Friday, March 18, 2005

What's Retribution, and What Isn't

Robert Jubb, commenting on the previous post, asks just what it is I'm "ruling out by reference to vigilantism and personal retribution" given that I acknowledge that retribution can have a legitimate, collective role to play in the administration of a criminal justice system. In his view, I'm not saying anything which would prevent the legalization of torture, since that's not personal retribution--and as he sees it, both torture a victim and a victim's participation in the conducting of such are "obviously wrong."

I suppose it was problematic to bring up both the question of torture and the question of personal vengeance in the context of Eugene Volokh's original comment; as Scott points out on Rob's blog, there is a very clear category difference between the legal acceptance of personal retribution and of torture, one premised upon "mental state" (or mens rea) involved in each. State sanctioned torture may well be appalling for a host of reasons (I certainly am opposed to it), but it isn't necessarily appalling because it tolerates a vengeful mindset; by making torture a purposeful part of a criminal justice system, you excuse the issue of the mental state of the torturer, because he's doing his legally recognized job. (The same way that a doctor performing a tracheotomy, or a jailer locking a convict in a cell, are not going to be accused of having stabbed someone in the neck or imprisoned someone against their will, even though both of those descriptions are accurate, because assuming they do their jobs correctly we do not consider anything criminal about their motivations.) My post was an argument against incorporating the retributive, "vengeance" mindset beyond a certain point in matters of punishment, not against the forms such retribution could ever possibly take under any given legal system. In practice, I strongly suspect that most forms of torture, however justified and sanctioned, can never escape the kind of bloody-minded pleasure and anger that is exactly at the heart of the desire of victims to exact retribution upon those who hurt them, and consequently the desire to keep personal retribution, in the form of torture, mostly out of the criminal justice system can be articulated under the terms of my original post. But formally speaking, Rob's right: I'm arguing against victims personally torturing and/or violently punishing those who caused them harm, not against torture and/or violent punishment as such.

I think a major hang-up which prevents people from recognizing both these distinctions and these parallel concerns is the reluctance so many people have to admit the social or collective aspect to retribution. There can be (and should be) serious attention paid to the affective value which people draw from and manifest through the social body they are a part of; a social body which insists that punishment is finally simply a matter of individual treatment and utilitarian calculation (this guy causes X amount of harm to Z number of people; what is the most efficient way to rectify this imbalance?) is one that people cannot, in the end, have much love for, or trust in, and hence will withdraw their support from. "Retribution" against those who violate that which a political body, on whatever moral or religious or social level, is presumed to sustain isn't "vengeance" so much as an ordering (or re-ordering); to take that order as a legitimate concern of how one punishes malefactors is the right thing to do, even if it does lead one into complicated questions about victims or victims' families confronting those accused or convicted of having done them or their family harm, or the administration of other such "public" measures of exposure, denouncement, and expressive contempt. None of this necessarily legitimizes torture, though as I said above, the desire to personally torture or hurt those who hurt you (or to do so on behalf of such persons) would likely play a huge role in any actually sanctioned torture regime, and thus becomes a practical argument against anything beyond very minimal forms of it. (I'm thinking here about chain gangs, scarlet letters, corporal punishment, and all sorts of other measures which use shame and/or pain as a public expression of retributive emotions, about which there is a robust debate.) But in any case, drawing the line against torture does not, and should not, require that the retributive sensibility--assuming it is conducted in terms conducive to public order--need be denied any place whatsoever.

All I'm saying, I guess, is that I agree with Mark Kleiman's framing of the problem, and disagree with Matt Ygelsias's. So read both of them too.

2 comments:

Anonymous said...

Russell,

thanks for this, and for the comments on my blog. Because it's not an area I've read very much on, or have even thought very much about, I'm a bit shaky on exactly what I want to say about it, particularly about the proper role of retribution in punishment, especially if we separate compensation from retribution. I think, as I've said in the comments on my post, that if anything, I'm holding a stronger version of a connection between intention and action than Scott. I think I want to claim that the failure to take seriously someone's humanity is a necessary and intended correlate of torture: torture just is the intention to undermine that humanity. Anyway, thanks again.

Oh, and it's Jubb, not Judd.

Rob 

Posted by Rob

Anonymous said...

a social body which insists that punishment is finally simply a matter of individual treatment and utilitarian calculation (this guy causes X amount of harm to Z number of people; what is the most efficient way to rectify this imbalance?) is one that people cannot, in the end, have much love for, or trust in, and hence will withdraw their support from.  

Really? I'm not so sure this is the case.

The people will not love or trust executives who seem personally bloodless -- like Dukakis, who lost their support -- but I have a bit more faith in their ability to understand the Jeffersonian traditions of civil liberty, if only the requirement is first met for the executive to express personal charisma. (An analogue of Maslow's hierarchy of psychological needs: once the ones on the bottom are met, the more refined ones can be met, but one cannot go out of sequence.)

Imagine the following hypothetical: President John McCain explaining to the nation exactly why he would commute all death sentences during his administration to life imprisonment. I think the conservative swing voters would respect that a great deal. (As would world opinion. Do the Danes withdaw support from their government because it is too humane to prisoners?)

By acknowledg(ing) that retribution can have a legitimate, collective role to play in the administration of a criminal justice system I think you are setting yourself an impossible task. I don't think you need to set yourself this task. 

Posted by pierre