Is Retribution Worth the Cost?

Posted in: Criminal Law

As a college student, I learned of four goals that animate the criminal justice system. The first is deterrence: knowing that your crime resulted in a prison sentence could motivate others to follow the law. The second is incapacitation: a prison will restrain a convicted criminal from repeating his offense, at least against the free population while he remains incarcerated. The third is retribution: imposing deserved suffering on the convict is appropriate. The third, in turn, helps to satisfy the people who might otherwise have taken the law into their own hands to punish a criminal who has hurt them or their loved ones personally. And the fourth is rehabilitation, which relies on an optimistic (many would say naïve) view of human nature and the capacity and willingness of people with a criminal history to change. Some types of criminal justice arrangements could do a better or worse job of supporting the various goals. But I never saw the four as antithetical to one another.

If we incarcerate a convict in prison, I thought, we thereby protect the public both by giving would-be predators a reason to obey the law and by restraining the most dangerous people. In order to work well as a deterrent, moreover, incarceration must be unpleasant enough to impose just deserts on the criminal. And while rehabilitation is rare, a prison sentence might give some unusual convicts an opportunity to contemplate what they have done and why it is wrong. By expressing the community’s judgment of their behavior, a prison term could perhaps inspire an occasional criminal to think, “I must have done something very wrong to have received this penalty.”

Since college, I have come to a very different conclusion about the pursuit of these goals. Some of them are almost completely incompatible with the others, and we accordingly have to decide as a society which to pursue.

Consider what happens when our system charges a man with aggravated assault. If the jury convicts, what then? Generally we exact retribution against the assailant. A convict can expect, moreover, that in addition to a loss of liberty, his penalty may include rape by his fellow inmates and perhaps a beating at their hands as well. The prevalence of prison rape jokes suggests, among other things, that the public is quite comfortable with embracing retribution as a central goal of criminal justice.

Does retribution preclude deterrence? Probably not. There is powerful evidence that the deterrent potential of the law depends primarily on the likelihood of apprehension, though, rather than on the severity of the penalty. The BPL negligence formula that Judge Learned Hand announced in the 1947 Carroll Towing case is helpful here. Under BPL, a civil defendant’s behavior is negligent if the burden (or cost) of behaving differently to avoid the loss would have been less than the probability of that result multiplied by the size of the loss to be avoided. Deciding what should have happened thus depends in part on the P, the apparent likelihood before the fact, of the harmful event coming to pass. From the perspective of the would-be assailant, I would imagine (and the evidence shows) that even the harshest punishments would deter the behavior only if the P is great enough. When the odds of punishment are slim, when assault victims are reluctant to report because they feel shame or fear disbelief, the P is low. A punishment might be twenty years in a maximumsecurity prison, but if the assailant is confident of evading conviction and maybe even arrest, then the law will have little deterrent impact on him.

Perhaps the greatest compatibility gulf, however, lies between retribution and rehabilitation. When a criminal believes that a guilty verdict will result in harsh retribution, then a number of things happen. First, he becomes defensive. He feels like he is the victim because someone is trying to lock him up and make him suffer. The natural response to the perception of victimization is to defend oneself, to do what one can to avoid the State’s attempts to exact revenge. He might accordingly lie and say that he is innocent. An acknowledgment that he did what he stands accused of doing is improbable in an adversarial setting where the State aims to win. The offender will predictably strive to win as well. Chances are that even after a jury convicts or the defendant pleads to a lesser charge, the latter will continue to maintain his innocence as an inmate and then after release. He will remain the aggrieved in his own narrative. None of this behavior is conducive to remorse or rehabilitation. So long as a person denies his crime and portrays himself as an innocent victim, he’ll lack the foundation for feeling any guilt in connection with his conduct.

One alternative to harsh penalties for crime is restorative justice. The Truth & Reconciliation Commission in South Africa engaged in restorative justice, and Until We Reckon, by Danielle Sered, discusses how that process has worked in our own country. In cases in which a victim is willing to sit down with the offender and talk about what he did to her and why it was wrong, such conversations or mediations can lead to a much more satisfying outcome. The convict is happy because he receives a lighter sentence, and the victim feels better because she hears an acknowledgment of the offender’s misconduct and has some hope that she has played a role in protecting potential victims like her from the person who harmed her. This conversation may never take place if perpetrators have to serve extremely long sentences.

Two Potential Problems

A problem with the restorative justice approach is that many people want to see offenders face harsh penalties. The United States may impose some of the most punitive sentences in the world. We tend to view crime in individualistic terms. If you commit a serious crime, it is because you have made a bad decision and deserve whatever punishment comes your way. We all have free will, and we therefore deserve the good things that we earn through our hard work and skill and likewise deserve the bad things that happen to us to penalize the evil that we commit. Under this perspective, the person who avoids a harsh punishment by saying he is sorry is beating the system, doing the crime without doing the time. Restorative justice has more of a role to play if we understand behavior as at least partly determined by one’s upbringing and circumstances. Perhaps some of us do evil things because we do not understand the impact that our actions might have on our victims. Maybe an overly harsh approach ignores the role of education and human connection in shaping what people do and who they are. Restorative justice has promise. It may well be that a person who does not “deserve” our mercy can become a safe individual to rejoin society precisely because we grant him something to which he is not entitled. If restorative justice works, as some studies suggest it does, then we need to ask ourselves whether insisting on harsh retribution is truly worth the cost in lives and wellbeing. Sometimes we forgive other people, not for their sake but for our own.

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