They argue from the importance of the human emotions and the natural reactions we have when people who have no excuse to do wrong with no consequences. I still don’t know what I think. But I’m convinced that punishment is hard to contain. The drive to be punitive is too strong to keep in check, to keep proportionate to actual wrongdoing. Once we feel the satisfaction of giving someone their just desserts, it’s hard not to keep going on and on and punish people harshly, not permanently. For that reason, I think that even if the nihilists about moral responsibility aren’t correct. They’re useful to have around. If only just to keep the rest of us in check. Thanks for listening to this season of High five Nation on Crime and Punishment. Hope to see you next season. Keep in touch.
S31: Hyphenation is written, produced and edited by Barry Lamb, associate professor of philosophy at Vassar College. Editorial director for Slate podcast is Gabriel Roth, senior managing producer for Slate podcast. Is June Thomas. Operations manager for Slate podcast is Usha Suja.
S1: Editor for Slate, plus child to executive producer for Slate podcasts is Alicia Montgomery.
S9: Production assistance this season provided by Noah Mendoza. Good visit. High five Nation Dawg for complete show notes. Soundtrack reading list for every episode. That’s h i p h i nacion dawg. Follow hyphenation on Facebook and Twitter and at the Web site for updates on stories and ideas.
