On Retributive Justice
I've seen a bit of discourse recently regarding retributive, rehabilitative and restorative justice. For myself, I rejected retributive justice very early on thinking rehabilitation the obvious better. After some more reading and being introduced to restorative justice, I drifted towards it as my favoured model.
But two recent discourses have made me want to return to consider retributivism as a model. Firstly, the increasing prevalence of restorative practices being used in schools, which I've seen criticised as "turning villains into victims, and victims into villains" and hasn't seemed particularly effective in actually creating the 'positive learning environment' envisioned. Secondly, the prevalence of restorative practices being used in progressive/radical circles for sexual assaults, and seemingly failing to generate either atonement or restitution.
So lets have a look at retribution!
There are two papers that interest me regarding retribution, with the general argument being made that 1) we have a right to retribution, 2) rehabilitative/humanitarian justice is more totalitarian.
The issue raised with rehabilitative justice is that it inverts "punishment" into a "cure." C.S. Lewis in The Humanitarian Theory of Justice contends that under this view the only legitimate motives for punishment are deterrence or "to mend the criminal." Hence, "punishment becomes therapeutic." But the issue here is, once someone breaks the law they effectively lose their human rights.
Why? Well, under a rehabilitative system, there is still compulsion: the criminal's rehabilitation is enforced on them. But the demand of deterrence is to deter, and the purpose of a cure is to cure. The question of "justice", as in, "does the criminal deserve this action" actually falls out of the equation. Hanging jaywalkers probably deters them, but we balk at that suggestion due to an appeal to justice. When it comes to "cures", true rehabilitation hands the reigns from moral agents (judges etc) to technicians such as psychologists, educators etc who deems when the criminal is "fixed."
This is where I first drifted from rehabilitative justice. Because, realistically, it is vastly easier to "rehabilitate", say, a higher-educated, successful professional who embezzled from a pension fund, than it is to rehabilitate an impoverished, highschool drop-out, drug using, generational-trauma-inflicted shoplifter. So Lewis ends up characterising the "humanitarian" justice system in terms of:
To be taken without consent from my home and friends; to lose my liberty; to undergo all those assaults on my personality which modern psychotherapy knows how to deliver; to be re-made after some pattern of "normality" hatched in a Viennese laboratory to which I never professed allegiance; to know that this process will never end until either my captors have succeeded or I grown wise enough to cheat them with apparent success.
Deterrence is, in many ways, even more vile an approach. As your punishment is instead a means to an ends of other peoples' actions. How can it be right to torment a criminal for the purpose of deterrence unless you make an appeal to the fact that the criminal deserves the torment, that he is receiving his Just Deserts?
You may be familiar with part of this passage:
My contention is that good men (not bad men) consistently acting upon that position would act as cruelly and unjustly as the greatest tyrants. They might in some respects act even worse. Of all tyrannies a tyranny sincerely exercised for the good of its victims may be the most oppressive. It may be better to live under robber barons than under omnipotent moral busybodies. The robber baron's cruelty may sometimes sleep, his cupidity may at some point be satiated; but those who torment us for our own good will torment us without end for they do so with the approval of their own conscience. They may be more likely to go to Heaven yet at the same time likelier to make a Hell of earth. Their very kindness stings with intolerable insult. To be "cured" against one's will and cured of states which we may not regard as disease is to be put on a level with those who have not yet reached the age of reason or those who never will; to be classed with infants, imbeciles, and domestic animals. But to be punished, however severely, because we have deserved it, because we "ought to have known better", is to be treated as a human person made in God's image.
The next paper of interest is Herbert Morris' Persons and Punishment. In this, he asks the question: "When would one rightly demand punishment and meet with any threat of the claim being denied?"
Morris argues that those who violate the rules of society create an unfair distribution of benefits and burdens - they have benefits of the system, but by renouncing what others have assumed to be burdens of self-restraint, they have acquired an unfair advantage. Hence, "justice - that is punishing such individuals - restores the equilibrium of benefits and burdens by taking from the individual what he owes, that is, exacting the debt."
He characterises rehabilitative justice as where "the institutions of social control respond, not with punishment, but with either preventive detention, in case of ‘carriers’, or therapy in the case of those manifesting pathological symptoms." But the issue here is that: "We respond to an individual, not because of what he has done, but because of some condition from which he is suffering. If he is no longer suffering from the condition, treatment no longer has a point. Punishment, then, focuses on the past; therapy on the present."
Further, "with therapy attempts at proportionality make no sense." Because therapy is meant to be good and helpful. So "in the therapy system, dealing as it does with benefits, there is less reason for forbearance from treatment at an early stage." If our sense of "justice" is about "what's good for people and society" then why wait for the shoplifter to shoplift, rather than intervene early? In one sense, we already believe this broadly: public education, social services, etc etc are all borne out of this view. But it also then removes many limits on what the collective can impose on the individual "for its own benefit."
Similar to C.S. Lewis above, Morris argues:
The logic of cure will push us toward forms of therapy that inevitably involve changes in the person made against his will. The evil in this would be most apparent in those cases where the agent, whose action is determined to be a manifestation of some disease, does not regard his action in this way. He believes that what he has done is, in fact, ‘right’ but his conception of ‘normality’ is not the therapeutically accepted one. When we treat an illness we normally treat a condition that the person is not responsible for. He is ‘suffering’ from some disease and we treat the condition, relieving the person of something preventing his normal functioning. When we begin treating persons for actions that have been chosen, we do not lift from the person something that is interfering with his normal functioning but we change the person so that he functions in a way regarded as normal by the current therapeutic community. We have to change him and his judgments of value. In doing this we display a lack of respect for the moral status of individuals, that is, a lack of respect for the reasoning and choices of individuals. They are but animals who must be conditioned. I think we can understand and, indeed, sympathize with a man’s preferring death to being forcibly turned into what he is not.
Consider people willingly breaking the law, accepting the punishment, in order to demonstrate its unjustness (e.g. many civil rights activists), compared to being whisked away to an institution to be 're-educated' and 'reformed' until you correct your wrongthink (one can think of Soviet re-education camps or weaponisation of asylums against political dissidents).
That's a lot against rehabilitative justice, but where does that leave restorative? Well, I can't dwell on this (too long already!) but basically, I think restorative justice could make effective use of retribution. In practice, a lot of the issues with restorative justice seems to be this slant towards "forgiveness" which I don't think is really the appropriate lens. My draw towards restorative justice is around the violator atoning for their crimes against the aggrieved. Sometimes the simplest way to make amends is eye-for-an-eye type justice. "You hit me, you get caned, now we are back on an equal footing."
This doesn't necessarily sidestep many of the questions raised above (what if the aggrieved doesn't want proportional restitution, what if the violator doesn't want atonement). But if the concern with restorative practices is that it ends up providing free, ineffective therapy for violators without actually providing restitution for victims, than maybe some of the above ideas could help balance that out?