capitalism

430 Retribution for Crime
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 libertarian
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 supporting 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.”