Retributive Theory of Punishment:

A Critical Analysis
January 15, 2015 by hariharan kumar Leave a Comment

By Abhishek Mohanty, WBNUJS

Editor’s Note: The issue of punishment of criminals has been a well debated topic for
societies since time immemorial. This has been debated by jurists like Hart, Anthony
Flew and Stanley Benn. The broad theories of punishment are divided into
consequentalist and retributivist theories. In this paper, the author will focus on the
aspects of retributivist system of punishment. The advantages and criticisms of this
system will be also discussed. The various forms of retributivist philosophy like
payback, annulment will also be discussed. Further, a comparison of the retributivist
system against the other forms will also be covered.

INTRODUCTION
If we see A holding a knife over B’s dead body, we might conclude that A is morally
and causally responsible for B’s death. However there might also be a case that A
killed B in an act of self-defence. In this case, A is only causally and not morally
responsible for the death of B. How does one decide punishment in such cases?
Does one receive lesser punishment or th same punishment in both cases?

The issue of punishment of criminals has been a well debated topic for societies
since time immemorial. Broadly, punishment was defined by Antony Flew[1],
Stanley Benn[2] and HLA Hart[3] to be something unpleasant for an offense against
legal rules which is adminstered by the society and imposed by a legal authority. An
essential ingredient of “a certain expressive function: punishment is a conventional
device for the expression of atitudes of resentment and indignation, and of
judgments of disapproval and reprobation, on the part either of the punishing
authority itself or of those ‘in whose name’ the punishment is inflicted”[4]. The
broad theories of punishment are divided into consequentalist and retributivist
theories.[5] Consequentalist theories are concerned with the practice of punishment
if it brings out better consequences. Retributivist theories of punishment see it as
important because it punishes the criminals in proportion to their crime thereby
restoring a proper balance.

The way how a society punishes criminals is important because of its connection to
several events that happens. The recent Delhi rape case where an increased
demand for the rapists to be hanged was made inspite of our court system allowing
for death penalty in very select cases and that too in the ‘rarest of the rare’ case
threw up the debate regarding the system of punishment which should be followed
in such cases. Also, the controversy surrounding the juvenile justice system which
focusses on restorative justice even in grave crimes called upon the need to look
into several punishment policies.

BASIS OF RETRIBUTIVISM
The most classic form of retributivism is derived in Code of Hammurabi’s lex talionis,
which stands for ‘an eye for an eye and a tooth for a tooth’. Most retributivists
believe that a guilty person should suffer pain. Herbert Hart defined retributivism as
‘the application of the pains of punishment to an offender who is morally guilty’.[6] .
It has been commented that retributivism is seen as making some appeal to ‘moral
desirabiltiy’.[7] If a thief intends to steal money from someone, he is morally
responsible for the same. And because of this moral responsibility, the thief
deserves punishment.

The core princples of retributivism are desert and proportionality. The two
principles are somewhat interlinked. For retributivists, the punishment has to be
proportional to the crime committed. Desert refers to some demerit which has
caused the accused to commit a crime. Retributive punishment has to be
proportional to the degree of desert. The more the desert, the more the punishment
should be. Retributivism is backward-looking. Retributivists do not punish a criminal
for what he or she might do, but only punish for the crimes one has committed and
in the amount the person deserves. Retributivists do not concern themselves with
the consequences of the acts but only with the desert which has occurred.

In the retributivist theory of punishment, the punishment is seen as a form of

‘payback’ for the crimes one has committed.[8] Mostly retributive justice seeks to
punish a person for a crime in a way that is compensatory for the crime.
Retributivists argue that criminals deserve punishment on account of their
wrongdoing. If they deserve punishment, then justice demands we punish. We do
injustice if we fail to punish criminals because they then do not receive what they
deserve.[9]

Another school of thought of retributivists sees punishment as a way to remove the

‘unfair advantage’ that the criminals possess due to commission of the crime. Like a
thief benefits from breaking the law by stealing someone’s possession. The
punishment meted out should remove the unlawful and unfair advantage. [10] The
criminals are seen to be free-riders on the law-abiding community. By punishing
them, the unfair advantage is wiped out.[11]

One view of retributuivism put forward by Hegel in early nineteenth century saw the
idea of punishment to cancel, negate or annul the offender’s crime.[12] In this view,
the criminal rejects the victim’s rights while committing a crime. If we leave the
crime unpunished, it is regarded as an innocent deed. But by punishing the criminal,
the status quo ante crime is restored. This view was taken forward by Hampton who
said that by the very act of commission of crime, the criminal fails to respect the
victim’s value as a human being. Reteibutive punishment vindicates “the value of
victim denied by the wrongdoer’s action through the construction of an event that
not only repudiates the action’s message of superiority over the victim but does so
in a way that confirms them as equal.”[13] In this way punishment “can annul the
message, sent by the crime, that they are not equal in value”.[14]

Now returning to the situation given in the opening, a lower punishment shall be
given in the second case since there was no desert on the part of A. It was an act of
private defence. This distinction is important because the proportional punishment
can only be set properly if one knows whether A is morally and causally responsible
for the said act.[15]

ADVANTAGES OF THE
RETRIBUTIVIST THEORY
Emphasizes proportional punishment

Retributivist theory focusses on punishment to only those who ‘deserve’ it. Unlike
deterrence theory, an innocent can never be punished. Since they are backward-
looking, they are not concerned with the possibility of a person committing a crime.
For punishment to be meted out, a person must be found guilty.[16]

Retributivist theory emphasizes the need of proportionality of the punishment to

the desert. Instead of restitution where the wrongdoes repays the society what he
gained from the crime, but such a punishment is flawed. A person who has stole a
sum of money should not only give back the money but should also suffer to the
extent he made the victim suffer.[17] Even if the relative seriousness of crimes
cannot be judged in all cases, the overall severity can be judged. Also, such
proportional punishment gives a sort of protection against severe and
disporoportional punishments for crimes.[18]

In 1975, consequentalist ideas were dominant in the English-speaking countries for a

century. Officials in the United States were allowed broad discretions to
individualize sentences. Punishment could be lengthened arbitrarily or even
shortened. Such discretion was criticized by the scholars of that time.[19]

Retributive punishment sends out a message

The idea of punishment as a form of denunciation of the criminal and his act by the
society has been envisioned by scholars like Morris, Hampton and Sir. Sir James
Stephen put the message in the words as,

“The sentence of the law is to the moral sentiment of the public in relation to any
offence is what a seal is to hot wax. It converts into a permanent final judgment
what might otherwise be a transient sentiment.”[20]
In his evidence to the Royal Commission on Capital Punishment, Lord Denning
observed,“ultimate justification of any punishment is not that it is a deterrent but
that it is the emphatic denunciation by the community of a crime.”

In the opinion of Hart, punishment should not be for sake of denunciation alone but
a deserved punishment does serve as a denunciation. According to him, we do not
live in society in order to condemn though we may condemn in order to
live.[21] Morris contended that by punishing wrongdoers each citizen learns the
particular significance of the evil underlying offenses and the degree of seriousness.
Hampton opined that punishment is somehow representative of the pain suffered
by the victim of crime and hence by inflicting punishment the wrongdoer shall
understand the immorality of the action.

The Supreme Court in the Dhananjoy Chatterjee[22] case held that appropriate
punishment is the manner in which the courts respond to society’s cry for justice
and that justice demands imposition of punishment befitting the crime to reflect
public abhorrence.

Not meting out to punishment is unfair to victims and society

alike

All legal systems recognize the need of punishment in response to crimes. If the
perpetrators of crime are allowed to walk free or pay money and escape
punishment, that would mean that they have not committed any wrong. The unfair
advantage that they would have gained by seeking recourse to illegal methods
would not be paid back or annulled if such a situation arises.

CRITICISMS OF THE
RETRIBUTIVIST THEORY
The requirement of desert required to punish crimes has in itself some difficulties.
The very nature of morality being subjective makes it difficult to deliver
punishments for crimes. The immorality of crimes needs to be comparable. For this,
a sort of gold standard is required to assess a crime. A society has its citizens
adhering to very different conceptions of good and bad. For some, using drugs is a
matter of personal liberty while for some it is seen to be an reprehensible act.
Nations have varying laws on subjects like prostitution, drug use etc. The very
question of setting a common moral standard seems every bit fair since it involves
asserting one’s view over others. Hence the process of unifying morality for
‘punishing evil’ is far complicaed than what it might appear.

Another problem of retributivist theory is with dealing with amoral crimes.

Although most crimes are both illegal and immoral like rape, murder, theft etc.,
there are crimes like traffic offences and jaywalking which although illegal cannot
be said to be immoral. For example, a overspeeding driver on an empty road cannot
be said to be doing anything immoral although overspeeding constitutes an illegal
act. In such crimes, the punishment cannot be set proportional to the wickedness of
the crime because of the absence of wickedness. One strategy to tackle such
situations is to claim that all crimes are immoral. But this involves imposing of
morality which goes back to the first criticism of the theory.

Retributivists are uncomfortable with mercy and pardons. Sometimes a greater

good can be achieved by pardoning a criminal instead of punishing him. However,
Kant famously quoted that if ‘justice goes, there is no longer any value in human
beings living on the earth’[23]. A bloody war is more acceptable than avoiding it
through injustice. Modern common law systems have a system of plea bargaining
where in the accused admits to the guilt in lieu of a reduced sentence. The state
justifies such sentences on the grounds of saving of taxpayers’ money and courts’
time. Hence, the criminal does not get what his deserved punishment was.[24]

COMPARISON WITH OTHER

THEORIES
Deterrence Theory: Punishment is used to deter people from committing a crime. It
is divided into special deterrence and general deterrence. Special deterrence
imposes punishment to discourage a person from committing a crime whereas
general deterrence punishes an offender to make an example out of him. However,
this theory has been criticized because unlike retributvism, it punishes offenders
before they have even committed a crime. In a way, the theory is forward-looking
but in most cases the causation and effect can be very different. It does not require
desert for the crime to be punishable. Also, the idea of making an example out of an
offender runs counter to the proportional punishment which has been long
championed by retributivists.

Rehabilitation Theory: Although the goal of rehabilitation is to reform the offender

and transform him to a law-abiding citizen, it has long been argued that such
processes have not been very successful. Moreover, the very idea of unfair
advantage which the criminal gains, makes it morally improper to expect that the
criminal will reform himself to a good human being. Retributivists stick to the point
that all crimes should be punished. Hence by this idealistic thought of criminals
changing to their earlier good state, retributivist forcefully reject the notion of such
rehabilitation. Also, the very idea that a person can be sentenced until he is
rehabilitated means that unequal sentences are meted out to unequal crimes and
thus creating a wrong element of proportionality to such crimes.[25]

Restorative system: In this system, instead of any punishment being meted out, the
victim, offender and the community participate together in a process of restitution.
The offender takes complete responsibility for the crime and initiates restitution to
the victim. Hence, the idea of punishment is completely discarded and is thus
opposite to idea of retributivists. Such a system is woefully inadequate to address
crimes like murder since there cannot be any restitution in such cases.
It must be noted that retributivist punishment can not be meted in all cases. The
weightage given to proportionality in the retributive system of justice carries with
itself several advantages and disadvantages. Retributivism ignores the offender’s
future conduct or effects punishment can have on crime rates. However, in many
cases(like that of juveniles), one should take into account the effect of punishment
on the accused. Hence, a lenient and reformative system of punishment should be
observed in such cases.

The idea of equality of punishment is actually difficult to implement in many

situations. What can be the punishment for crimes like rape, kidnapping, forgery
and so on? The state cannot exercise the same brutality since it would be
demoralising to the communtiy and also somewhat barbaric. In today’s societies,
the maximum punishment that can be imposed is the death penalty which has its
own critics. But however in many cases like the Delhi rape case, terrorist attacks the
death penalty has been imposed and not condemned by the society.[26]

RECOMMENDATIONS TO THE
RETRIBUTIVIST SYSTEM OF
PUNISHMENT
Under the retributive system of punishment, the link between the victim and the
accused is termed irrelevant. The crimes are seen to be against the state. But in
several cases, the victim’s relation to the accused is pivotal because of the effect
that the punishment can have on the relation can be damaging.[27] The Truth and
Reconciliation Commission in South Africa used restorative justice instead of
punishing the wrongdoers. The wrongdoers could be pardoned by the victims of the
crimes. This approach was a reconcilitatory approach to deal with human-rights
violation. This approach helped the people of South Africa to achieve a sort of
compromise without which the consequences of a full-fledged criminal process
would have led to further racial divide already prevalent in the country.

Many scholars believe that the idea of proportionality should only prescribe
maximum sentences possible in the cases. A modest theory of ‘limiting
retributivism’ emphasizes on the need of punishment to be within a range of not
lenient and not too severe punishment. Norval Morris viewed retributive
punishments to be imprecise in their assessment.[28] Several other writers have
proposed flexible retributive limits on different grounds. For example, Armstrong
wrote that:

“the right to punish offenders up to some limit, but one is not necessarily and invariably
obliged to punish to the limit of justice… For a variety of reasons(like reformng the
criminal) the approporiate authority may choose to punish a man less than it is entiled
to, but it is never just to punish a man more than he deserves.”[29]
Some utilitarian approaches to punishment like Ends-Benefits proportionality also
takes cognizance about the concet of proportionality. But however, it recommends
punishing in proportion to the harm caused or threatened, but only when such and
to such extent that such punishment will prevent future crimes. This theory not only
takes into account the actual crime control but also the undesirable consequence of
the sanction.[30]