In the Name of Justice?

How the justifications of punishment come up short.

On the morning of June 8, 2000, two men on a motorcycle shot Brigadier Stephen Saunders dead as he was driving to work at the British Embassy in Athens. The next day, his widow, Heather Saunders, arrived in the Greek capital and began what would turn out to be a three-year campaign to bring her husband’s killers to account. Her “tireless and relentless fight for justice,” as the BBC later described it, resulted in her being awarded an OBE – Officer of British Empire – early in 2003, and culminated later that year in the conviction of three members of the Marxist group, November 13, for her husband’s murder. Saunders said afterwards that “nobody really wins in this situation - but if they are taken off the streets for a while and given a piece of their own medicine, albeit in no comparison to what we have suffered, then that is perhaps justice.”

In most contexts, it would be unthinkable to suggest that justice plays little part in this story. We tend to assume that justice involves, among other things, punishment of the perpetrators of crimes. More than this, we also take it for granted that a person is virtuous in pursuing justice as an end; that it is an admirable and praiseworthy goal, the desire for which is likely to be indicative of something of value in a person’s character. However, when one begins to think about these issues more carefully, things quickly become complicated. Punishment is not one of the clearest cases of justice in practice, but one of the murkiest, and a deeper look at “justice” takes us to the hearts of deeply opposed philosophies. Are you a retributivist? A utilitarian? Neither position provides a perfect defense of our desire to punish people.

Consider, for example, what people normally have in mind when they say that they want justice for a loved one who has been the victim of a crime. Zacarias Moussaoui was sentenced to life in prison for his role in the September 11 attacks. This is how relatives of victims reacted to his sentencing:

• “I think he deserved the death penalty, and I’m sorry he didn’t get it.”

• “I know why the jury made the decision that they did, but I believe in an eye for an eye…. Here’s to hoping someone in jail gets to him.”

• “He will pay dearly. I mean, just think of the loss of the sun in your life; think of the loss of seeing the stars at night; and only being in one room for the rest of your life; and not having contact with another human being. He’s getting exactly what he deserves.”

Similar sentiments were expressed by the families of the victims of John Allen Muhammad, the Washington sniper, when he was sentenced to death in 2004:

• “Justice has been served today. I can go to my son’s grave and wish him a happy birthday on Sunday.”

• “What Muhammad did was inhuman. He deserved to die. He killed so many innocent people.”

• “There are no winners today. This was not a victory, but it was something that had to be done, and it was done right.”

The common thread running through these reactions seems to be the idea that the justification for punishment lies in its being deserved, and that justice is served if the punishment is in proportion to the crime for which it is a sanction. The idea that justice requires that people attract the rewards and punishments they deserve has a long history. In Plato’s Republic, for example, it is espoused by Polemarchus, who maintains that “it is right to give every man his due,” an idea that later appeared in Latin as suum cuique tribuere – to allocate to each his own.

This general idea about justice is most clearly associated with retributive justifications of punishment. Ted Honderich, in his book Punishment: The Supposed Justifications Revisited, says about retributivist theories that “[t]hey are all ways of saying that a certain penalty or punishment stands in a certain relation to a past offense or something about a past offense, which relation makes the punishment right – morally obligatory or at least permissible.”

The central task for retributivist theories is to spell out what it is about a past offense that makes punishment the appropriate response. This turns out to be much more difficult than one might expect. It is sometimes claimed, for example, that there is intrinsic good in the suffering of the guilty. Thus, the relatives of the victims of Zacarias Moussaoui had little doubt that it was appropriate that he should suffer as a result of his actions. However, while it is undeniable that this idea has intuitive appeal, it is difficult to come up with good arguments in its favor. A quick thought experiment makes this clear.

Imagine a world where punishment has no effects beyond the suffering it causes. It does not deter, nor does it rehabilitate, nor satisfy the grievances of the friends and relatives of victims, nor contribute to the general well-being of society in other unspecified ways. Does it remain right to inflict harm upon a guilty person simply because he is guilty? Retributivist theorists who are committed to the view that there is intrinsic good in the suffering of the guilty are required to respond that it does remain right. There is, of course, no rule of logic that prohibits such a response. However, it is very difficult to see how it can be argued for beyond simply asserting that it is a matter of moral intuition.

The problem here is that other people will have different intuitions about how justice is best served in this situation. They might well think it is wrong to inflict suffering on another human being if there are no positive benefits to be gained. This rather leaves the claim that there is intrinsic good in the suffering of the guilty dangling in mid-air: while it may be a coherent view, it is hard to see that there is much to be said in its favor that would lead one to support it over an alternative view.

The standard criticisms leveled against retributivism are of this general nature. They tend to show that the justificatory relation between offense and punishment is obscure. This has led some philosophers to suppose that punishment cannot be justified simply by invoking the notion of “just deserts.” However, this is not the end of the story, since it is possible that justice may be served by some other principle of punishment. The most likely candidate is probably the family of theories best described as consequentialist, or utilitarian.

Utilitarianism, originating in the work of Jeremy Bentham and J. S. Mill, is defined in its classic form by the claim that an act is morally right to the extent that it has the effect of causing the greatest happiness of the greatest number of people. Right from its inception, utilitarianism has provoked controversy and strong disagreement, but it remains one of the great traditions in moral philosophy, strongly represented in the work of contemporary philosophers such as Peter Singer and Shelly Kagan.

Utilitarian theories of punishment hold that it is right to punish an offender if the balance of happiness against unhappiness is greater than would be the case if an alternative course of action were pursued. To give a rather crude example: if by punishing Mr Putin for his crimes one maximized the total happiness of the Ukrainian (and other) people, then his punishment would be justified. Obviously, to make sense of this kind of moral calculus it is necessary to be clear about what counts as a benefit and cost of punishment (where these are defined in terms of their contribution to human happiness).

Probably the three effects of punishment that are most commonly thought to be beneficial are: that it is preventative (in the sense, for example, that for the duration of a custodial sentence the possibility of repeat offending is minimized); that it is a deterrent; and that it is rehabilitative. The costs of punishment include, but are not limited to, the suffering that is inflicted upon the offender, and, as a result, upon his friends and family. It is, of course, possible to argue about the details of any one of these aspects of punishment. Thus, one might claim that the evidence does not support the conclusion that punishment is on balance rehabilitative. There is no particular threat here to the utilitarian approach, though, since if any specific punishment has overall disutility, utilitarianism holds that it would be wrong to make use of it.

However, there is something troubling about the utilitarian claim that it is right to punish if it contributes to general happiness. The problem here issues from the fact that it treats those people to be punished as if they are simply the means to an end. On its own, this violates the Kantian imperative – by no means universally accepted, but often felt to be a sine qua non of justice – that we should always treat people “never simply as a means, but always at the same time as an end.” This is the general complaint against utilitarianism: that if one takes it seriously, one might end up throwing Christians to the lions if the amount of fun had by those laughing in the stadium results in a net gain in utility when weighed against the terrible deaths of just a few poor souls. The Kantian objection is just what most people intuit when they feel repulsed by this possibility; that is, that it is wrong simply to treat people as the means by which to secure the general happiness of others.

In the case of justice, these kinds of worries are manifested in a very specific and rather disconcerting possibility: that it might sometimes be right to punish the innocent. It is possible to illustrate this point by means of a simple story.

Suppose there had been a brutal, sexually motivated murder of a child in a particular town. Although the police were certain that it was just a random attack, it had led to an outbreak of vigilantism within the community that had resulted in injuries to a number of innocent people. During the course of their investigations, the police learn that there is a person living in the area who has a previous conviction for downloading child pornography. They know that he isn’t responsible for the murder, but also that if they plant incriminating evidence, they will be able to secure his conviction. They reason that the outbreak of vigilantism will end with his punishment, and therefore, to the extent that it promotes the greatest balance of happiness over unhappiness, that the punishment is justified.

The worrying possibility here is that utilitarianism commits us precisely to this view. This makes it vulnerable to the obvious objection that to frame an innocent person, thereby securing their punishment, is a prima facie case of injustice. However, the objection is not decisive. Perhaps the best rejoinder is to argue that it is sometimes absolutely right to perpetrate an injustice in order to secure a greater good. Indeed, it is easy enough to find real-world instances where we normally make exactly this judgment. Consider, for example, the nature of quarantine: most of us will accept that on occasion it may be necessary to seal off a geographical area in order to prevent the spread of a disease, even if people currently healthy will fall ill and die as a result. It seems then that the utilitarian can simply bite the bullet and concede that there will be instances where it is right to punish the innocent.

This slightly disturbing conclusion leads to further, similarly disturbing thoughts. Take the issue of torture: if justice is served by treating people as the means to the end of general happiness, then it seems that torture will be justified in certain circumstances – in a “ticking bomb” scenario, for example, where there is only a limited amount of time to gain information that will save the lives of many people. Indeed, Alan M. Dershowitz, the Harvard law professor, has argued that in such a situation most people would expect law enforcement officers “to engage in that time-tested technique for loosening tongues.… The real question is not whether torture would be used – it would – but whether it would be used outside of the law or within the law.” Thus, Dershowitz suggests that “torture warrants” should be established for these sorts of extraordinary cases.

Many people, including some utilitarians, find this conclusion unpalatable. There is, however, a partial escape from it, and also from the problem, if indeed it is a problem, that utilitarianism seems to justify victimization. It relies upon drawing a distinction between “act utilitarianism” and “rule utilitarianism.” Roughly speaking, the former looks at the effects of particular acts in determining rightness and wrongness, whereas the latter looks at the effects of following particular rules. Thus, a rule utilitarian may concede that in specific instances victimization or torture will likely produce an increase in general happiness, but insist nevertheless that these practices are wrong, since if they were instantiated as rules for action the effect would be unfortunate in terms of the balance between happiness and unhappiness.

This response, however, is not entirely satisfactory. Partly, there are good reasons to suspect that under close scrutiny rule utilitarianism will collapse back into act utilitarianism – the rules become so particular that they end up describing discrete acts. But also there is something counterintuitive about the idea that the only reason that it is wrong to punish an innocent person or to torture somebody is because it has the contingent effect of decreasing general happiness. If we think that such practices are wrong, it tends not to be because of their bad effects, but rather because we see human beings as autonomous, responsible subjects, the bearers of both rights and responsibilities, and think that justice demands that they should be treated as such rather than simply as means to an end.

Indeed, the utilitarian emphasis on consequences can lead one into the most bizarre kinds of speculations concerning the optimal arrangement of political and social institutions. It is not entirely implausible, for example, that in certain circumstances the principle of general happiness might best be served by appearing to punish rather than by actually punishing. Certainly, if one is confident that an offense will not be repeated, and that the deception will not be uncovered, it is not easy to see what will be gained by making an offender suffer, whereas it is easy to see what will be lost. Why not stage a pretend beating in the public square? It will increase the happiness of so many people – including the punished man, who is being spared an actual beating. In fact, a pretend beating may as well be extra-severe, because likely this will produce even more delight in its audience. Utility for all! From here it is only a small step to the conclusion that in certain circumstances real punishment is less justified than pretend punishment.

It is probably at this point that most people will begin to think that there is something wrong with philosophical argument if it can lead to this kind of conclusion. But there is a sense in which this is precisely the point of an argument of this nature. Although not quite a reductio ad absurdum, its conclusion is sufficiently counterintuitive to throw into doubt the premises from which it is derived. Opponents of utilitarianism can point to the fact that utilitarian arguments can be used to justify the pretense of punishment as evidence of the inadequacy of the utilitarian’s approach.

This thought leads us back to issues of desert – that is, to the idea, hard to shake off, that people either deserve to be punished or not depending on whether they are responsible for actions that violate moral and legal prohibitions. Thus, we find the idea of victimization unpalatable because we do not think that punishment is deserved in the absence of responsibility for an offense; and we find the idea of the pretense of punishment unpalatable because we think that punishment is deserved, in normal circumstances at least, where there is responsibility for an offense.

There is perhaps the hope that it is possible to reconcile the retributive impulse – that justice means punishment for those who deserve it – with the utilitarian demand that we should punish only when its effects produce a net gain of happiness. Not surprisingly, there are “compromise theories” that attempt to do precisely this. For example, H. L. A. Hart has argued that the justification for the general practice of punishment ought to be utilitarian; that is, as a social practice punishment is justified if on balance it has good effects, normally the overall reduction of crime. However, the justification for the punishment of any particular person – that is, the distribution of punishment – ought to be retributive, at least in a negative sense; that is, we should only punish offenders for offenses.

This kind of side-constrained theory – side-constrained in the sense that utilitarian concerns are subject to a retributivist test in determining whether particular punishments are justified – is certainly more satisfactory than either pure retributivism or pure utilitarianism. However, there still lurks the nagging suspicion that the notion of desert, upon which the retributivist account rests, has not been properly worked out. As we noted earlier, it seems obvious that if a person commits a terrible crime he deserves to be punished for it. However, it is not an easy position to argue for; indeed, when we considered one such argument, the idea that there is intrinsic good in the suffering of the guilty, it quickly became clear that moral intuition, not normally the stuff of grounded philosophical argument, played a large part in its justification.

There are, of course, other arguments in favor of desert and retributivism more generally, but they are all far from persuasive. Indeed, the late Oxford philosopher J. L. Mackie said of arguments commonly employed to support retributivism that they are the “philosophical analogues of the sort of opponents that a chess player would like to have if he were going to play, blindfold, a dozen or so opponents at once. Each of them can be dispatched, with ease, in a very few moves.” He concluded that “retributive principles cannot be defended, with any plausibility, as allegedly objective moral truths.”

If this is right, it does not follow that one cannot account for the existence of retributive feelings. Mackie, for example, employed Darwinian principles in order to explain their ubiquity and persistence. His argument was roughly this: individuals achieved an evolutionary advantage to the extent that resentment of injuries became a deeply ingrained psychological disposition in their personality structures; this disposition was then universalized for broadly sociological reasons, so that certain harms came to be cooperatively resented, which is the mark of retributivism generally. Thus, he argued that “retributive attitudes can be readily understood and explained as sentiments that have grown up and are sustained partly through biological processes, and partly through analogous sociological ones.”

It’s likely that Mackie’s account is imperfect. However, it is not at all implausible that human beings are wired up to detect and resent harms, and that this constitutes the wellspring of retributive feelings. Certainly, we already understand perfectly well that the desire for retribution – or, less charitably, revenge – is often overwhelming. That many of the relatives of the victims of 9/11 expressed the hope that Zacarias Moussaoui would suffer for what he did is not in the least surprising. Indeed, if, en masse, they had expressed hopes to the contrary, we would have suspected that something strange was afoot. The corollary of this point is that when people do come to forgive those who have done them great harm, we often find them admirable, precisely because we understand that they are in a way acting contrary to human nature. Thus, we are likely to think that Heather Saunders, whose husband was shot in Athens, showed commendable restraint when she insisted that she never thought that his murderers should be put up against a wall and shot, simply that they should be “locked up for a long time to keep other people safe.”

The idea of justice remains elusive in all this, certainly when it comes to the principles of punishment. If it is not possible to justify retributive principles (even if they can be explained), yet we find that we cannot think about the issue of punishment without recourse to them, then we’re a long way from being able to claim that justice is served by our desire to see the guilty jailed, or worse. It might be true, as Ted Honderich suggests, that our grievances are satisfied by so acting, but it does not follow that we thereby act morally or in a way that should make us feel comfortable. There must surely be more to justice than simply acting in accordance with our evolved psychological dispositions – more to justice than just doing what we want to do.