The Encyclopedia of Libertarianism. Editor: Ronald Hamowy. Thousand Oaks, CA: Sage Publications, 2008.
Retributive punishment refers to punishment for a crime that is carried out for retributive reasons and is justified if there really are good retributive reasons for punishing crime. To get a clear sense of this notion, we need to explain what is meant by crime, punishment, and retribution. Crime has reference to socially disfavored actions, especially those that violate rights. Punishment, whether it is spontaneous or part of a system of law, refers to the imposition of a net loss on some agent in response to that agent’s performance of some disfavored action. Punishment is to be distinguished from the extraction of compensation. If our agent has imposed a loss on some other party and has in consequence been required to pay compensation to that party to make up for that loss, he has not (yet) been subjected to punishment. Punishment is that additional whack on the head to which our agent is subjected beyond the extraction of restitution. However, to explain what retribution is, we need to distinguish between different sorts of justifications for punishment.
Most of these justifications can be classified as either consequentialist or retributivist. Consequentialists hold that punishment is justified by its desirable social results-most saliently, that punishment acts as a deterrent. Although the infliction of punishment may be socially undesirable, inflicting punishment on those who perform criminal actions may so extensively deter these sorts of actions that the net consequences of the punishment will be socially optimal. For the consequentialist, particular punishments or systems of punishment are justified if, but only if, they tend to be productive of better overall social outcomes than would be generated by other punishments or systems of punishment or would obtain if punishment were abandoned.
In contrast, retributivists insist that, if punishment is justified, it is justified by considerations of justice, rather than by its desirable results. Retributivists argue that if the rationale for punishment is weighed in terms of its socially optimal results, both punishment of the innocent and markedly disproportionate punishment of the guilty can be justified because sometimes punishment of the innocent or disproportionate punishment of the guilty will have the optimal social outcome. According to advocates of retribution, nothing but a primary focus on justice can explain the fundamental requirements that only the guilty may justifiably be punished and that all legitimate punishment must fit the crime. To endorse retributive punishment is, then, to endorse punishment of crime that is based on principles of justice, rather than on the punishment’s desirable consequences. For the retributive punishment of crime to be actually justified, there must be principles of justice that actually vindicate punishment.
The retributivist critique of the consequentialist justification of punishment resonates with the common libertarian insistence that there are principles of justice that must be respected in the treatment of individuals even if violations of those principles were socially expedient. Retributivism seems to be most consistent with the characteristic libertarian insistence that individuals, their just claims, and their rights must be respected and that this respect precludes treating individuals as resources to be utilized in programs of social optimization. Hence, if libertarian doctrine is to embrace punishment, it looks like it must embrace retributive punishment. However, a more detailed examination might well reveal fatal flaws in each of the claims about justice that might be invoked in attempting to build a positive case for retributive punishment. If that turns out to be correct, then libertarian doctrine that duly incorporates sound claims of justice may end up rejecting all punishment and limiting itself to the endorsement of the practice of restitution. This sort of endorsement of restitution, combined with a rejection of punishment, is the position staked out in Randy Barnett’s well-known essay, “Restitution: The New Paradigm of Criminal Justice.”
A more detailed examination of the prospects for retributive punishment requires that we distinguish between the different sorts of claims about justice to which a retributivist theorist may appeal. The two main sorts of claims about justice are claims about desert and claims about rights. Some retributivists hold that what justifies that extra whack on the head is that the agent who has performed a disfavored action thereby deserves the whack on the head. The whack is his just desert, and the morality of a system of just deserts allows-or even requires-that the whack be delivered. Other retributivists hold that what justifies that extra whack on the head is that the agent has violated another’s rights and that the only way to acknowledge that a right has been violated and, at least in this sense, annul the violation is to deliver the whack. A morality based on rights allows-or even requires-the retributive whack. Quite often retributivists do not attend carefully to which of these two sorts of claims about justice claims they are invoking.
Both the desert and the rights defenses of punishment require that we look backward to determine whether a given agent may be punished, rather than looking forward to the possible desirable consequences of punishing him. We must determine whether the agent actually performed the wrongful act that would make him deserving of the whack or whether he actually engaged in the violation of a right that would, in some sense, be annulled by delivering the whack. In either case, the guilt of the agent is essential to the justification of the punishment. Moreover, the magnitude of the justified whack will track the magnitude of the wrongful or rights-violating action by the guilty party. Thus, these forms of retributivism seem to limit justified punishment to the proportionate punishment of the guilty. Of course, it is this backward-looking feature of retributivism that leads its consequentialist critics to charge that retributivism is merely pointless vengefulness.
How well do these two forms of retributivism-desert and rights-fit within the general libertarian perspective? It is clear that the desert form does not accord well with liber-tarian doctrine inasmuch as it is predicated on rejecting the proposition that it is the role of political and legal institutions to employ their coercive powers to ensure that individuals get what they deserve. The dutiful son deserves his father’s estate, whereas the prodigal son does not; yet that does not, from the libertarian perspective, justify the use of coercive means to deliver the estate to the dutiful son. The armchair fan of mass murder who revels in the news of some monstrous attack in which he plays no part more deserves to suffer than the petty thief; yet that does not, on the libertarian perspective, justify coercively imposing the greater suffering on the fan of mass murder. Indeed, it would violate the rights of the prodigal son to deprive him of the estate that his foolish father has bequeathed to him. Similarly, it would violate the rights of the devotee of mass butchery to inflict on him the suffering he so richly deserves. Libertarians do not believe that desert-based theories of morality are subject to coercive enforcement; indeed, desert is part of the moral domain, the coercive enforcement of which violates people’s rights. Hence, no libertarian embrace of retributive punishment can be founded on justice as desert.
It is justice based on a respect for rights that is the crux of libertarianism. But does even this notion of justice really support retribution-as opposed to upporting only restitution? One common argument against the belief that justice demands rights-based retributive punishment depends on a false belief in the rights of the king or-in more modern contexts-the rights of society or “the people.” The picture that the opponent of retribution presents is this: Extracting restitution from an agent who has inflicted a loss on some individual is based on our correct belief in that individual’s rights; but any accompanying punishment of the agent will be based on our incorrect belief that the king or society or “the people” also have some right that the agent’s actions have violated. The additional whack of retribution is based on this belief in additional rights held by the king, society, or “the people.” According to the antiretribution argument, because these additional rights do not exist, any defense of retribution that depends on them must be unsound. Indeed, many friends of retribution quite willingly embrace the idea that, whereas restitution vindicates the rights of the individual, punishment per se vindicates the rights of the state or “the people.” Opponents of retribution take this admission to be evidence that belief in retributive punishment is inherently statist and antilibertarian.
Can a rights-oriented advocate of retributive punishment escape the charge that his doctrine depends on an antilibertarian belief in the rights of the ollectivity? This advocate of retribution can escape this charge if, but only if, he can explain how the extra whack of punishment is part of the justified response to the violation of the rights of individuals. The rights-oriented retributivist seeks to provide such an explanation-an explanation that is grounded in a view about the nature of individual rights and, hence, of what constitutes a violation. According to this view, an individual’s right to a particular object involves more than a right to the amount of utility or welfare that is derived from possessing or utilizing that object. The individual’s right also and crucially involves the moral authority to determine by one’s choice of what will be done with that rightfully held object. Hence, when one’s rightful holding is taken, the holder undergoes two distinguishable losses. The victim loses the utility or welfare (if any) that would be derived from a continued possession and use of the object. This loss is the harm that is engendered by the violation. However, that individual also is deprived of the choice about what will be done with that object. This loss is the wrong that is engendered by the violation. The violation of the victim’s right both harms and wrongs the victim. Restitution is responsive to the harm; it seeks to annul the harm by bringing the victim back to the level of utility or welfare that would have been attained if one’s right to the object had not been violated. But, the retributivist argues, restitution is not at all responsive to the wrong that is inflicted on the victim. The restitution-only stance, in effect, treats a right to an object as nothing beyond a claim to the amount or utility or welfare that the rights holder will derive from possessing or utilizing that object. In this respect, the restitution-only stance is like the doctrine of eminent domain; all that an individual’s property right requires is that he be compensated after his property is seized.
In contrast, according to the advocate of retribution, a policy of restitution and retributive punishment is responsive to both sorts of losses that are imposed when rights are violated; it responds to both the harm and the wrong. Just as the harming of the victim opens up the rights violator to enforced compensation payments, the wronging of the victim opens up the rights violator to retributive punishment. According to rights-oriented retributivists, the infliction of the punishment annuls the wrong in a way that is comparable to the way in which the extraction of compensation annuls the harm. However, this simply points to the hardest task for defenders of retributive punishment, namely, the task of providing a satisfactory account of how punishment for a wrongful act annuls the wrong. Of course, even restitution does not annul the harm in the sense of rolling the clock back and fully compensating for the harm inflicted. Thus, retribution cannot be faulted for not rolling back the clock and making it false that a wrong was inflicted. What the retributivist is able to say is that the punishment annuls the wrong in the sense that the punishment vindicates the victim’s status as a rights holder. The punishment reaffirms the moral inviolability of the victim in the face of her alltoo-actual violability. This vindication is the annulment of the wrong that the victim or the victim’s family commonly sees in the conviction and punishment of the wrongdoer. The reason that the failure to convict and punish the wrongdoer is so disturbing is that this failure leaves the wrong in place; it leaves the wrong un-nullified. As the retributivist sees it, when the wrongdoer goes unpunished, the only route to the mitigation of the wrong is foregone.
Such a rights-oriented vindication of retributive punishment seems to be the only sort of justification of punishment that fits comfortably within the libertarian perspective. However, that perspective also reminds us of the complexity of the world of human interaction, the fallibility of our factual judgments, and the mistrust that is so richly deserved by institutions that present themselves to us as vindicators of our rights. Therefore, there is more than a considerable gap between the theoretical justification of retributive punishment and the endorsement of the practice of punishment as it actually exists.